COALEX STATE INQUIRY REPORT - 92
October 20, 1987
Clint Milne
Mining and Minerals Division
New Mexico Energy and Minerals Department
525 Camino de los Marquez
Santa Fe, New Mexico 87501
TOPIC: SMALL AREA EXEMPTIONS
INQUIRY: 30 CFR Sec. 816.46(e) creates an exemption from the requirement that an operator
construct siltation structures if, among other things, the disturbed drainage area is "small". Has
Congress or OSM attempted to define the meaning of the work "small" as used in this context?
SEARCH RESULT: Section 816.46 of the federal regulations requires that treatment facilities be
constructed to establish and maintain sediment control on a permitted area. Under Sec.
816.46(e), exemptions to this requirement may be granted if (1) the disturbed drainage area
within the total disturbed area is "small"; and (2) the operator can demonstrate that siltation
structures and other sediment control measures are not necessary for drainage from the area to
meet effluent limitations established under Sec. 816.42 and applicable state and Federal laws.
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This "small area exemption" is not specifically enunciated in SMCRA, therefore, no pertinent
legislative history on the meaning of the work "small" is available. OSM included this exemption
when it promulgated the original regulations in 1978 concerning the use of siltation structures to
control surface runoff. These regulations were authorized by Sec. 515(b)(10)(B) of SMCRA, which
requires the operator to minimize the disturbances to the prevailing hydrologic balance by
"conducting surface coal mining operations so as to prevent...additional contributions of
suspended solids to streamflow, or runoff outside the permit area" and to "construct any siltation
structures...prior to commencement of surface coal mining operations." From this language, it is
apparent that Congress left the development of specific siltation control measures to the
discretion of the regulatory authority.
The language of Sec. 816.46(e) has not been altered since it was originally developed by OSM
in 1978. In the preamble to the final rules as published in 1979, OSM made no attempt to
specifically define "small"; instead, it appears that the determination of whether an area is "small"
is to be left to the discretion of the regulatory authority.
This assertion is bolstered by OSM's response to comments made on this section. In the 1979
preamble, OSM considered modifying the exemption to require that the area be "small relative to
the size of the ponds which would have to be constructed to comply with Sec. 814.46", but
rejected such a modification, noting:
"The Office considers this modification to the proposed exemption to be unnecessary, because
the language of the more general exemption provides greater latitude for a determination of what
is small' and also meets the intent of the Office to recognize that, on isolated corners of
operations, the building of sedimentation ponds may not be necessary to meet effluent limitations
or water quality requirements and may create more deleterious effects to the local hydrologic
system than the mining disturbance itself." (44 FR 14901, 15152 (1979))
As was noted earlier, the language of this exemption has not been altered since its adoption.
Thus, the determination of whether an area is "small" is left to the discretion of the regulatory
authority.
An earlier COALEX Report dealt with the meaning of a related topic: the definition of "small
depression" as it is found at 30 CFR Sec. 816.102. A copy of the Report and its documentation
are attached.
ATTACHMENT
A 44 FR 15152 (1979).
B COALEX STATE INQUIRY REPORT - 83, "Small depressions".
Search conducted by: S. Michele Manning
