2136 Federal Register / Vol. 72, No. 10 / Wednesday, January 17, 2007 / Proposed Rules 

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. 

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: osmregs@osmre.gov. 

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 

OIRA_DOCKET@omb.eop.gov 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: 

adevito@osmre.gov. 

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 onsite 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 onsite 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 groundwater 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 onsite 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 heavymedium 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 ‘‘acidforming 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 sitespecific 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 

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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 premining 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 preremining 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-bystandard 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 onsite 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. 

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(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 

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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 

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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 onsite 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 

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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 groundwater 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 onsite 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 groundand 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. 

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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 § 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 

§ 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 § 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 § 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 § 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 § 786.12(a) addresses 

general and climatological information 

requirements. This paragraph would 

apply the requirements of §§ 779.11, 

779.12, and 779.18. 

Proposed § 786.12(b) addresses preremining vegetation information 

requirements. This paragraph specifies 

the requirements that would apply to 

coal refuse remining, instead of the 

requirements of § 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 § 779.19. 

Furthermore, we believe that to 

prescribe precise measurements of 

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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 § 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 

§ 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 

§ 829.111. We believe that the proposed 

regulation is more appropriate for 

abandoned coal refuse remining 

operations than § 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 § 786.12(b) should 

provide ample information to assess the 

site revegetation potential. 

Proposed § 786.12(d) would require 

the application to include the mapping 

information in § 779.24, except as 

follows: 

1. Instead of the requirement in 

§ 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 § 761.11. 

Proposed section 786.12(d) would apply 

the 1000-foot map requirement in 

§ 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 § 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 § 786.12(d) does not 

include the requirement in § 779.24(f) 

that maps show proposed reference area 

boundaries for determining the success 

of revegetation. This requirement is not 

included in proposed § 786.12(d) 

because the proposed revegetation 

performance standards at § 829.111 

would not require reference areas. 

Proposed § 786.12(e) addresses cross 

sections, maps, and plans and would 

retain the requirements of § 779.25 

except as follows: 

1. Proposed § 786.12(e) would not 

apply the requirement of § 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 § 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 § 786.12(e) would not 

apply the requirement in § 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 § 786.12(e) would not 

apply the requirements in § 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 § 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 § 786.13 specifies the 

information that would be required in 

the operations plan. The following 

paragraphs discuss these requirements 

in detail. 

Proposed § 786.13(a) concerning 

general requirements would apply the 

requirements of § 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 § 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 § 786.13(b) concerning 

existing structures would apply the 

requirements of § 780.12. We believe 

that the requirements at § 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 § 786.13(c) concerning 

blasting would require a blasting plan in 

accordance with the regulations at 

§ 780.13, whenever blasting is planned 

during the abandoned coal refuse 

remining operation. 

Proposed § 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 §§ 779.24 and 779.25 referenced in 

§ 780.14(a), the requirements of 

§ 786.12(d) and (e) would apply. 

2. Proposed §§ 786.13 (d)(1) and (2) 

contain requirements almost identical to 

those of § 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 

§ 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 

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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 § 829.89 that would allow disposal of 

noncombustible noncoal waste within 

refuse disposal areas. Proposed 

paragraph (2)(iii) would apply the 

requirements of § 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 § 786.13(e) concerning 

requirements for an air pollution control 

plan would apply the requirements of 

§ 780.15 except that, in lieu of the 

requirements of § 816.95 referenced in 

§ 780.15, the requirements of § 829.95 

would apply. 

Proposed § 786.13(f) concerning fish 

and wildlife information would retain 

the requirements of § 780.16. 

Proposed § 786.13(g) concerning 

protection of public parks and historic 

places would apply the requirements of 

§ 780.31. 

Section 786.14 Information on 

Reclamation Plans 

Proposed § 786.14 would establish the 

information that is required on plans for 

reclamation. The following paragraphs 

discuss these requirements in detail. 

Proposed § 786.14(a) essentially 

would apply the general requirements of 

§ 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 

§ 829.111. We believe this requirement 

would provide us more than adequate 

information to assess the proposed 

revegetation plan. 

Proposed § 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 § 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 

§ 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 § 786.14(c) would apply the 

requirements of § 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 § 786.14(d) would apply the 

requirements of § 780.27 for mining near 

underground mines. 

Proposed § 786.14(e) would apply the 

requirements of § 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 § 786.15(a)(1) would apply 

the requirements of § 780.21 for the 

following types of information: 

Sampling and Analysis methodology, 

section 780.21(a); baseline hydrologic 

information, § 780.21(b); baseline 

information for the cumulative impact 

area, § 780.21(c); modeling, § 780.21(d); 

alternative water sources, § 780.21(e); 

probable hydrologic consequences 

determinations, section 780.21(f); 

cumulative hydrologic impact 

assessments, § 780.21(g); ground-water 

monitoring plans, section 780.21(i); and 

surface-water monitoring plans, 

§ 780.21(j). 

In addition, the requirements of 

§ 780.21(h) pertaining to the hydrologic 

reclamation plan would be applied 

under proposed § 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 

§ 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 

§ 780.21(g); and (3) the hydrologic 

reclamation plan (HRP) required by 

§ 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 § 780.21, 

including hydrologic information and 

analysis regarding sampling and 

analysis methodology, § 780.21(a); 

baseline information including 

supplemental information, § 780.21(b); 

baseline cumulative impact area 

information, § 780.21(c); modeling, 

§ 780.21(d); alternative water source 

information, § 780.21(e); ground-water 

monitoring plans, section 780.21(i); and 

surface-water monitoring plans, 

§ 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 

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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 § 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 pointsource 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 

§ 786.15(b)(1)(v), which allows us to 

request supplemental information if 

adverse impacts are identified in the 

PHC, and proposed § 786.15(b)(3), 

which allows us to require any 

additional information (including sitespecific 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 § 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 § 786.15(b)(1)(v) would 

require compliance with the 

supplemental information requirements 

of § 780.21(b)(3) and the ground- and 

surface-water monitoring requirements 

of § 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 

§ 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. 

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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. 


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Section 786.16 Geologic and Refuse 

Information 

Proposed § 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 groundwater 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 § 786.16(b) also 

would include the requirement of 

§ 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 § 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 toxicforming; 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 § 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 § 786.17 retains the 

requirements of § § 780.33 and 780.37 

for roads, and the requirements of 

§ 780.38 for support facilities. 

Disposal of Excess Spoil 

We have not proposed a counterpart 

in section 786 to the requirements of 

§ 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 § 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 § 829.3 specifies that any 

person who conducts abandoned coal 

refuse remining operations would be 

subject to the existing requirements of: 

§ 816.43—Diversions. 

§ 816.47—Hydrologic balance: 

Discharge structures. 

§ 816.57—Hydrologic balance: Stream 

buffer zones. 

§ 816.59—Coal recovery. 

§ 816.61—Use of explosives: General 

requirements. 

§ 816.62—Use of explosives: Preblasting survey. 

§ 816.64—Use of explosives: Blasting 

schedule. 

§ 816.66—Use of explosives: Blasting 

signs, warnings and access control. 

§ 816.67—Use of explosives: Control of 

adverse effects. 

§ 816.68—Use of explosives: Records of 

blasting operations. 

§ 816.79—Protection of underground 

mining. 

§ 816.87—Coal mine waste: Burning and 

burned waste utilization. 

§ 816.97—Protection of fish, wildlife, 

and related environmental values. 

§ 816.131—Cessation of operations: 

Temporary. 

§ 816.132—Cessation of operations: 

Permanent. 

§ 816.150—Roads: General. 

§ 816.151—Primary roads. 

§ 816.180—Utility installation. 

§ 816.181—Support facilities. 

Section 829.10 Information Collection 

Proposed § 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 §§ 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 nonwage costs, to review the information 

required by part 829. 

Section 829.11 Signs and Markers 

Proposed § 829.11 retains the 

requirements of § 816.11 for signs and 

markers except that, in lieu of the 

requirements of § 816.22 referenced in 

§ 816.11(f), our proposal would 

reference § 829.22, which applies to 

topsoil markers. 

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Section 829.13 Casing and Sealing of 

Drill Holes, Portals, and Other Openings 

Proposed § 829.13 retains the 

requirements of §§ 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 § 817.41 referenced in 

§§ 817.13 and 817.15 regarding the use 

of monitoring hole or other openings for 

water wells, the requirements of 

§ 829.41 apply. 

Section 829.22 Soils and Other 

Vegetation-Support Material 

Proposed § 829.22 would provide 

different requirements than those of 

§ 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 

§ 829.22(b) would apply the 

requirement of § 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 § 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 

§ 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 

§ 829.22, however, would provide us 

latitude, on a permit-specific basis, to 

require specific storage and 

redistribution plans for vegetationsupport material. 

We believe the approach of proposed 

§ 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 § 829.41(a), which would 

apply to on-site reprocessing operations, 

would apply most of the requirements 

of § 816.41, hydrologic-balance 

protection; and § 816.42, hydrologic 

balance: water quality standards and 

effluent limitations. The proposed rule 

would not apply the requirement in 

§ 816.41(b)(2) to restore recharge 

capacity. Also, in lieu of the 

requirements of § 780.21(h) referenced 

in § 816.41, the proposed rule would 

apply the requirements of § 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 § 829.41(b)(1) applies to 

refuse removal operations and would 

apply most of the principal provisions 

of § 816.41, except for the requirement 

of § 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 groundand surface-water monitoring 

requirements of proposed part 786 

instead of those in § 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 § 816.41(i)(2). However, 

discharges from removal operations into 

underground works may in some cases 

be appropriate. Therefore, proposed 

§ 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 § 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 § 829.45 would apply the 

sediment control requirements of 

§ 816.45 except that, in lieu of the 

requirements of §§ 816.102 and 

816.111(b) referenced in § 816.45, the 

requirements of §§ 829.102 and 829.111 

would apply. See the discussion below 

of §§ 829.102 and 829.111. 

Section 829.46 Hydrologic Balance: 

Siltation Structures 

Proposed § 829.46 would apply the 

requirements of § 816.46 for siltation 

structures with the exception of 

§ 816.46(b)(2), which is currently 

suspended. Also, in lieu of the 

requirements of §§ 816.42 and 816.49 

referenced in section 816.46, the 

requirements of §§ 829.41(b) and 829.49 

would apply. See the discussion infra of 

§§ 829.41(b) and 829.49. 

Section 829.49 Impoundments 

Proposed § 829.49 would apply the 

requirements of §§ 816.49 and 816.56 

for impoundments and the 

rehabilitation of sedimentation ponds, 

diversions, impoundments, and 

treatment facilities except that, in lieu of 

§ 780.25 as referenced in § 816.49, the 

requirements of proposed § 786.14(c), 

would apply. Furthermore, proposed 

§ 829.49(b) would allow the retention of 

permanent impoundments on reclaimed 

coal refuse in only two circumstances. 

First, the proposed rule would allow 

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retention of impoundments that do not 

have a retaining embankment (e.g., dugout 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 § 816.49. A 

retained structure that meets the 

requirements of § 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 

§§ 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 § 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 § 829.81 would apply most 

of the requirements of § 816.81, 816.83, 

and 816.84 for coal mine waste. 

Proposed § 829.81(a) would specify that 

we may, on a site-specific basis, alter 

the ‘‘design certification’’ and 

‘‘foundation’’ standards of § 816.81(c) 

and (d), and the inspection 

requirements of § 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 § 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 §§ 816.81 through 816.84. 

We believe these standards are 

appropriate because such adjacent 

disposal would create new coal refuse 

disposal structures. 

Proposed § 829.81(c) authorizes the 

underground disposal of coal refuse 

waste only when the requirements of 

both section 816.81(f) and proposed 

§ 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 

§ 829.41. 

Proposed § 829.81(d) would not apply 

the 4-foot cover requirement of 

§ 816.83(c)(4), because adequate 

amounts of nontoxic and 

noncombustible cover material are 

generally not available on abandoned 

coal refuse sites. However, proposed 

§ 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 § 829.81(e) would not apply 

the vegetation removal requirement of 

§ 816.83(c)(1) or the permanent 

impoundment prohibition of 

§ 816.83(c)(3), because these two topics 

are addressed in proposed §§ 829.22 and 

829.49, respectively. 

For placement of coal mine waste, 

proposed § 829.81(f) would apply the 

requirements of § 816.83(c); except that, 

in lieu of the requirements of § 816.22 

referenced in § 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 § 829.89(a) would apply the 

requirements of §§ 816.89(a) and (b) for 

the disposal of noncoal mine wastes 

with one exception. In lieu of the 

requirements of §§ 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 § 829.111. 

Proposed §§ 829.89(b) and (c), in lieu 

of the requirements of § 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 § 829.95 would apply the 

provisions of § 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 § 829.99 would apply the 

requirements of § 816.99(b) concerning 

operator responsibilities if a slide 

should occur. The proposed rule would 

not apply § 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 

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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 § 829.100 would apply the 

requirement of § 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 

§ 829.102 would apply, with some 

revision, many of the requirements of 

§ 816.102, and would provide different 

requirements than those of §§ 816.106 

and 816.107. The proposed rule would 

not retain the requirements of 

§§ 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 § 829.102 also would not 

apply the requirements of 

§ 816.102(a)(1) and (k) for approximate 

original contour (AOC), the 

requirements of § 816.102(b) and (d) for 

excess spoil and the placement of spoil 

outside the permit, or the requirements 

of § 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 § 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 

§ 829.102(a) would require that grading 

be done in accordance with the 

redeposition handling requirements of 

proposed section 829.81. Proposed 

§ 829.102(a) also would require that 

grading activities be completed 

according to the reclamation plan 

schedule required by proposed 

§ 786.14(a). 

Proposed § 829.102(b) would apply 

the requirements of § 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 § 829.102(b) 

would apply the 1.3 static safety factor 

that is required by § 816.102(a)(3) and 

816.102(e). 

The proposed rule would not apply 

the requirements of § 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 

§ 816.102(c) to compact waste where 

advisable is duplicative of § 816.81(a), 

which would be applied to abandoned 

coal refuse remining operations by 

proposed § 829.81(a). 

Proposed § 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 § 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 

§ 816.102(f) to cover acid- and toxicforming material would be addressed by 

proposed § 829.41. 

Proposed § 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 § 829.49 and would not be 

addressed in section 829.102. 

Proposed § 829.102(h) would apply 

the principal elements of § 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 

§ 829.102(h) does not contain an ‘‘other 

reasonably available spoil’’ provision 

comparable to that found in 

§ 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 § 829.102(i) would apply to 

remining of abandoned coal refuse sites 

located on steep slopes. Unlike 

§ 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 

§ 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 § 816.107(b) against 

placing materials on the downslope. 

Proposed § 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 

§ 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 § 829.102(i)(2)(ii) further 

would prohibit the removal of the toe of 

the refuse until the removal of refuse by 

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horizontal lifts progresses down to that 

level. Because alternate extraction 

methods may be necessary for some 

refuse remining sites, proposed 

§ 829.102(i)(3) would allow us to waive 

the requirements of § 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 § 829.111 would require 

compliance with the revegetation 

requirements of §§ 816.111(b)–(d), 

816.113, and 816.114, while 

establishing revegetation success 

standards and responsibility periods 

that differ from those of § 816.116. 

Proposed § 829.111(a) generally 

would retain the requirements of 

§ 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 

§ 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 § 829.111(b) and (c) would 

require that the operator stabilize the 

surface from erosion in accordance with 

proposed § 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 § 829.111(d) would 

incorporate § 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, § 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, § 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 § 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 § 829.133 would provide 

different requirements for postmining 

land use than those of § 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 

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2156 Federal Register / Vol. 72, No. 10 / Wednesday, January 17, 2007 / Proposed Rules 

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 

§ 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 § 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 

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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 

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2158 Federal Register / Vol. 72, No. 10 / Wednesday, January 17, 2007 / Proposed Rules 

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 × [$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 Federallyrecognized 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 

Section Number 

of applicants 

Hours 

per 

applicant 

Number of 

States 

Hours per 

State 

Total 

hours 

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 

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Federal Register / Vol. 72, No. 10 / Wednesday, January 17, 2007 / Proposed Rules 2159 

SUMMARY ANNUAL BURDEN TO RESPONDENTS FOR 30 CFR 786—Continued 

Section Number 

of applicants 

Hours 

per 

applicant 

Number of 

States 

Hours per 

State 

Total 

hours 

requested 

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 

Section Number of 

applicants 

Cost per 

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 

Section Number of 

operators 

Hours per 

operator 

Number of 

states 

Hours per 

state 

Total 

hours 

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 

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2160 Federal Register / Vol. 72, No. 10 / Wednesday, January 17, 2007 / Proposed Rules 

SUMMARY ANNUAL BURDEN TO RESPONDENTS FOR 30 CFR 829—Continued 

Section Number of 

operators 

Hours per 

operator 

Number of 

states 

Hours per 

state 

Total 

hours 

requested 

(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 

Section Number of 

operators 

Cost per 

operator 

Number of 

states 

Cost per 

state 

Total 

non-wage 

costs 

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 

§§ 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 jtreleas@osmre.gov. 

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 

OIRA_DOCKET@omb.eop.gov, 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 jtreleas@osmre.gov. 

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 

‘‘§ ’’ and a numbered heading; for 

example, § 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 email the comments to this address: 

Exsec@ios.doi.gov. 

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Federal Register / Vol. 72, No. 10 / Wednesday, January 17, 2007 / Proposed Rules 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: 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 786.11 General requirements. 

An abandoned coal refuse remining 

operation, as defined in § 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. 

§ 786.12 Information on environmental 

resources. 

(a) General and climatological 

information. Your permit application 

must include the information required 

under §§ 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 § 779.24 of 

this chapter except as follows: 

(1) If you do not plan to blast, in lieu 

of the information required by 

§ 779.24(d) of this chapter, you must 

provide the location, with identification 

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2162 Federal Register / Vol. 72, No. 10 / Wednesday, January 17, 2007 / Proposed Rules 

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 § 816.61 of this 

chapter; and 

(3) The requirements of § 779.24(f) of 

this chapter, do not apply. 

(e) Cross sections, maps, and plans. 

Your permit application must include 

the information required under § 779.25 

of this chapter, except as follows: 

(1) For operations on steep slopes, 

instead of the information required by 

§ 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 § 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 § 779.25(a)(6) 

of this chapter do not apply. 

§ 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 § 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 § 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 § 786.12. 

(2) Maps and plans that delineate 

removal areas and reprocessing areas 

must include the information required 

by § 780.14 of this chapter, except as 

follows: 

(i) Instead of the information required 

by § 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 onsite reprocessing operation; and the 

areas for loading the refuse product or 

coal for sale; 

(ii) Instead of the information 

required by § 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 § 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 § 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 § 780.15 of this 

chapter, except that the fugitive dust 

control plan required by § 780.15(b)(2) 

of this chapter must comply with the 

requirements of § 829.95 of this chapter, 

instead of the requirements of § 816.95 

of this chapter. 

(f) Fish and wildlife information. Your 

permit application must contain the 

information required by § 780.16 of this 

chapter. 

(g) Protection of public parks and 

historic places. Your application must 

contain the information required by 

§ 780.31 of this chapter. 

§ 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 § 829.102 of 

this chapter; 

(4) A plan for removal, storage, and 

redistribution of soil or other vegetationsupport material that meets the 

requirements of § 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 § 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 § 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 

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fire hazard are disposed of in 

accordance with the requirements of 

§§ 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 § 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 § 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 § 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 § 816.43 of 

this chapter. 

§ 786.15 Information on hydrology. 

(a) Reprocessing operations. Your 

application for a reprocessing operation 

must contain: 

(1) All of the information required 

under § 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 § 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 

§ 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 § 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 § 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 § 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 § 780.21(b)(3) of this 

chapter and the ground- and surfacewater monitoring plan requirements of 

§§ 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 

§ 780.21(e) of this chapter pertaining to 

alternative water source information 

will apply. 

(2) We must comply with the 

requirements of § 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. 

§ 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 surfacewater 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 

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balance or to meet the performance 

standards of this chapter. 

§ 786.17 Information on roads and support 

facilities. 

(a) Relocation or use of public roads. 

Your application must contain the 

information required by § 780.33 of this 

chapter. 

(b) Road systems. Your application 

must contain the information required 

by § 780.37 of this chapter, and must be 

in accordance with § 816.150 of this 

chapter. 

(c) Support facilities. Your 

application must contain the 

information required by § 780.38 of this 

chapter, and must be in accordance with 

§ 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. 

§ 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. 

§ 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. 

§ 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) § 816.43 Diversions. 

(2) § 816.47 Hydrologic balance: 

Discharge Structures. 

(3) § 816.57 Hydrologic Balance: 

Stream buffer zones. 

(4) § 816.59 Coal Recovery. 

(5) § 816.61 Use of explosives: 

General requirements. 

(6) § 816.62 Use of explosives: Preblasting survey. 

(7) § 816.64 Use of explosives: 

Blasting schedule. 

(8) § 816.66 Use of explosives: 

Blasting signs, warnings, and access 

control. 

(9) § 816.67 Use of Explosives: 

Control of adverse effects. 

(10) § 816.68 Use of Explosives: 

Records of blasting operations. 

(11) § 816.79 Protection of 

underground mining. 

(12) § 816.87 Coal mine waste: 

Burning and burned waste utilization. 

(13) § 816.97 Protection of fish, 

wildlife, and related environmental 

values. 

(14) § 816.131 Cessation of 

operations: Temporary. 

(15) § 816.132 Cessation of 

operations: Permanent. 

(16) § 816.150 Roads. 

(17) § 816.151 Roads: Primary. 

(18) § 816.180 Utility installations. 

(19) § 816.181 Support facilities. 

(c) In addition, you must conduct 

your operations in accordance with the 

requirements of this part. 

§ 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. 

§ 829.11 Signs and markers. 

You must comply with the 

requirements of § 816.11 of this chapter 

except that, instead of the requirements 

of § 816.22 of this chapter referenced in 

§ 816.11(f), the requirements of § 829.22 

apply. 

§ 829.13 Casing and sealing of drill holes, 

portals or other openings. 

You must comply with the 

requirements of §§ 817.13, 817.14, and 

817.15 of this chapter except that, 

instead of the requirements of § 817.41 

of this chapter referenced in §§ 817.13 

and 817.15 regarding the use of 

monitoring holes or other openings for 

water wells, the requirements of 

§ 829.41 apply. 

§ 829.22 Soils and other vegetationsupport 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 § 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. 

§ 829.41 Hydrologic-balance protection. 

(a) Reprocessing operations. You must 

comply with the hydrologic balance 

requirements of §§ 816.41 and 816.42 of 

this chapter for reprocessing operations 

except that the requirement in 

§ 816.41(b)(2) to restore recharge 

capacity does not apply. Also, instead of 

the requirements of § 780.21(h) of this 

chapter referenced in § 816.41, the 

requirements in § 786.15(a)(2) of this 

chapter apply. 

(b) Removal operations. (1) You must 

comply with the hydrologic balance 

requirements of §§ 816.41 and 816.42 of 

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this chapter for removal operations 

except as follows: 

(i) Instead of the requirements in 

sections of 30 CFR part 780 referenced 

in §§ 816.41 and 816.42, the 

requirements of § 786.15(b) of this 

chapter apply; 

(ii) The requirement of § 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 

§ 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 § 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 surfacewater systems that could be impacted by 

the underground discharges. 

(2)[Reserved] 

§ 829.45 Hydrologic balance: Sediment 

control measures. 

You must comply with the 

requirements of § 816.45 of this chapter 

except that, instead of the requirements 

to §§ 816.102 and 816.111(b) referenced 

in § 816.45, the requirements in 

§§ 829.102 and 829.111(b) apply. 

§ 829.46 Hydrologic balance: Siltation 

structures. 

You must comply with the 

requirements of § 816.46 of this chapter, 

except as currently suspended. 

However, instead of the requirements of 

§ 816.42 and the requirements for 

siltation structures and spill ways 

incorporating §§ 816.49, and 

816.49(a)(9) referenced in § 816.46 of 

this chapter, the requirements of 

§§ 829.41(b) and 829.49 apply. 

§ 829.49 Impoundments. 

You must comply with the 

impoundments requirements of 

§§ 816.49 and 816.56 of this chapter 

except that: 

(a) Instead of the requirements of 

§ 780.25 referenced in § 816.49 of this 

chapter, the requirements of § 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 § 816.49 of 

this chapter. 

§ 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 §§ 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 §§ 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 §§ 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 

§§ 816.81(f) and 829.41(b)(1)(i) of this 

chapter. 

(d) Instead of the cover requirement at 

§ 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 § 829.102(d), and to 

support revegetation, as required under 

§ 829.111. 

(e) Instead of the vegetation removal 

and impoundment requirements of 

§ 816.83(c)(1) and (c)(3) of this chapter, 

you must comply with the requirements 

of §§ 829.22 and 829.49. 

(f) Instead of the topsoil and subsoil 

storage requirements of § 816.22 of this 

chapter referenced in § 816.83(c) of this 

chapter, you must comply with the 

requirements of § 829.22. 

§ 829.89 Disposal of noncoal mine wastes. 

(a) You must comply with the 

requirements of § 816.89(a) and (b) of 

this chapter except that you must cover 

and revegetate the site in accordance 

with the requirements of § 829.111 

instead of the requirements of 

§§ 816.111 through 816.116 of this 

chapter referenced by § 816.89(b). 

(b) Instead of the requirements of 

§ 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. 

§ 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 vegetationsupport 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. 

§ 829.99 Slides and other damage. 

You must comply with the 

requirements of § 816.99(b) of this 

chapter for abandoned coal refuse 

remining operations. 

§ 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 onsite 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. 

§ 829.102 Grading. 

(a) You must conduct grading 

activities: 

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(1) According to this section and 

§ 829.81, and 

(2) According to the schedule we 

approve in the reclamation plan 

required under § 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 longterm 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 vegetationsupport material from the affected 

adjacent land for use as required by 

§ 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 vegetationsupport 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. 

§ 829.111 Revegetation, standards for 

success, and bond liability period. 

(a) Revegetation timing and mulching 

must comply with §§ 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 § 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 

§ 816.116(b)(5) of this chapter. 

(d) The requirements of § 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 

§ 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 

§ 816.116(c)(2). 

§ 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 

mstockstill on PROD1PC61 with PROPOSALS2