[Federal Register Volume 72, Number 49 (Wednesday, March 14, 2007)]
[Proposed Rules]
[Pages 12026-12030]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-4669]



[[Page 12025]]

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Part IV





Department of the Interior





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Office of Surface Mining Reclamation and Enforcement



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30 CFR Chapter VII



 Placement of Coal Combustion Byproducts in Active and Abandoned Coal 
Mines; Proposed Rule

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

[[Page 12026]]


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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.

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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:
    <bullet> E-Mail: <a href="/cdn-cgi/l/email-protection#a6d4d3cac3d5f9c5c9cbcbc3c8d2d5e6c9d5cbd4c388c1c9d0"><span class="__cf_email__" data-cfemail="c0b2b5aca5b39fa3afadada5aeb4b380afb3adb2a5eea7afb6">[email protected]</span></a>. Please include docket 
number 1029-AC54 in the subject line of the message.
    <bullet> 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.
    <bullet> 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: <a href="/cdn-cgi/l/email-protection#cea4adbcafb7a0a1a08ea1bda3bcabe0a9a1b8"><span class="__cf_email__" data-cfemail="d6bcb5a4b7afb8b9b896b9a5bba4b3f8b1b9a0">[email protected]</span></a>.

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 (SO<INF>2</INF> and SO<INF>3</INF>).''
    (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 (SOSO<INF>x</INF>) and 
nitrogen oxide (NO<INF>X</INF>) process. Sorbents include lime, 
limestone, sodium-based compounds, and high-calcium 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

[[Page 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:
    <bullet> Changes to SMCRA regulations to address CCRs 
specifically;
    <bullet> 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
    <bullet> 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:
    <bullet> ``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.
    <bullet> ``[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.
    <bullet> Management plans for CCR disposal in mines should be site-
specific, with site-specific performance standards. Id.
    <bullet> ``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.
    <bullet> ``[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.
    <bullet> ``[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.
    <bullet> 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.
    <bullet> ``[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:
    <bullet> 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.
    <bullet> 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

[[Page 12028]]

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:
    <bullet> 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.''
    <bullet> 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.''
    <bullet> Paragraph (d) states that another purpose is to assure 
that surface coal mining operations are conducted in a manner that 
protects the environment.
    <bullet> 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.''
    <bullet> 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

[[Page 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:
    <bullet> 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.
    <bullet> Making sure the proposed land use does not present any 
actual or probable threat of water pollution.
    <bullet> 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 toxic-forming materials to isolate those

[[Page 12030]]

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


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