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~' ~ ~ .~ <br />.~ <br />/ <br />hollor fills. Colorado Rnle 4.10 requires in part that the <br />' disposal area far coal sine raste shall be constructed in <br />. compliance rith Rule 4.09.1 (General kegnireseats concerning <br />disposal gf excess spoil) and Rule 4.09.2 (Valley Fill), except to <br />the extent that the requirements of those subsections are varied is <br />kale 4.10.4. A review of these recuiationa indicates that various <br />sections rithia these rules are contradictory. <br />Through a Department of Interior aaministrative hearing, <br />Clinchfield Coal Co. vs OSKRE, No. NX-5-39-R, the administrative <br />lay judge upheld thac case lav sad general legal principles have <br />consistently adhered.to the position, that. in the_abseace~of any <br />lanquage_to. the._contrarp, a specific statutory or_requlatory/~` <br />regnirement.takes precedence over any conflictinq.general' <br />provisions,; D. Ginsbero and Son. Inc. vs Pookins, 285 L'.S. 204 <br />(1932); 2A Sutherland, Statutory Construetioa (4th ed. C. Sands <br />1984) 47.17. OSHRE believes, based upon this decision, that one <br />should interpret the regulations so that if the alternate <br />specifications of the general requirements contradict the specific <br />requiremeata of the regulation, then, the specific reguiremea[s <br />take precedence over any conflicting general provisions. <br />The current Federal regulation, 30 CFR 816.71/817.71, alloys greater <br />flexibility than the previously promulgated Federal regulations. <br />The Federal regulation at Section 816.71 (e)(2)/817.71ie)(2) <br />states that "access spoil shall be transported and placed in a <br />• controlled moaner in horizontal lifts not exceeding 4 feet in <br />taicitness; conczrrently compacted as necessary to ensure mass <br />stability and to prevent mass movement during and after <br />construction; graded so that surface and subsurface drainage is <br />compatible with the natural surroundings; and covered vith topsoil <br />or substitute material in accordance vith Section 816.22 of this <br />chapter. The regniatory authority (RA) may approve a design that <br />incorporates placement of excess spoil in borizontai lifts other <br />than 4 feet in thicimess *, and vi11 meet all other applicable <br />requirements." Thns, OSHRE's greater flexibility applies only to <br />the horizontal lifts standards of 4 feet. <br />Colorado's implementation of these "alternative specifications," <br />Rule 4.09.1(]), could result in placement gf excess spoil in <br />nonharizontal lif*_s; that is, (1) the use of cad-dumping that <br />results in particle-size segregation, nonuniform compaction, sad <br />lateral slip plane formation; or (2) the construction of lifts <br />along or vith the slope of the foundation. Neither of these are an <br />acceptable engineering practice of embankment coastruc=ion of <br />nondurable rock fills nor are they in conformance with the current <br />Fefleral regulations that require material to be placed in <br />horizontal lifts. <br />In order to construct a structurally stable and eaviroameatally <br />sound excess spoil fill, the moisture crontent and density of the <br />emaan)®ent material must be controlled by placement in a controlled <br /> <br />