[Federal Register Volume 59, Number 179 (Friday, September 16, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-22959]


[[Page Unknown]]

[Federal Register: September 16, 1994]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

 

Kentucky Regulatory Program

agency: Office of Surface Mining Reclamation and Enforcement (OSM), 
Interior.

action: Final rule; approval of amendment.

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summary: OSM is approving a proposed amendment to the Kentucky 
regulatory program (hereinafter referred to as the ``Kentucky 
program'') under the Surface Mining Control and Reclamation Act of 1977 
(SMCRA). Kentucky proposed revisions to and additions of statutes to 
the Kentucky Revised Statutes (KRS) pertaining to disposal of coal 
combustion fly ash, bottom ash, and scrubber sludge. The amendment is 
intended to improve operational efficiency.

effective date: September 16, 1994.

for further information contact: William J. Kovacic, Director, 
Lexington Field Office, 2675 Regency Road, Lexington, Kentucky 40503. 
Telephone: (606) 233-2896.

supplementary information:

I. Background on the Kentucky Program
II. Submission of the Proposed Amendment
III. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations

I. Background on the Kentucky Program

    On May 18, 1982, the Secretary of the Interior conditionally 
approved the Kentucky program. Background information on the Kentucky 
program, including the Secretary's findings, the disposition of 
comments, and the conditions of approval can be found in the May 18, 
1982, Federal Register (47 FR 21404). Subsequent actions concerning 
conditions of approval and program amendments can be found at 30 CFR 
917.11, 917.13, 917.15, 917.16, and 917.17.

II. Submission of the Proposed Amendment

    By letter dated April 18, 1994 (Administrative Record No. KY-1276), 
Kentucky submitted a proposed amendment to its program pursuant to 
SMCRA. It replaces a previous proposed amendment dated November 17, 
1993 (Administrative Record No. KY-1260). Kentucky submitted the 
proposed amendment at its own initiative. Known as Senate Bill 266, the 
amendment was passed by Kentucky's General Assembly during the 1994 
regular session. It consists of proposed new and amended statutes to 
KRS pertaining to disposal of coal combustion fly ash, bottom ash, 
waste from fluidized bed combustion, and scrubber sludge. The statutes 
offer surface coal mining permittees the option to dispose of coal 
combustion waste on the permit area. Kentucky proposes to revise KRS 
350.010 to define coal combustion by-products, and add a new section of 
KRS chapter 350 to specify the procedures governing the disposal of 
coal combustion by-products.
    OSM announced receipt of the proposed amendment in the May 19, 
1994, Federal Register (59 FR 26153), and in the same document opened 
the public comment period and provided an opportunity for a public 
hearing on the adequacy of the proposed amendment. The public comment 
period closed on June 20, 1994.

III. Director's Findings

    Set forth below, pursuant to SMCRA and the Federal regulations at 
30 CFR 732.15 and 732.17, are the Director's findings concerning the 
proposed amendment.
    Revisions not specifically discussed below concern nonsubstantive 
wording changes, or revised cross-references and paragraph notations to 
reflect organizational changes resulting from this amendment.

Revisions to Kentucky's Statutes With No Corresponding Federal 
Regulations

1. KRS 350.010--Definition
    At KRS 350.010(22), Kentucky is defining ``coal combustion by-
products'' to mean fly ash, bottom ash, scrubber sludge, and waste from 
fluidized bed combustion, produced by the combustion of coal. Coal 
combustion by-products do not include boiler slag, or residues of 
refuse-derived fuels, such as municipal solid waste, tires, and 
solvents.
    There is no direct Federal counterpart for this definition. 
However, the Director finds the proposed definition at KRS 350.010(22) 
to be not inconsistent with the requirements of SMCRA and the Federal 
regulations.
2. KRS 350--Additions to Statute
    (a) At KRS 350(1), Kentucky is adding a provision allowing the 
State to issue permits authorizing the disposal of coal combustion by-
products at surface coal mining operations.
    (b) At KRS 350(2), Kentucky is restricting the application of the 
statute to the disposal of waste from burning clean oil or gas with 
coal, if the oil or gas is used only for startup or flame 
stabilization. The types of by-products excluded from application are 
those coal combustion by-products: (1) For which a special waste formal 
permit or a special waste permit-by-rule is required under KRS Chapter 
224; (2) that have been mixed or otherwise co-managed with low volume 
waste or with materials that exhibit hazardous waste characteristics; 
(3) generated prior to the effective date of this Act, unless the 
applicant can demonstrate that these by-products have not been mixed or 
otherwise co-managed with low volume waste or with materials that 
exhibit hazardous waste characteristics, or (4) which are injected 
underground.
    (c) At KRS 350(3), Kentucky is requiring that an application to 
modify an existing permit to initially include disposal of coal 
combustion by-products be an application for a major revision or an 
amendment under KRS 350.070.
    (d) At KRS 350(4), Kentucky is specifying that modifications for an 
existing permit that includes coal combustion by-product disposal may 
be made by application for a minor revision, where the application 
proposes disposal of the same by-products in the same location as 
approved in the existing permits.
    (e) At KRS 350(5), Kentucky is specifying that modifications for an 
existing permit to increase the amount of coal combustion by-products 
to be received, to change the components of the by-products, or to 
change the generating facility may be made by application for a minor 
revision. If the proposed changes result in an increase of 
concentrations of heavy metals, or if public notice is deemed 
necessary, an application for a major revision will be required.
    (f) At KRS 350(6), Kentucky is requiring that a permittee keep 
accurate records, to be available upon request, to the Kentucky Natural 
Resources and Environmental Protection Cabinet (Cabinet) showing the 
source and amount of each shipment of coal combustion by-products 
received.
    (g) At KRS 350(7), Kentucky is requiring that prior to disposal of 
coal combustion by-products, any material not approved for disposal 
shall be removed from the coal combustion by-productions and records 
kept.
    (h) At KRS 350(8), Kentucky is requiring that coal combustion by-
products be disposed of only in the pit or extraction area, unless the 
permittee makes a demonstration that no adverse environmental impacts 
will occur.
    (i) At KRS 350(9), Kentucky is prohibiting the disposal of any 
component of the coal combustion by-products listed or meeting the 
criteria of hazardous waste as specified in the State's law and 
administrative regulations governing hazardous wastes.
    (j) At KRS 350(10), Kentucky is requiring that the permittee 
prepare and maintain accurate maps showing each location where coal 
combustion by-products have been disposed of and the volume of coal 
combustion by-products disposed of at that location. Phase I bond 
release is not permitted unless the appropriate maps have been 
submitted.
    (k) At KRS 350(11), Kentucky is requiring that the permittee or 
applicant provide representative samples of the coal combustion by-
products, if requested or if required by the issued permit.
    (l) At KRS 350(12), Kentucky is requiring that the permittee 
annually obtain and submit to the Cabinet a laboratory analysis to 
characterize the coal combustion by-products in the manner required by 
KRS Chapter 224 and the Resources Conservation and Recovery Act of 1976 
(Pub. L. 94-580), as amended.
    (m) At KRS 350(13), Kentucky is requiring that if the disposal of 
coal combustion by-products is proposed, any required newspaper 
advertisement include the intended action and the name, address, and 
location of the facility that will generate the by-products.
    (n) At KRS 350(14), Kentucky is requiring that the application 
include a demonstration that the applicant has the legal right to 
dispose of coal combustion by-products on the proposed areas. A copy of 
the applicable conveyance must also be included. If the mineral estate 
has been severed from the surface estate, a written consent from the 
surface owner for the disposal or a copy of the conveyance that 
expressly grants or reserves the right to dispose of coal combustion 
by-products must also be included.
    (o) At KRS 350(15), Kentucky is requiring that the application 
include certain identifying information for the generating facility, a 
listing of each of the component materials the coal combustion by-
products will contain, and the approximate volume in cubic yards and 
the approximate tonnage that will be received from the generating 
facility annually and for the term of the permit.
    (p) At KRS 350(16), Kentucky is requiring that the application 
include the results of representative sampling and laboratory analysis 
of each component of the coal combustion by-products for contaminants 
listed in Kentucky's administrative regulations. The analysis must test 
for certain metals and address neutralization potential and potential 
acidity and a demonstration must be made that each component of the by-
products does not contain any contaminant at a concentration that 
equals or exceeds specified regulatory levels.
    (q) At KRS 350(17), Kentucky is requiring that the application 
describe the proposed methods of by-product handling and disposal, 
including methods of record keeping.
    (r) At KRS 350(18), Kentucky is requiring that the application 
include appropriate maps and drawings of all areas and facilities to be 
used in the permit area for by-product handling and disposal.
    (s) At KRS 350(19), Kentucky is requiring that the application 
contain a determination of the probable hydrologic consequences of the 
disposal of coal combustion by-products for the permit and adjacent 
area and contain a description of the measures to be taken to assure 
that the disposal will not pose a threat to human health or the 
environment, to minimize disturbances to the hydrologic balance, and to 
prevent material damage to the hydrologic balance outside the permit 
area. Certain protective and preventative measures must also be 
described, including measures to be taken to prevent coal combustion 
by-products from becoming airborne.
    (t) At KRS 350(20), Kentucky is requiring that the application 
include baseline data to characterize the quality of ground and surface 
water in areas that may be affected by disposal of the by-products.
    (u) At KRS 350(21), Kentucky is requiring that surface and ground 
water baseline data collection and monitoring stations be established, 
as appropriate. In determining the number and locations of monitoring 
wells, the Cabinet shall recognize the distinct differences between 
disposal of coal combustion by-products under this section and the 
disposal of coal combustion by-products for which a special waste 
formal permit or a special waste registered permit-by-rule is required 
under KRS Chapter 224.
    (v) At KRS 350(22), Kentucky is requiring that the characterization 
of ground water include certain specified parameters.
    (w) At KRS 350(23), Kentucky is requiring that the characterization 
of surface water include certain specified parameters.
    (x) At KRS 350(24), Kentucky is requiring that the minimum number 
of sampling events for ground and surface water for parameters beyond 
those usually required be in accordance with Kentucky's administrative 
regulations promulgated pursuant to KRS Chapter 224, pertaining to 
special waste landfills used solely for the disposal of coal combustion 
by-products.
    (y) At KRS 350(25), Kentucky is requiring that the application 
include a plan for the monitoring and reporting, until final bond 
release, of the quality of ground and surface water in areas that may 
be affected by disposal of by-products and for the monitoring of 
contaminants in the ground and surface water.
    (z) At KRS 350(26), Kentucky is requiring that the performance bond 
for the surface mining permit cover the disposal of by-products on the 
permit area.
    (aa) At KRS 350(27), Kentucky is requiring that a permittee, 
operator, or person disposing of coal combustion by-products comply 
with certain specified environmental performance standards. The 
performance standards address the handling, disposal, and placement of 
the by-products. They include the following requirements: (1) Coal 
combustion by-products shall be handled and disposed by the method 
approved in the permit; (2) disposal areas and facilities used for coal 
combustion by-products handling and disposal shall be designed, 
located, operated, and maintained to assure that the handling and 
disposal will not pose a threat to human health or the environment, to 
minimize disturbances to the hydrologic balance within the permit area 
and adjacent area, and to prevent material damage to the hydrologic 
balance outside the permit area; (3) to the extent practical, areas to 
receive coal combustion by-products shall be selected to minimize water 
contact with the by-products; (4) the coal combustion by-products shall 
be placed at least four feet above the seasonal high-water table, 
unless the applicant demonstrates that no adverse environmental impacts 
will occur; (5) the coal combustion by-products shall not be placed 
within four feet horizontally of a final highwall, exposed coal seam, 
or coal outcrop; (6) the volume of coal combustion by-products disposed 
of on the permit area shall not exceed the in-place volume of the 
marketable coal seams to be removed from the permit area; (7) disposal 
of coal combustion by-products shall not result in a greater amount of 
excess spoil than the amount that would result if disposal of by-
products were not part of the permitted operation; (8) the thickness of 
coal combustion by-products at any point in any disposal area shall not 
exceed forty feet; (9) the Cabinet may reduce the allowable maximum 
volume or thickness of coal combustion by-products for a disposal area 
if it determines that the reduction is necessary to assure protection 
of human health and the environment; and (10) after the coal combustion 
by-products are placed in the disposal area, they shall be covered as 
contemporaneously as practicable with at least four feet of nonacid-
forming spoil material.
    (bb) At KRS 350(28), Kentucky is requiring that the permittee 
monitor and report the quality of surface and ground water quarterly, 
with certain exceptions for water quality parameters which are not 
normally required to be monitored.
    (cc) At KRS 350(29), Kentucky is requiring that the monitoring and 
reporting of ground water quality include the parameters used in the 
baseline characterization of ground water specified in subsection (22), 
unless the State requires different parameters.
    (dd) At KRS 350(30), Kentucky is requiring that the monitoring and 
reporting of surface water quality include the parameters used in the 
baseline characterization of surface water specified in subsection 
(23), unless the State requires different parameters.
    (ee) At KRS 350(31), Kentucky is requiring that applications 
submitted under this section be processed in the same manner as other 
applications submitted under KRS Chapter 350.
    (ff) At KRS 350(32), Kentucky is authorizing the promulgation of 
administrative regulations under this section pertaining to the 
disposal of coal combustion by-products.
    There are no direct Federal counterparts to the provisions of the 
proposed amendment. However, the Director finds that provided the 
proposed provisions are in addition to, not in place of or to establish 
a variance from existing Kentucky program provisions, the proposed 
revisions to KRS Chapter 350 are not inconsistent with the requirements 
of SMCRA and the Federal regulations.

IV. Summary and Disposition of Comments

Public Comments

    The Director solicited public comments and provided an opportunity 
for a public hearing on the proposed amendment. Because no one 
requested an opportunity to speak at a public hearing, no hearing was 
held.
    Two public comments were received. The first commenter supported 
the amendment. The second generally supported the amendment provided 
that the provisions of the amendment are supplemental to the 
requirements of the approved state program and impose additional, 
rather than exclusive, permitting and performance obligations on mine 
operators. The commenter also felt clarification should be sought in 
the areas of characterization requirements for surface and ground water 
and variances in contemporaneous reclamation obligations. The Director 
notes that the proposed amendment is being approved with the provision 
that the statutes will be implemented in addition to, and not in place 
of, existing State program provisions. Therefore, because the 
provisions of the proposed amendment are in addition to the 
requirements of SMCRA and are not inconsistent with the SMCRA, and 
because OSM is approving the proposed regulations to the extent that 
the additional characterization requirements for surface and ground 
water are required to be collected in the same manner and for the same 
duration as the baseline hydrologic information required under SMCRA 
and no delays in contemporaneous reclamation will be permitted based on 
waste disposal, additional clarification is not required.

Federal Agency Comments

    Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited 
comments on the proposed amendment from various Federal agencies with 
an actual or potential interest in the Kentucky program.
    The U.S. Department of the Interior, Bureau of Land Management, and 
the U.S. Department of Labor, Mine Safety and Health Administration, 
concurred without comment. The U.S. Department of the Interior, Bureau 
of Mines, suggested that certain provisions be required in the 
implementing regulations relating to type of fill, testing procedures, 
baseline data characterization and monitoring, and hydrologic models. 
The Director notes that the comments will be forwarded to the State for 
consideration. However, the proposed statutes, as submitted, are not 
inconsistent with the provisions of SMCRA.

Environmental Protection Agency (EPA)

    Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the 
written concurrence of the EPA with respect to those provisions of the 
proposed program amendment that relate to air or water quality 
standards promulgated under the authority of the Clean Water Act (33 
U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).
    On May 20, 1994, OSM solicited EPA's concurrence with the proposed 
amendment. On June 9, 1994, EPA gave its written concurrence 
(Administrative Record No. KY-1291).

V. Director's Decision

    Based on the above findings, the Director approves the proposed 
amendment as submitted by Kentucky on April 18, 1994.
    The Federal regulations at 30 CFR Part 917, codifying decisions 
concerning the Kentucky program, are being amended to implement this 
decision. This final rule is being made effective immediately to 
expedite the State program amendment process and to encourage States to 
bring their programs into conformity with the Federal standards without 
undue delay. Consistency of State and Federal standards is required by 
SMCRA.

VI. Procedural Determinations

Executive Order 12866

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866 (Regulatory Planning and 
Review).

Executive Order 12778

    The Department of the Interior has conducted the reviews required 
by section 2 of Executive Order 12778 (Civil Justice Reform) and has 
determined that, to the extent allowed by law, this rule meets the 
applicable standards of subsections (a) and (b) of that section. 
However, these standards are not applicable to the actual language of 
State regulatory programs and program amendments since each such 
program is drafted and promulgated by a specific State, not by OSM. 
Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30 
CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State 
regulatory programs and program amendments submitted by the States must 
be based solely on a determination of whether the submittal is 
consistent with SMCRA and its implementing Federal regulations and 
whether the other requirements of 30 CFR Parts 730, 731, and 732 have 
been met.

National Environmental Policy Act

    No environmental impact statement is required for this rule since 
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency 
decisions on proposed State regulatory program provisions do not 
constitute major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C)).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 
3507 et seq.).

Regulatory Flexibility Act

    The Department of the Interior has determined that this rule 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.). 
The State submittal which is the subject of this rule is based upon 
corresponding Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. Accordingly, this rule will ensure that existing requirements 
previously promulgated by OSM will be implemented by the State. In 
making the determination as to whether this rule would have a 
significant economic impact, the Department relied upon the data and 
assumptions for the corresponding Federal regulations.

List of Subjects in 30 CFR Part 917

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: September 12, 1994.
Tim L. Dieringer,
Acting Assistant Director, Eastern Support Center.

    For the reasons set out in the preamble, Title 30, Chapter VII, 
Subchapter T of the Code of Federal Regulations is amended as set forth 
below:

PART 917--KENTUCKY

    1. The authority citation for Part 917 continues to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq.

    2. Section 917.15 is amended by adding paragraph (ww) to read as 
follows:


Sec. 917.15  Approval of regulatory program amendments.

* * * * *
    (ww) The following amendment to the Kentucky Revised Statutes (KRS) 
submitted to OSM on April 18, 1994, are approved effective September 
16, 1994:

KRS 350.010--Definitions
KRS 350(1)-(32)--Coal Combustion By-Products

[FR Doc. 94-22959 Filed 9-15-94; 8:45 am]
BILLING CODE 4310-05-M