12026 Federal Register / Vol. 72, No. 49 / Wednesday, March 14, 2007 / Proposed Rules 

DEPARTMENT OF THE INTERIOR 

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Chapter VII 

RIN 1029–AC54 

Placement of Coal Combustion 

Byproducts in Active and Abandoned 

Coal Mines 

AGENCY: Office of Surface Mining 

Reclamation and Enforcement (OSM), 

Interior. 

ACTION: Advance notice of proposed 

rulemaking. 

SUMMARY: We are seeking comments on 

our intention to propose regulations 

pertaining to permit application 

requirements and performance 

standards related to the placement of 

coal combustion byproducts (CCBs) on 

sites with a surface coal mining 

operations permit under Title V of the 

Surface Mining Control and 

Reclamation Act of 1977 (SMCRA or the 

Act) or in the reclamation of abandoned 

mine lands (AML) as part of projects 

funded or approved under Title IV of 

the Act. We would base the proposed 

regulations on existing SMCRA 

authorities. We will consider the 

comments received in response to this 

notice in developing the scope and 

framework of the proposed rule. 

DATES: To ensure consideration, we 

must receive your comments on or 

before May 14, 2007. 

ADDRESSES: You may submit comments, 

identified by docket number 1029– 

AC54, by any of the following methods 

to the indicated address: 

• E–Mail: 

rules_comments@osmre.gov. Please 

include docket number 1029–AC54 in 

the subject line of the message. 

• Mail/Hand-Delivery/Courier to the 

OSM Administrative Record Room: 

Office of Surface Mining Reclamation 

and Enforcement, Administrative 

Record, Room 252–SIB, 1951 

Constitution Avenue, NW., Washington, 

DC 20240. 

• Federal e-Rulemaking Portal: http:// 

www.regulations.gov. The notice is 

listed under the agency name ‘‘Surface 

Mining Reclamation and Enforcement 

Office.’’ Click ‘‘Add Comments’’ to 

submit comments. 

FOR FURTHER INFORMATION CONTACT: John 

Craynon, P.E., Chief, Division of 

Regulatory Support, Office of Surface 

Mining Reclamation and Enforcement, 

1951 Constitution Ave, NW., MS–202, 

Washington, DC 20240; Telephone 202– 

208–2866; E-mail: jcraynon@osmre.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. What are CCBs? 

II. Why are we publishing this notice? 

III. Background on SMCRA. 

IV. Which provisions of SMCRA authorize 

the adoption of regulations governing the 

use and disposal of CCBs? 

V. How is the use of CCBs currently regulated 

at mines with SMCRA permits? 

VI. What are the benefits of placing CCBs in 

active and abandoned coal mines? 

VII. How do we plan to revise our regulations 

to implement the National Research 

Council (NRC) recommendations? 

VIII. Will comments on this notice be 

available for public review? 

I. What are CCBs? 

The legal definition of coal 

combustion byproducts (CCBs) at 42 

U.S.C. 13364(a) provides that ‘‘the term 

‘coal combustion byproducts’ means the 

residues from the combustion of coal 

including ash, slag, and flue gas 

desulfurization materials.’’ CCBs are 

produced when coal is burned. 

Electrical generating facilities are the 

primary producers. CCBs from power 

plants consist of four large-volume 

waste streams—fly ash, bottom ash 

(including fluidized-bed combustion 

residues, when applicable), boiler slag, 

and flue gas emission control residue. 

The University of North Dakota Coal 

Ash Research Center defines the 

following five categories of CCBs on its 

Web site (http://www.undeerc.org/carrc/ 

html/Terminology.html): 

(1) Boiler slag—[M]olten ash collected 

at the base of slag tap and cyclone 

boilers that is quenched with water and 

shatters into black, angular particles 

having a smooth glassy appearance.’’ 

(2) Bottom ash—‘‘[A]gglomerated ash 

particles formed in pulverized coal 

boilers that are too large to be carried in 

the flue gases and impinge on the boiler 

walls or fall through open grates to an 

ash hopper at the bottom of the boiler. 

Bottom ash is typically gray to black in 

color, is quite angular, and has a porous 

surface structure.’’ 

(3) Fluidized-bed combustion 

materials—‘‘[U]nburned coal, ash, and 

spent bed material used for sulfur 

control. The spent bed material 

(removed as bottom ash) contains 

reaction products from the absorption of 

gaseous sulfur oxides (SO2 and SO3).’’ 

(4) Flue gas desulfurization 

materials—Waste ‘‘derived from a 

variety of processes used to control 

sulfur emissions from boiler stacks. 

These systems include wet scrubbers, 

spray dry scrubbers, sorbent injectors, 

and a combined sulfur oxide (SOSOx) 

and nitrogen oxide (NOX) process. 

Sorbents include lime, limestone, 

sodium-based compounds, and highcalcium coal fly ash.’’ 

(5) Fly ash—‘‘[C]oal ash that exits a 

combustion chamber in the flue gas and 

is captured by air pollution control 

equipment such as electrostatic 

precipitators, baghouses, and wet 

scrubbers.’’ 

CCBs are also known as ‘‘coal 

combustion residues’’ (CCRs), which is 

the term preferred by the National 

Research Council, and ‘‘coal combustion 

wastes’’ (CCWs). 

II. Why are we publishing this notice? 

In 2003, Congress directed the 

Environmental Protection Agency (EPA) 

to commission an independent study of 

the health, safety, and environmental 

risks associated with the placement of 

CCWs in active and abandoned coal 

mines in all major U.S. coal basins. As 

a result, the National Research Council 

(NRC) established the Committee on 

Mine Placement of Coal Combustion 

Wastes in September 2004. The NRC 

published the committee’s findings on 

March 1, 2006, in a report entitled 

‘‘Managing Coal Combustion Residues 

in Mines,’’ which is available online at 

http://newton.nap.edu/openbook/ 

0309100496/html/index.html. 

Page one of the report states that the 

committee ‘‘concluded that putting 

CCRs in coal mines as part of the 

reclamation process is a viable 

management option as long as (1) CCR 

placement is properly planned and is 

carried out in a manner that avoids 

significant adverse environmental and 

health impacts and (2) the regulatory 

process for issuing permits includes 

clear provisions for public 

involvement.’’ In the same paragraph, 

the committee notes that the placement 

of CCRs in coal mines ‘‘can assist in 

meeting reclamation goals (such as 

remediation of abandoned mine lands)’’ 

and ‘‘avoids the need, relative to 

landfills and impoundments, to disrupt 

undisturbed sites.’’ However, the 

committee cautioned that ‘‘an integrated 

process of CCR characterization, site 

characterization, management and 

engineering design of placement 

activities, and design and 

implementation of monitoring is 

required to reduce the risk of 

contamination moving from the mine 

site to the ambient environment.’’ See p. 

12 of the report. In addition, page four 

of the report states that ‘‘comparatively 

little is known about the potential for 

minefilling to degrade the quality of 

groundwater and/or surface waters 

particularly over longer time periods.’’ 

The committee recommended the 

establishment of ‘‘enforceable federal 

standards’’ to govern the placement of 


rwilkins on PROD1PC63 with PROPOSAL_4
Federal Register / Vol. 72, No. 49 / Wednesday, March 14, 2007 / Proposed Rules 12027 

CCRs in mines. See p. 11 of the report. 

The following excerpt from pages 11–12 

of the report (emphasis in the original) 

explains both the committee’s reasoning 

for its recommendation and its 

suggestions for implementation of that 

recommendation: 

After reviewing the laws and other relevant 

literature, the committee concludes that 

although SMCRA does not specifically 

regulate CCR placement at mine sites, its 

scope is broad enough to encompass such 

regulation during reclamation activities. 

Furthermore, while SMCRA and its 

implementing regulations indirectly establish 

performance standards that could be used to 

regulate the manner in which CCRs may be 

placed in coal mines, neither the statute nor 

those rules explicitly address regulation of 

the use or placement of CCRs, and some 

states have expressed concern that they do 

not have the authority to impose performance 

standards specific to CCRs. Therefore, the 

committee recommends that enforceable 

federal standards be established for the 

disposal of CCRs in minefills. Enforceable 

federal standards will ensure that states have 

adequate, explicit authority and that they 

implement adequate minimum safeguards. 

As with current federal regulations, these 

rules should provide sufficient flexibility to 

allow states to adapt permit requirements to 

site-specific conditions, while providing the 

needed focus on the protection of ecological 

and human health. 

There are three primary regulatory 

mechanisms that could be used to develop 

enforceable standards: 

• Changes to SMCRA regulations to 

address CCRs specifically; 

• Joint Office of Surface Mining (OSM) and 

EPA rules pursuant to the authority of 

SMCRA and RCRA [the Resource 

Conservation and Recovery Act, 42 U.S.C. 

6901 et seq.]; or 

• RCRA–D rules that are enforceable 

through a SMCRA permit. [‘‘RCRA–D’’ refers 

to Subtitle D of RCRA at 42 U.S.C. 6941–

6949a.] 

* * * Regardless of the regulatory 

mechanism selected, coordination between 

OSM and EPA efforts is needed and would 

foster regulatory consistency with EPA’s 

intended rule-making proposal for CCR 

disposal in landfills and impoundments. 

In all cases, guidance documents will also 

be necessary to help states implement their 

responsibility for managing CCR[s]. However, 

guidance alone is not adequate to achieve the 

needed improvements in state programs for 

CCR minefills. Only through enforceable 

standards can acceptable minimum levels of 

environmental protection from CCR 

placement in coal mines be guaranteed 

nationally. 

The committee also made other 

recommendations that relate to and 

expand upon the recommendation for 

enforceable federal standards. Among 

other things, it suggested that: 

• ‘‘CCRs [should] be characterized 

prior to significant mine placement and 

with each new source of CCRs. The CCR 

characterization should continue 

periodically throughout the mine 

placement process to assess any changes 

in CCR composition and behavior.’’ See 

p. 6 of the report. 

• ‘‘[C]omprehensive site 

characterization specific to CCR 

placement [should] be conducted at all 

mine sites prior to substantial 

placement of CCRs.’’ See p. 7 of the 

report. 

• Management plans for CCR disposal 

in mines should be site-specific, with 

site-specific performance standards. Id. 

• ‘‘CCR placement in mines [should] 

be designed to minimize reactions with 

water and the flow of water through 

CCRs.’’ See p. 8 of the report. 

• ‘‘[T]he number and location of 

monitoring wells, the frequency and 

duration of sampling, and the water 

quality parameters selected for analysis 

[should] be carefully determined for 

each site, in order to accurately assess 

the present and potential movement of 

CCR-associated contaminants.’’ See p. 9 

of the report. 

• ‘‘[T]he disposal of CCRs in coal 

mines [should] be subject to reasonable 

site-specific performance standards that 

are tailored to address potential 

environmental problems associated with 

CCR disposal.’’ Id. 

• The ‘‘placement of CCRs in 

abandoned and remining sites [should] 

be subject to the same CCR 

characterization, site characterization, 

and management planning standards 

recommended for active coal mines.’’

See pp. 9–10 of the report. 

• ‘‘[A]ny proposal to dispose of 

substantial quantities of CCRs in coal 

mines [should] be treated as a 

‘significant alteration of the reclamation 

plan’ under SMCRA’’ to ensure that the 

public is afforded adequate notice of, 

and an opportunity to comment on, the 

CCR placement proposal. See p. 11 of 

the report. 

We are publishing this advance notice 

of proposed rulemaking in response to 

the NRC recommendations summarized 

above. We invite comment on how these 

recommendations should be 

implemented, i.e., how we should revise 

the regulations implementing Titles IV 

and V of SMCRA to regulate the 

placement of CCBs on active and 

abandoned coal minesites and what 

type of guidance documents we should 

issue, if any. We also seek comment on 

our tentative preferred approach 

regarding the proposed regulations, as 

discussed in Part VII of this notice, or 

whether other approaches would be 

more appropriate. In developing your 

comments, we urge you to review the 

entire NRC report, the background 

provided in this notice, and the 

information available on the EPA Web 

site at http://www.epa.gov/epaoswer/ 

other/fossil/index.htm and our Web site 

at http://www.mcrcc.osmre.gov/ccb/. 

III. Background on SMCRA 

In fashioning SMCRA, Congress 

created two major programs: 

• An abandoned mine land 

reclamation program, primarily in Title 

IV of the Act, funded by fees that 

operators pay on each ton of coal mined, 

to reclaim land and water resources 

adversely affected by coal mines 

abandoned before August 3, 1977, and 

left in an inadequately reclaimed 

condition. 

• A regulatory program, primarily in 

Title V of the Act, to ensure that surface 

coal mining operations initiated or in 

existence after the effective date of the 

Act (August 3, 1977) are conducted and 

reclaimed in an environmentally sound 

manner. 

Section 501 of SMCRA, 30 U.S.C. 

1251, created a limited initial regulatory 

program directly administered and 

enforced by OSM. However, Congress 

intended that this initial regulatory 

program be only a temporary measure 

until States adopted permanent 

regulatory programs consistent with the 

Act. Section 101(f) of SMCRA, 30 U.S.C. 

1201(f), specifies that because of the 

diversity in terrain, climate, biology, 

geochemistry, and other physical 

conditions under which mining 

operations occur, the primary 

governmental responsibility for 

regulating surface mining and 

reclamation operations should rest with 

the States. To achieve primary 

regulatory responsibility, often referred 

to as primacy, a State must develop and 

obtain Secretarial approval of a program 

under section 503 of the Act, 30 U.S.C. 

1253, that meets the requirements of the 

Act and that is no less effective than the 

Federal regulations in achieving the 

requirements of the Act. Among other 

things, each regulatory program must 

include permitting requirements and 

performance standards for surface coal 

mining and reclamation operations. To 

date, 24 of the 26 coal-producing states 

have achieved primacy. 

Following approval of a State 

regulatory program, we assume a 

monitoring role. Section 517(a) of 

SMCRA, 30 U.S.C. 1267(a), requires that 

we make such inspections as are 

necessary to evaluate the administration 

of approved State programs. The 

primary purpose of both the State 

program review and approval process 

and the oversight of State programs is to 

ensure that all States attain and 

maintain environmental protection 

requirements and inspection and 


rwilkins on PROD1PC63 with PROPOSAL_4
12028 Federal Register / Vol. 72, No. 49 / Wednesday, March 14, 2007 / Proposed Rules 

enforcement efforts consistent with the 

Act. 

States with primacy are eligible to 

apply for the authority to administer 

AML reclamation programs within their 

borders. Once the Secretary approves 

their AML reclamation plans under 

section 405 of SMCRA, 30 U.S.C. 1235, 

those States are also eligible to receive 

grants for AML reclamation programs 

and projects. SMCRA does not establish 

requirements for AML reclamation 

projects analogous to the permitting 

requirements and performance 

standards that apply to surface coal 

mining operations. However, in 

consultation with the States, we have 

developed a guidance document 

entitled ‘‘Final Guidelines for 

Reclamation Programs and Projects,’’

which contains provisions and 

recommendations relating to protection 

of public health, safety, and the 

environment as part of project planning, 

design, and construction. See 66 FR 

31250–31258, June 11, 2001. Our 

regulations at 30 CFR 874.13(a) 

encourage the use of the guidelines, but, 

as stated at 66 FR 31251, the guidelines 

do not establish new legal requirements 

or obligations. 

IV. Which provisions of SMCRA 

authorize the adoption of regulations 

governing the use and disposal of 

CCBs? 

SMCRA does not directly address the 

placement of CCBs in active or 

abandoned coal mines. (In the context of 

this notice, an ‘‘active’’ mine is a surface 

coal mining and reclamation operation 

with a SMCRA permit.) Sections 

515(b)(11) and 516(b)(4) of SMCRA 

contain requirements applicable to 

‘‘surface disposal of mine wastes, 

tailings, coal processing wastes, and 

other wastes’’ on permitted mine sites, 

but only when those wastes are placed 

in ‘‘areas other than the mine workings 

or excavations.’’ 30 U.S.C. 1265(b)(11) 

and 1266(b)(4) (emphasis added). 

Consequently, those provisions would 

not apply to most CCB placements in 

active mines, because CCBs are most 

frequently placed in mine workings or 

excavations. However, as discussed 

below, we believe that other provisions 

of SMCRA provide adequate authority 

for the adoption of regulations 

governing the placement of CCBs with 

respect to both permitted mines and 

abandoned mine reclamation projects 

conducted under an AML reclamation 

plan approved under section 405 of 

SMCRA. 

A. Provisions Applicable to Both Active 

Mines and AML Reclamation Projects 

Section 102 of SMCRA, 30 U.S.C. 

1202, sets forth the purposes of the Act. 

Those purposes relevant to this notice 

are summarized below: 

• Paragraph (a) states that one 

purpose is to ‘‘establish a nationwide 

program to protect society and the 

environment from the adverse effects of 

surface coal mining operations.’’

• Paragraph (b) states that another 

purpose is to ‘‘assure that the rights of 

surface landowners and other persons 

with a legal interest in the land or 

appurtenances thereto are fully 

protected from [surface coal mining] 

operations.’’

• Paragraph (d) states that another 

purpose is to assure that surface coal 

mining operations are conducted in a 

manner that protects the environment. 

• Paragraph (e) states that another 

purpose is to ‘‘assure that adequate 

procedures are undertaken to reclaim 

surface areas as contemporaneously as 

possible with the surface coal mining 

operations.’’

• Paragraph (h) states that another 

purpose is to ‘‘promote the reclamation 

of mined areas left without adequate 

reclamation prior to the enactment of 

[SMCRA] and which continue, * * * to 

substantially degrade the quality of the 

environment, prevent or damage the 

beneficial use of land or water 

resources, or endanger the health or 

safety of the public.’’

Section 201(c)(2) of the Act authorizes 

the Secretary, acting through OSM, to 

‘‘publish and promulgate such rules and 

regulations as may be necessary to carry 

out the purposes and provisions of the 

Act.’’ 30 U.S.C. 1211(c)(2). Therefore, 

should we find it necessary to achieve 

one of the purposes in section 102 of the 

Act listed above, section 201(c)(2) 

provides a basis for the adoption of 

rules governing the placement of CCBs 

both as part of surface coal mining and 

reclamation operations for which a 

permit is required under Title V of 

SMCRA and on abandoned mine lands 

where the placement occurs in 

connection with a project conducted 

under an abandoned mine reclamation 

program approved under section 405 of 

SMCRA. 

B. Provisions Applicable Only to Active 

Mines (Title V) 

Section 501(b) of SMCRA requires the 

Secretary to publish regulations 

‘‘covering a permanent regulatory 

procedure for surface coal mining and 

reclamation operations performance 

standards based on and conforming to 

the provisions of title V * * *.’’ 30 

U.S.C. 1251(b). This provision, taken 

together with, at a minimum, sections 

507(b)(11), 508(a)(13), 510(b)(3), 

515(b)(10) and (14), and 516(b)(9) and 

(10) of SMCRA, 30 U.S.C. 1257(b)(11), 

1258(a)(13), 1260(b)(3), 1265(b)(10) and 

(14), and 1266(b)(9) and (10), provides 

express authority to impose 

performance standards to protect the 

hydrologic balance and to require 

sufficient permit application 

information to conclude that the 

proposed surface coal mining and 

reclamation operations will be 

conducted in a manner that protects the 

hydrologic balance. Therefore, we 

believe we have the authority under 

SMCRA to adopt regulations containing 

specific requirements to monitor and 

control the placement of CCBs in mines 

with SMCRA permits to protect against 

adverse impacts to surface waters and 

groundwater. 

C. Provisions Applicable Only to AML 

Reclamation Projects (Title IV) 

With respect to the reclamation of 

AML sites, section 405(a) of SMCRA 

requires the Secretary to publish 

‘‘regulations covering implementation of 

an abandoned mine reclamation 

program * * * and establishing 

procedures and requirements for * * * 

annual submissions of projects.’’ 30 

U.S.C. 1235(a). Also, section 413(a) 

authorizes the Secretary ‘‘to do all 

things necessary or expedient, including 

promulgation of rules and regulations, 

to implement and administer the 

provisions of this title [Title IV].’’ 30 

U.S.C. 1242(a). 

Sections 403(a) and 411(c) of SMCRA, 

30 U.S.C. 1233(a) and 1240a(c), do not 

provide any rulemaking authority, but 

they do establish priorities for project 

funding, with an emphasis first on 

protection of public health and safety 

from the adverse effects of past mining 

practices, followed by restoration of 

land and water resources and the 

environment previously degraded by the 

adverse effects of mining practices. By 

logical extension, AML reclamation 

projects involving the placement of 

CCBs should be designed and 

constructed in a manner that would not 

create new threats to public health or 

safety or the environment. However, our 

authority to establish requirements for 

AML reclamation project designs is 

somewhat limited by section 405(i), 

which provides that ‘‘States shall not be 

required at the start of any project to 

submit complete copies of plans and 

specifications.’’ 30 U.S.C. 1235(i). We 

seek comment on whether this 

provision would prohibit the adoption 

of any regulations analogous to the 

permit application requirements of the 


rwilkins on PROD1PC63 with PROPOSAL_4
Federal Register / Vol. 72, No. 49 / Wednesday, March 14, 2007 / Proposed Rules 12029 

regulatory program or whether there is 

sufficient latitude to require that project 

submissions include site-specific plans 

and requirements concerning the 

placement of CCBs, consistent with the 

recommendations of the NRC report. 

V. How is the use of CCBs currently 

regulated at mines with SMCRA 

permits? 

Generally, CCB disposal operations 

are regulated under State solid waste 

management programs under Subtitle D 

of RCRA. 42 U.S.C. 6941 et seq. If the 

disposal site is a mine with a SMCRA 

permit, then the requirements of the 

applicable SMCRA regulatory program 

also apply. 

On August 9, 1993, EPA published a 

final regulatory determination for coal 

combustion wastes that concluded that 

the State industrial solid waste 

management programs implemented 

under Subtitle D of RCRA contained 

adequate regulatory controls for 

managing the disposal of those CCBs. 

For that reason, EPA determined that 

regulation of CCBs under the hazardous 

waste provisions of RCRA was not 

warranted. See 58 FR 42466, August 9, 

1993 for further discussion regarding 

EPA’s basis for reaching this conclusion. 

However, this determination applied 

only to large-volume coal combustion 

wastes generated at electric utility and 

independent power-producing facilities 

that manage the wastes separately from 

certain other low-volume and uniquely 

associated coal combustion wastes. Id. 

On May 22, 2000, EPA published 

another regulatory determination that 

addressed those CCBs that were not 

included in the 1993 regulatory 

determination. This determination 

similarly concluded that regulation of 

those types of CCBs as hazardous waste 

under Subtitle C of RCRA was not 

warranted. See 65 FR 32214. However, 

EPA also concluded that establishment 

of national regulations to govern the use 

of CCBs to fill surface and underground 

mines was appropriate. EPA reached 

this decision because it found that CCBs 

used as minefill could present a danger 

to human health or the environment 

under certain circumstances and 

because there were few states that 

currently operate comprehensive 

programs that specifically address the 

unique circumstances of minefilling 

with CCBs. See 65 FR 32231. EPA noted 

that a comprehensive national program 

could be developed by adopting 

regulations under Subtitle D of RCRA, 

by modifying SMCRA regulations, or by 

a combination of both. See 65 FR 32215, 

32232. Currently, EPA and OSM are 

coordinating with each other and with 

other interested parties in the 

implementation of this determination. 

You can find more information 

regarding the history of CCB regulation 

under RCRA, including links to 

referenced documents, on EPA’s Web 

site at http://www.epa.gov/epaoswer/ 

other/fossil/index.htm. 

There is no express mention of CCBs 

in SMCRA and only two of our 

regulations directly reference CCBs: 30 

CFR 816.41(i)(2)(iii) and (v) and 30 CFR 

817.41(h)(2)(iii) and (v), which specify 

that fly ash from a coal-fired facility and 

flue-gas desulfurization sludge may be 

discharged into an underground coal 

mine if certain demonstrations are 

made. The paucity of references to CCBs 

does not mean that SMCRA regulatory 

programs do not apply to placement of 

CCBs on permitted minesites. In fact, 

the opposite is true, as litigation has 

established that any material placed in 

mine pits or otherwise used to reclaim 

a permitted minesite must comply with 

SMCRA permitting requirements and 

performance standards, regardless of 

whether the material originates within 

the permit area or whether it is 

imported from outside the permit area, 

and that we have the authority to 

establish monitoring and analysis 

requirements for those materials. See 

Pacific Coal Co. v. OSM, Civ. No. 03–

0260Z, (W.D. Wash. Feb. 2, 2004). As 

with all material being placed in the 

backfill, CCBs must be characterized to 

assure compliance with the performance 

standards. 

In luncheon remarks published in the 

proceedings of the interactive forum on 

Coal Combustion By-Products 

Associated with Coal Mining (October 

29–31, 1996), Katherine L. Henry, then 

the Acting Director of OSM, 

summarized the SMCRA requirements 

that apply to CCB disposal in a mine 

with an SMCRA permit: 

When the use or disposal of coal 

combustion by-products happens at surface 

coal mines, state coal mining regulators are 

involved to the extent that SMCRA requires: 

• The mine operator to ensure that all 

toxic materials are treated, buried, and 

compacted, or otherwise disposed of, in a 

manner designed to prevent contamination of 

the ground or surface water. 

• Making sure the proposed land use does 

not present any actual or probable threat of 

water pollution. 

• And ensuring the permit application 

contains a detailed description of the 

measures to be taken during mining and 

reclamation to assure the protection of the 

quality and quantity of surface and ground 

water systems, both on- and off-site, from 

adverse effects of the mining and reclamation 

process and also to assure the rights of 

present users of such water are protected. 

See http://www.mcrcc.osmre.gov/ 

PDF/Forums/CCB/Luncheon.PDF. 

On February 6, 2001, OSM’s Western 

Region issued a policy guidance 

document that applies to CCB disposal 

operations being conducted 

concurrently with surface coal mining 

and reclamation operations on lands 

where OSM’s Western Region is the 

regulatory authority under SMCRA; i.e., 

on Indian lands, in states with Federal 

programs, and on Federal lands in states 

without a cooperative agreement under 

section 523 of SMCRA. The document, 

which is entitled ‘‘Guidance On 

Disposal of Coal Combustion 

Byproducts In the Western United 

States When OSM Western Region is the 

Regulatory Authority,’’ may be reviewed 

online at http://www.wrcc.osmre.gov/ 

Guidances/CCBguidance.html. It 

provides guidance to ensure that CCB 

disposal at surface coal mines will 

comply with the requirements of 

SMCRA and the applicable regulatory 

program approved under SMCRA. 

Among other things, it identifies the 

SMCRA regulations that apply to CCB 

placement in mines and explains how 

those regulations apply. 

OSM has no authority to regulate CCB 

disposal in mines for which no permit 

is required under Title V of SMCRA. 

However, we believe regulation under 

Title V of SMCRA can serve as a 

template for state regulation of other 

minesites, in coordination with EPA, 

under other authorities available to the 

states. 

As a supplement to the regulatory 

efforts discussed above, OSM has taken 

an active role in encouraging and 

promoting technological advances, 

research, and technology transfer related 

to the placement of CCBs in mines. A 

multi-interest group known as the Coal 

Combustion By-Product Steering 

Committee has conducted six national 

interactive forums on CCB-related topics 

and edited, published, and distributed 

the forum proceedings. The Committee 

also provided technical assistance to the 

American Society of Testing Methods 

on draft guidance for CCB use in mines 

and developed and manages a Web site 

(http://www.mcrcc.osmre.gov/ccb/) 

dedicated to providing a user-friendly 

guide to CCB literature, organizations, 

EPA rulemaking, and educational 

events. 

VI. What are the benefits of placing 

CCBs in active and abandoned coal 

mines? 

The use of properly managed CCBs on 

both active and abandoned mines can 

contribute to successful reclamation. 

For example, alkaline CCBs with 

cement-like properties can be used to 

encapsulate acid-forming or other toxicforming materials to isolate those 


rwilkins on PROD1PC63 with PROPOSAL_4
12030 Federal Register / Vol. 72, No. 49 / Wednesday, March 14, 2007 / Proposed Rules 

materials from contact with water and 

thus reduce or eliminate the formation 

of acidic or toxic mine drainage. When 

used as an alkaline addition to mine 

spoil, CCBs can improve soil quality 

and productivity as a medium for 

vegetation. In addition, CCBs can serve 

as base material for the construction of 

haul and access roads to support the 

heavy trucks and machinery used in 

mining. In thin overburden situations, 

the use of CCBs to backfill the pit can 

assist in restoring mined lands to 

elevations and grades similar to those 

that existed before mining, i.e., the 

approximate original contour. 

Abandoned mine lands with exposed 

acidic spoils that result in acid mine 

drainage (AMD), contaminated streams, 

and barren or unproductive land also 

can benefit from the addition of CCBs. 

Alkaline CCBs can neutralize acidic and 

toxic-forming materials, thereby 

reducing AMD formation and improving 

the ability of the land to support a wider 

array of vegetation and land uses. 

Even when there is no site-specific 

beneficial aspect to CCB placement in 

mines, the use of mines as CCB disposal 

sites benefits the environment by 

preventing the surface disruption that 

would otherwise result from disposal of 

CCBs in landfills and surface 

impoundments, which normally are 

constructed on previously undisturbed 

sites or sites with productive land uses. 

VII. How do we plan to revise our 

regulations to implement the NRC 

recommendations? 

After discussions with EPA and state 

regulatory authorities under SMCRA, 

we have tentatively decided to propose 

to revise our regulations so that they 

will expressly provide for the placement 

of CCBs as part of surface coal mining 

and reclamation operations permitted 

under Title V of SMCRA and in the 

reclamation of abandoned mine lands 

under an AML reclamation program 

approved under section 405 of the Act. 

We intend for these regulations to 

minimize the possibility that the 

placement of CCB could cause adverse 

impacts on public health and the 

environment. 

With respect to CCB placement in 

mines with SMCRA permits, we are 

considering the adoption of regulations 

that would specifically identify the 

permit application requirements and 

performance standards in our existing 

regulations in 30 CFR Chapter VII that 

apply to the use and disposal of CCBs 

in mines. The OSM Western Region 

policy guidance document discussed in 

Part V of this notice lists the Federal 

regulations that we believe are most 

germane to the placement of CCBs in 

mines. We seek comment on that list 

and on whether our existing permit 

application requirements and 

performance standards are sufficient to 

ensure proper management of CCBs. If 

you believe that additional requirements 

and standards are needed, please 

identify those requirements and why 

you believe they are needed. 

In addition, consistent with the NRC 

recommendation emphasizing the need 

for public involvement in permitting 

decisions, we are considering modifying 

30 CFR 774.13(b) to specify that permit 

revision applications proposing the 

placement of CCBs must be processed as 

significant revisions, which means that 

they would be subject to all the notice 

and public participation requirements 

that apply to applications for new 

permits. 

With respect to CCB placement on 

abandoned mine lands, we are 

considering revising 30 CFR Part 874 to 

include minimum requirements that 

would apply to any AML reclamation 

project funded or otherwise conducted 

under an AML reclamation plan and 

program approved under section 405 of 

SMCRA. Those requirements would 

apply to any reclamation project funded 

under the grants awarded pursuant to 

section 405(h) and to AML reclamation 

projects conducted under the provisions 

of 30 CFR 874.17. The requirements 

would not apply to other types of AML 

reclamation projects, as those projects 

would be outside the scope of SMCRA. 

However, we believe that any 

requirements that we develop could 

serve as a template for states to impose 

comparable requirements for the use 

and disposal of CCBs on other 

abandoned mine lands under other 

provisions of law. 

In addition, we are evaluating the 

impacts of the Surface Mining Control 

and Reclamation Act Amendments of 

2006, Pub. L. No. 109–432, Division C, 

Title II, Subtitle A, on OSM’s authority 

to regulate CCB placement on 

reclamation projects approved or 

funded under Title IV. 

We invite comment on the approach 

described above. 

Comments received in response to 

this notice will help us scope and frame 

the proposed rule. We encourage 

commenters to be as detailed as possible 

and to explain how any suggested 

regulatory changes relate to the NRC 

recommendations and the rulemaking 

authority that we have under SMCRA. 

Consistent with the requirements of 

the Administrative Procedure Act, we 

will publish in the Federal Register any 

proposed regulations that we may 

subsequently draft and provide the 

public with a 60-day period to review 

and comment on those proposed 

regulations. 

As recommended in the NRC report, 

we are coordinating our rulemaking 

actions with EPA. 

VIII. Will comments on this notice be 

available for review? 

Yes. We will log all comments that are 

received prior to the close of the 

comment period into the administrative 

record; however, we cannot ensure that 

comments received after the close of the 

comment period (see DATES) or at 

locations other than those listed above 

(see ADDRESSES) will be included in the 

administrative record and considered. 

Before including your address, phone 

number, e-mail address, or other 

personal identifying information in your 

comment, you should be aware that 

your entire comment—including your 

personal identifying information—may 

be made publicly available at any time. 

While you can ask us in your comment 

to withhold your personal identifying 

information from public review, we 

cannot guarantee that we will be able to 

do so. 

Dated: March 5, 2007. 

C. Stephen Allred, 

Assistant Secretary, Land and Minerals 

Management. 

[FR Doc. E7–4669 Filed 3–13–07; 8:45 am] 

BILLING CODE 4310–05–P 


rwilkins on PROD1PC63 with PROPOSAL_4