[Federal Register Volume 72, Number 10 (Wednesday, January 17, 2007)]
[Proposed Rules]
[Pages 2136-2166]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-453]
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Part III
Department of the Interior
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Office of Surface Mining Reclamation and Enforcement
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30 CFR Parts 701, 786, and 829
Abandoned Coal Refuse Sites; Proposed Rule
Federal Register / Vol. 72, No. 10 / Wednesday, January 17, 2007 /
Proposed Rules
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Parts 701, 786 and 829
RIN 1029-AB70
Abandoned Coal Refuse Sites
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
(OSM) propose to amend our regulations to comply with the Energy Policy
Act of 1992 (EPAct). The EPAct requires the Secretary of the Interior
(Secretary) to develop regulations establishing environmental
performance and reclamation standards for abandoned coal refuse
remining operations. These standards must distinguish between refuse
removal operations and on-site refuse reprocessing operations and must
be premised on the distinct differences between removal operations, on-
site reprocessing operations, and other types of surface coal mining
operations. The Secretary may devise different performance standards
than any of those set forth in sections 515 and 516 of the Surface
Mining Control and Reclamation Act of 1977 (SMCRA), and separate permit
systems if the Secretary determines, on a standard-by-standard basis,
that a different standard may facilitate refuse removal and on-site
refuse reprocessing operations in a manner that would provide the same
level of environmental protection as under sections 515 and 516. We are
proposing changes to our rules that respond to the EPAct's
requirements.
DATES: Written comments: Comments on the proposed rule must be received
on or before 4:30 p.m. Eastern Time on March 28, 2007, to ensure our
consideration.
Public hearings: Upon request, we will hold a public hearing on the
proposed rule at a date, time, and location to be announced in the
Federal Register before the hearing. We will accept requests for a
public hearing until 4 p.m., Eastern Time, on February 7, 2007. If you
wish to attend a hearing, but not speak, you should contact the person
identified under FOR FURTHER INFORMATION CONTACT before the hearing
date to verify that the hearing will be held. If you wish to attend and
speak at a hearing, you should follow the procedures under ``III.
Public Comment Procedures'' in the SUPPLEMENTARY INFORMATION section of
this document.
ADDRESSES: You may submit comments, identified by docket number 1029-
AB70, by any of the following methods:
E-Mail: [email protected]. Include docket number 1029-AB70
in the subject line of the message.
Mail: Office of Surface Mining Reclamation and
Enforcement, Administrative Record, Room 252-SIB, 1951 Constitution
Avenue, NW., Washington, DC 20240.
Hand-Delivery/Courier to the OSM Administrative Record
Room: Office of Surface Mining Reclamation and Enforcement,
Administrative Record, Room 101-SIB, 1951 Constitution Avenue, NW.,
Washington, DC 20240.
Federal e-Rulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
For detailed instructions on submitting comments and additional
information on the rulemaking process, see ``III. Public Comment
Procedures'' in the SUPPLEMENTARY INFORMATION section of this document.
If you wish to comment on the information collection aspects of
this proposed rule, submit your comments to the Office of Management
and Budget, Office of Information and Regulatory Affairs, Attention:
Interior Desk Officer, via electronic mail, to [email protected]
or via telefacsimile at (202) 395-6566.
FOR FURTHER INFORMATION CONTACT: Andy DeVito, Office of Surface Mining
Reclamation and Enforcement, MS-252-SIB, U.S. Department of the
Interior, 1951 Constitution Avenue NW., Washington, DC 20240;
Telephone: 202-208-2701. E-mail: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
A. The Energy Policy Act
B. Outreach Summary
C. Identification of Distinct Differences Between Abandoned Coal
Refuse Remining Operations and Other Surface Coal Mining Operations
D. Coal Refuse
E. Coal Refuse Distribution
F. Coal Refuse Utilization
G. Existing Regulation of Coal Refuse
H. Abandoned Mine Land Reclamation Projects
I. National Pollutant Discharge Elimination System (NPDES)
Program
II. Discussion of the Proposed Regulations
A. Standard-by-Standard Review of SMCRA Performance Standards
B. Special Permit System for Abandoned Coal Refuse Remining
Operations
C. Proposed Regulations
III. Public Comment Procedures
IV. Procedural Matters
I. Background
A. The Energy Policy Act
Section 2503 of the Energy Policy Act of 1992 (EPAct), Public Law
102-486, Title XXV, addresses coal remining and directs promulgation of
the abandoned coal refuse regulations proposed by this rulemaking.
Sections 2503(a) through (d), respectively, amend the Surface Mining
Control and Reclamation Act of 1977, 30 U.S.C. 1201 et seq. (SMCRA), to
address permit blocking under section 510(c) of SMCRA (30 U.S.C.
1260(c)), modify revegetation responsibility periods at section
515(b)(20) (30 U.S.C. 1265(b)(20)), add definitions at section 701 (30
U.S.C. 1291) for ``lands eligible for remining'' and ``unanticipated
event or condition,'' and revise Abandoned Mine Land (AML) eligibility
at sections 402(g)(4) and 404. Regulations implementing these amended
SMCRA provisions were proposed and later codified in a final rule. 60
FR 58480 (November 27, 1995).
Section 2503(e) of the EPAct, which was codified at 30 U.S.C.
1251a, amends SMCRA by adding a new section for Abandoned Coal Refuse
Sites that focuses solely on the remining of abandoned coal refuse
sites. This proposed rulemaking is intended to implement the general
directive of section 2503(e)(1) requiring the Secretary to issue
regulations establishing environmental protection performance and
reclamation standards, and separate permit systems, applicable to
operations for the on-site reprocessing of abandoned coal refuse and
operations for the removal of abandoned coal refuse. Coal refuse,
discussed in greater detail below, is the waste resulting from the
cleaning of mined coal. Abandoned coal refuse sites are lands on which
refuse was placed prior to the passage of SMCRA, and that were not
adequately reclaimed when mining was completed. Abandoned coal refuse
sites are eligible for reclamation under Title IV of SMCRA using money
from the Abandoned Mine Land Fund when available.
Section 2503(e)(2) further directs that the standards and permit
systems referred to above distinguish between those operations that
reprocess abandoned coal refuse on-site, and those operations that
completely remove abandoned coal refuse for direct use or for
reprocessing at another location. The term ``reprocessing operations,''
as used throughout this rulemaking, is limited to on-site reprocessing
since any reprocessing at a site other than an abandoned coal refuse
site would be regulated under existing 30 CFR part 827 and would not be
a part of this
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rulemaking. The standards and permit systems authorized by section
2503(e) are to be premised on the distinct differences between
operations for the on-site reprocessing, and operations for the
removal, of abandoned coal refuse and other types of surface coal
mining operations. Section 2503(e)(3) authorizes the Secretary to
devise different standards from those in sections 515 and 516 of SMCRA
(515/516), and devise a separate permit system, if the Secretary
determines on a standard-by-standard basis, that a different standard
may facilitate the on-site reprocessing, or the removal, of abandoned
coal refuse in a manner that would provide the same level of
environmental protection as under sections 515/516.
Finally, section 2503(e)(4) requires the Secretary to submit a
report to the Committee on Interior and Insular Affairs (subsequently
renamed the Committee on Natural Resources) of the United States House
of Representatives, and to the Committee on Energy and Natural
Resources of the United States Senate. The report must be submitted not
later than 30 days prior to the publication of proposed regulations and
must contain a detailed description of any environmental protection
performance and reclamation standards, and separate permit systems,
devised pursuant to that section. The report has been submitted and is
available for review as part of our administrative record for this
rulemaking.
In response to these provisions of the EPAct, we are proposing a
separate set of performance standards for operations that reprocess
abandoned coal refuse on-site and/or remove the refuse from the site.
These proposed performance standards are intended to provide the same
level of environmental protection as under sections 515/516 of SMCRA,
while facilitating the on-site reprocessing and/or removal of abandoned
refuse. In the course of developing our regulations, we also considered
the appropriateness of developing separate permit systems for both on-
site reprocessing and removal operations. However, our consideration of
this issue did not identify sufficient differences between the
requirements applicable to on-site reprocessing and removal operations
to warrant separate permit systems for each of these two types of
refuse operations. Therefore the proposed regulations provide for a
single permit system to address both on-site reprocessing and removal
operations.
The requirements that we are proposing for the permit information
in Part 786 and for the performance standards in Part 829 are in some
instances different from existing permit information requirements or
performance standards. However, the proposed rule is not intended to
result in a weakening of the environmental standards but rather to
reflect the difference between coal refuse remining operations and
other coal mining operations. For example, we do not universally
include the monitoring requirements for surface and ground water found
in Part 780. However, our part 786 proposal related to water monitoring
data for coal refuse removal operations reflects that some data
requirements are not appropriate for reasons we discuss, or because
similar kinds of data are expected to be readily available as part of
the National Pollutant Discharge Elimination System program authorized
under the Clean Water Act, 33 U.S.C. 1251, et seq. As you review the
rule, we specifically request comments on whether the environmental
standards are appropriately modified to reflect the unique nature of
remining operations.
The following discussion provides additional background on
abandoned coal refuse and the information used in developing the
proposed regulations.
B. Outreach Summary
We conducted an extensive outreach program to solicit comments,
concerns and ideas for regulatory changes with regard to implementing
the provisions of section 2503(e) of the EPAct. The initial outreach,
completed in the early months of 1993, consisted of two components. The
first component consisted of telephone contact and written follow up
with representatives of industry, the States, and with environmental,
citizen, and conservation organizations and groups. The second
component of the outreach consisted of visiting three active coal
refuse operations in West Virginia, Pennsylvania, and Illinois with
representatives of the States, industry, and citizen/environmental
groups and again soliciting comments, concerns, and suggestions. We
identified and analyzed the issues that were raised during the 1993
outreach.
In 1997 and 1998, we conducted outreach with selected members of a
remining task force of State and Federal coal mining and Clean Water
Act regulators whose charge was to identify ways to increase AML
reclamation through remining activities. A number of the same comments
and concerns as were recorded during the 1993 outreach were raised and
discussed during this latter outreach. Further, we attempted to develop
preliminary regulatory language with this group based on their
collective experiences with coal refuse.
The outreach efforts were comprehensive. All information pertaining
to the outreach activities, with particular emphasis on the 1993
analysis of issues, was reviewed and carefully considered in preparing
the current proposal. Because there have been no statutory changes to
SMCRA and no regulatory developments that could impact the regulation
of coal refuse operations since passage of the EPAct in 1992, we
believe that additional outreach prior to the publication of the
proposed regulations was not called for. Once the proposed regulations
are published in the Federal Register, members of the public will have
the opportunity to submit written comments and make oral presentations
at a public hearing if they so desire.
C. Identification of Distinct Differences Between Abandoned Coal Refuse
Remining Operations and Other Surface Coal Mining Operations
Before discussing the differences between abandoned coal refuse
remining operations and all other surface coal mining operations, we
need first to briefly discuss the relationship between remining
operations and other surface coal mining operations. For this purpose,
there are two major types of surface coal mining operations:
1. Operations that mine coal from sites on land that has not been
disturbed by previous coal mining operations, popularly called ``virgin
operations;'' and
2. Operations that mine coal from sites on land that has been
disturbed by previous coal mining operations, popularly called
``remining operations.'' Sites that were mined before the passage of
SMCRA in 1977 may, or may not, have been adequately reclaimed.
Unreclaimed sites and sites that were not reclaimed to the standards
later set forth in SMCRA are popularly called ``abandoned sites'' and
are eligible for reclamation under the AML program, codified at 30 CFR
Subchapter R-Abandoned Mine Land Reclamation.
In turn, remining operations fall into two major categories:
1. Operations that mine coal in its original geologic location (the
mining of prior underground workings after the overburden has been
stripped away and the taking of additional mining cuts from an existing
highwall are both examples of remining operations that mine coal in its
original geologic location). Remining operations that mine coal in its
original geologic location have the potential to remove or
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otherwise disturb rock strata that serve as aquifers.
2. Operations that mine coal not in its original geologic location
(coal refuse removal and coal refuse on-site reprocessing operations
are examples of remining operations that mine coal not in its original
geologic location. This coal refuse was considered waste material at
the time that the initial mining occurred). Because abandoned coal
refuse operations do not mine coal in its original geologic location,
they do not have the potential to remove or otherwise disturb rock
strata that serve as aquifers.
As noted before, section 2503(e) of the EPAct directs the Secretary
to propose separate performance standards and permitting systems
premised on the distinct differences between operations for on-site
reprocessing and operations for removal of abandoned coal refuse, and
other types of surface coal mining operations. The most fundamental
difference between abandoned coal refuse remining operations, including
both removal and on-site reprocessing operations, and other surface
coal mining operations, relates to the nature and occurrence of the
affected coal deposit. Both types of abandoned coal refuse remining
operations mine unconsolidated piles of broken coal that have been
previously mined at other locations by surface or underground methods.
These unconsolidated piles are the residual waste product generated by
cleaning previously-mined coal at processing plants. All other surface
coal mining operations, including other types of remining operations,
remove coal from its natural undisturbed geologic location.
Another difference between abandoned coal refuse remining
operations and other mining operations is that the abandoned coal
refuse remining operations are conducted on sites that are different
from those of other surface coal mining operations in that they
generally have (1) No overburden, (2) no topsoil, (3) limited or no
revegetation, (4) a coal/rock mix of varying heating value, (5) limited
or no current beneficial land use, and (6) existing water quality
problems and other environmental degradation. Unlike other surface coal
mining operations, abandoned coal refuse remining operations will
generally disturb little, if any, previously undisturbed land outside
the abandoned coal refuse site. Also, because topsoil commonly no
longer exists, or is buried under the refuse at these sites, abandoned
coal refuse remining operations have to utilize alternative vegetation-
support material.
Because abandoned coal refuse remining operations do not have to
remove overburden in order to uncover the mineable refuse, they neither
create highwalls and overburden spoil nor remove the host rock of the
ground-water aquifers. Furthermore, because the refuse at abandoned
coal refuse sites was most often placed without regard to stability,
erosion and surface- and ground-water impacts have commonly resulted.
Therefore, almost all abandoned coal refuse remining operations have
excellent potential for improving the adverse conditions that, in most
cases, already exist at these abandoned sites. This improvement is
typically accomplished by reducing the volume of refuse and its
associated potential for acid mine drainage, stabilizing surface
conditions, and reducing the potential for refuse fires.
There are several differences between abandoned coal refuse removal
operations and on-site reprocessing operations that warrant the
distinct performance standards and permitting requirements that we are
proposing for each. Most significantly, refuse removal operations
generate little, if any, residual waste and no wet refuse waste, as
compared to that generated by on-site reprocessing operations. Further,
refuse removal operations do not require on-site reprocessing or
preparation plants with their associated process water circuits,
discharges, and ponds. Finally, most refuse removal operations will be
of shorter duration than on-site refuse reprocessing operations.
Abandoned coal refuse removal operations are comparable to coal
refuse reclamation projects done under the AML program that rework,
regrade, and revegetate abandoned coal refuse sites in order to
eliminate fires and other safety hazards, to stabilize the affected
areas, or to reduce off-site environmental degradation. However, unlike
abandoned coal refuse AML projects, which are selected for reclamation
based on the seriousness of the site hazards or environmental
degradation, coal refuse removal operations always reduce the volume of
refuse and are selected for mining based on the heating value of the
refuse. On the other hand, refuse on-site reprocessing operations are
more comparable to off-site preparation plants, which are regulated
under the performance standards of 30 CFR part 827 (Coal Preparation
Plants Not Located Within The Permit Area), than to other surface coal
mining operations. However, on-site reprocessing operations, unlike
off-site preparation plants, typically reduce the volume of refuse at
the site, and typically affect very little, if any, previously
undisturbed land.
D. Coal Refuse
As used here, ``coal refuse'' refers to the solid material
resulting from the deposition in piles of coal mine waste or refuse
previously generated during coal processing that separates coal from
unwanted physical or chemical impurities. The primary objectives of
coal processing are to (1) Clean the coal by separating out rock,
earthen materials, and other noncoal material; (2) reduce the ash and
sulfur content; (3) increase the heating value, expressed in British
thermal units (Btu); and (4) provide a product sized to the consumer's
specifications. While coal processing historically used only mechanical
means to separate out the unwanted materials, because of technological
improvements, coal processing now can use liquids with different
specific gravities to separate lighter coal from the heavier non-coal
rock or earthen materials. In a typical modern coal processing plant,
raw coal is fed through a mechanical breaker or crusher, which reduces
the coal to a more uniform size and makes an initial separation of rock
from the coal by exerting enough force to crush the coal but not the
harder rock. The resultant product is then passed through screens,
shakers, vibrating tables, cyclones, and/or other heavy-medium
separators where turbulence is created to float the coal and to sink
the rock. Such heavy-medium separators utilize a great deal of water,
and commonly need considerable land area for associated ponds and
slurry cells.
Over the years, the percentage of the annual United States coal
production that has been processed in this fashion has fluctuated
significantly. This percentage increased steadily from 1920, when less
than five percent of the coal mined was mechanically cleaned, to 1948,
at which time about 30 percent of the total coal production was
processed. From 1948 to 1961, coal production declined drastically, but
the percentage of processed coal increased to nearly 66 percent. From
1961 to 1977, the year SMCRA was enacted, annual coal production
increased from 403 to 691 million tons. This increase was entirely
attributed to an increase in surface mining production. At the same
time, the percentage of coal being processed by mechanical and liquid
means declined to 34 percent. This decrease in the percentage of coal
being processed occurred because (1) Coal mined by surface mining
methods normally contains less non-coal material, therefore requiring
less
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processing than underground-mined coal; and, (2) only a relatively
small amount of coal used for power generation was being processed in
order to limit sulfur emissions.
The residue from coal processing is called ``coal processing
waste,'' or ``coal refuse,'' and varies physically and chemically,
depending upon the coal source and the process method used. Depending
on the degree of size reduction achieved at the processing plant, coal
refuse may vary between coarse (+28 mesh) and fine (-28 mesh). Usually,
the coarse refuse was disposed of in an embankment or landfill, while
the fine refuse was impounded in slurry ponds or run through vacuum
filters and the resultant filter cake mixed with coarse refuse for
disposal. Because many of the older processing plants did not include
systems to recover fine coal, a large number of refuse slurry ponds and
coal refuse piles contain materials with a relatively high Btu content.
These refuse materials also contain pyritic rock and other impurities
that are primarily associated with the formation of acid mine drainage
(AMD) and are often referred to as ``acid-forming materials.'' Under
this proposed rule, removal operations would physically remove acid
forming materials from the site thus reducing or eliminating the
potential for AMD. In contrast, on-site reprocessing operations would
retain the acid forming materials on site but place them in an
environmentally stable configuration that would minimize surface water
infiltration and exposure to air. This required placement would further
reduce the potential for AMD.
E. Coal Refuse Distribution
Over three billion tons of coal refuse were deposited on surface
lands prior to the enactment of SMCRA. Virtually all of this coal
refuse has some heating value. However, depending on the sophistication
of the original coal cleaning process that produced the refuse, the
heating value of the refuse varies widely.
In the late 1990s, we sought to obtain factual information on coal
refuse piles such as their size and number, coal resources available,
and potential environmental enhancements that might be achieved from
the remining of the piles and subsequent reclamation of the site. The
agency anticipated that the results from such a study could be utilized
in a coal refuse rulemaking in lieu of mostly anecdotal information
that then existed. Accordingly, we funded a coal refuse
characterization study conducted by the National Mine Land Reclamation
Center at West Virginia University. The study included collecting site-
specific field data on the chemical and physical properties of coal
refuse piles that were less than 25 acres in size, assembling
information from State inventories of refuse piles, and using these
data to prepare estimates of coal resources and potential environmental
gains that might be realized from the remining of those sites. We chose
the 25-acre size limitation for the study because of the enormous
number of piles of that size or less, scattered throughout mining
communities and the fact that their removal would provide a relatively
quick and dramatic improvement to nearby communities. The study also
explored the uses of coal refuse and the differences between refuse
pile removal operations and coal mining operations on previously
undisturbed lands. The study contained projections of coal resources
and potential environmental enhancements for all abandoned coal refuse
sites as well as those sites that were classified as small sites (less
than 25 acres). Although the findings of the study did not reflect the
entire universe of abandoned refuse piles, we believe the findings also
shed light on the benefits that might be realized by remining larger
piles.
The final report on this study was provided to us on August 11,
1999, and was titled ``Physical and Chemical Characteristics of Small
Coal Refuse Piles.'' The report provides data and projections that
indicate more than 2000 refuse sites exist (in Alabama, Illinois,
Kentucky, Ohio, Pennsylvania, Virginia and West Virginia), covering
approximately 37,000 acres. More than 50% of the area covered by this
coal refuse has economically mineable coal amounting to approximately
518 million tons. If all of this mineable coal were removed, acid-
producing material capable of generating 30 million tons of acid would
also be removed, thus preventing it from leaching into and further
degrading local ground and surface water. Some of the other
recommendations and conclusions in the report include:
1. The refuse piles constitute an economic resource--many piles can
yield coal for fluidized bed combustion, off-site processing, or other
uses.
2. Significant environment improvement is possible through removal
of the refuse piles and thus elimination of the problem attributed to
the refuse pile.
3. There are a number of significant differences between coal
refuse removal operations and other surface mining operations on
previously undisturbed sites that would support different regulations
for these two types of operations.
4. It appears that the environment can be further protected and
improved through an expedited permit under SMCRA that would serve as an
incentive for coal refuse pile removal.
F. Coal Refuse Utilization
The Btu value of coal refuse varies widely depending upon the
percentage of coal in the refuse pile. The 1999 final report surveyed
seven States with coal refuse piles and indicated that the percentage
of coal that could be recovered from the piles ranged from a low of
27.5 percent to a high of 98.9 percent. The 1999 final report also
discussed a number of possible uses for coal refuse. The study found
that coal refuse can be burned directly or reprocessed to separate the
waste rock from the burnable coal, by utilizing modern coal cleaning
technology. Because the early means of processing coal were inefficient
and did not separate all the coal from the waste material, early refuse
piles commonly contain material with a heating value of 5,000 Btu or
more per pound. Refuse burning power plants and co-generation plants
utilizing fluidized bed combustion technology are currently in use and
provide a ready market for coal refuse from many sites.
Because fluidized bed combustion processes accept a wider range
(size and quality) of material than pulverized coal boilers, fluidized
bed combustors can burn refuse without prior efforts to separate coal
from the rock so long as the material is properly sized and contains a
minimum Btu. This minimum Btu factor is commonly obtained by blending
(mixing together fuels with higher and lower Btu values) in order to
maintain a fairly consistent feed stock for the combustion chamber.
Refuse sites generally have a range of coarse and fine material that
can either be directly used in a fluidized bed or reprocessed and sized
prior to such use. However, refuse sites consisting primarily of slurry
may not be as easily utilized because of restrictive size and moisture
specifications of the end user, even though the slurry may have a high
Btu value.
Waste-burning facilities that use fluidized bed combustors with a
sorbent limestone bed can burn coal refuse with a 5,000 Btu content,
limit sulfur and nitrogen oxide (NOX) emissions, and
maintain higher heat transfer rates within the combustor better than is
possible using conventional combustion processes. Because of the high
ash content of the coal refuse feed stock (as much as 50%) and
limestone bed, the
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resultant ash from the plant may be not only as much as 70% of the
original volume of the refuse burned but also high in alkalinity. When
this ash is returned to the refuse area for disposal, it can be very
effective in counteracting residual acid problems.
Large power production facilities commonly require that coal refuse
first be reprocessed to increase its Btu value by separating the
impurities from the coal. Coal refuse reprocessing operations,
particularly those that utilize specific gravity to separate coal from
the waste rock, may require considerable land space. Reprocessing of
coal refuse by portable washers, however, typically requires minimal
additional space. The location selected for coal refuse reprocessing
operations, whether on or off the refuse site, depends on numerous
factors including, but not limited to, the hauling distance to the end-
user, the volume of material to be cleaned, and the type of
reprocessing to be used.
Abandoned coal refuse has also been utilized for purposes unrelated
to Btu value. Refuse has been used commonly as backfill material in
large subsidence abatement projects. Also, ``red dog,'' a hard, reddish
residual material resulting from refuse fires, has long been used for
road base. The proposed regulations are not intended to apply to or
regulate removal of abandoned coal refuse for these types of non-energy
uses.
G. Existing Regulation of Coal Refuse
Even though SMCRA, as originally enacted, did not directly address
the regulation of abandoned coal refuse, the Act's implementing
regulations at 30 CFR 700.5 expressly include the extraction of coal
from coal refuse piles within the definition of ``surface coal mining
operations.'' The definition of ``reclaimed coal'' at 30 CFR 870.5 (47
FR 28593, June 30, 1982), upon which AML fees are owed, includes coal
recovered ``from a deposit that is not in its original geologic
location'' as does the definition of ``surface mining activities'' at
30 CFR 701.5. On this basis, we have historically interpreted the
permitting requirements and the performance standards promulgated under
the permanent regulatory program for all surface coal mining operations
to apply to operations that either remove refuse or reprocess it on-
site. This means that, despite the fundamental differences between
abandoned coal refuse remining operations and other surface coal mining
operations, both types of operations are currently subject to the same
regulations.
H. Abandoned Mine Land Reclamation Projects
Prior to the enactment of SMCRA and its implementing regulations,
significant amounts of coal refuse were often discarded and placed with
little, if any, engineering design. While some abandoned refuse sites
are quite stable and have naturally revegetated, most sites contribute
to environmental degradation, constitute safety hazards, or both.
Problems stemming from these coal refuse sites include fires with
associated smoke hazards, wind and water erosion from barren surfaces,
and the leaching of acidic and other toxic materials into the surface
and ground water. Abandoned coal refuse sites have caused, and continue
to cause, public health and safety problems and environmental impacts
that are currently being addressed through our Title IV AML Program.
At the same time that we were working on the development of a
proposed rule to implement the EPAct, we published a proposed rule in
1998 and a final rule in 1999 to enhance reclamation of abandoned coal
sites under the AML program (64 FR 7470, 7483; February 12, 1999). The
purpose of that rule, popularly referred to as the ``AML Enhancement
Rule,'' was to encourage additional AML reclamation with the same
amount of AML funding by allowing the cost of certain approved AML
projects to be offset by the extraction and sale of coal, when the
removal of that coal was physically necessary to accomplish AML
reclamation of the project. See 30 CFR 707.5 and 874.17. The AML
Enhancement Rule was designed for situations in which the mining of the
coal refuse was incidental to a government-financed construction
project. Among the kinds of AML projects allowed under that rule were
those that included the removal of coal refuse piles that had little or
no likelihood of being mined under a Title V permit and that posed
continuing significant environmental problems such as acid mine
drainage discharges. The proposed rule supplements but does not
supersede the AML Enhancement Rule by providing a way to facilitate the
mining and reclamation under Title V of abandoned refuse sites.
Since 1977, the AML program has successfully reclaimed about 25,307
acres of abandoned refuse at an expense of over $320 million. As of
September 30, 2005, reclamation of an additional 2,515 acres at sites
with abandoned coal refuse has been funded with $26.5 million, but not
completed. There are an additional 22,128 acres of coal refuse that
have been identified as high priority AML sites that would cost an
estimated $327 million to reclaim but that have not yet been funded.
Historically, through September 30, 2004, approximately 23 percent
of the project funds spent through our AML reclamation program have
been used to remediate public health and safety problems and the
environmental impacts associated with abandoned coal refuse sites. We
recognize, however, that the current projections of future AML projects
may change if conditions at individual abandoned coal refuse sites
worsen. For example, a low-priority abandoned refuse site generally is
given a higher priority if it catches fire. Nonetheless, unless the
industry remedies the problems by first mining abandoned coal refuse
and then reclaiming the sites, we expect the AML program will require
many years to fully address all the listed problem refuse piles.
I. National Pollutant Discharge Elimination System Program
We believe that significant site-specific hydrologic data will be
available to the SMCRA regulatory authority (RA) from data generated
under the Clean Water Act and under the National Pollutant Discharge
Elimination System (NPDES) program. This program is administered by
either the U.S. Environmental Protection Agency (EPA) or by States that
have been approved by EPA to implement the NPDES program. The program
requires all point-source discharges, from both existing and new
sources, to meet the effluent limitations for the coal mining point
source category of industrial discharges set out at 40 CFR part 434. In
certain cases, baseline water quality and flow data for existing
discharges and receiving streams are required in the NPDES permit
application. Following NPDES permit approval, regular monitoring of the
water quality and flow of all discharges and receiving streams is
required. For an abandoned coal refuse remining site, we envision that
pre-mining baseline data and monitoring data generated under the NPDES
program can be used, in whole or in part, to meet some SMCRA permanent
program requirements for determination of probable hydrologic
consequences (PHC), cumulative hydrologic impact analysis (CHIA), and
water monitoring during mining.
II. Discussion of the Proposed Regulations
We propose to add two definitions and two new parts to our
regulations in Title 30 of the Code of Federal
[[Page 2141]]
Regulations. One definition will be added to section 701.5 and the
other definition will be added to section 786.3 of new part 786. The
permitting requirements for abandoned coal refuse remining operations
will be in new part 786 and the performance standards for abandoned
coal refuse remining operations will be in new part 829.
In those cases where the performance standards in regulations
implementing a specific provision in section 515 or 516 of SMCRA are
appropriate to abandoned coal refuse remining operations, we are
proposing regulations that incorporate or closely follow existing
regulations.
In some cases, because of the differences between abandoned coal
refuse remining operations and other types of surface coal mining
operations, the performance standards in a specific provision in
section 515 or 516 of SMCRA would not be appropriate to abandoned coal
refuse remining operations. However, when these performance standards
could be adapted to abandoned coal refuse remining operations, we are
proposing adapted standards. For example, it would be inappropriate, if
not impossible, to require that an abandoned coal refuse remining
operation restore the land at the site to a condition capable of
supporting the uses that it was capable of supporting prior to mining
as required by section 515(b)(2) of SMCRA; or that an abandoned coal
refuse remining operation return the land occupied by a refuse pile to
the pre-mining approximate original contour, as required by section
515(b)(3). Accordingly, we are proposing land use and contour
regulations that would provide protection similar to the protection
provided by the land use and approximate original contour standards of
SMCRA sections 515(b)(2) and 515(b)(3), but are adapted to the unique
differences between abandoned coal refuse remining operations and other
surface mining operations.
On the other hand, where the performance standards of a specific
provision in section 515 or 516 of SMCRA would not be appropriate or
could not be adapted to abandoned coal refuse remining operations, we
will not be proposing any implementing regulations. For example, we are
not proposing regulations to implement the prime farmlands standards of
section 515(b)(7) because that statutory standard would not be
appropriate for abandoned coal refuse sites.
Finally, regarding the EPAct provisions for a new permitting system
for remining of coal refuse, we have reviewed the requirements and
objectives of the permit application provisions of section 507 of
SMCRA, and we are proposing some changes in permit information
requirements for coal refuse remining, particularly with regard to
hydrology.
The proposed regulations in large part incorporate existing
permitting requirements and performance standards. We expect that the
abandoned coal refuse piles that will be remined will be mostly small-
sized and hydrologically-impacted. Therefore, we believe that the scope
and complexity of permit application information needed for these
remining operations should generally be less extensive than the
information otherwise required for surface coal mining operations.
In support of this rulemaking, we have carefully considered the
dramatic environmental results achieved by the Commonwealth of
Pennsylvania in permitting remining operations. During the period from
1985 through 1997, Pennsylvania issued 260 remining permits. Notably,
ninety-eight percent of those permits resulted in pollutional loads
that were lower than baseline or only slightly exceeded baseline and
none of these required long-term treatment. We believe that the
Pennsylvania remining data constitutes powerful, on-the-ground support
for the appropriateness of our proposed regulations. We anticipate that
our proposed regulations would also preserve or even enhance the pre-
remining site hydrologic balance. Further details about the
Pennsylvania remining data can be found below in section II.
In the next three sections we will discuss our standard-by-standard
review of the performance standards of sections 515 and 516 of SMCRA,
our proposed permit system for abandoned coal refuse remining
operations, and our proposed regulations (section 701.5 and parts 786
and 829).
A. Standard-by-Standard Review of SMCRA Performance Standards
The purpose of this standard-by-standard review is to ensure that
our proposed regulations provide the level of environmental protection
required under sections 515 and 516 of SMCRA. In making this analysis,
we considered the distinct differences between abandoned coal refuse
removal or on-site reprocessing operations and other surface coal
mining operations. As noted earlier, the most important distinction
between abandoned coal refuse remining operations and other surface
coal mining operations is that other surface mining operations disturb
the original ground surface in order to remove coal from its original
geologic location over, under, or between rock strata. In contrast,
abandoned coal refuse remining operations neither disturb the original
ground surface or any rock strata nor remove coal from its original
geologic location. Based on this fundamental distinction, we have
sought to frame regulations that would meet the requirements of EPAct
to not only provide the same level of environmental protection for
refuse remining operations as under sections 515 and 516 of SMCRA, but
also facilitate such operations.
Section 515 of SMCRA--Performance Standards for Surface Coal Mining
Operations
(b)(1)--Maximizing utilization and conservation of the fuel
resource. Abandoned coal refuse constitutes a solid fuel resource that
often degrades the environment. The objective of this provision is to
encourage maximum utilization of the coal resource so that the same
site is not reaffected by successive operations as has sometimes
occurred. Accordingly, the performance standards of section (b)(1) are
appropriate to abandoned coal refuse remining operations. Our proposed
regulation at section 829.3 would incorporate the requirements of
section 816.59, which implements the standards of section 515(b)(1).
See the preamble discussion of the proposed general requirements
regulation at section 829.3. This would provide the same level of
environmental protection as under section 515(b)(1) of SMCRA.
(b)(2)--Restoring land to a condition capable of supporting the
uses it was capable of supporting prior to mining. The performance
standards of section 515(b)(2) of SMCRA are not, in all cases,
appropriate to abandoned coal refuse remining operations. For example,
the land use that existed prior to mining is often not known or is not
attainable because of limitations in materials either found at the site
or remaining at the site after remining operations have been completed.
Our proposed regulation at section 829.133 would require that the
operator restore the land to a condition capable of supporting a use
that is equivalent to or higher or better than the land use prior to
commencement of the abandoned coal refuse remining operation. See the
preamble discussion of the proposed postmining land use regulation at
section 829.133. On this basis, our proposed regulation would provide
the same level of environmental protection as under section 515(b)(2),
as adapted to the unique characteristics of abandoned coal refuse
remining operations.
[[Page 2142]]
(b)(3)--Restoring approximate original contour. Not all the
performance standards of section (b)(3) are appropriate to abandoned
coal refuse remining operations. For example, the approximate original
contour standard would not be appropriate because the amount of
material left after an abandoned coal refuse remining operation has
been completed may be more or less than that needed to achieve
approximate original contour. This is especially true in light of the
high likelihood that prior mining activities have also been conducted
at the site. In many cases, it may be impossible to determine the
original contour of the site. Thus, we are not proposing regulations to
implement the approximate original contour provision of section
515(b)(3). However, the backfilling and grading standards of section
515(b)(3) are adaptable to abandoned coal refuse remining operations.
Our proposed regulation at section 829.102 would require that grading
achieve stability, minimize erosion, and support the designated
postmining land use. See the preamble discussion of the proposed
grading regulation at section 829.102. Thus, this proposed regulation
would provide the same level of environmental protection as under
section 515(b)(3), as adapted to the unique characteristics of
abandoned coal refuse remining operations.
(b)(4)--Stabilizing and protecting surface. The performance
standards of section 515(b)(4) of SMCRA are clearly appropriate to
abandoned coal refuse remining operations except for their topsoil
requirements. Our proposed regulation at section 829.95 would
incorporate the requirements of section 816.95, which implements
section (b)(4), except that we would provide for the use of vegetative-
support material instead of topsoil because of the common absence of
topsoil at abandoned coal refuse remining sites. See the preamble
discussion of the proposed surface stabilization regulation at section
829.95. On this basis, our proposed regulation would provide the same
level of environmental protection as under section 515(b)(4), adapted
to the unique characteristics of abandoned coal refuse remining
operations.
(b)(5) and (6)--Removing, storing, and restoring topsoil or most
suitable material for supporting vegetation. The performance standards
of sections (b)(5) and (b)(6) are clearly appropriate to abandoned coal
refuse remining operations except for the topsoil requirements for the
reason cited in the section discussion of (b)(4). Our proposed
regulation at section 829.22 would incorporate language analogous to
the provisions of section 816.22 which implement the statutory
standards, except that section 829.22 refers to vegetation-support
material rather than topsoil. See the preamble discussion of the
proposed regulation on soils and other vegetation-support material at
section 829.22. On this basis, our proposed regulation would provide
the same level of environmental protection as under sections 515(b)(5)
and (b)(6), adapted to the unique characteristics of abandoned coal
refuse remining operations.
(b)(7)--Restoring prime farmland. Refuse sites will not qualify as
prime farm land nor will any overburden be removed. Accordingly, the
performance standards of section (b)(7) are not appropriate to
abandoned coal refuse remining operations. Thus, we are not proposing
regulations to implement the prime farmland provisions of section
515(b)(7).
(b)(8)--Retaining permanent impoundments. Many abandoned coal
refuse sites contain slurry impoundments. Some of those are high hazard
structures or could become so if impounded fine refuse was removed and
replaced with water. Other slurry impoundments, particularly in flat
areas of the Midwest, are relatively shallow. In these latter cases,
allowing ponds and wetlands to develop following refuse removal would
be an environmental benefit and would facilitate refuse removal. The
performance standards of section (b)(8) are, therefore, appropriate to
abandoned coal refuse remining operations. Our proposed regulation at
section 829.49 would incorporate the requirements of sections 816.49
and .56, which implement the statutory standards, and would specify two
circumstances in which permanent impoundments may be retained. See the
preamble discussion of the proposed impoundments regulation at section
829.49. On this basis, our proposed regulation would provide the same
level of environmental protection as under section 515(b)(8), adapted
to the unique characteristics of abandoned coal refuse remining
operations.
(b)(9)--Conducting auger mining. We will not allow auger mining in
conjunction with abandoned coal refuse remining operations.
Accordingly, the performance standards of section (b)(9) would not be
appropriate to abandoned coal refuse remining operations. Thus, we are
not proposing regulations analogous to the auger mining provisions of
section 515(b)(9).
(b)(10)--Minimizing disturbance to the prevailing hydrologic
balance. Most of the performance standards of section 515(b)(10) of
SMCRA are clearly appropriate to abandoned coal refuse remining
operations. However, the requirement to restore recharge capacity is
not appropriate for refuse remining operations, because these
operations neither remove or replace overburden nor remove or disturb
strata that serve as aquifers. Our proposed regulation would
incorporate the requirements of sections 816.13 and 816.41 through
816.57, which implement section (b)(10). See our preamble discussion of
the hydrologic balance standards in proposed sections 829.3, 829.13,
and 829.41, 829.45, 829.46, and 829.49. We are also proposing to add at
section 786.3 a definition for ``Best Management Practices'' (BMPs),
and in section 786.15(b) we are proposing that the regulatory authority
may authorize an applicant for a refuse removal permit to use BMPs.
These BMPs provisions would provide that the regulatory authority may
allow a removal operation to use a range of actions that have proved
effective in other remining settings to prevent or mitigate water
quality problems and to control sediment. These BMPs might be in
addition to or in lieu of actions that are otherwise called for under
applicable performance and reclamation standards. On this basis, our
proposed regulation would provide the same level of environmental
protection as under section 515(b)(10), adapted to the unique
characteristics of abandoned coal refuse remining operations.
(b)(11), (13), (14), & (f)--Disposing of coal waste. In remining
operations, these standards are appropriate only for the redeposition
of coal refuse generated during on-site reprocessing operations or the
sorting and sizing of refuse material handled during removal
operations. Our proposed regulations at sections 829.3, 829.81, and
829.89 would incorporate the requirements of section 816.87 for burning
and burned waste, most of the requirements of sections 816.81, 816.83,
and 816.84 for coal mine waste, and the requirements of 816.89 for
noncoal mine waste. These existing regulations implement sections
515(b)(11), (13), (14), & (f) of SMCRA. The proposed rule reflects the
distinct differences between abandoned coal refuse remining operations
and other surface coal mining operations. See the preamble discussion
of the proposed coal waste regulations at sections 829.3, .81, and .89.
On this basis, our proposed regulations would provide the same level of
environmental protection as under sections 515(b)(11), (13), (14), &
(f), adapted to the unique characteristics
[[Page 2143]]
of abandoned coal refuse remining operations.
(b)(12)--Mining within five hundred feet from underground mines.
The performance standards of section (b)(12) are appropriate to
abandoned coal refuse remining operations. Our proposed regulations at
section 829.3 would incorporate by reference section 816.79, which
implements these statutory standards. See the preamble discussion of
the proposed general requirements regulation at section 829.3. On this
basis, our proposed regulations would provide the same level of
environmental protection as under section 515(b)(12).
(b)(15)--Using explosives. Abandoned coal refuse remining
operations will rarely involve the use of explosives. Nonetheless, it
is appropriate to require any use of explosives in abandoned coal
refuse remining operations to comply with the performance standards of
section 515(b)(15) of SMCRA. Our proposed regulations at section 829.3
would incorporate by reference sections 816.61 through 816.68, which
implement the statutory standards. See the preamble discussion of the
proposed general requirements regulation at section 829.3. On this
basis, our proposed regulations would provide the same level of
environmental protection as under section 515(b)(12).
(b)(16)--Contemporaneous reclamation. The performance standards of
section 515(b)(16) of SMCRA are clearly appropriate to abandoned coal
refuse remining operations, except for the variance for concurrent
surface and underground mining activities. Coal refuse remining
operations will not involve both surface and underground mining. Our
proposed regulations would incorporate the language of section 816.100,
which implements the statutory standards, without the variance cited
above. Our proposed regulations would also contain the additional
requirement of a reclamation schedule. See the preamble discussion of
the proposed contemporaneous reclamation regulation at section 829.100.
On this basis, our proposed regulations would provide the same level of
environmental protection as under section 515(b)(16), adapted to the
unique characteristics of abandoned coal refuse remining operations.
(b)(17) and (18)--Access roads. The performance standards of
sections (b)(17) and (b)(18) are appropriate to abandoned coal refuse
remining operations. Our proposed regulations would incorporate the
language of sections 816.150 and .151, which implement the statutory
standards. See the preamble discussion at section 829.3. On this basis,
our proposed regulations would provide the same level of environmental
protection as under sections 515(b)(17) and (b)(18).
(b)(19) and (20)--Revegetation. The performance standards of
sections (b)(19) and (b)(20) are generally appropriate to abandoned
coal refuse remining operations except for the requirement for diverse
vegetation, which will not be attainable at almost all abandoned coal
refuse sites because of the lack of topsoil. Nonetheless, at some
abandoned coal refuse piles, vegetation has naturally reestablished
itself to completely cover the site. Other sites have sparse vegetation
consisting of a few annual weeds, and still others have remained
completely barren for decades. Our proposed regulation at section
829.111 would require a vegetative cover sufficient to stabilize the
land surface to prevent erosion regardless of the cover, or lack
thereof, that existed prior to the abandoned coal refuse remining
operation. At sites where some vegetative cover exists, our proposed
regulation would require a final cover no less extensive than that
existing prior to the redisturbance. Our proposed regulation would also
adopt the revegetation timing and mulching requirements of sections
816.111(b)-(d), 816.113 and 816.114, and the revegetation success
requirements of section 816.116(c)(1) through (4), which implement the
major requirements of the statutory standards. See the preamble
discussion of the proposed revegetation regulation at section 829.111.
On this basis, our proposed regulation would provide the same level of
environmental protection as under sections 515(b)(19) and (b)(20),
adapted to the unique characteristics of abandoned coal refuse remining
operations.
(b)(21)--Protecting off-site areas. The performance standards of
section 515(b)(21) of SMCRA are appropriate to abandoned coal refuse
remining operations. Our proposed regulations would apply, with some
revision, the requirements of sections 816.81, 816.102, and 816.106,
which implement the statutory standards. For the reasons set out in the
preamble discussion of proposed section 829.102, the proposed rule
would not apply the requirements of sections 816.104 and 816.105. In
addition, our proposed regulations would assure the stability of the
toe of the refuse pile, and thus provide protection equivalent to the
relevant prohibitions of section 816.107, by not allowing remining
operations on steep slopes to prematurely remove refuse from the toe of
such piles. See the preamble discussion of the proposed grading
regulation at section 829.102 for a more detailed comparison with the
existing rules implementing section 515(b)(21) of SMCRA. On this basis,
our proposed regulations would provide the same level of environmental
protection as under section 515(b)(21), adapted to the unique
characteristics of abandoned coal refuse remining operations.
(b)(22)--Spoil disposal. Abandoned coal refuse remining operations
will not create spoil. Therefore, the performance standards of section
(b)(22) are not appropriate to abandoned coal refuse remining
operations. Thus, we are not proposing regulations to implement the
spoil disposal provisions of section 515(b)(22).
(b)(23)--Other criteria necessary to achieve reclamation. This
general section is appropriate for abandoned coal refuse remining
operations, and our proposed regulations contain other requirements,
discussed above, that address conditions encountered at abandoned coal
refuse sites. On this basis, our proposed regulations would provide the
same level of environmental protection as under section 515(b)(23),
adapted to the unique characteristics of abandoned coal refuse remining
operations.
(b)(24)--Fish and wildlife protection. The performance standards of
section (b)(24) are appropriate to abandoned coal refuse remining
operations. Our proposed regulations would incorporate by reference
section 816.97, which implements the statutory standards. In addition,
we are proposing a change that would add a definition of BMPs and allow
their use in combating water quality and sediment problems at abandoned
coal refuse sites. Protection of water quality is important in
protecting fish and wildlife, because of the importance of water
quality for fish and wildlife and their habitats. See the preamble
discussion of the proposed general requirements regulation at section
829.3, which incorporates by reference existing regulations at section
816.97. See also preamble discussion of proposed definition of ``BMPs''
at new section 786.3. On this basis, our proposed regulations would
provide the same level of environmental protection as under section
515(b)(24), adapted to the unique characteristics of abandoned coal
refuse remining operations.
(b)(25)--Providing an undisturbed natural barrier. These
provisions, which address mining coal from its original geologic
location, are not appropriate for abandoned coal refuse remining
operations because abandoned coal refuse remining operations will not
mine coal in its original geologic location. Further, an undisturbed
[[Page 2144]]
natural barrier typically does not exist around coal refuse piles.
Thus, we are not proposing regulations to implement the natural barrier
provisions of section 515(b)(25).
(c)--Mountaintop removal mining. These provisions, which address
mining coal from its original geologic location, are not appropriate
for abandoned coal refuse remining operations because abandoned coal
refuse remining operations will not mine coal in its original geologic
location. Thus, we are not proposing regulations to implement the
mountaintop removal provisions of section 515(c).
(d)--Steep slope mining. These provisions, which address mining
coal from its original geologic location, are not appropriate for
abandoned coal refuse remining operations because abandoned coal refuse
remining operations will not mine coal in its original geologic
location. Our proposed regulations would, however, add specific
requirements for abandoned coal refuse remining operations and
regrading on steep slopes. See the preamble discussion of the proposed
grading regulation at section 829.102. On this basis, our proposed
regulations would provide for a higher level of environmental
protection than that provided under section 515(d), adapted to the
unique characteristics of abandoned coal refuse remining operations.
(e)--Postmining land use variances. As explained above in the
discussion of section 515(b)(2), the land use that existed prior to
mining is commonly not known, or is not attainable because of
limitations in material at the abandoned refuse site either before or
after remining operations are completed. Our proposed regulation at
section 829.133 would require that the operator restore the land to a
condition capable of supporting uses that are the same as or higher or
better than the land use prior to commencement of the abandoned coal
refuse remining operation. See the preamble discussion of the proposed
postmining land use regulation at section 829.133. On this basis, our
regulation would provide the same level of environmental protection as
under section 515(e), adapted to the unique characteristics of
abandoned coal refuse remining operations.
Section 516 of SMCRA--Performance Standards for Underground Mining
Operations
(b)(1) and (c)--Preventing subsidence damage. This provision is not
appropriate for abandoned coal refuse remining operations. These
operations do not involve underground mining and do not cause
subsidence.
(b)(2) and (3)--Seal portals and other openings. Because abandoned
coal refuse remining operations may uncover or otherwise encounter mine
openings or drill holes, this section has limited applicability to such
operations. Our proposal would incorporate with limited modifications
sections 817.13 through 817.15, which implement this statutory
requirement. See the preamble discussion of the proposed casing and
sealing regulation at section 829.13. On this basis, our regulation
would provide the same level of environmental protection as under
section 516(b)(2) and (3), adapted to the unique characteristics of
abandoned coal refuse remining operations.
(b)(4) and (5)--Mine waste. See earlier discussion for sections
515(b)(11) and (13).
(b)(6)--Revegetation. See earlier discussion for section
515(b)(19).
(b)(7)--Protecting off-site areas. See earlier discussion for
section 515(b)(21).
(b)(8)--Fire hazards. See earlier discussion for section
515(b)(14).
(b)(9)--Hydrologic balance. See earlier discussion for section
515(b)(10).
(b)(10)--Access roads, etc. See earlier discussion for section
515(b)(17).
(b)(11)--Fish and wildlife. See earlier discussion for section
515(b)(24).
(b)(12)--Locating new drift mine portals to prevent gravity
discharges. This section is not appropriate for abandoned coal refuse
remining operations. These operations do not construct drift mine
portals, and thus do not cause gravity discharges from those portals.
B. Special Permit System for Abandoned Coal Refuse Remining Operations
The EPAct authorizes the development of separate permit systems for
abandoned coal refuse remining operations based on the distinct
differences between such operations and other surface coal mining
operations. Within this framework, proposed part 786, Requirements for
Permits for Abandoned Coal Refuse Remining Operations, would specify
permit information requirements for coal refuse removal and coal refuse
on-site reprocessing operations. The proposed part would include
changes to some of the permit information requirements at part 779,
Surface Mining Permit Applications--Minimum Requirements for
Information on Environmental Resources, and part 780, Surface Mining
Permit Applications--Minimum Requirements for Reclamation and Operation
Plan. In the next section of this discussion, we discuss the reasons we
are proposing a single permit system at part 786 for both refuse
removal and on-site reprocessing operations; the provisions of proposed
part 786; and our rationale for any differences between the provisions
of proposed part 786 and those of parts 779 and 780.
C. Proposed Regulations
The regulatory provisions proposed in this rulemaking are intended
to implement the requirements of section 2503(e) of the EPAct, codified
at 30 U.S.C. 1251a. The proposed regulations include (1) A new
definition in section 701.5 of ``abandoned coal refuse remining
operations,'' distinguishing between those operations that reprocess
the abandoned coal refuse on-site and those operations that remove the
refuse; (2) a new definition in section 786.3 of ``BMPs'' as activities
and practices that can be used with abandoned coal refuse remining
operations to prevent or reduce chemical or sediment pollution to
surface and ground water; (3) a new part 786 that would specify the
permit information requirements for individual abandoned coal refuse
remining operations; and (4) a new part 829 that would establish the
performance standards appropriate to abandoned coal refuse remining
operations permitted under part 786.
The proposed permit information requirements in part 786 parallel
the existing surface coal mining permit information requirements in
parts 779 and 780. The proposed permit information required in proposed
part 786 will enable the regulatory authority to determine whether the
applicant can comply with the performance standards proposed in part
829. The proposed performance standards in part 829 are, in turn, based
on the surface coal mining performance standards in parts 816 and 817.
The proposed regulations in parts 786 and 829 apply to coal refuse
remining operations conducted at an abandoned coal refuse site. They do
not apply to the off-site reprocessing of abandoned coal refuse already
regulated under section 785.21 and part 827, Coal Preparation Plants
not Located Within the Permit Area of a Mine.
During the development of the proposed regulations, we considered
the appropriateness of developing separate sets of permitting
requirements for abandoned coal refuse removal and for on-site
reprocessing operations. However, our consideration of this issue did
not identify sufficient differences between the requirements applicable
to removal and on-site reprocessing
[[Page 2145]]
operations to warrant separate sets of requirements for these two types
of refuse operations. Therefore, the proposed regulations provide for
the issuance of ``abandoned coal refuse remining operations'' permits
that may include either refuse removal or on-site reprocessing
operations, or both.
For the most part, the proposed permitting regulations in part 786
and the proposed performance standards in part 829 apply equally to
both refuse removal and on-site reprocessing operations. However, some
of the requirements in each part have been designed specifically for
either removal or on-site reprocessing operations. For example, the
proposed part 786 ground-water baseline requirements for refuse removal
operations are different from those for reprocessing operations. For
permits that include both removal and on-site reprocessing operations,
the baseline requirements for the removal portion of the operation must
be satisfied for the removal area and the area adjacent to it.
Similarly, the baseline requirement for the on-site reprocessing
portion of the operation must be satisfied for both the area containing
the on-site reprocessing support facilities, such as the processing
equipment, ponds, and reprocessing waste structures, as well as the
adjacent area. Where an area adjacent to an on-site reprocessing
operation overlaps the removal portion of the permit, or its adjacent
area, the reprocessing baseline requirements apply to the overlap area.
In these cases, both the reprocessing areas and removal areas would be
covered under one permit.
Section 701.5 Definitions
Abandoned Coal Refuse Remining Operations
We propose to add a definition of ``abandoned coal refuse remining
operations'' that identifies the refuse sites that are eligible for
mining under the regulations proposed in part 786 and part 829 as those
lands that would otherwise be eligible for expenditure under sections
404 and 402(g)(4) of SMCRA. The proposed definition then describes the
principal characteristics of abandoned coal refuse reprocessing
operations and removal operations, which are the two types of remining
operations identified in the EPAct. Finally, the definition states that
the term ``abandoned coal refuse remining operations'' does not
encompass the removal of refuse for non-fuel uses.
Section 2503(e) of the EPAct, 30 U.S.C. 1251a, directs the
Secretary of the Interior by regulation to establish environmental
protection performance and reclamation standards, and separate permit
systems for two types of operations: (1) Those that reprocess abandoned
coal refuse on-site (reprocessing operations) and (2) those that remove
abandoned coal refuse from the site (removal operations). The statute
further specifies that these regulations and separate permit systems
will apply to such operations on ``lands that would otherwise be
eligible for expenditure under section 404 and section 402(g)(4) of
[SMCRA].'' The lands referred to are ones that are eligible for
expenditure from the AML fund established under Title IV of SMCRA;
i.e., lands that were mined for coal or were affected by such mining
and abandoned or left in an inadequate reclamation status prior to
enactment of SMCRA and for which there is no continuing reclamation
responsibility under State or other Federal laws.
Although the EPAct refers to the two types of operations, it does
not explain how they differ. Accordingly, we have characterized
``reprocessing operations'' and ``removal operations'' in terms of the
various activities typically associated with each type of operation.
For purposes of this rulemaking, the principal characteristic of
``reprocessing operations'' is the use of specific gravity or
floatation methods to separate coal from waste material. These methods
require the liberal use of water or other liquids to effect the
separation of coal from waste material. The resultant discharge from a
reprocessing operation will commonly be more acid (and possibly toxic)
than the discharge expected from a removal operation. While the
reprocessing of coal refuse leads to a significantly higher Btu in the
refuse product, the residual coal content of refuse waste, although
low, will vary depending on the separation mediums used. This waste,
usually redeposited on site, will represent a large percentage of the
original refuse that has just been processed. In addition, the
redeposited waste will usually consist of an acidic mixture of fine-
grained materials with high moisture content. As a result, the
redeposited waste materials will often have altered particle cohesion
and/or reduced shear strength that can tend towards slope instability.
Reprocessing operations also typically employ some form of on-site
mechanical sorting or sizing prior to the liquid processing of refuse
material. These sorting and sizing activities often involve the use of
vibrating screens to eliminate larger non-coal objects such as tree
limbs, rocks, machinery, etc., and then the use of crushers to reduce
the refuse product to a size appropriate for the liquid processor. For
purposes of this rulemaking, the proposed description of reprocessing
includes any on-site sorting and sizing activities.
The principal characteristic of ``removal operations'' is the
activity of removing coal refuse from the site. As with reprocessing
operations, the proposed description of removal operations includes any
on-site mechanical sorting and sizing of refuse material to eliminate
larger non-coal objects.
There are indirect environmental benefits associated with the on-
site sorting and sizing of refuse at both reprocessing and removal
operations. The waste product of sorting and sizing, which is
invariably left on site, is mostly noncoal. Our proposed regulations
would require that this waste material be placed in a stable
configuration that would almost always be more environmentally secure
than the abandoned refuse site was before remining. We also believe
that the environmental impacts of controlled redeposition and
reclamation of refuse that has been sorted or sized out would be
preferable to the impacts that would result if operators simply mined
around portions of a refuse pile and left those portions unreclaimed.
In almost all cases, the liquid discharge and solid waste of on-
site reprocessing operations have a higher potential for causing
negative ground- and surface-water impacts and unstable slopes than
would any of the activities associated with removal operations. This
difference in potential for environmental harm is because removal
operations, unlike reprocessing operations, neither introduce a new
liquid discharge to the site nor redeposit on site a large volume of
recently processed waste. Based on these important differences between
the two types of operations, the proposed regulations would, for on-
site refuse reprocessing operations, require additional permit
information and more stringent performance standards concerning
stability and hydrology than those required for removal operations.
Our proposed definition of ``abandoned coal refuse remining
operations'' specifically excludes the removal of refuse for non-fuel
uses. Activities such as the removal of refuse cinder (red dog) for
road base or surfacing, the use of refuse for fill material, or for
backstowing of underground mine works to prevent subsidence have never
been regulated as surface coal mining operations nor would they be
under the proposed regulations.
[[Page 2146]]
Part 786--Requirements for Permits for Abandoned Coal Refuse Remining
Operations
Proposed part 786 specifies the minimum permit information that
would be required for abandoned coal refuse remining operations,
including information on (1) environmental resources that might be
impacted or affected, and (2) mining operations and reclamation plans.
Section 786.1 Scope
In this section we explain that the purpose of part 786 is to set
forth the requirements for obtaining a permit for abandoned coal refuse
remining operations. We also explain the use of the pronouns ``we'',
``our'', and ``us'' that refer to the regulatory authority and the
pronouns ``you'' and ``your'' that refer to the applicant and operator.
We use these pronouns throughout this part in order to make the
regulations more readable.
Section 786.2 Objectives
In this section we explain that our objective is to ensure that the
permit applicant obtains a permit to conduct abandoned coal refuse
remining operations in accordance with the requirements of SMCRA, as
amended by the EPAct.
Section 786.3 Definitions
Best Management Practices (BMPs)
We are proposing to add a definition of BMPs at proposed section
786.3. The definition would be used solely for the purpose of abandoned
coal refuse remining operations, and would include any number of
activities, operating and maintenance procedures, practices, or
prohibition of practices that have as their goal preventing or reducing
chemical pollution to surface and ground water and controlling
excessive sediment concentrations to surface water. EPA defines BMPs in
a similar manner at 40 CFR 122.2, and in EPA's December, 2001,
publication ``Coal Remining--Best Management Practices Guidance
Manual.'' (EPA publication 821-B-01-010).
Our objective in allowing the use of BMPs with abandoned coal
refuse remining operations is to broaden the tools, subject to
regulatory authority approval, available for controlling sediment and
AMD at these sites. The proposed use of BMPs with abandoned coal refuse
remining operations has substantial basis: (1) The EPA publication
cited above, which acknowledges the importance of using BMPs to address
acid mine drainage problems associated with coal mining activities,
presents information on hydrologic, geochemical and sediment control
BMPs, efficiencies of the BMPs, and costs for installing specific BMPs;
(2) BMPs is a term that now, within the mining industry, has a
widespread history and acceptance, finding application in the reduction
and/or prevention of chemical pollution to surface and ground water
with particular emphasis on AMD, a phenomenon commonly associated with
abandoned coal refuse operations; and (3) BMPs have been developed and
used in many commercial and industrial applications to control runoff
and reduce sedimentation as well as to minimize erosion and
sedimentation during silviculture operations. These applications of
BMPs have direct transferability to mining activities where erosion and
sedimentation are also a concern. For these reasons, we believe our
proposed reliance on BMPs will similarly prove to be both economical
for operators and environmentally effective in dealing with existing or
potential environmental problems, as thoroughly documented in the above
referenced EPA publication.
Our proposed use of BMPs as approved sediment control measures is
subject to an important condition. Our 1983 rulemaking at Sec.
816.46(b)(2) required that all surface drainage from a disturbed area
be passed through a ``siltation structure,'' which by definition at
section 701.5 includes a sedimentation pond, a series of sedimentation
ponds, or other treatment facilities. This requirement of Sec.
816.46(b)(2) for siltation structures was adopted to implement the
mandate of sections 515(b)(10)(B) and 516(b)(9)(B) of SMCRA to use the
best technology currently available (BTCA) to prevent additional
contributions of suspended solids outside of the permit area. However,
in response to the successful challenge of Sec. 816.46(b)(2), we
suspended the siltation structure requirement (51 FR 41961; November
20, 1986). As a result of that suspension, RAs had to determine on a
case-by-case basis whether siltation structures or other sediment
control measures would constitute BTCA. Under our proposed regulations,
for those BMPs that would constitute sediment control measures, RAs
will similarly have to determine whether the specific proposed BMP or
combination of BMPs would constitute BTCA.
Section 786.10 Information Collection
Proposed Sec. 786.10 contains information on the Office of
Management and Budget's approval of the information collection
requirements of part 786. Part 786 sets forth the requirements for
obtaining a permit for abandoned coal refuse remining operations. The
requirements ensure that the permit applicant obtains a permit to
conduct an abandoned coal refuse remining operation in accordance with
the requirements of SMCRA, as amended by the EPAct. We estimate that
there will be 16 new applicants per year and that each of the
applicants will require approximately 469 hours and $4,848 in non-wage
costs to complete the information required by part 786. In addition,
the 15 regulatory authorities will require approximately 230 hours with
no additional non-wage costs to complete the information required by
part 786.
Section 786.11 General Requirements
Proposed Sec. 786.11 provides that permits for abandoned coal
refuse remining operations would be required to comply with the
requirements of proposed part 786 and would be required to demonstrate
that the operations will be conducted in compliance with the
performance standards of proposed part 829. This section makes clear
that the permit application requirements of parts 779, 780, 783, and
784 would not apply directly to abandoned coal refuse remining
operations, but rather would apply only to the extent individual
provisions are incorporated by reference or adapted by part 786.
Section 786.12 Information on Environmental Resources
Proposed Sec. 786.12(a) addresses general and climatological
information requirements. This paragraph would apply the requirements
of Sec. Sec. 779.11, 779.12, and 779.18.
Proposed Sec. 786.12(b) addresses pre-remining vegetation
information requirements. This paragraph specifies the requirements
that would apply to coal refuse remining, instead of the requirements
of Sec. 779.19. The paragraph would require photographs and a
narrative description of the typical vegetative cover at the refuse
site. The photographs and narrative would have to be of sufficient
detail to allow an estimate of vegetative ground cover and species
diversity. Because most abandoned coal refuse sites have sparse
vegetation and the vegetation found is usually volunteer and does not
represent the original species diversity, we believe the proposed
requirements are more suitable for abandoned coal refuse sites than the
detailed vegetation mapping requirements of Sec. 779.19. Furthermore,
we believe that to prescribe precise measurements of
[[Page 2147]]
vegetative cover and species diversity would be inappropriate for
abandoned coal refuse sites because of the poor surface conditions
found at most sites. The proposed requirements for photographs and
narrative would ensure that the application adequately describes the
pre-remining surface cover and would serve as a reference point for
required reclamation.
Proposed Sec. 786.12(c) addresses requirements for information on
soil resources and other vegetation-support material and specifies the
requirements that would apply to coal refuse remining instead of the
requirements of Sec. 779.21. This paragraph would require that the
permit contain sufficient information on the soil or other vegetation-
support material to enable us to determine if revegetation of the site
can be achieved as required by the revegetation performance standards
at Sec. 829.111. We believe that the proposed regulation is more
appropriate for abandoned coal refuse remining operations than Sec.
779.21 which requires a soil map and other detailed quantitative soil
information. As noted previously, abandoned coal refuse sites, unlike
areas covered by the great majority of surface mining permits, do not
have topsoil and usually have minimal vegetative cover. The information
on soil resources and vegetation support proposed in this paragraph and
in Sec. 786.12(b) should provide ample information to assess the site
revegetation potential.
Proposed Sec. 786.12(d) would require the application to include
the mapping information in Sec. 779.24, except as follows:
1. Instead of the requirement in Sec. 779.24(d) that maps show
structures within 1000 feet of the operation, the proposed paragraph
would require that maps show structures within 300 feet of the
operation if blasting is not planned. The proposed 300-foot requirement
corresponds to the 300-foot prohibition against mining contained in
section 522(e) of SMCRA and Sec. 761.11. Proposed section 786.12(d)
would apply the 1000-foot map requirement in Sec. 779.24(d) for
operations that are expected to conduct blasting. The coverage to 1000
feet is appropriate for the evaluation of the anticipated blast design
required by proposed Sec. 786.13(c). Proposed section 786.12(d) would
allow the map showing the additional coverage, i.e., the structures in
the area between 300 and 1000 feet, to be submitted with the
anticipated blast design after permit issuance but prior to blasting's
being conducted at the site. This provision for design submission is
included because of the possibility that the need for blasting may not
have been anticipated at the time that the permit application was
prepared.
2. Proposed Sec. 786.12(d) does not include the requirement in
Sec. 779.24(f) that maps show proposed reference area boundaries for
determining the success of revegetation. This requirement is not
included in proposed Sec. 786.12(d) because the proposed revegetation
performance standards at Sec. 829.111 would not require reference
areas.
Proposed Sec. 786.12(e) addresses cross sections, maps, and plans
and would retain the requirements of Sec. 779.25 except as follows:
1. Proposed Sec. 786.12(e) would not apply the requirement of
Sec. 779.25(a)(3) that cross sections, maps, and plans show the coal
and overburden strata. This requirement is not appropriate for
abandoned coal refuse remining operations because such operations will
not remove overburden strata or coal seams. Instead, the proposed
regulation would require cross-sections illustrating the refuse site if
the site is located on a steep slope (as defined at Sec. 701.5).
Requiring these cross sections only for steep slopes is consistent with
the steep slope backfilling and grading requirements proposed at
section 829.102 for abandoned coal refuse operations.
2. Proposed Sec. 786.12(e) would not apply the requirement in
Sec. 779.25(a)(4) that maps show all coal crop lines and the ``strike
and dip,'' i.e., the direction and slant, of the coal to be mined.
Because abandoned coal refuse remining operations will not mine coal
seams, this requirement is not appropriate. Instead, the proposed
regulation would require maps to show all coal outcrops within the
permit area together with their strike and dip. This latter information
is needed because coal seams may outcrop within the refuse area and
affect ground-water movement.
3. Proposed Sec. 786.12(e) would not apply the requirements in
Sec. 779.25(a)(6) for information on the location and extent of
subsurface water, if encountered. Since abandoned coal refuse remining
operations will only remove or reprocess refuse that has been relocated
from other areas and will neither remove nor disturb strata that serve
as aquifers for subsurface water, we do not believe that information as
to the location and extent of subsurface water is necessary. However,
the proposed regulation does apply the requirement in Sec.
779.25(a)(7) that maps show surface water bodies including springs
(seeps). We believe that the information on springs will provide
appropriate information related to potential ground-water flow systems,
if such information is needed.
Section 786.13 Information on Operation Plans
Proposed Sec. 786.13 specifies the information that would be
required in the operations plan. The following paragraphs discuss these
requirements in detail.
Proposed Sec. 786.13(a) concerning general requirements would
apply the requirements of Sec. 780.11 that are appropriate to
abandoned coal refuse operations. The proposed paragraphs would require
a description of the removal and on-site reprocessing activities to be
conducted under the abandoned coal refuse remining permit as well as a
description of associated equipment and facilities. Because the
proposed requirements of Sec. 786.13(a) would apply solely to
``abandoned coal refuse remining operations,'' as that term would be
defined in section 701.5, the extraction of coal by auger, surface, and
underground methods would not be authorized under permits for abandoned
coal refuse remining operations.
Proposed Sec. 786.13(b) concerning existing structures would apply
the requirements of Sec. 780.12. We believe that the requirements at
Sec. 780.12 should generally apply to permit applications for
abandoned coal refuse remining operations. The proposed paragraph would
require that the narrative identify whether structures are associated
with removal or reprocessing operations.
Proposed Sec. 786.13(c) concerning blasting would require a
blasting plan in accordance with the regulations at Sec. 780.13,
whenever blasting is planned during the abandoned coal refuse remining
operation.
Proposed Sec. 786.13(d) concerning maps and plans would apply the
requirements of section 780.14 except as follows:
1. Proposed section 786.13(d)(1) would apply the maps and plans
requirements of section 780.14(a), except that, in lieu of the
requirements of Sec. Sec. 779.24 and 779.25 referenced in Sec.
780.14(a), the requirements of Sec. 786.12(d) and (e) would apply.
2. Proposed Sec. Sec. 786.13 (d)(1) and (2) contain requirements
almost identical to those of Sec. 780.14(b)(4) and (5) except that the
proposed regulation reflects the fact that coal refuse would be
utilized; that coal or refuse may be the usable product; that new
``spoil,'' as defined in Sec. 701.5, would not be generated; and that
vegetation-support material, rather than topsoil, would be used to
reclaim the sites. Proposed paragraph (2)(ii) would also provide that
the required maps and plans show the storage areas
[[Page 2148]]
for vegetative support material, ``rock waste'' (e.g., road cut
material), and combustible and noncombustible noncoal waste. This
latter requirement corresponds to the proposed provision of Sec.
829.89 that would allow disposal of noncombustible noncoal waste within
refuse disposal areas. Proposed paragraph (2)(iii) would apply the
requirements of Sec. 780.14(b)(11) except for the requirement to show
the location of excess spoil areas. The reference to excess spoil areas
would not apply, because spoil will not be generated by abandoned coal
refuse remining operations.
Proposed Sec. 786.13(e) concerning requirements for an air
pollution control plan would apply the requirements of Sec. 780.15
except that, in lieu of the requirements of Sec. 816.95 referenced in
Sec. 780.15, the requirements of Sec. 829.95 would apply.
Proposed Sec. 786.13(f) concerning fish and wildlife information
would retain the requirements of Sec. 780.16.
Proposed Sec. 786.13(g) concerning protection of public parks and
historic places would apply the requirements of Sec. 780.31.
Section 786.14 Information on Reclamation Plans
Proposed Sec. 786.14 would establish the information that is
required on plans for reclamation. The following paragraphs discuss
these requirements in detail.
Proposed Sec. 786.14(a) essentially would apply the general
requirements of Sec. 780.18 except that, in lieu of the requirements
of part 816 referenced in section 780.18, the corresponding
requirements of part 829 would apply. The proposed regulation would not
require the same detail and specificity that is required by the
existing regulations regarding revegetation information. Rather, the
proposed regulation would require that the application include a plan
for revegetation as required by proposed Sec. 829.111. We believe this
requirement would provide us more than adequate information to assess
the proposed revegetation plan.
Proposed Sec. 786.14(b) essentially would apply the requirements
of section 780.23 concerning postmining land use, except those related
to existing land capability and productivity and those related to the
information needed to propose a postmining land use different from the
premining land use. For the reasons discussed above in the evaluation
of each performance standard in sections 515 and 516 of SMCRA, detailed
information on existing land capability, productivity, production, and
land use is inappropriate to coal refuse remining operations. Proposed
Sec. 786.14(b) would, however, require a written description and
photographs of existing land uses. The written description and
photographs would describe and document both the existing land use and
the location of any abandoned equipment and other noncoal mine waste
left at the site. The proposed regulation would further require a
detailed description of the proposed postmining land use and how it
will be achieved. The proposed regulation would not apply the
requirement of Sec. 780.23(a) for a discussion of alternative land
uses. Because the configuration of the abandoned refuse area before
remining may not readily lend itself to a variety of postmining land
uses after remining, we do not believe it is appropriate to require the
permittee to expend the resources to identify such alternative uses.
The proposed regulation would require that the plan be accompanied by
any comments from the surface owner or State or local land use agencies
that would have to initiate, implement, approve, or authorize the
proposed land use. We believe this process would adequately identify
any viable land use alternatives that exist.
Proposed Sec. 786.14(c) would apply the requirements of Sec.
780.25 for ponds, impoundments, banks, dams, and embankments.
Therefore, to the extent such structures are included in the
reclamation plan, they would be described in accordance with this
section.
Proposed Sec. 786.14(d) would apply the requirements of Sec.
780.27 for mining near underground mines.
Proposed Sec. 786.14(e) would apply the requirements of Sec.
780.29 for diversions.
Section 786.15 Information on Hydrology
Section 786.15 would specify the information that is required on
hydrology. The following paragraphs discuss those requirements in
detail.
Section 786.15(a) Reprocessing Operations
Proposed Sec. 786.15(a)(1) would apply the requirements of Sec.
780.21 for the following types of information: Sampling and Analysis
methodology, section 780.21(a); baseline hydrologic information, Sec.
780.21(b); baseline information for the cumulative impact area, Sec.
780.21(c); modeling, Sec. 780.21(d); alternative water sources, Sec.
780.21(e); probable hydrologic consequences determinations, section
780.21(f); cumulative hydrologic impact assessments, Sec. 780.21(g);
ground-water monitoring plans, section 780.21(i); and surface-water
monitoring plans, Sec. 780.21(j).
In addition, the requirements of Sec. 780.21(h) pertaining to the
hydrologic reclamation plan would be applied under proposed Sec.
786.15(a)(2), with the exception of the requirement to restore
approximate premining recharge capacity. Section 816.41(b)(2) does not
require restoration of recharge capacity in coal mine waste disposal
areas and fills. We believe that the restoration of recharge capacity
is also not appropriate for areas affected by abandoned coal refuse
remining operations.
Section 786.15(b) Removal Operations
This proposed section would apply, with appropriate adaptations,
the major requirements for hydrologic information and analysis of the
regulations at Sec. 780.21 regarding: (1) The probable hydrologic
consequences (PHC) determination required by section 780.21(f); (2) the
cumulative hydrologic impact assessment (CHIA) required by Sec.
780.21(g); and (3) the hydrologic reclamation plan (HRP) required by
Sec. 780.21(h). In addition, this proposed section would require the
identification of BMPs that are proposed to either mitigate hydrologic
impacts or create hydrologic enhancements.
The proposed rule also would apply, with appropriate adaptations,
the other supporting requirements of Sec. 780.21, including hydrologic
information and analysis regarding sampling and analysis methodology,
Sec. 780.21(a); baseline information including supplemental
information, Sec. 780.21(b); baseline cumulative impact area
information, Sec. 780.21(c); modeling, Sec. 780.21(d); alternative
water source information, Sec. 780.21(e); ground-water monitoring
plans, section 780.21(i); and surface-water monitoring plans, Sec.
780.21(j).
As background on the hydrologic information and analysis required
by the existing permit regulations, we would like to summarize how the
PHC, HRP, and CHIA relate to each other. The purpose of the PHC is to
identify impacts on the hydrologic balance and the purpose of the HRP
is to identify mitigation measures that would reduce adverse impacts on
that balance. The PHC and HRP are provided by the operator in the
permit application. The purpose of the CHIA, which is in part based on
the PHC, is to determine the cumulative hydrologic effects in a
specified watershed from the proposed mining operation together with
all other anticipated mining operations in that watershed. The CHIA is
prepared by the regulatory authority for an area that
[[Page 2149]]
includes the proposed permit area and is used in evaluating whether the
operation has been designed to prevent material damage to the
hydrologic balance outside the permit area.
With regard to the requirements for hydrologic information and
analysis, our proposed regulations would differ from the above-
referenced regulations in four principal ways. Our proposed regulations
would (1) Provide for a narrative PHC and encourage the use of
available data, including that required by a National Pollutant
Discharge Elimination System (NPDES) permit, to satisfy baseline
requirements for seasonal flow conditions; (2) require the PHC to
estimate improvements and/or enhancements as well as negative impacts
to the hydrologic balance caused by the operator; (3) require surface
and ground-water monitoring plans (and associated monitoring data
collected during the abandoned coal refuse remining operation) only in
cases where the PHC estimates negative impacts to the hydrology; and
(4) require the HRP to identify the BMPs that will be proposed for use
during the operation. These four differences are discussed in more
detail below.
The first way our proposed regulation differs from the existing
regulation on hydrology is that our proposed regulation at Sec.
786.15(b)(1)(iii) would initially allow for a narrative PHC, including
its requirement for baseline information on seasonal variations, to be
based on available data, as opposed to the current requirements for a
PHC based on site-specific data. We believe that for most coal refuse
sites sufficient hydrologic information and data already exist to
satisfy the PHC requirements for baseline information. Thus, our
proposed regulation provides that a narrative PHC can be based on
existing hydrologic information derived from (1) Modeling and other
techniques; (2) data and findings for the proposed site including
relevant hydrologic information that might have been previously
required to obtain a point-source discharge permit under the NPDES
program; or (3) other relevant remining operations. The proposed PHC
would summarize probable hydrologic impacts or enhancements while
providing support, generally in terms of available information and
data, for any conclusions drawn. A PHC that contains an unsupported
description of seasonal baseline variations or unsupported conclusions
of probable hydrologic impacts or enhancements would not be acceptable.
When additional information or data are needed to support the PHC,
we can request this information or data from the applicant pursuant to
proposed Sec. 786.15(b)(1)(v), which allows us to request supplemental
information if adverse impacts are identified in the PHC, and proposed
Sec. 786.15(b)(3), which allows us to require any additional
information (including site-specific hydrologic data) needed to ensure
that the permit applicant will be able to comply with the performance
standards of proposed part 829. Thus, whatever the initial level of
hydrologic information and data submitted in the permit application, we
have ample authority under the proposed regulations to request any
additional information or data that is necessary to assess the
applicant's conclusions as to probable hydrologic consequences.
The second way our proposed regulations would differ from existing
regulations is that our proposed regulation at Sec. 786.15(b)(1)(iv)
would require in the PHC a description of the enhancement to local
ground- and surface-water hydrology expected from the proposed coal
refuse remining operation, with particular emphasis on decreased loads
of pollutants achievable through improved water quality, decreased flow
or infiltration of water, or some combination thereof.
The third way our proposed regulations would differ from the
existing regulations is that our proposed regulations would not
routinely require the operator either to develop monitoring plans for
surface and ground water or to monitor surface and ground water during
the abandoned coal refuse remining operation. The rationale for this
approach and the conditions under which supplemental monitoring plans
and monitoring data would be required are discussed below.
The major difference between abandoned coal refuse remining
operations and other surface mining operations, with regard to the need
for monitoring, is alluded to in section 517(b)(2) of SMCRA. That
section requires monitoring of operations that disturb rock strata
serving as aquifers that significantly ensure the hydrologic balance of
water use. However, as previously noted, abandoned coal refuse remining
operations will remove or reprocess only materials that have been
relocated from other areas and placed on a refuse site. These
operations will not disturb any strata that serve as aquifers, and thus
the monitoring requirements of section 517(b)(2) should not apply.
Our proposed regulations would not routinely require monitoring
plans (and associated monitoring data) for surface water and ground
water. If, however, the PHC indicates probable adverse impacts to the
hydrologic balance, then proposed Sec. 786.15(b)(1)(v) would require
compliance with the supplemental information requirements of Sec.
780.21(b)(3) and the ground- and surface-water monitoring requirements
of Sec. 780.21(i) and (j). In this way, full monitoring would be
assured whenever probable adverse hydrologic consequences are
identified in the PHC.
The fourth way our proposed regulations differ from existing
regulations is that proposed Sec. 786.15(b)(3) would require that the
HRP identify the specific BMPs to be used and any additional
information we might require to ensure compliance with the performance
standards of part 829. This requirement recognizes that the SMCRA
regulatory authority always has the inherent authority to require
additional information, including information pertaining to BMPs, if
that information is needed to make a decision on a permit application.
In summary, we believe the approach that we have taken in our
proposal with respect to baseline information, PHC and HRP
requirements, and BMPs is reasonable and, at the same time, technically
sound. Our belief is buttressed by the fact that the ground water and
surface water at abandoned coal refuse sites are most often already
adversely impacted. Abandoned coal refuse removal operations,
therefore, could be reasonably expected to maintain or improve the
existing hydrologic balance rather than adversely affect it, as
indicated by statistical evidence presented below in summaries of data
from the Pennsylvania regulatory program. Thus, our proposed
regulations, which are intended to facilitate the remining of abandoned
coal refuse piles and provide the same level of environmental
protection as under sections 515 and 516 of SMCRA, reasonably could be
expected to maintain or improve the hydrologic balance of abandoned
coal refuse sites.
As noted, Pennsylvania has been a leader in promoting remining and
in documenting the positive environmental effects of remining
operations, and has a hydrologic remining data base that goes back to
1985. See Environmental Protection Agency, 2001, Coal Remining--Best
Management Practices Guidance Manual, EPA-821-B-01-010, pp. 16-18. This
EPA manual reports that, of 260 remining permits issued by Pennsylvania
through 1997, 98 percent resulted in pollutional loads that were either
lower than baseline or only slightly exceeded baseline and did not
require long-term treatment.
[[Page 2150]]
Pennsylvania's database through 2003 contains hydrologic
information on a total of over 300 remining operations. The two figures
presented below are derived from information in that database for
reclaimed sites and detail the environmental enhancements that can
reasonably be expected from similar remining operations. According to
staff of the Pennsylvania Department of Environmental Resources
(personal communication with our staff, 2003), the figures and the
database from which these figures were prepared consist of remining
sites permitted in Pennsylvania under the alternative effluent
provisions of section 301(p) of the Clean Water Act, 33 U.S.C. 1311(p),
popularly referred to as the ``Rahall amendment of 1987.'' The sites
represent all types of remining categories including coal refuse
operations covered by our proposed regulations.
One hundred of the sites, having about 230 acid discharges prior to
the remining, have been fully reclaimed. Figure 1 shows that most of
these 230 discharges were either eliminated, improved, or at least did
not worsen with respect to acidity, iron and manganese (Mn) loads.
Figure 2, which is a composite of the 230 discharges, shows a
significant aggregate reduction in acid and sulfate loads after
remining.
[GRAPHIC] [TIFF OMITTED] TP17JA07.000
[[Page 2151]]
Section 786.16 Geologic and Refuse Information
Proposed Sec. 786.16(a) would apply the requirements of sections
780.22(a)(1) and (3) that the permit application provide sufficient
geologic data, if appropriate, and refuse data in sufficient detail to
assist in determining the probable hydrologic consequences of the
operation upon the quality and quantity of surface and ground water in
the permit and adjacent areas, including the extent to which surface-
and ground-water monitoring is necessary; whether the operation has
been designed to prevent material damage to the hydrologic balance
outside the permit area, and whether reclamation can be accomplished.
The ``if appropriate'' caveat, which is not in the existing rule
language, is included in the proposed language to expressly recognize
that geologic data may not always be needed or helpful for coal refuse
sites. The existing rule language does not require the submission of
refuse data, but such information is clearly needed under the proposed
rule. Proposed Sec. 786.16(b) also would include the requirement of
Sec. 780.22(c) that authorizes us to request additional geologic and
refuse data if deemed necessary to protect the hydrologic balance or
meet the performance standards of this chapter. Section 780.22(c) does
not require the submission of refuse data, but such information would
be required under the proposed rule.
The proposed regulation would not apply the requirement of Sec.
780.22(a)(2) for identifying all potentially acid- or toxic-forming
strata. We do not believe it appropriate to retain this requirement
because refuse piles are, by their very nature, potentially acid- or
toxic-forming; they are not homogenous and would, therefore, require
extensive sampling in order to accurately map their chemical
variations. Furthermore, the previously noted Pennsylvania study would
strongly suggest that this identification is not needed because
abandoned coal refuse remining operations, particularly removal
operations, would be expected to maintain or improve site conditions.
The proposed regulation also does not retain the requirements of
Sec. 780.22(b) to provide a description of the geology down to the
strata below the coal seam to be mined, or down to any acquifer below
the coal seam to be mined that could be adversely impacted by mining.
These requirements are not appropriate because abandoned coal refuse
remining operations will not disturb or mine any strata, including
``coal seams.''
Section 786.17 Information on Roads, Support Facilities
Proposed Sec. 786.17 retains the requirements of Sec. Sec.
780.33 and 780.37 for roads, and the requirements of Sec. 780.38 for
support facilities.
Disposal of Excess Spoil
We have not proposed a counterpart in section 786 to the
requirements of Sec. 780.35 on excess spoil. The excess spoil
requirements are not appropriate to abandoned coal refuse remining
operations because, in order to mine the refuse, these operations will
not remove overburden and, consequently, will not produce excess spoil.
Part 829--Special Permanent Program Performance Standards: Abandoned
Coal Refuse Remining Operations
Proposed part 829 contains special performance standards for
abandoned coal refuse remining operations. As discussed below, many of
the provisions in part 829 incorporate by reference the requirements of
parts 816 and 817, or adapt them as appropriate.
Section 829.1 Scope
This proposed section would state that part 829 contains the
performance standards established under the authority of the EPAct and
SMCRA. Section 829.1 states that the standards of this part would apply
to all abandoned coal refuse remining operations unless otherwise
specified. Where specified, the standards would apply either to refuse
removal operations or to on-site refuse reprocessing operations. We
also explain the use of the pronouns ``we'', ``our'', and ``us,'' which
refer to the regulatory authority and the pronouns ``you'' and
``your,'' which refer to the applicant and operator. We use pronouns
throughout this part in order to make the regulations more readable.
Section 829.2 Objectives
The objective of this part is to ensure that abandoned coal refuse
remining operations are conducted in a manner that preserves and
enhances environmental and other values following reclamation in
accordance with the requirements of SMCRA, as amended by the EPAct.
Section 829.3 General Requirements
Proposed Sec. 829.3 would require that any person intending to
conduct abandoned coal refuse remining operations obtain a permit in
accordance with part 786 and obtain a bond in accordance with
subchapter J. Proposed Sec. 829.3 specifies that any person who
conducts abandoned coal refuse remining operations would be subject to
the existing requirements of:
Sec. 816.43--Diversions.
Sec. 816.47--Hydrologic balance: Discharge structures.
Sec. 816.57--Hydrologic balance: Stream buffer zones.
Sec. 816.59--Coal recovery.
Sec. 816.61--Use of explosives: General requirements.
Sec. 816.62--Use of explosives: Pre-blasting survey.
Sec. 816.64--Use of explosives: Blasting schedule.
Sec. 816.66--Use of explosives: Blasting signs, warnings and access
control.
Sec. 816.67--Use of explosives: Control of adverse effects.
Sec. 816.68--Use of explosives: Records of blasting operations.
Sec. 816.79--Protection of underground mining.
Sec. 816.87--Coal mine waste: Burning and burned waste utilization.
Sec. 816.97--Protection of fish, wildlife, and related environmental
values.
Sec. 816.131--Cessation of operations: Temporary.
Sec. 816.132--Cessation of operations: Permanent.
Sec. 816.150--Roads: General.
Sec. 816.151--Primary roads.
Sec. 816.180--Utility installation.
Sec. 816.181--Support facilities.
Section 829.10 Information Collection
Proposed Sec. 829.10 contains information on the Office of
Management and Budget's approval of the information collection
requirements of part 829. Part 829 sets forth the minimum environmental
protection performance standards for abandoned coal refuse remining
operations, and requires periodic submission of performance data or
inspection surveys that relate to these operations. Proposed part 829
implements sections 515/516 of SMCRA, as amended by the EPAct. We
estimate that each year, each of the 22 remining operators would
require approximately 180 hours, depending on which requirements of
Sec. Sec. 829.3 and 829.81 are met, and $200 per operator to complete
the requirements of this part. In addition, for each of the 22 remining
applications that would be reviewed, the regulatory authority would
require 20 hours, with no non-wage costs, to review the information
required by part 829.
Section 829.11 Signs and Markers
Proposed Sec. 829.11 retains the requirements of Sec. 816.11 for
signs and markers except that, in lieu of the requirements of Sec.
816.22 referenced in Sec. 816.11(f), our proposal would reference
Sec. 829.22, which applies to topsoil markers.
[[Page 2152]]
Section 829.13 Casing and Sealing of Drill Holes, Portals, and Other
Openings
Proposed Sec. 829.13 retains the requirements of Sec. Sec.
817.13, 817.14, and 817.15 for the casing and sealing of holes and
other openings that might be encountered except that, in lieu of the
requirements of Sec. 817.41 referenced in Sec. Sec. 817.13 and 817.15
regarding the use of monitoring hole or other openings for water wells,
the requirements of Sec. 829.41 apply.
Section 829.22 Soils and Other Vegetation-Support Material
Proposed Sec. 829.22 would provide different requirements than
those of Sec. 816.22 for reasons discussed below. Under our proposed
regulations, the operator would be required to select and manage
vegetation-support materials to achieve a vegetative cover at least
equal to the existing vegetative cover on the abandoned coal refuse
site. Proposed Sec. 829.22(b) would apply the requirement of Sec.
816.22(d)(4) for application of nutrients and soil amendments when
necessary to establish the vegetative cover.
The proposed regulation, in part, includes requirements similar to
those of Sec. 816.22(b) and (e) which apply to surface mining
operations where existing topsoil is not suitable to sustain
vegetation. The proposed regulation would not apply the requirements of
Sec. 816.22(a), (c), and (d), which govern the removal, storage and
redistribution of topsoil respectively, as most refuse piles have
little, if any, retrievable topsoil. The proposed regulation at Sec.
829.22, however, would provide us latitude, on a permit-specific basis,
to require specific storage and redistribution plans for vegetation-
support material.
We believe the approach of proposed Sec. 829.22 would reflect the
soil conditions encountered at the great majority of abandoned coal
refuse sites. An abandoned coal refuse site usually contains a variety
of vegetation-support materials that, when enriched with soil
amendments, would be more suitable for vegetative growth than if the
vegetation-support materials were left in an unaugmented state. As an
example, the operator may select weathered earth materials on the
surface of the abandoned coal refuse pile or refuse site and add
appropriate soil amendments to produce a material much more suitable
for sustaining vegetative growth. In this regard, sub-surface materials
or soil from off the refuse pile or refuse site may also be available
and better suited for revegetation than the weathered surface materials
often found on a refuse pile or site. Under the proposed regulation,
the refuse remining operator would identify, prior to permit approval,
the vegetation-support material that will be used in reclamation. We
recognize that sometimes acidic materials may be the only vegetation-
support material available to an operator. In such situations, use of
acid-tolerant vegetative species and the chemical treatment of the
vegetative-support materials may be necessary to establish and sustain
vegetative growth. The operator may use a certified soil scientist to
certify that the proposed vegetation-support material is equal to or
better than that existing on the abandoned coal refuse site. This
certification is not, however, proposed as a requirement.
Section 829.41 Hydrologic-Balance Protection
Proposed Sec. 829.41(a), which would apply to on-site reprocessing
operations, would apply most of the requirements of Sec. 816.41,
hydrologic-balance protection; and Sec. 816.42, hydrologic balance:
water quality standards and effluent limitations. The proposed rule
would not apply the requirement in Sec. 816.41(b)(2) to restore
recharge capacity. Also, in lieu of the requirements of Sec. 780.21(h)
referenced in Sec. 816.41, the proposed rule would apply the
requirements of Sec. 786.15(a)(2).
Because the washing processes associated with on-site reprocessing
operations often have comparable impacts on surface and ground water
systems to those caused by other surface coal mining operations, our
proposed rule would retain existing hydrologic balance performance
standards. The sole exception is the requirement to restore recharge
capacity. This requirement is not appropriate to reprocessing
operations because they neither remove nor replace overburden, nor
remove or disturb strata that serve as aquifers. Therefore,
reprocessing does not involve actions that necessitate restoration of
recharge capacity.
Proposed Sec. 829.41(b)(1) applies to refuse removal operations
and would apply most of the principal provisions of Sec. 816.41,
except for the requirement of Sec. 816.41(b)(2) to restore recharge
capacity. We believe it is not appropriate to require restoration of
recharge capacity for sites of removal operations, because, like
underground mines, removal operations do not remove or replace
overburden. In order to ensure consistency of requirements related to
abandoned coal refuse remining operations, the proposed regulation also
would apply the ground- and surface-water monitoring requirements of
proposed part 786 instead of those in Sec. 816.41.
The proposed regulations generally would prohibit discharge of
waste and water, into underground mine works. These requirements are
similar to the requirements of Sec. 816.41(i)(2). However, discharges
from removal operations into underground works may in some cases be
appropriate. Therefore, proposed Sec. 829.41(b)(iv) would authorize
discharges into underground mine works if we approve the discharge and
the operator demonstrates that the operation would meet the following
requirements of Sec. 816.41(i): The permit would include baseline
ground-water and geologic information to describe the hydrologic and
geologic conditions associated with the underground mine works; the PHC
would address the impacts that the discharges will have on ground- and
surface-water users; the hydrologic reclamation plan would include
measures to remediate potential impacts to ground- and surface-water
users; and provision would be made for monitoring ground- and surface-
water systems.
Section 829.45 Hydrologic Balance: Sediment Control Measures
Proposed Sec. 829.45 would apply the sediment control requirements
of Sec. 816.45 except that, in lieu of the requirements of Sec. Sec.
816.102 and 816.111(b) referenced in Sec. 816.45, the requirements of
Sec. Sec. 829.102 and 829.111 would apply. See the discussion below of
Sec. Sec. 829.102 and 829.111.
Section 829.46 Hydrologic Balance: Siltation Structures
Proposed Sec. 829.46 would apply the requirements of Sec. 816.46
for siltation structures with the exception of Sec. 816.46(b)(2),
which is currently suspended. Also, in lieu of the requirements of
Sec. Sec. 816.42 and 816.49 referenced in section 816.46, the
requirements of Sec. Sec. 829.41(b) and 829.49 would apply. See the
discussion infra of Sec. Sec. 829.41(b) and 829.49.
Section 829.49 Impoundments
Proposed Sec. 829.49 would apply the requirements of Sec. Sec.
816.49 and 816.56 for impoundments and the rehabilitation of
sedimentation ponds, diversions, impoundments, and treatment facilities
except that, in lieu of Sec. 780.25 as referenced in Sec. 816.49, the
requirements of proposed Sec. 786.14(c), would apply. Furthermore,
proposed Sec. 829.49(b) would allow the retention of permanent
impoundments on reclaimed coal refuse in only two circumstances. First,
the proposed rule would allow
[[Page 2153]]
retention of impoundments that do not have a retaining embankment
(e.g., dug-out type impoundments). Second, the proposed rule would
allow the retention of impoundments on non-steep slope locations if the
impounding structures meet the requirements of Sec. 816.49. A retained
structure that meets the requirements of Sec. 816.49 would be suitable
for the approved postmining land use, such as a wetland.
Excess Spoil
The proposed rule would not apply the excess spoil requirements of
Sec. Sec. 816.71 through 816.74. Because abandoned coal refuse
remining operations will not remove overburden in order to extract the
refuse, they will not generate spoil. Proposed Sec. 829.102 would
address the grading requirements appropriate to rock and refuse
disposal.
Section 829.81 Redeposition and Handling of Coal Mine Waste and Coal
Refuse Piles
Proposed Sec. 829.81 would apply most of the requirements of Sec.
816.81, 816.83, and 816.84 for coal mine waste. Proposed Sec.
829.81(a) would specify that we may, on a site-specific basis, alter
the ``design certification'' and ``foundation'' standards of Sec.
816.81(c) and (d), and the inspection requirements of Sec. 816.83(c).
We are proposing this provision because abandoned coal refuse remining
operations may occur on refuse sites with different refuse
characteristics, and for different sites different refuse requirements
may be appropriate. For example, some refuse remining operations may
result in total removal of refuse from the site and others may result
in small amounts of waste being left behind that can be graded into the
surrounding terrain with little effect on site stability. Still other
operations may result in relatively significant amounts of material
being left on the site that would need to be configured during
reclamation as a mound or refuse pile. And even within the same site,
different aggregations of refuse material may have different physical
characteristics and, following weathering, different stability
characteristics. For example, cohesion is an important factor in slope
stability analyses and resulting safety factors. Most pre-SMCRA coal
refuse material has weathered extensively, resulting in finer clay-like
particle sizes and increased cohesion. However, some refuse material
has not weathered extensively, so rock sizes are coarse and the refuse
may have little or no cohesion.
Because of the wide range in refuse material composition and
weathering, as well as the varying amount of refuse material that may
remain on the site following reclamation, we believe that the
regulatory authority should have the latitude, on a site-specific
basis, to allow alternate design and foundation standards for handling
and redeposition of coal refuse. The regulatory authority could, for
example, require safety factors ranging from 1.3-1.5 in lieu of
requiring the same value in all cases. For these same reasons, detailed
site inspections by a professional engineer or other specialist may not
be warranted in every case. We believe that the regulatory authority
can best decide, on a site-specific basis, the needed amount of detail
in the inspection, the required inspection frequency, and/or the
necessary qualifications of the inspector.
Proposed Sec. 829.81(b) would provide that refuse waste deposited
adjacent to the refuse site (i.e., next to the site where the coal
refuse was originally deposited) must comply with the standards of
Sec. Sec. 816.81 through 816.84. We believe these standards are
appropriate because such adjacent disposal would create new coal refuse
disposal structures.
Proposed Sec. 829.81(c) authorizes the underground disposal of
coal refuse waste only when the requirements of both section 816.81(f)
and proposed Sec. 829.41(b)(1)(i) are met. The rationale for limiting
the underground disposal of waste solely to refuse removal operations
is addressed above in the preamble discussion of proposed Sec. 829.41.
Proposed Sec. 829.81(d) would not apply the 4-foot cover
requirement of Sec. 816.83(c)(4), because adequate amounts of nontoxic
and noncombustible cover material are generally not available on
abandoned coal refuse sites. However, proposed Sec. 829.102, does
require that any remaining refuse from an abandoned coal refuse
remining operation must be covered with sufficient noncombustible and
nontoxic material to prevent sustained combustion. Section 829.81(d)
would allow us to approve site-specific variations in the amount and
type of cover material used, to prevent sustained combustion and
support vegetation.
Proposed Sec. 829.81(e) would not apply the vegetation removal
requirement of Sec. 816.83(c)(1) or the permanent impoundment
prohibition of Sec. 816.83(c)(3), because these two topics are
addressed in proposed Sec. Sec. 829.22 and 829.49, respectively.
For placement of coal mine waste, proposed Sec. 829.81(f) would
apply the requirements of Sec. 816.83(c); except that, in lieu of the
requirements of Sec. 816.22 referenced in Sec. 816.83(c), the
requirements of proposed section 829.22 would apply in order to ensure
consistency of requirements related to abandoned coal refuse remining
operations.
Section 829.89 Disposal of Noncoal Mine Waste
Proposed Sec. 829.89(a) would apply the requirements of Sec. Sec.
816.89(a) and (b) for the disposal of noncoal mine wastes with one
exception. In lieu of the requirements of Sec. Sec. 816.111 through
816.116 referenced in section 816.89(b), the operation would be
required to comply with the cover and vegetation requirements of
proposed Sec. 829.111.
Proposed Sec. Sec. 829.89(b) and (c), in lieu of the requirements
of Sec. 816.89(c), would authorize the disposal of noncombustible
noncoal mine waste, including coal combustion wastes, within the refuse
pile if the disposal will not adversely affect final site reclamation
or public health and safety. This provision recognizes the possible
benefits of bringing noncombustible alkaline wastes to the site as well
as the probability of encountering large pieces of abandoned equipment
or machinery, and would allow on-site disposal of both. We expect that
the regulatory authority would require the applicant to provide an
analysis of any noncombustible wastes proposed to be disposed at the
site and that the regulatory authority would use this analysis to
determine that the disposal would not adversely affect final site
reclamation or public health and safety.
Section 829.95 Stabilization of Surface Areas
Proposed Sec. 829.95 would apply the provisions of Sec. 816.95
concerning the stabilization of surface areas except that the section
has been reworded to reflect that vegetation-support material, instead
of topsoil, would be used to repair rills and gullies.
Section 829.99 Slides and Other Damage
Proposed Sec. 829.99 would apply the requirements of Sec.
816.99(b) concerning operator responsibilities if a slide should occur.
The proposed rule would not apply Sec. 816.99(a), which requires the
retention of an undisturbed natural barrier. The barrier requirement
generally applies to contour and mountaintop removal mining operations
that backfill spoil on the mined-out bench. This barrier provision,
however, is not appropriate to abandoned coal refuse remining
operations because these operations do not remove in-place
[[Page 2154]]
rock in order to extract the refuse. Consequently, the opportunity for
the retention of an undisturbed natural barrier does not exist.
Section 829.100 Contemporaneous Reclamation
Proposed Sec. 829.100 would apply the requirement of Sec. 816.100
to reclaim the disturbed area as contemporaneously as practicable with
the abandoned coal refuse remining operation. In addition, the proposed
rule would require the permit to establish a schedule for the
contemporaneous reclamation of the site.
During the formation of this rulemaking, personnel from OSM, the
States, industry and the environmental community visited numerous
abandoned coal refuse sites throughout the country. Some of these sites
had been remined and reclaimed or were in the process of being
reclaimed. Other partially remined sites had been abandoned and left
unreclaimed. In order to minimize the amount of land left unreclaimed
if a site permitted under this rule is abandoned, we are proposing that
the permit contain a schedule defining contemporaneous reclamation. A
schedule would make it possible for the regulatory authority to verify
that reclamation is proceeding in a timely fashion and to take prompt
action if there is a question about abandonment.
Section 829.102 Grading
As discussed below, proposed Sec. 829.102 would apply, with some
revision, many of the requirements of Sec. 816.102, and would provide
different requirements than those of Sec. Sec. 816.106 and 816.107.
The proposed rule would not retain the requirements of Sec. Sec.
816.102(k), 816.104 and 816.105 because they pertain to removal of thin
and thick overburden, mountaintop removal, and variances from
approximate original contour (AOC). These standards all address removal
and replacement of overburden and, as discussed above, overburden
removal does not occur in abandoned coal refuse remining operations.
Proposed Sec. 829.102 also would not apply the requirements of
Sec. 816.102(a)(1) and (k) for approximate original contour (AOC), the
requirements of Sec. 816.102(b) and (d) for excess spoil and the
placement of spoil outside the permit, or the requirements of Sec.
816.102(i) for permanent impoundments. It is not appropriate to require
AOC for a remined refuse pile site, because the amount of spoil, rock
waste, and refuse remaining after refuse remining may be either less
than or greater than the amount needed to make the site closely
resemble the general surface configuration of the land prior to the
original placement of the refuse.
Because abandoned coal refuse remining operations will not remove
overburden to extract the refuse, ``spoil,'' as defined in Sec. 701.5,
will not be generated by these operations. Rather, these operations may
encounter existing spoil left by the abandoned mine operation. See the
definition of ``spoil'' in section 701.5, which would encompass any
existing spoil encountered at an abandoned coal refuse site. The
proposed references to ``rock waste'' would refer to rock produced from
such activities as road construction and highwall stabilization.
More specifically, proposed Sec. 829.102(a) would require that
grading be done in accordance with the redeposition handling
requirements of proposed section 829.81. Proposed Sec. 829.102(a) also
would require that grading activities be completed according to the
reclamation plan schedule required by proposed Sec. 786.14(a).
Proposed Sec. 829.102(b) would apply the requirements of Sec.
816.102(a) except for the requirement to achieve AOC. As discussed
above, a requirement to achieve AOC is not appropriate because the land
surface and elevations of abandoned coal refuse remining sites have
already been altered from their original pre-mined conditions, and
refuse remining does not remove overburden. Proposed Sec. 829.102(b)
would apply the 1.3 static safety factor that is required by Sec.
816.102(a)(3) and 816.102(e).
The proposed rule would not apply the requirements of Sec.
816.102(b), (c), and (d), which primarily relate to spoil. As noted
above, spoil will not be generated by abandoned coal refuse remining
operations. The requirement of Sec. 816.102(c) to compact waste where
advisable is duplicative of Sec. 816.81(a), which would be applied to
abandoned coal refuse remining operations by proposed Sec. 829.81(a).
Proposed Sec. 829.102(c) would allow land adjacent to the refuse
remining site to be graded to conform to the remining site. This
paragraph further requires that vegetation-support material from the
adjacent area be removed and stored prior to such grading so that it
will be available for future use at both sites.
Proposed Sec. 829.102(d) would apply the requirements of section
816.102(f) concerning covering or treating both exposed coal seams and
combustible material to prevent sustained combustion. The requirement
of Sec. 816.102(f) to cover acid- and toxic-forming material would be
addressed by proposed Sec. 829.41.
Proposed Sec. 829.102(e), (f), and (g) would generally apply the
requirements of sections 816.102(g), (h) and (j). The permanent
impoundments requirements of section 816.102(i) would be addressed at
Sec. 829.49 and would not be addressed in section 829.102.
Proposed Sec. 829.102(h) would apply the principal elements of
Sec. 816.106. Under this proposed provision, highwalls and other
mining-related rock cuts encountered or uncovered during refuse
remining operations would be eliminated to the extent technically
practicable given available backfill material and stability
considerations. Such rock cuts may exist in refuse sites located in
valley fills, hillside areas, and strip cuts. The proposed paragraph
would require that available spoil, rock waste, or refuse from the
abandoned coal refuse site disturbed by the operation would be used to
eliminate rock cuts in a safe manner consistent with achieving site
stability. Proposed Sec. 829.102(h) does not contain an ``other
reasonably available spoil'' provision comparable to that found in
Sec. 816.106(b)(1) concerning elimination of highwalls. This provision
was not included because it could involve disturbance and potential
destabilization of previously mined areas adjacent to those where the
refuse remining will occur. While grading of adjacent areas may be
necessary in some instances for stability purposes, it may not be
desirable to disturb those areas in other instances, solely to obtain
backfill material.
Proposed Sec. 829.102(i) would apply to remining of abandoned coal
refuse sites located on steep slopes. Unlike Sec. 816.107(c), this
paragraph would not prohibit disturbing land above the highwall, and
would allow us to authorize up-slope disturbances when warranted for
diversions or other operations-related activities. Proposed Sec.
829.102(i)(1), which prohibits placing specified materials on the
downslope below the elevation of the refuse site, would be consistent
with the prohibitions in Sec. 816.107(b) against placing materials on
the downslope. Proposed Sec. 829.102(i) would impose additional
requirements to minimize the potential that refuse remining activities
on steep slopes will result in unstable conditions. More specifically,
proposed Sec. 829.102(i)(2)(i) would require refuse on steep slopes to
be removed in horizontal lifts, i.e., in horizontal layers, starting at
the top of the refuse pile. Proposed Sec. 829.102(i)(2)(ii) further
would prohibit the removal of the toe of the refuse until the removal
of refuse by
[[Page 2155]]
horizontal lifts progresses down to that level. Because alternate
extraction methods may be necessary for some refuse remining sites,
proposed Sec. 829.102(i)(3) would allow us to waive the requirements
of Sec. 829.102(i)(2)(i) and (ii) if the permit demonstrates, on the
basis of stability analyses, that the alternate methods would not
result in unstable conditions during refuse remining.
Section 829.111 Revegetation, Standards for Success, and Bond Liability
Period
Proposed Sec. 829.111 would require compliance with the
revegetation requirements of Sec. Sec. 816.111(b)-(d), 816.113, and
816.114, while establishing revegetation success standards and
responsibility periods that differ from those of Sec. 816.116.
Proposed Sec. 829.111(a) generally would retain the requirements
of Sec. 816.111(a), with the exception of the requirement for a
diverse vegetative cover. Because of limitations often found in the
quality of the soil or other surface materials at abandoned coal refuse
sites, proposed paragraph (a) would not include the requirement of
Sec. 816.111(a)(1) to achieve a diverse cover on regraded areas and
all other disturbed areas. For sites that are currently barren or
sparsely vegetated, the proposal would require that the operator
establish sufficient vegetation to stabilize the surface area. Such
stabilization of the surface area should be attainable using surface
materials found at the site, augmented by soil amendments and, where
necessary, by additional soil brought in from borrow areas. This
requirement for sufficient vegetation to stabilize the surface area is
comparable to existing requirements for AML refuse reclamation
projects. Proposed Sec. 829.111(b) and (c) would require that the
operator stabilize the surface from erosion in accordance with proposed
Sec. 829.95 and establish a vegetative cover no less than that which
existed on the site prior to the abandoned coal refuse remining
operation. In our field review of abandoned coal refuse sites, we found
that many sites had little or no ground cover. When there was ground
cover at these sites, the cover most often consisted of only a few
species. Other abandoned coal refuse sites were reforested with a full
tree canopy or contained wetlands with an extensive cover of marsh
vegetation, often of a single species that developed on slurry ponds.
In light of these observations, the proposed rule would require that
erosion be stabilized and a vegetative cover be established that is no
less than that encountered at the site prior to remining.
Proposed Sec. 829.111(d) would incorporate Sec. 816.116(c), which
establishes the revegetation responsibility period and contains certain
related requirements pertaining to the evaluation of revegetation
success, with two modifications. As proposed, the rule would establish
a revegetation responsibility period of two full years after the last
year of augmented seeding, fertilizing, irrigating or other work for
areas with an average annual precipitation greater than 26.0 inches.
The responsibility period would be five full years after the last year
of augmented seeding, fertilizing, irrigating or other work for areas
with an average annual precipitation equal to or less than 26.0 inches.
At present, Sec. 816.116(c)(2) contains two responsibility periods
for areas with an average annual precipitation greater than 26.0
inches. Under paragraph (c)(2)(i), the period is five full years after
the last year of augmented seeding, fertilizing, irrigating or other
work; but paragraph (c)(2)(ii) reduces that period to two full years
for lands eligible for remining if those lands are included in a permit
issued under 30 CFR 785.25. Similarly, Sec. 816.116(c)(3) currently
contains two responsibility periods for areas with an average annual
precipitation equal to or less than 26.0 inches. Under paragraph
(c)(3)(i), the period is ten full years after the last year of
augmented seeding, fertilizing, irrigating or other work; but paragraph
(c)(3)(ii) reduces that period to five full years for lands eligible
for remining if those lands are included in a permit issued under 30
CFR 785.25.
The shortened revegetation responsibility periods in paragraphs
(c)(2)(ii) and (c)(3)(ii) of Sec. 816.116 correspond to a provision in
section 2503(b) of the Energy Policy Act of 1992 that added similar
language to section 515(b)(20) of SMCRA as an incentive for remining
operations.
Section 829.133 Postmining Land Use
Proposed Sec. 829.133 would provide different requirements for
postmining land use than those of Sec. 816.133 which sets forth
detailed criteria for determining premining uses of the land as well as
detailed criteria for alternative postmining land uses. In lieu of
these existing provisions, the proposed rule would require that all
areas disturbed by abandoned coal refuse remining operations be
restored to a condition capable of supporting the uses or higher or
better uses than those that existed at the abandoned coal refuse site
prior to commencement of the refuse remining operations.
Our proposal to require that the operator restore the abandoned
coal refuse site to a condition capable of supporting an equivalent or
higher or better use than that which existed before the remining
operation is a function of the physical characteristics typically
encountered at abandoned coal refuse sites. Most abandoned coal refuse
sites pose environmental problems and are eligible for reclamation and
acid mine drainage abatement under the Abandoned Mine Land Reclamation
Fund. The range of environmental and safety problems typically found at
these sites includes acid mine drainage and acid ponds, dust and
erosion, unstable conditions, slides, lack of topsoil, refuse fires,
etc. Many of these sites are little more than ``moonscapes'' where the
existing vegetative cover is dramatically less than what one would
ordinarily expect from an undeveloped land use. In such cases, the
cost-effective postmining land use options available to the site are
extremely limited. Accordingly, our proposed rule would require the
site at least to be stabilized and covered with vegetation that would
grow in available vegetative-support material and in a manner similar
to the reclamation done under the AML program. In some cases,
revegetation will involve planting wetland species, whereas in other
cases, acid-tolerant species will be planted as the only species
capable of achieving revegetation. In all cases, the site must be
restored to a condition capable of supporting at least an equivalent
use or a higher or better use than that which existed at the time of
the abandoned coal refuse remining operation.
III. Public Comment Procedures
Electronic or Written Comments: If you submit written comments,
they should be specific, confined to issues pertinent to the proposed
regulations, and explain the reason for any recommended change(s). We
appreciate any and all comments, but those most useful and likely to
influence decisions on the final regulations will be those that either
involve personal experience or include citations to and analyses of
SMCRA, its legislative history, its implementing regulations, case law,
other pertinent State or Federal laws or regulations, technical
literature, or other relevant publications.
Except for comments provided in an electronic format, you should
submit three copies of your comments if possible. We cannot ensure that
comments received after the close of the comment period (see DATES) or
at
[[Page 2156]]
locations other than those listed above (see ADDRESSES) will be
considered or included in the Administrative Record.
Availability of Comments: Our practice is to make comments,
including names and home addresses of respondents, available for public
review during regular business hours at the OSM Administrative Record
Room (see ADDRESSES). Individual respondents may request that we
withhold their home address from the rulemaking record, which we will
honor to the extent allowable by law. There also may be circumstances
in which we would withhold from the rulemaking record a respondent's
identity, to the extent allowed by law. If you wish us to withhold your
name and/or address, you must state this prominently at the beginning
of your comment and you must submit your comment by regular mail, not
by e-mail. We will make all submissions from organizations or
businesses, and from individuals identifying themselves as
representatives or officials of organizations or businesses, available
for public inspection in their entirety.
Public hearings: We will hold a public hearing on the proposed
regulations upon request only. The time, date, and address for any
hearing will be announced in the Federal Register at least 7 days prior
to the hearing.
Any person interested in participating at a hearing should inform
Andy DeVito (see FOR FURTHER INFORMATION CONTACT), either orally or in
writing by 4:30 p.m., Eastern time, on February 7, 2007. Any disabled
individual who requires special accommodation to attend a public
hearing should also contact Andy DeVito so that appropriate
arrangements can be made.
If no one has contacted Mr. DeVito to express an interest in
participating in a hearing by that date, a hearing will not be held. If
only one person expresses an interest, a public meeting rather than a
hearing may be held, with the results included in the Administrative
Record.
The public hearing will continue on the specified date until all
persons scheduled to speak have been heard. If you are in the audience
and have not been scheduled to speak and wish to do so, you will be
allowed to speak after those who have been scheduled. We will end the
hearing after all persons scheduled to speak and persons present in the
audience who wish to speak have been heard. To assist the transcriber
and ensure an accurate record, we request, if possible, that each
person who testifies at a public hearing provide us with a written copy
of his or her testimony.
IV. Procedural Matters
What Are the Effects of This Rule on Federal Program States and on
Indian Lands?
The proposed revisions, if adopted, will apply through cross-
referencing in those States with Federal programs: California, Georgia,
Idaho, Massachusetts, Michigan, North Carolina, Oregon, Rhode Island,
South Dakota, Tennessee, and Washington. The Federal programs for these
States appear at 30 CFR parts 905, 910, 912, 921, 922, 933, 937, 939,
941, 942, and 947, respectively. The proposed regulations, if adopted,
will also apply through cross-referencing to abandoned coal refuse
remining operations on Indian lands, because we will amend the
regulations in parts 750 and 785 for the purpose of incorporating by
reference parts 786 and 829 into the programs for Indian lands and the
Federal program States. Comments are specifically solicited as to
whether unique conditions exist in any of these Federal program States
or on Indian lands relating to this proposal that should be reflected
either as changes to the national regulations or as specific amendments
to any or all of the Federal programs or the Indian lands program.
How Will This Rule Affect State Programs?
Following publication of the final regulations, we will evaluate
the State programs approved under section 503 of SMCRA to determine if
any changes in those programs may be necessary. When we determine that
a State program should be amended, the particular State will be
notified in accordance with the provisions of 30 CFR 732.17. On the
basis of the proposed regulations, we have made a preliminary
determination that States may adopt similar regulations if they choose
to, but we will not require them to amend their programs.
Section 529 of SMCRA authorizes the Secretary to promulgate
separate regulations for anthracite coal mines. That provision is
implemented through Sec. 785.11 for permitting requirements and part
820 for performance standards. The Federal regulatory requirements
essentially incorporate the anthracite program of the Commonwealth of
Pennsylvania. That program, therefore, applies to anthracite culm banks
and refuse piles. No change to Sec. 785.11 or part 820 is considered
necessary to apply these proposed regulations to anthracite refuse
sites. Once proposed regulations for abandoned coal refuse remining
operations are finalized, Pennsylvania may modify its anthracite
program in accordance with part 732 to incorporate the provisions
provided herein in order to facilitate the removal and/or reprocessing
of anthracite refuse sites.
Executive Order 12866--Regulatory Planning and Review
These regulations are considered significant and are subject to
review by the Office of Management and Budget under Executive Order
12866.
a. The regulations may raise novel legal or policy issues, which is
the reason why they are considered significant under Executive Order
12866.
b. The regulations would not create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency.
c. The regulations would not alter the budgetary effects of
entitlements, grants, user fees, or loan programs or the rights or
obligations of their recipients.
d. The regulations will not have an effect of $100 million or more
on the economy. They will not adversely affect in a material way the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, Tribal, or local governments or
communities. The proposed regulations will not have an adverse economic
impact on the coal industry or State regulatory authorities. This
determination is based on the fact that the proposed regulations will
facilitate the removal and/or reprocessing of coal refuse piles,
abandoned prior to the enactment of SMCRA, by private industry for use
as fuel for electric power generation. Coal refuse removal and
reprocessing operations conducted under the new regulations are by
choice. It is expected that such operations will result in significant
positive benefits, both tangible and intangible. The benefits of such
operations include:
Elimination of Health and Safety Problems
Serious health and safety problems are associated with refuse
disposal sites. These problems include:
Refuse piles placed on hillsides, such as exist throughout
Appalachia, may be unstable and slip, resulting in landslides.
Refuse is often easily combustible because of its significant coal
content. As a result, burning refuse banks have been serious problems,
both in terms of the noxious fumes emitted and the potential for fires
spreading to adjacent areas and to nearby residences. Most of the
burning piles have been reclaimed using AML Fund monies, but
unreclaimed refuse piles have the
[[Page 2157]]
potential for catching on fire and becoming a hazard.
Refuse piles are attractive for off-road vehicle use which, because
of the piles' unstable and steep slopes, can result in injury and even
death.
Automobile accidents have been reported where dirt and rock have
washed across highways from an adjacent abandoned refuse pile.
Many of these hazards will be eliminated by the removal and
reclamation of the refuse piles that will be facilitated by the
proposed regulations.
Elimination or Reduction of Existing Ongoing Environmental Problems
Refuse pile removal, followed by grading and revegetating the site,
will eliminate or significantly reduce environmental problems
associated with such piles including (1) Acid drainage and pollution of
adjacent streams resulting from the large amounts of pyritic materials
that are often present; (2) uncontrolled erosion resulting in stream
siltation and downstream flooding; and (3) diminished aesthetic
qualities.
Establishment of Vegetative-Support Material and Vegetative Cover
There is generally little or no topsoil existing on the surface of
abandoned refuse sites. Typically, the topsoil was either buried or
lost during the original refuse placement. Vegetation may be sparse and
vary widely throughout the site. Removal of refuse material followed by
reclamation of the site would allow identification of more suitable
vegetation-support materials such as weathered earth or sub-surface
materials that, with appropriate soil amendments, would be more
suitable for vegetative growth than the existing vegetation-support
materials without soil amendments. OSM recognizes that sometimes acidic
materials are the only vegetation-support material available to an
operator. In such situations, use of acid-tolerant vegetative species
may be necessary in addition to surface treatment with chemicals. The
end result would be establishment of a vegetative cover sufficient to
prevent erosion and sedimentation, and compatible with a higher land
use.
Recovery of Lost Coal Values
Refuse piles may have a carbon content ranging from a low of 27.5
percent to a high of 98.9 percent of the original coal values that were
mined. Recovery of these formerly ``lost'' coal values, either by
reprocessing or by directly burning the refuse, in a sense increases
the nation's coal resources. Since the percentage of recoverable coal
varies widely, we are, for computation purposes, assuming that the coal
refuse, on average, contains from 5,000 to 8,000 Btu/lb, or about half
the Btu value of bituminous coal. Therefore, the 9 million tons of
refuse projected to be recovered/utilized annually represents,
theoretically, at least 4.5 million tons of coal that could be added to
the coal reserve base each year.
Reclamation Without Recourse to Limited Abandoned Mine Land Funds
Available data on reclaiming refuse sites indicates that the
average reclamation costs will range from $200 to $70,000 per acre.
These data also indicate that, depending on its size and configuration,
a refuse pile contains approximately 40,000 tons of refuse per acre.
Assuming that the analysis provided in the previous paragraph is
reasonable, the 9 million tons of refuse projected to be recovered
annually equates to 222 acres reclaimed annually. Reclamation costs for
these 222 acres are estimated, using an average cost of $14,797 per
acre, to be $3.3 million. Therefore, there is the potential for an
estimated annual savings of $3.3 million in AML fund expenditures
because government will be relieved of most reclamation costs for sites
remined under the proposed regulations.
Increased Employment
It is projected that refuse burning power plants will be fueled by
20-22 refuse removal/reprocessing operations that will be active at any
given time. Four categories of employees that will be working at either
the co-generation stations or the refuse recovery operations have been
identified. These categories include the construction workers for
building new power generating stations; the power plant employees;
refuse removal/reprocessing operation employees; and truck drivers.
Increased and Improved Variety of Potential Land Uses
Land use alternatives for these reclaimed sites could include, for
example, returning the site to a forest, grassy field, or wildlife
habitat that existed prior to mining; or creating areas that will allow
residential or commercial development, or construction of parks, ball
fields, gun clubs or other sports facilities.
Numerous examples of these uses for former refuse sites abound
throughout the coal regions. It is expected that such uses will be
enhanced by the proposed regulations.
Enhancement of Local Quality of Life and Adjacent Property Values
Removal or reprocessing these refuse sites will have a significant
synergistic effect in that, by eliminating the attendant health,
safety, and environmental problems, land use alternatives at the site
will increase, the quality of life in nearby communities will be
improved, and, it is anticipated, adjacent property values will often
be enhanced.
Costs Associated With the Rule
Once fully implemented, the annual costs of this rule is estimated
to be approximately $624,000 per year. That figure is based on an
assumption that approximately 16 permit applications will be submitted
each year under this rule and that it will cost each applicant $28,000
to prepare a permit application, and $11,000 for a regulatory authority
to review and approve the application. Costs resulting from the rule
would include the following:
Industry costs. We estimate that annually, approximately
16 companies will apply for permits under these regulations. The
estimated cost to prepare a permit application under the proposed
regulations is approximately $28,000 per applicant. This estimate is
based on the burden hours associated with the regulatory wage hour
requirements in the rule multiplied by industry compliance costs of
$60.00 per hour. See the burden hour tables below in the section on the
Paperwork Reduction Act. Permit applicant costs would be covered by the
profits derived from the sale of the coal removed.
State Costs. There would be costs to those States that
decide to issue equivalent State regulations. We estimate that
approximately 7-10 States may voluntarily decide to promulgate
equivalent State regulations. Fifty percent of State costs would be
covered by the annual regulatory grant to the State from the Federal
government. Costs would vary by State; however, grants to the States do
not have per regulation cost breakdown. We can estimate that it will
cost a State approximately $4500 to promulgate regulations and submit a
State program amendment to OSM. This estimate is based on the burden
hours associated with the regulatory requirements in 30 CFR 732.17 for
submitting a State program amendment. The State cost is then reduced by
50 percent to $4,500 as a result of the annual regulatory grant given
to the State by OSM. In addition, it will cost States approximately
$11,000 to review and approve an application submitted under the
[[Page 2158]]
proposed regulations. This estimate is based on the burden hours
associated with the regulatory requirements in the rule multiplied by
State compliance costs of $45.00 per hour. See the burden hour tables
below in the section on the Paperwork Reduction Act.
Federal Costs. There would be costs to the Federal
government in reviewing and approving submitted State program
amendments. Data for FY 2005, available from OSM's cost accounting
system, indicates that the average cost to process a proposed State
program amendment is approximately $830.00 and for a final rule,
$6,120. If 10 States were to submit proposed and final State program
amendments the cost to the Federal Government would be approximately
$130,700 (10 x [$830 + $6,120] = $130,700).
Regulatory Flexibility Act
The Department of the Interior certifies that these regulations
will not have a significant economic impact on a substantial number of
small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.). For the reasons previously stated, the proposed regulations will
not have an adverse economic impact on the coal industry or State
regulatory authorities. Further, the regulations will not produce
adverse effects on competition, employment, investment, productivity,
innovation, or the ability of United States enterprises to compete with
foreign-based enterprises in domestic or export markets.
Small Business Regulatory Enforcement Fairness Act
For the reasons previously stated, the regulations are not
considered ``major'' under 5 U.S.C. 804(2), the Small Business
Regulatory Enforcement Fairness Act. The regulations:
a. Do not have an annual effect on the economy of $100 million or
more.
b. Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions.
c. Do not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises for
the reasons stated above.
Unfunded Mandates
These regulations do not impose an unfunded mandate on State,
Tribal, or local governments or the private sector of more than $100
million per year. The regulations do not have a significant or unique
effect on State, Tribal, or local governments or the private sector. A
statement containing the information required by the Unfunded Mandates
Reform Act (2 U.S.C. 1501 et seq.) is not required.
Executive Order 12630--Takings
In accordance with Executive Order 12630, the regulations do not
have takings implications to require a takings implication analysis.
Executive Order 12988--Civil Justice Reform
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that the regulations do not unduly burden the
judicial system and that they meet the requirements of sections 3(a)
and 3(b)(2) of the Order.
Executive Order 13132--Federalism
In accordance with Executive Order 13132, the regulations do not
have Federalism implications sufficient to warrant the preparation of a
Federalism Assessment for the reasons discussed above.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
In accordance with Executive Order 13175, we have evaluated the
potential effects of these regulations on Federally-recognized Indian
tribes and have determined that the proposed additions of parts 786 and
829 would not have substantial direct effects on the relationship
between the Federal Government and Indian tribes, or on the
distribution of power and responsibilities between the Federal
Government and Indian Tribes.
Executive Order 13211--Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
These regulations are not considered a significant energy action
under Executive Order 13211. The proposed additions of parts 786 and
829 would not have a significant effect on the supply, distribution, or
use of energy.
Paperwork Reduction Act
In accordance with 44 U.S.C. 3507(d), OSM has submitted the
information collection and recordkeeping requirements of 30 CFR parts
786 and 829 to the Office of Management and Budget (OMB) for review and
approval.
30 CFR Part 786
Title: Requirements for Permits for Abandoned Coal Refuse Remining
Operations--30 CFR part 786.
OMB Control Number: 1029-XXX1.
Summary:Proposed 30 CFR part 786 sets forth the requirements for
obtaining a permit for abandoned coal refuse remining operations. The
requirements would ensure that the permit applicant obtains a permit to
conduct an abandoned coal refuse remining operation in accordance with
the requirements of the Surface Mining Control and Reclamation Act of
1977 (SMCRA), as amended by the Energy Policy Act of 1992 (EPAct).
Bureau Form Number: None.
Frequency of Collection: Once.
Description of Respondents: 16 Surface coal mining permit
applicants and 15 State regulatory authorities.
Total Annual Responses: 31.
Total Annual Burden Hours: 10,542.
Summary Annual Burden to Respondents for 30 CFR 786
----------------------------------------------------------------------------------------------------------------
Number of Hours per Number of Hours per Total hours
Section applicants applicant States State requested
----------------------------------------------------------------------------------------------------------------
786.12(a)....................... 16 25 15 5 475
786.12(b) & (c)................. 16 17 15 1 287
786.12(d)....................... 16 16 15 6 346
786.12(e)....................... 16 35 15 20 860
786.13(a)....................... 16 15 15 5 315
786.13(b)....................... 16 8 2 158
786.13(c)....................... 2 4 2 2 12
786.13(d)....................... 16 40 15 20 940
786.13(e)....................... 2 3 2 1 8
786.13(f)....................... 16 8 15 4 188
786.13(g)....................... 16 8 15 4 188
[[Page 2159]]
786.14(a)....................... 16 60 15 40 1,560
786.14(b)....................... 16 10 15 5 235
786.14(c)....................... 16 25 15 10 550
786.14(d)....................... 8 30 8 5 280
786.14(e)....................... 16 30 15 20 780
786.15.......................... 16 75 15 50 1,950
786.16.......................... 16 30 15 20 780
786.17.......................... 16 30 15 10 630
-------------------------------------------------------------------------------
Total....................... .............. .............. .............. .............. 10,542
----------------------------------------------------------------------------------------------------------------
Total Non-Wage Burden Costs: $77,560.
Summary Annual Non-Wage Cost to Respondent for 30 CFR 786
----------------------------------------------------------------------------------------------------------------
Number of Cost per
Section applicants applicant Total costs
----------------------------------------------------------------------------------------------------------------
786.12(a).................................................... 16 50 800
786.12(b) & (c).............................................. 16 50 800
786.12(d).................................................... 16 50 800
786.12(e).................................................... 16 50 800
786.13(a).................................................... 16 50 800
786.13(b).................................................... 16 50 800
786.13(c).................................................... 2 100 200
786.13(d).................................................... 16 120 1,920
786.13(e).................................................... 2 20 40
786.13(f).................................................... 16 100 1,600
786.13(g).................................................... 16 200 3,200
786.14(a).................................................... 16 600 9,600
786.14(b).................................................... 16 25 400
786.14(c).................................................... 16 300 4,800
786.14(d).................................................... 8 25 200
786.14(e).................................................... 16 145 2,320
786.15....................................................... 16 2,000 32,000
786.16....................................................... 16 1,000 16,000
786.17....................................................... 16 30 480
--------------------------------------------------
Total.................................................... ............... ............... 77,560
----------------------------------------------------------------------------------------------------------------
30 CFR part 829
Title: Special Permanent Program Performance Standards--Abandoned
Coal Refuse Remining Operations--30 CFR part 829.
OMB Control Number: 1029-XXX2.
Summary: Proposed 30 CFR part 829 sets forth the minimum
environmental protection performance standards and would require
periodic submission of performance data or inspection surveys that
would apply to abandoned coal refuse remining operations. These
regulations would implement sections 515 and 516 of SMCRA, as amended
by EPAct.
Bureau Form Number: None.
Frequency of Collection: Once and quarterly.
Description of Respondents: 22 Surface coal mining operators and 22
State regulatory authorities.
Total Annual Responses: 44.
Total Annual Burden Hours: 4,372.
Summary Annual Burden to Respondents for 30 CFR 829
----------------------------------------------------------------------------------------------------------------
Number of Hours per Number of Hours per Total hours
Section operators operator states state requested
----------------------------------------------------------------------------------------------------------------
.3.............................. 22 .............. 22 .............. 2,200
(i)............................. 22 16 0 0 352
(iii)........................... 0 0 22 20 440
(vi)............................ 4 120 0 0 480
(vii)........................... 4 4 0 0 16
(ix)............................ 4 50 0 0 200
(x)............................. 4 12 0 0 48
(xii)........................... 22 12 0 0 264
(xiv)........................... 4 16 0 0 64
[[Page 2160]]
(xvii).......................... 22 15 0 0 330
.41............................. 22 80 0 0 1,760
.49............................. 22 16 0 0 352
.81............................. 4 15 0 0 60
-------------------------------------------------------------------------------
Total....................... .............. .............. .............. .............. 4,372
----------------------------------------------------------------------------------------------------------------
Total Non-Wage Burden Costs: $4,400.
Summary of Annual Non-Wage Cost to Respondents for 30 CFR 829
----------------------------------------------------------------------------------------------------------------
Total non-
Section Number of Cost per Number of Cost per wage costs
operators operator states state requested
----------------------------------------------------------------------------------------------------------------
.3.............................. 22 150 0 0 3,300
.41............................. 0 0 0 0 0
.49............................. 22 50 0 0 1,100
.81............................. 0 0 0 0 0
-------------------------------------------------------------------------------
Total....................... .............. .............. .............. .............. 4,400
----------------------------------------------------------------------------------------------------------------
Comments are invited on:
(a) Whether the proposed collection of information is necessary for
the proper performance of OSM and State regulatory authorities,
including whether the information will have practical utility;
(b) The accuracy of OSM's estimate of the burden of the proposed
collection of information;
(c) Ways to enhance the quality, utility, and clarity of the
information to be collected; and
(d) Ways to minimize the burden of collection on the respondents.
Under the Paperwork Reduction Act, OSM must obtain OMB approval of
all information and recordkeeping requirements. No person is required
to respond to an information collection request unless the form or
regulation requesting the information has a currently valid OMB control
(clearance) number. These numbers appear in Sec. Sec. 786.10 and
829.10. To obtain a copy of OSM's information collection clearance
requests, explanatory information, and related forms, contact John A.
Trelease at (202) 208-2783 or by e-mail at [email protected].
By law, OMB must respond to OSM's request for approval within 60
days of publication of these proposed regulations, but may respond as
soon as 30 days after publication. Therefore, to ensure consideration
by OMB, you must send comments regarding these burden estimates or any
other aspect of these information collection and recordkeeping
requirements by February 16, 2007, to the Office of Management and
Budget, Office of Information and Regulatory Affairs, Attention:
Interior Desk Officer, via e-mail to [email protected], or via
facsimile to (202) 395-6566. Also, please send a copy of your comments
to John A. Trelease, Office of Surface Mining Reclamation and
Enforcement, Room 210--SIB, 1951 Constitution Ave, NW., Washington, DC
20240, or electronically to [email protected].
National Environmental Policy Act
We have prepared a draft environmental assessment (EA) of the
proposed regulations as required by the procedures implementing the
National Environmental Policy Act of 1969 (NEPA). We have made a
tentative determination that the proposed regulations would enhance
reclamation of abandoned coal refuse piles while guaranteeing
environmental protection to the same level provided under sections 515
and 516 of SMCRA. We anticipate that a finding of no significant impact
will be made for the final regulations in accordance with our
procedures under NEPA. The EA is on file in the OSM Administrative
Record at the address specified previously (see ADDRESSES). The EA will
be completed and a finding made on the significance of any resulting
impacts before we publish the final regulations.
Clarity of This Regulation
Executive Order 12866 requires each agency to write regulations
that are easy to understand. We invite your comments on how to make the
proposed regulations easier to understand, including answers to
questions such as the following: (1) Are the requirements in the
proposed regulations clearly stated? (2) Do the proposed regulations
contain technical language or jargon that interferes with its clarity?
(3) Does the format of the proposed regulations (grouping and order of
sections, use of headings, paragraphing, etc.) aid or reduce their
clarity? (4) Would the regulations be easier to understand if they were
divided into more (but shorter) sections (a ``section'' appears in bold
type and is preceded by the symbol ``Sec. '' and a numbered heading;
for example, Sec. 786.11)? (5) Is the description of the proposed
regulations in the SUPPLEMENTARY INFORMATION section of this preamble
helpful in understanding the proposed regulations? (6) What else could
we do to make the proposed regulations easier to understand? Send a
copy of any comments that concern how we could make the proposed
regulations easier to understand to: Office of Regulatory Affairs,
Department of the Interior, Room 7229, 1849 C Street, NW., Washington,
DC 20240. You may also e-mail the comments to this address:
[email protected].
[[Page 2161]]
List of Subjects
30 CFR Part 701
Law enforcement, Surface mining, Underground mining.
30 CFR Part 786
Reporting and recordkeeping requirements, Surface mining,
Underground mining.
30 CFR Part 829
Reporting and recordkeeping requirements, Environmental protection,
Surface mining.
Dated: May 19, 2006.
Julie A. Jacobson,
Deputy Assistant Secretary, Land and Minerals Management.
For the reasons discussed in the preamble, the Office of Surface
Mining proposes to amend 30 CFR Chapter VII as set forth below:
PART 701--PERMANENT REGULATORY PROGRAM
1. The authority citation for part 701 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 701.5, is amended by adding alphabetically the
definition of ``abandoned coal refuse remining operations'' to read as
follows:
Sec. 701.5 Definitions.
* * * * *
Abandoned coal refuse remining operations means those surface
mining activities for the on-site reprocessing of abandoned coal refuse
and for the removal of abandoned coal refuse on lands that would
otherwise be eligible for expenditure under section 404 and section
402(g)(4) of the Act. Reprocessing operations include on-site
activities that separate the coal from waste material using specific
gravity or floatation methods, as well as activities that use
mechanical means to sort and size the refuse material prior to
separation. Removal operations include on-site activities that remove
refuse from the site as well as those activities that use mechanical
means to sort and size the refuse material prior to its removal. The
term ``abandoned coal refuse remining operations'' does not encompass
the removal of refuse for non-fuel uses.
* * * * *
3. Add part 786 to read as follows:
PART 786--REQUIREMENTS FOR PERMITS FOR ABANDONED COAL REFUSE
REMINING OPERATIONS
Sec.
786.1 Scope.
786.2 Objectives.
786.3 Definitions.
786.10 Information collection.
786.11 General requirements.
786.12 Information on environmental resources.
786.13 Information on operation plans.
786.14 Information on reclamation plans.
786.15 Information on hydrology.
786.16 Information on geology and refuse.
786.17 Information on roads and support facilities.
Authority: 30 U.S.C. 1201 et seq.
Sec. 786.1 Scope.
This part sets forth requirements for obtaining a permit for
abandoned coal refuse remining operations. Unless otherwise specified
in this part, the requirements of this part apply to removal and
reprocessing operations. As used throughout this part, the pronouns
``we'', ``our'', and ``us'' refer to the regulatory authority and the
pronouns ``you'' and ``your'' refer to the applicant and operator.
Sec. 786.2 Objectives.
The objective of this part is to ensure that you obtain a permit to
conduct your abandoned coal refuse remining operations in accordance
with the requirements of the Surface Mining Control and Reclamation Act
of 1977, as amended by the Energy Policy Act of 1992.
Sec. 786.3 Definitions.
As used in this part, the term:
Best management practices (BMPs) means schedules of activities,
operating and maintenance procedures, treatment requirements, practices
or prohibition of practices that have as their goal preventing or
reducing chemical pollution to off-site surface or ground water, and
controlling excessive sediment concentrations to off-site surface
water.
Sec. 786.10 Information collection.
The collections of information contained in part 786 have been
approved by the Office of Management and Budget (OMB) under 44 U.S.C.
3501 et seq. and assigned clearance number 1029-XXX1. We will use the
information collected to determine if a permit to conduct abandoned
coal refuse remining operations should be issued and to ensure that
such operations are conducted in accordance with the requirements of
Act. A federal agency may not conduct or sponsor, and you are not
required to respond to, a collection of information unless it displays
a currently valid OMB control number. Response is required to obtain a
benefit in accordance with Public Law 95-87. Send comments regarding
burden estimates or any other aspect of this collection of information,
including suggestions for reducing the burden, to the Office of Surface
Mining Reclamation and Enforcement, Information Collection Clearance
Officer, Room 210-SIB, 1951 Constitution Avenue, NW., Washington, DC
20240.
Sec. 786.11 General requirements.
An abandoned coal refuse remining operation, as defined in Sec.
701.5 of this chapter, includes both reprocessing operations and
removal operations. If you intend to conduct an abandoned coal refuse
remining operation, then you must submit a permit application that
contains the information required by subchapter G except that part 786
applies in lieu of the information required for surface mining
activities under parts 779 and 780 of this chapter, or the information
required for underground mining activities under parts 783 and 784 of
this chapter. Your permit application must also demonstrate that the
operation will be conducted in compliance with the performance
standards of part 829 of this chapter. You may not begin a remining
operation until we have issued you a permit.
Sec. 786.12 Information on environmental resources.
(a) General and climatological information. Your permit application
must include the information required under Sec. Sec. 779.11, 779.12,
and 779.18 of this chapter.
(b) Vegetation information requirements. Your permit application
must contain photographs and a written description of the vegetative
cover prior to redisturbance. The photographs and written description
must be in sufficient detail to estimate the vegetative ground cover
and species diversity on the abandoned coal refuse site.
(c) Soil resources and other vegetation-support material
information requirements. Your permit application must provide
information about soil or other vegetation-support material for the
permit area, and the adjacent area if required, that is sufficient to
assure us that suitable soil materials will be available to achieve the
vegetative cover and species diversity approved in the reclamation
plan.
(d) Maps: general requirements. Your permit application must
include the information required under Sec. 779.24 of this chapter
except as follows:
(1) If you do not plan to blast, in lieu of the information
required by Sec. 779.24(d) of this chapter, you must provide the
location, with identification
[[Page 2162]]
of the current use, of all buildings on and within 300 feet of the
proposed permit;
(2) If you plan to blast, you must provide the location, with
identification of the current use, of all buildings on and within 1000
feet of the proposed permit area, provided that this additional map
coverage may be submitted with the anticipated blast design required in
Sec. 816.61 of this chapter; and
(3) The requirements of Sec. 779.24(f) of this chapter, do not
apply.
(e) Cross sections, maps, and plans. Your permit application must
include the information required under Sec. 779.25 of this chapter,
except as follows:
(1) For operations on steep slopes, instead of the information
required by Sec. 779.25(a)(3) of this chapter, you must include
typical cross sections showing the projected ground line underlying the
refuse, adjacent ground line, and the surface of the refuse;
(2) Instead of the information required by Sec. 779.25(a)(4) of
this chapter, you must include cross sections, maps, and plans that
show the coal crop lines and the strike and dip of coal seams that
outcrop within the proposed permit area; and
(3) The requirements of Sec. 779.25(a)(6) of this chapter do not
apply.
Sec. 786.13 Information on operation plans.
(a) General requirements. Your permit application must contain a
description of the abandoned coal refuse remining operations proposed
to be conducted during the life of the operations within the proposed
permit area. At a minimum, you must include the following:
(1) A narrative description of the type and method of proposed
engineering techniques, the anticipated annual and total tonnage of
refuse removed and/or reprocessed, and the major equipment to be used
for all aspects of those operations; and
(2) Separate narratives for removal operations and reprocessing
operations. Your narratives must identify the facilities associated
with those operations and explain the construction, modification, use,
maintenance, and removal of the facilities associated with removal
operations and with reprocessing operations (unless retention of such
facilities is necessary for the postmining land use as specified in
part 829 of this chapter). The facilities include:
(i) Dams, embankments, and other impoundments;
(ii) Refuse handling, storage, and transportation areas and
structures;
(iii) Refuse and noncoal waste screening, removal, handling,
storage, transportation, and disposal areas and structures;
(iv) Reprocessing equipment and associated facilities;
(v) Removal equipment and associated facilities; and
(vi) Water and air pollution control facilities.
(b) Existing structures. Your permit application must include the
information required under Sec. 780.12 of this chapter. The
description of existing structures must indicate whether the structures
are associated with removal operations or with reprocessing operations.
(c) Blasting. Your permit application must include information
required under Sec. 780.13 of this chapter if you plan to blast during
the abandoned coal refuse remining operation.
(d) Maps and plans. Your permit application must contain maps and
plans as follows:
(1) Maps and plans that show the lands proposed to be affected
throughout the life of the operation and any change in a facility or
feature to be caused by the proposed operation, if the facility or
feature was identified by the maps and plans required by paragraphs (d)
and (e) of Sec. 786.12.
(2) Maps and plans that delineate removal areas and reprocessing
areas must include the information required by Sec. 780.14 of this
chapter, except as follows:
(i) Instead of the information required by Sec. 780.14(b)(4) of
this chapter, the maps and plans must show the areas for storing,
sorting, sizing and blending of coal refuse; the areas for reprocessing
refuse; any waste redisposal areas associated with a refuse removal or
on-site reprocessing operation; and the areas for loading the refuse
product or coal for sale;
(ii) Instead of the information required by Sec. 780.14(b)(5) of
this chapter, the maps and plans must show the storage areas for
vegetation-support material, rock waste, noncombustible noncoal waste,
and combustible noncoal waste;
(iii) Instead of the information required by Sec. 780.14(b)(11) of
this chapter, the maps and plans must show the location of each
sediment pond and permanent water impoundment, coal reprocessing waste
bank, coal reprocessing waste dam, or embankment;
(3) The preparation and certification requirements of Sec.
780.14(c) of this chapter apply to the maps and plans prepared in
accordance with this paragraph.
(e) Air pollution control plan. Your permit application must
contain the information required by Sec. 780.15 of this chapter,
except that the fugitive dust control plan required by Sec.
780.15(b)(2) of this chapter must comply with the requirements of Sec.
829.95 of this chapter, instead of the requirements of Sec. 816.95 of
this chapter.
(f) Fish and wildlife information. Your permit application must
contain the information required by Sec. 780.16 of this chapter.
(g) Protection of public parks and historic places. Your
application must contain the information required by Sec. 780.31 of
this chapter.
Sec. 786.14 Information on reclamation plans.
(a) General requirements. Your permit application must contain a
plan for reclamation of the lands within the proposed permit area,
showing how you will comply with section 515 of the Act, subchapter K
of this Chapter, and the environmental protection performance standards
of the regulatory program. The plan must include, at a minimum, all of
the information for the proposed permit area as follows:
(1) A detailed timetable for the completion of each major step in
the reclamation plan;
(2) A detailed estimate of the cost of reclamation of the proposed
operations that we require to be covered by a performance bond under
subchapter J of this chapter, with supporting calculations for the
estimate;
(3) A plan for grading, soil stabilization, and compacting, with
contour maps or cross sections that show anticipated final surface
configuration of the proposed permit area, in accordance with Sec.
829.102 of this chapter;
(4) A plan for removal, storage, and redistribution of soil or
other vegetation-support material that meets the requirements of Sec.
829.22 of this chapter. We may require chemical and physical analyses,
field-site trials, or greenhouse tests if we determine them necessary
or desirable for demonstrating the suitability of the vegetation-
support materials;
(5) A plan for revegetation as required by Sec. 829.111 of this
chapter, including mulching techniques that you plan to use and
measures you propose for determining revegetation success;
(6) A description of the measures that you will use for maximizing
the use and conservation of solid fuel resources as required in Sec.
816.59 of this chapter;
(7) A description of measures that you will use for ensuring that
all debris, acid-forming and toxic-forming materials, and materials
constituting a
[[Page 2163]]
fire hazard are disposed of in accordance with the requirements of
Sec. Sec. 829.89 and 829.102 of this chapter, and a description of
contingency plans that you will use to preclude sustained combustion of
such materials;
(8) A description, including appropriate cross sections and maps,
of the measures that you will use to seal or manage any mine openings,
and to plug, case, or manage exploration holes, other bore holes,
wells, and other openings occurring within the proposed permit area, in
accordance with Sec. 829.13 of this chapter, and
(9) A description of steps that you will take to comply with the
applicable requirements of the Clean Air Act (42 U.S.C. 7401 et seq.),
the Clean Water Act (33 U.S.C. 1251 et seq.), and other applicable
Federal and State air and water quality laws and regulations and health
and safety standards.
(b) Postmining land use. Your application must contain a narrative
description of the existing land uses, with photographs, and a plan
describing the proposed use, following reclamation, of the land within
the proposed permit area. You must also include in your plan a copy of
any comments regarding the proposed postmining land use made by persons
who hold equitable or legal title to the surface of the proposed permit
area, or made by State or local agencies that would have to initiate,
implement, approve, or authorize the proposed use of the land following
reclamation. The description of the proposed land use must explain:
(1) How you will achieve the proposed postmining land use and the
necessary support activities that you will need to achieve this land
use; and
(2) The consideration that you have given to making all of the
proposed abandoned coal refuse remining operations consistent with
surface owner plans and applicable State and local land use plans and
programs.
(c) Ponds, impoundments, banks, dams, and embankments. Your
application must contain the plans required under Sec. 780.25 of this
chapter. These plans must be consistent with the requirements of part
829 of this chapter.
(d) Surface mining near underground mining. If your abandoned coal
refuse remining operation is within 500 feet of an underground mine,
your application must describe the measures that you will use to comply
with Sec. 816.79 of this chapter.
(e) Diversions. Your application must contain descriptions,
including maps and cross sections, of stream channel diversions and
other diversions that you will construct within the proposed permit
area to comply with Sec. 816.43 of this chapter.
Sec. 786.15 Information on hydrology.
(a) Reprocessing operations. Your application for a reprocessing
operation must contain:
(1) All of the information required under Sec. 780.21(a) through
(g) and (i) through (j) of this chapter; and
(2) A hydrologic reclamation plan with maps and descriptions,
indicating how you plan to meet the relevant requirements of Sec.
829.41 of this chapter. The plan must be specific to the local
hydrologic conditions and must address any potential adverse impacts to
the hydrologic balance identified in the probable hydrologic
consequences (PHC) determination required by Sec. 780.21(f). You must
include preventive and remedial measures and the steps you will take
during refuse removal and reclamation through bond release to:
(i) Minimize disturbances to the hydrologic balance within the
permit and adjacent areas;
(ii) Prevent material damage outside the permit area;
(iii) Meet applicable Federal and State water quality laws and
regulations; and
(iv) Protect the rights of present water users;
(v) Avoid acid or toxic drainage;
(vi) Prevent, to the extent possible using the best technology
currently available, additional contributions of suspended solids to
stream flow;
(vii) Provide water-treatment facilities when needed;
(viii) Control drainage; and
(ix) Protect or replace rights of present water users.
(b) Removal Operations. (1) Your application for a removal
operation must meet the following requirements for hydrologic
information and analysis:
(i) A determination of the probable hydrologic consequences (PHC),
as required by Sec. 780.21(f), of expected enhancements or adverse
impacts to the hydrologic balance on or off the permit area that may
result from the coal refuse removal operation and subsequent
reclamation;
(ii) Any data you collect for the PHC determination must comply
with the requirements for sampling and analyses of Sec. 780.21(a) of
this chapter;
(iii) You may prepare a narrative PHC determination based on
existing relevant hydrologic information. For example, you may derive
the required baseline descriptions of seasonal flow rates from modeling
and other techniques, as provided by Sec. 780.21(d) of this chapter,
from data and findings of other mining operations in the area, or even
from point-source discharge permits obtained under the National
Pollutant Discharge Elimination System (NPDES);
(iv) A discussion of expected enhancements of the local hydrologic
balance on or off the permit area, including discussion of the
decreased loads of pollutants achievable through improved water
quality, decreased flow, or infiltration of water, or some combination
thereof. You must support this discussion with data from paragraphs
(b)(1)(ii) or (b)(1)(iii) of this section and identification of the
Best Management Practices (BMPs) that you propose under paragraph
(b)(3) of this section.
(v) The supplemental information requirements in Sec. 780.21(b)(3)
of this chapter and the ground- and surface-water monitoring plan
requirements of Sec. Sec. 780.21(i) and (j) of this chapter will apply
if the PHC identifies adverse impacts to the hydrologic balance on or
off the permit area. Also, if the PHC identifies adverse impacts to
legitimate water uses, the requirements of Sec. 780.21(e) of this
chapter pertaining to alternative water source information will apply.
(2) We must comply with the requirements of Sec. 780.21(g) for a
cumulative hydrologic impact assessment.
(3) You must include a hydrologic reclamation plan (HRP) with maps
and descriptions and identification of specific BMPs, including
sediment control measures, and any additional information that we may
require in order to ensure compliance with the requirements of
subchapter K, part 829.
(4) You must monitor discharges as required by a National Pollutant
Discharge Elimination System permit obtained under 40 CFR part 434.
Sec. 786.16 Information on geology and refuse.
(a) Your application must include geologic information, if
appropriate, and refuse information in sufficient detail to assist us
in determining the probable hydrologic consequences of the operation
upon the quality and quantity of surface and ground water in the permit
and adjacent areas, including the extent to which ground- and surface-
water monitoring is necessary; whether reclamation can be accomplished;
and whether the operation has been designed to prevent material damage
to the hydrologic balance outside the permit area.
(b) We may require the collection and analysis of additional refuse
or geologic information if we determine it to be necessary to protect
the hydrologic
[[Page 2164]]
balance or to meet the performance standards of this chapter.
Sec. 786.17 Information on roads and support facilities.
(a) Relocation or use of public roads. Your application must
contain the information required by Sec. 780.33 of this chapter.
(b) Road systems. Your application must contain the information
required by Sec. 780.37 of this chapter, and must be in accordance
with Sec. 816.150 of this chapter.
(c) Support facilities. Your application must contain the
information required by Sec. 780.38 of this chapter, and must be in
accordance with Sec. 816.181 of this chapter.
4. Part 829 is added to read as follows:
PART 829--SPECIAL PERMANENT PROGRAM PERFORMANCE STANDARDS-ABANDONED
COAL REFUSE REMINING OPERATIONS
Sec.
829.1 Scope.
829.2 Objectives.
829.3 General requirements.
829.10 Information collection.
829.11 Signs and markers.
829.13 Casing and sealing of drill holes, portals or other openings.
829.22 Soils and other vegetation-support material.
829.41 Hydrologic-balance protection.
829.45 Hydrologic-balance protection: Sediment control measures.
829.46 Hydrologic-balance protection: Siltation structures.
829.49 Impoundments.
829.81 Redeposition and handling of coal mine waste, and coal refuse
piles.
829.89 Disposal of noncoal mine wastes.
829.95 Stabilization of surface areas.
829.99 Slides and other damage.
829.100 Contemporaneous reclamation.
829.102 Grading.
829.111 Revegetation, standards for success, and bond liability
period.
829.133 Postmining land use.
Authority: 30 U.S.C. 1201 et seq.
Sec. 829.1 Scope.
This part sets forth special environmental protection performance
standards for abandoned coal refuse remining operations. Unless
otherwise specified in this part, the requirements of this part apply
to removal and reprocessing operations. As used throughout this part,
the pronouns ``we'', ``our'', and ``us'' refer to the regulatory
authority and the pronouns ``you'' and ``your'' refer to the applicant
and operator.
Sec. 829.2 Objectives.
This part is intended to ensure that you conduct your abandoned
coal refuse remining operations in a manner that preserves and enhances
environmental and other values in accordance with the Surface Mining
Control and Reclamation Act of 1977, as amended by the Energy Policy
Act of 1992.
Sec. 829.3 General requirements.
(a) If you intend to conduct abandoned coal refuse remining
operations, you must obtain a permit in accordance with part 786 of
this chapter and comply with the bond and insurance requirements of
subchapter J of this chapter.
(b) You must conduct your operation in accordance with the
following requirements of part 816 of this chapter:
(1) Sec. 816.43 Diversions.
(2) Sec. 816.47 Hydrologic balance: Discharge Structures.
(3) Sec. 816.57 Hydrologic Balance: Stream buffer zones.
(4) Sec. 816.59 Coal Recovery.
(5) Sec. 816.61 Use of explosives: General requirements.
(6) Sec. 816.62 Use of explosives: Pre-blasting survey.
(7) Sec. 816.64 Use of explosives: Blasting schedule.
(8) Sec. 816.66 Use of explosives: Blasting signs, warnings, and
access control.
(9) Sec. 816.67 Use of Explosives: Control of adverse effects.
(10) Sec. 816.68 Use of Explosives: Records of blasting
operations.
(11) Sec. 816.79 Protection of underground mining.
(12) Sec. 816.87 Coal mine waste: Burning and burned waste
utilization.
(13) Sec. 816.97 Protection of fish, wildlife, and related
environmental values.
(14) Sec. 816.131 Cessation of operations: Temporary.
(15) Sec. 816.132 Cessation of operations: Permanent.
(16) Sec. 816.150 Roads.
(17) Sec. 816.151 Roads: Primary.
(18) Sec. 816.180 Utility installations.
(19) Sec. 816.181 Support facilities.
(c) In addition, you must conduct your operations in accordance
with the requirements of this part.
Sec. 829.10 Information collection.
The collections of information contained in part 829 have been
approved by the Office of Management and Budget under 44 U.S.C. 3501 et
seq. and assigned clearance number 1029-XXX2. We will use the
information collected to ensure that permittees conducting abandoned
coal refuse remining operations will meet appropriate performance
standards. A federal agency may not conduct or sponsor, and you are not
required to respond to, a collection of information unless it displays
a currently valid OMB control number. Response is required to obtain a
benefit in accordance with Public Law 95-87. Send comments regarding
burden estimates or any other aspect of this collection of information,
including suggestions for reducing the burden, to the Office of Surface
Mining Reclamation and Enforcement, Information Collection Clearance
Officer, Room 202-SIB, 1951 Constitution Avenue, NW., Washington, DC
20240.
Sec. 829.11 Signs and markers.
You must comply with the requirements of Sec. 816.11 of this
chapter except that, instead of the requirements of Sec. 816.22 of
this chapter referenced in Sec. 816.11(f), the requirements of Sec.
829.22 apply.
Sec. 829.13 Casing and sealing of drill holes, portals or other
openings.
You must comply with the requirements of Sec. Sec. 817.13, 817.14,
and 817.15 of this chapter except that, instead of the requirements of
Sec. 817.41 of this chapter referenced in Sec. Sec. 817.13 and 817.15
regarding the use of monitoring holes or other openings for water
wells, the requirements of Sec. 829.41 apply.
Sec. 829.22 Soils and other vegetation-support material.
(a) You must select readily available vegetation-support materials
and demonstrate to us that such material is suitable to support the
level of vegetation required by Sec. 829.111. You may use material
from off site as vegetation-support material. You must remove and
stockpile material from the remining site or off site that is to be
used for vegetation support, before any other surface disturbance. You
must distribute the vegetation support material as approved by us.
(b) You must apply nutrients and soil amendments to the
redistributed material when necessary to establish the vegetative
cover.
Sec. 829.41 Hydrologic-balance protection.
(a) Reprocessing operations. You must comply with the hydrologic
balance requirements of Sec. Sec. 816.41 and 816.42 of this chapter
for reprocessing operations except that the requirement in Sec.
816.41(b)(2) to restore recharge capacity does not apply. Also, instead
of the requirements of Sec. 780.21(h) of this chapter referenced in
Sec. 816.41, the requirements in Sec. 786.15(a)(2) of this chapter
apply.
(b) Removal operations. (1) You must comply with the hydrologic
balance requirements of Sec. Sec. 816.41 and 816.42 of
[[Page 2165]]
this chapter for removal operations except as follows:
(i) Instead of the requirements in sections of 30 CFR part 780
referenced in Sec. Sec. 816.41 and 816.42, the requirements of Sec.
786.15(b) of this chapter apply;
(ii) The requirement of Sec. 816.41(b)(2) of this chapter to
restore recharge capacity does not apply;
(iii) Ground- and surface-water monitoring must be conducted in
accordance with the requirements of Sec. 786.15(b) of this chapter;
and
(iv) Discharges into an underground mine are prohibited unless we
expressly authorize such discharge and you meet the following
requirements:
(A) The requirements of Sec. 816.41(i) of this chapter are met;
(B) The permit application includes baseline ground-water and
geologic information in sufficient detail to describe the geologic and
hydrologic conditions associated with the underground mine works;
(C) The determination of Probable Hydrologic Consequences addresses
the impacts that the discharges will have on ground- and surface-water
users and the potential for seepage or drainage of water from the
underground works;
(D) The hydrologic reclamation plan includes measures to remediate
potential impacts to ground- and surface-water users and potential
impacts from seepage and drainage out of the underground works; and
(E) The ground- and surface-water monitoring plans provide for the
monitoring of the ground- and surface-water systems that could be
impacted by the underground discharges.
(2)[Reserved]
Sec. 829.45 Hydrologic balance: Sediment control measures.
You must comply with the requirements of Sec. 816.45 of this
chapter except that, instead of the requirements to Sec. Sec. 816.102
and 816.111(b) referenced in Sec. 816.45, the requirements in
Sec. Sec. 829.102 and 829.111(b) apply.
Sec. 829.46 Hydrologic balance: Siltation structures.
You must comply with the requirements of Sec. 816.46 of this
chapter, except as currently suspended. However, instead of the
requirements of Sec. 816.42 and the requirements for siltation
structures and spill ways incorporating Sec. Sec. 816.49, and
816.49(a)(9) referenced in Sec. 816.46 of this chapter, the
requirements of Sec. Sec. 829.41(b) and 829.49 apply.
Sec. 829.49 Impoundments.
You must comply with the impoundments requirements of Sec. Sec.
816.49 and 816.56 of this chapter except that:
(a) Instead of the requirements of Sec. 780.25 referenced in Sec.
816.49 of this chapter, the requirements of Sec. 786.14(c) of this
chapter apply.
(b) Upon completion of the operation, you may only retain permanent
impoundments on reclaimed coal refuse:
(1) Where the impoundment is not confined by a constructed dam,
e.g., is a dug-out type impoundment; or
(2) You have removed the abandoned coal refuse from within the
confines of an impounding structure located on non-steep slope land,
and the remaining or reconstructed impounding structure meets the
appropriate design, construction, inspection, and certification
requirements of Sec. 816.49 of this chapter.
Sec. 829.81 Redeposition and handling of coal mine waste, and coal
refuse piles.
You must place coal mine waste from an abandoned coal refuse site
or generated as a result of a coal refuse remining operation according
to the standards of Sec. Sec. 816.81, 816.83, and 816.84 of this
chapter, except:
(a) We may alter, on a site-specific basis, the design
certification, foundation requirements, and inspection requirements of
Sec. Sec. 816.81(c), 816.81(d), and 816.83(d) of this chapter.
(b) If you take refuse reprocessing waste or waste generated by
removal operations and deposit it adjacent to the abandoned coal refuse
site, you must meet the standards of Sec. Sec. 816.81, 816.83, and
816.84 of this chapter.
(c) You may not take coal mine waste generated by removal
operations and deposit it in underground mine works unless you meet the
requirements of Sec. Sec. 816.81(f) and 829.41(b)(1)(i) of this
chapter.
(d) Instead of the cover requirement at Sec. 816.83(c)(4) of this
chapter, you must cover or treat refuse piles generated by abandoned
coal refuse remining operations with sufficient noncombustible and
nontoxic material to prevent sustained combustion, as required under
Sec. 829.102(d), and to support revegetation, as required under Sec.
829.111.
(e) Instead of the vegetation removal and impoundment requirements
of Sec. 816.83(c)(1) and (c)(3) of this chapter, you must comply with
the requirements of Sec. Sec. 829.22 and 829.49.
(f) Instead of the topsoil and subsoil storage requirements of
Sec. 816.22 of this chapter referenced in Sec. 816.83(c) of this
chapter, you must comply with the requirements of Sec. 829.22.
Sec. 829.89 Disposal of noncoal mine wastes.
(a) You must comply with the requirements of Sec. 816.89(a) and
(b) of this chapter except that you must cover and revegetate the site
in accordance with the requirements of Sec. 829.111 instead of the
requirements of Sec. Sec. 816.111 through 816.116 of this chapter
referenced by Sec. 816.89(b).
(b) Instead of the requirements of Sec. 816.89(c) of this chapter,
you may dispose in refuse piles any noncombustible, noncoal waste
encountered during refuse remining and/or any combustion byproducts
generated from coal burning facilities.
(c) You must demonstrate that the disposal will not adversely
affect final site reclamation or public health and safety and that it
accords with other applicable provisions of State and Federal law.
Sec. 829.95 Stabilization of surface areas.
(a) You must protect and stabilize all exposed surface areas to
provide equal or better erosion control and air pollution control than
existed before disturbing the abandoned coal refuse site.
(b) In areas where refuse has been regraded and covered with
vegetation-support material, if rills and gullies form, you must fill,
regrade, or otherwise stabilize with vegetation support material, and
reseed or replant the areas, whenever such rills and gullies either:
(1) Disrupt the approved postmining land use or the reestablishment
of the vegetative cover; or
(2) Cause or contribute to a violation of water-quality standards
for receiving streams.
Sec. 829.99 Slides and other damage.
You must comply with the requirements of Sec. 816.99(b) of this
chapter for abandoned coal refuse remining operations.
Sec. 829.100 Contemporaneous reclamation.
Your reclamation efforts, including but not limited to, grading,
soil or vegetation-support material replacement, and revegetation, on
all disturbed land that is reaffected by on-site abandoned coal refuse
remining operations must occur as contemporaneously as practicable with
the abandoned coal refuse remining operations. Before we approve your
permit, you must provide a schedule that meets this requirement for
contemporaneous reclamation in a manner we determine is acceptable.
Sec. 829.102 Grading.
(a) You must conduct grading activities:
[[Page 2166]]
(1) According to this section and Sec. 829.81, and
(2) According to the schedule we approve in the reclamation plan
required under Sec. 786.14(a) of this chapter.
(b) You must grade disturbed areas to:
(1) Achieve a postmining slope that does not exceed either the
angle of repose or such lesser slope as is necessary to achieve a
minimum long-term static safety factor of 1.3 or greater, and to
prevent slides;
(2) Minimize erosion and water pollution both on and off the site;
and
(3) Support the approved postmining land use.
(c) You may grade land adjacent to the abandoned coal refuse
remining operations to blend with the refuse extraction area to achieve
the postmining land use and stability requirements under paragraph
(b)(1) of this section. If you do so, you must remove and stockpile the
vegetation-support material from the affected adjacent land for use as
required by Sec. 829.22.
(d) You must adequately cover or treat the coal seams and
combustible materials exposed, used, or produced during mining with
noncombustible and nontoxic materials to prevent sustained combustion.
(e) You may use cut-and-fill terraces where:
(1) Needed to conserve soil moisture, ensure stability, and control
erosion on final-graded slopes, if the terraces are compatible with the
approved postmining land use; or
(2) Specialized grading, foundation conditions, or roads are
required for the approved postmining land use, in which case the final
grading may include a terrace of adequate width to ensure the safety,
stability, and erosion control necessary to implement the postmining
land-use plan.
(f) You may leave small depressions if they are needed to retain
moisture, minimize erosion, create and enhance wildlife habitat, or
assist revegetation and are compatible with the stability of the
reclaimed site.
(g) You must conduct preparation of final-graded surfaces in a
manner that minimizes erosion and provides a surface for soils and
other vegetation-support material that will minimize slippage.
(h) You must eliminate highwalls and other rock cuts encountered
during operations to the maximum extent technically practical in
accordance with the following criteria:
(1) All spoil, rock waste and refuse waste generated or encountered
by the operation must be used to backfill the highwalls and rock cuts
to the extent that use of the material satisfies the stability
requirements of paragraph (b)(1) of this section; and
(2) Any highwall and rock-cut remnant must be stable and not pose a
hazard to the public health and safety or to the environment. You must
demonstrate to our satisfaction that the remnant is stable.
(i) You must comply with these standards when conducting abandoned
coal refuse remining activities on steep slopes:
(1) You must not place the following materials on steep slopes
below the elevation of the abandoned refuse:
(i) Spoil and rock waste;
(ii) Waste materials of any type;
(iii) Debris, including that from clearing and grubbing; and
(iv) Abandoned or disabled equipment.
(2) You must conduct refuse extraction and grading operations on
steep slopes in a manner to prevent instability of the refuse area, and
must comply with the following:
(i) You must extract the refuse by horizontal lifts starting at the
highest elevation of the refuse pile; and
(ii) You must not remove the toe of the refuse pile until the
extraction by horizontal lifts has progressed to the elevation of the
toe.
(3) We may waive, in writing, the requirements of paragraphs
(i)(2)(i) and (i)(2)(ii), if the permit demonstrates with stability
analyses that the refuse will retain a static safety factor of 1.3
during extraction activities.
Sec. 829.111 Revegetation, standards for success, and bond liability
period.
(a) Revegetation timing and mulching must comply with Sec. Sec.
816.111(b) through (d), 816.113 and 816.114 of this chapter.
(b) On regraded areas and on all other disturbed areas except water
areas and surface areas of roads that are approved as part of the
postmining land use, you must establish a vegetative cover that is in
accordance with the approved permit and reclamation plan and that is:
(1) Effective and permanent;
(2) Comprised of species native to the area or of introduced
species when we approve the use of those species as desirable and
necessary to achieve the approved postmining land use;
(3) Capable of stabilizing the surface from erosion as required by
Sec. 829.95.
(c) You must establish a vegetative ground cover that is no less
than the ground cover that existed before redisturbance, as required by
Sec. 816.116(b)(5) of this chapter.
(d) The requirements of Sec. 816.116(c) of this chapter concerning
revegetation responsibility periods and evaluation of revegetation
success are applicable to abandoned coal refuse remining operations
with the following modifications:
(1) For operations in areas with an average annual precipitation
greater than 26.0 inches, the revegetation responsibility period will
be two full years rather than the times specified in Sec.
816.116(c)(2); and
(2) For operations in areas with an average annual precipitation of
26.0 inches or less, the revegetation responsibility period will be
five full years rather than the times specified in Sec. 816.116(c)(2).
Sec. 829.133 Postmining land use.
You must restore all areas disturbed by abandoned coal refuse
remining operations to a condition capable of supporting the use that
the abandoned coal refuse site was capable of supporting before
commencement of abandoned coal refuse remining operations, or a higher
or better use.
[FR Doc. E7-453 Filed 1-16-07; 8:45 am]
BILLING CODE 4310-05-P