[Federal Register Volume 72, Number 10 (Wednesday, January 17, 2007)]
[Proposed Rules]
[Pages 2135-2166]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-453]



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Part III





Department of the Interior





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Office of Surface Mining Reclamation and Enforcement



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30 CFR Parts 701, 786, and 829



Abandoned Coal Refuse Sites; Proposed Rule

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

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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Parts 701, 786 and 829

RIN 1029-AB70


Abandoned Coal Refuse Sites

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM) propose to amend our regulations to comply with the Energy Policy 
Act of 1992 (EPAct). The EPAct requires the Secretary of the Interior 
(Secretary) to develop regulations establishing environmental 
performance and reclamation standards for abandoned coal refuse 
remining operations. These standards must distinguish between refuse 
removal operations and on-site refuse reprocessing operations and must 
be premised on the distinct differences between removal operations, on-
site reprocessing operations, and other types of surface coal mining 
operations. The Secretary may devise different performance standards 
than any of those set forth in sections 515 and 516 of the Surface 
Mining Control and Reclamation Act of 1977 (SMCRA), and separate permit 
systems if the Secretary determines, on a standard-by-standard basis, 
that a different standard may facilitate refuse removal and on-site 
refuse reprocessing operations in a manner that would provide the same 
level of environmental protection as under sections 515 and 516. We are 
proposing changes to our rules that respond to the EPAct's 
requirements.

DATES: Written comments: Comments on the proposed rule must be received 
on or before 4:30 p.m. Eastern Time on March 28, 2007, to ensure our 
consideration.
    Public hearings: Upon request, we will hold a public hearing on the 
proposed rule at a date, time, and location to be announced in the 
Federal Register before the hearing. We will accept requests for a 
public hearing until 4 p.m., Eastern Time, on February 7, 2007. If you 
wish to attend a hearing, but not speak, you should contact the person 
identified under FOR FURTHER INFORMATION CONTACT before the hearing 
date to verify that the hearing will be held. If you wish to attend and 
speak at a hearing, you should follow the procedures under ``III. 
Public Comment Procedures'' in the SUPPLEMENTARY INFORMATION section of 
this document.

ADDRESSES: You may submit comments, identified by docket number 1029-
AB70, by any of the following methods:
     E-Mail: [email protected]. Include docket number 1029-AB70 
in the subject line of the message.
     Mail: Office of Surface Mining Reclamation and 
Enforcement, Administrative Record, Room 252-SIB, 1951 Constitution 
Avenue, NW., Washington, DC 20240.
     Hand-Delivery/Courier to the OSM Administrative Record 
Room: Office of Surface Mining Reclamation and Enforcement, 
Administrative Record, Room 101-SIB, 1951 Constitution Avenue, NW., 
Washington, DC 20240.
     Federal e-Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    For detailed instructions on submitting comments and additional 
information on the rulemaking process, see ``III. Public Comment 
Procedures'' in the SUPPLEMENTARY INFORMATION section of this document.
    If you wish to comment on the information collection aspects of 
this proposed rule, submit your comments to the Office of Management 
and Budget, Office of Information and Regulatory Affairs, Attention: 
Interior Desk Officer, via electronic mail, to [email protected] 
or via telefacsimile at (202) 395-6566.

FOR FURTHER INFORMATION CONTACT: Andy DeVito, Office of Surface Mining 
Reclamation and Enforcement, MS-252-SIB, U.S. Department of the 
Interior, 1951 Constitution Avenue NW., Washington, DC 20240; 
Telephone: 202-208-2701. E-mail: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background
    A. The Energy Policy Act
    B. Outreach Summary
    C. Identification of Distinct Differences Between Abandoned Coal 
Refuse Remining Operations and Other Surface Coal Mining Operations
    D. Coal Refuse
    E. Coal Refuse Distribution
    F. Coal Refuse Utilization
    G. Existing Regulation of Coal Refuse
    H. Abandoned Mine Land Reclamation Projects
    I. National Pollutant Discharge Elimination System (NPDES) 
Program
II. Discussion of the Proposed Regulations
    A. Standard-by-Standard Review of SMCRA Performance Standards
    B. Special Permit System for Abandoned Coal Refuse Remining 
Operations
    C. Proposed Regulations
III. Public Comment Procedures
IV. Procedural Matters

I. Background

A. The Energy Policy Act

    Section 2503 of the Energy Policy Act of 1992 (EPAct), Public Law 
102-486, Title XXV, addresses coal remining and directs promulgation of 
the abandoned coal refuse regulations proposed by this rulemaking. 
Sections 2503(a) through (d), respectively, amend the Surface Mining 
Control and Reclamation Act of 1977, 30 U.S.C. 1201 et seq. (SMCRA), to 
address permit blocking under section 510(c) of SMCRA (30 U.S.C. 
1260(c)), modify revegetation responsibility periods at section 
515(b)(20) (30 U.S.C. 1265(b)(20)), add definitions at section 701 (30 
U.S.C. 1291) for ``lands eligible for remining'' and ``unanticipated 
event or condition,'' and revise Abandoned Mine Land (AML) eligibility 
at sections 402(g)(4) and 404. Regulations implementing these amended 
SMCRA provisions were proposed and later codified in a final rule. 60 
FR 58480 (November 27, 1995).
    Section 2503(e) of the EPAct, which was codified at 30 U.S.C. 
1251a, amends SMCRA by adding a new section for Abandoned Coal Refuse 
Sites that focuses solely on the remining of abandoned coal refuse 
sites. This proposed rulemaking is intended to implement the general 
directive of section 2503(e)(1) requiring the Secretary to issue 
regulations establishing environmental protection performance and 
reclamation standards, and separate permit systems, applicable to 
operations for the on-site reprocessing of abandoned coal refuse and 
operations for the removal of abandoned coal refuse. Coal refuse, 
discussed in greater detail below, is the waste resulting from the 
cleaning of mined coal. Abandoned coal refuse sites are lands on which 
refuse was placed prior to the passage of SMCRA, and that were not 
adequately reclaimed when mining was completed. Abandoned coal refuse 
sites are eligible for reclamation under Title IV of SMCRA using money 
from the Abandoned Mine Land Fund when available.
    Section 2503(e)(2) further directs that the standards and permit 
systems referred to above distinguish between those operations that 
reprocess abandoned coal refuse on-site, and those operations that 
completely remove abandoned coal refuse for direct use or for 
reprocessing at another location. The term ``reprocessing operations,'' 
as used throughout this rulemaking, is limited to on-site reprocessing 
since any reprocessing at a site other than an abandoned coal refuse 
site would be regulated under existing 30 CFR part 827 and would not be 
a part of this

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rulemaking. The standards and permit systems authorized by section 
2503(e) are to be premised on the distinct differences between 
operations for the on-site reprocessing, and operations for the 
removal, of abandoned coal refuse and other types of surface coal 
mining operations. Section 2503(e)(3) authorizes the Secretary to 
devise different standards from those in sections 515 and 516 of SMCRA 
(515/516), and devise a separate permit system, if the Secretary 
determines on a standard-by-standard basis, that a different standard 
may facilitate the on-site reprocessing, or the removal, of abandoned 
coal refuse in a manner that would provide the same level of 
environmental protection as under sections 515/516.
    Finally, section 2503(e)(4) requires the Secretary to submit a 
report to the Committee on Interior and Insular Affairs (subsequently 
renamed the Committee on Natural Resources) of the United States House 
of Representatives, and to the Committee on Energy and Natural 
Resources of the United States Senate. The report must be submitted not 
later than 30 days prior to the publication of proposed regulations and 
must contain a detailed description of any environmental protection 
performance and reclamation standards, and separate permit systems, 
devised pursuant to that section. The report has been submitted and is 
available for review as part of our administrative record for this 
rulemaking.
    In response to these provisions of the EPAct, we are proposing a 
separate set of performance standards for operations that reprocess 
abandoned coal refuse on-site and/or remove the refuse from the site. 
These proposed performance standards are intended to provide the same 
level of environmental protection as under sections 515/516 of SMCRA, 
while facilitating the on-site reprocessing and/or removal of abandoned 
refuse. In the course of developing our regulations, we also considered 
the appropriateness of developing separate permit systems for both on-
site reprocessing and removal operations. However, our consideration of 
this issue did not identify sufficient differences between the 
requirements applicable to on-site reprocessing and removal operations 
to warrant separate permit systems for each of these two types of 
refuse operations. Therefore the proposed regulations provide for a 
single permit system to address both on-site reprocessing and removal 
operations.
    The requirements that we are proposing for the permit information 
in Part 786 and for the performance standards in Part 829 are in some 
instances different from existing permit information requirements or 
performance standards. However, the proposed rule is not intended to 
result in a weakening of the environmental standards but rather to 
reflect the difference between coal refuse remining operations and 
other coal mining operations. For example, we do not universally 
include the monitoring requirements for surface and ground water found 
in Part 780. However, our part 786 proposal related to water monitoring 
data for coal refuse removal operations reflects that some data 
requirements are not appropriate for reasons we discuss, or because 
similar kinds of data are expected to be readily available as part of 
the National Pollutant Discharge Elimination System program authorized 
under the Clean Water Act, 33 U.S.C. 1251, et seq. As you review the 
rule, we specifically request comments on whether the environmental 
standards are appropriately modified to reflect the unique nature of 
remining operations.
    The following discussion provides additional background on 
abandoned coal refuse and the information used in developing the 
proposed regulations.

B. Outreach Summary

    We conducted an extensive outreach program to solicit comments, 
concerns and ideas for regulatory changes with regard to implementing 
the provisions of section 2503(e) of the EPAct. The initial outreach, 
completed in the early months of 1993, consisted of two components. The 
first component consisted of telephone contact and written follow up 
with representatives of industry, the States, and with environmental, 
citizen, and conservation organizations and groups. The second 
component of the outreach consisted of visiting three active coal 
refuse operations in West Virginia, Pennsylvania, and Illinois with 
representatives of the States, industry, and citizen/environmental 
groups and again soliciting comments, concerns, and suggestions. We 
identified and analyzed the issues that were raised during the 1993 
outreach.
    In 1997 and 1998, we conducted outreach with selected members of a 
remining task force of State and Federal coal mining and Clean Water 
Act regulators whose charge was to identify ways to increase AML 
reclamation through remining activities. A number of the same comments 
and concerns as were recorded during the 1993 outreach were raised and 
discussed during this latter outreach. Further, we attempted to develop 
preliminary regulatory language with this group based on their 
collective experiences with coal refuse.
    The outreach efforts were comprehensive. All information pertaining 
to the outreach activities, with particular emphasis on the 1993 
analysis of issues, was reviewed and carefully considered in preparing 
the current proposal. Because there have been no statutory changes to 
SMCRA and no regulatory developments that could impact the regulation 
of coal refuse operations since passage of the EPAct in 1992, we 
believe that additional outreach prior to the publication of the 
proposed regulations was not called for. Once the proposed regulations 
are published in the Federal Register, members of the public will have 
the opportunity to submit written comments and make oral presentations 
at a public hearing if they so desire.

C. Identification of Distinct Differences Between Abandoned Coal Refuse 
Remining Operations and Other Surface Coal Mining Operations

    Before discussing the differences between abandoned coal refuse 
remining operations and all other surface coal mining operations, we 
need first to briefly discuss the relationship between remining 
operations and other surface coal mining operations. For this purpose, 
there are two major types of surface coal mining operations:
    1. Operations that mine coal from sites on land that has not been 
disturbed by previous coal mining operations, popularly called ``virgin 
operations;'' and
    2. Operations that mine coal from sites on land that has been 
disturbed by previous coal mining operations, popularly called 
``remining operations.'' Sites that were mined before the passage of 
SMCRA in 1977 may, or may not, have been adequately reclaimed. 
Unreclaimed sites and sites that were not reclaimed to the standards 
later set forth in SMCRA are popularly called ``abandoned sites'' and 
are eligible for reclamation under the AML program, codified at 30 CFR 
Subchapter R-Abandoned Mine Land Reclamation.
    In turn, remining operations fall into two major categories:
    1. Operations that mine coal in its original geologic location (the 
mining of prior underground workings after the overburden has been 
stripped away and the taking of additional mining cuts from an existing 
highwall are both examples of remining operations that mine coal in its 
original geologic location). Remining operations that mine coal in its 
original geologic location have the potential to remove or

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otherwise disturb rock strata that serve as aquifers.
    2. Operations that mine coal not in its original geologic location 
(coal refuse removal and coal refuse on-site reprocessing operations 
are examples of remining operations that mine coal not in its original 
geologic location. This coal refuse was considered waste material at 
the time that the initial mining occurred). Because abandoned coal 
refuse operations do not mine coal in its original geologic location, 
they do not have the potential to remove or otherwise disturb rock 
strata that serve as aquifers.
    As noted before, section 2503(e) of the EPAct directs the Secretary 
to propose separate performance standards and permitting systems 
premised on the distinct differences between operations for on-site 
reprocessing and operations for removal of abandoned coal refuse, and 
other types of surface coal mining operations. The most fundamental 
difference between abandoned coal refuse remining operations, including 
both removal and on-site reprocessing operations, and other surface 
coal mining operations, relates to the nature and occurrence of the 
affected coal deposit. Both types of abandoned coal refuse remining 
operations mine unconsolidated piles of broken coal that have been 
previously mined at other locations by surface or underground methods. 
These unconsolidated piles are the residual waste product generated by 
cleaning previously-mined coal at processing plants. All other surface 
coal mining operations, including other types of remining operations, 
remove coal from its natural undisturbed geologic location.
    Another difference between abandoned coal refuse remining 
operations and other mining operations is that the abandoned coal 
refuse remining operations are conducted on sites that are different 
from those of other surface coal mining operations in that they 
generally have (1) No overburden, (2) no topsoil, (3) limited or no 
revegetation, (4) a coal/rock mix of varying heating value, (5) limited 
or no current beneficial land use, and (6) existing water quality 
problems and other environmental degradation. Unlike other surface coal 
mining operations, abandoned coal refuse remining operations will 
generally disturb little, if any, previously undisturbed land outside 
the abandoned coal refuse site. Also, because topsoil commonly no 
longer exists, or is buried under the refuse at these sites, abandoned 
coal refuse remining operations have to utilize alternative vegetation-
support material.
    Because abandoned coal refuse remining operations do not have to 
remove overburden in order to uncover the mineable refuse, they neither 
create highwalls and overburden spoil nor remove the host rock of the 
ground-water aquifers. Furthermore, because the refuse at abandoned 
coal refuse sites was most often placed without regard to stability, 
erosion and surface- and ground-water impacts have commonly resulted. 
Therefore, almost all abandoned coal refuse remining operations have 
excellent potential for improving the adverse conditions that, in most 
cases, already exist at these abandoned sites. This improvement is 
typically accomplished by reducing the volume of refuse and its 
associated potential for acid mine drainage, stabilizing surface 
conditions, and reducing the potential for refuse fires.
    There are several differences between abandoned coal refuse removal 
operations and on-site reprocessing operations that warrant the 
distinct performance standards and permitting requirements that we are 
proposing for each. Most significantly, refuse removal operations 
generate little, if any, residual waste and no wet refuse waste, as 
compared to that generated by on-site reprocessing operations. Further, 
refuse removal operations do not require on-site reprocessing or 
preparation plants with their associated process water circuits, 
discharges, and ponds. Finally, most refuse removal operations will be 
of shorter duration than on-site refuse reprocessing operations.
    Abandoned coal refuse removal operations are comparable to coal 
refuse reclamation projects done under the AML program that rework, 
regrade, and revegetate abandoned coal refuse sites in order to 
eliminate fires and other safety hazards, to stabilize the affected 
areas, or to reduce off-site environmental degradation. However, unlike 
abandoned coal refuse AML projects, which are selected for reclamation 
based on the seriousness of the site hazards or environmental 
degradation, coal refuse removal operations always reduce the volume of 
refuse and are selected for mining based on the heating value of the 
refuse. On the other hand, refuse on-site reprocessing operations are 
more comparable to off-site preparation plants, which are regulated 
under the performance standards of 30 CFR part 827 (Coal Preparation 
Plants Not Located Within The Permit Area), than to other surface coal 
mining operations. However, on-site reprocessing operations, unlike 
off-site preparation plants, typically reduce the volume of refuse at 
the site, and typically affect very little, if any, previously 
undisturbed land.

D. Coal Refuse

    As used here, ``coal refuse'' refers to the solid material 
resulting from the deposition in piles of coal mine waste or refuse 
previously generated during coal processing that separates coal from 
unwanted physical or chemical impurities. The primary objectives of 
coal processing are to (1) Clean the coal by separating out rock, 
earthen materials, and other noncoal material; (2) reduce the ash and 
sulfur content; (3) increase the heating value, expressed in British 
thermal units (Btu); and (4) provide a product sized to the consumer's 
specifications. While coal processing historically used only mechanical 
means to separate out the unwanted materials, because of technological 
improvements, coal processing now can use liquids with different 
specific gravities to separate lighter coal from the heavier non-coal 
rock or earthen materials. In a typical modern coal processing plant, 
raw coal is fed through a mechanical breaker or crusher, which reduces 
the coal to a more uniform size and makes an initial separation of rock 
from the coal by exerting enough force to crush the coal but not the 
harder rock. The resultant product is then passed through screens, 
shakers, vibrating tables, cyclones, and/or other heavy-medium 
separators where turbulence is created to float the coal and to sink 
the rock. Such heavy-medium separators utilize a great deal of water, 
and commonly need considerable land area for associated ponds and 
slurry cells.
    Over the years, the percentage of the annual United States coal 
production that has been processed in this fashion has fluctuated 
significantly. This percentage increased steadily from 1920, when less 
than five percent of the coal mined was mechanically cleaned, to 1948, 
at which time about 30 percent of the total coal production was 
processed. From 1948 to 1961, coal production declined drastically, but 
the percentage of processed coal increased to nearly 66 percent. From 
1961 to 1977, the year SMCRA was enacted, annual coal production 
increased from 403 to 691 million tons. This increase was entirely 
attributed to an increase in surface mining production. At the same 
time, the percentage of coal being processed by mechanical and liquid 
means declined to 34 percent. This decrease in the percentage of coal 
being processed occurred because (1) Coal mined by surface mining 
methods normally contains less non-coal material, therefore requiring 
less

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processing than underground-mined coal; and, (2) only a relatively 
small amount of coal used for power generation was being processed in 
order to limit sulfur emissions.
    The residue from coal processing is called ``coal processing 
waste,'' or ``coal refuse,'' and varies physically and chemically, 
depending upon the coal source and the process method used. Depending 
on the degree of size reduction achieved at the processing plant, coal 
refuse may vary between coarse (+28 mesh) and fine (-28 mesh). Usually, 
the coarse refuse was disposed of in an embankment or landfill, while 
the fine refuse was impounded in slurry ponds or run through vacuum 
filters and the resultant filter cake mixed with coarse refuse for 
disposal. Because many of the older processing plants did not include 
systems to recover fine coal, a large number of refuse slurry ponds and 
coal refuse piles contain materials with a relatively high Btu content. 
These refuse materials also contain pyritic rock and other impurities 
that are primarily associated with the formation of acid mine drainage 
(AMD) and are often referred to as ``acid-forming materials.'' Under 
this proposed rule, removal operations would physically remove acid 
forming materials from the site thus reducing or eliminating the 
potential for AMD. In contrast, on-site reprocessing operations would 
retain the acid forming materials on site but place them in an 
environmentally stable configuration that would minimize surface water 
infiltration and exposure to air. This required placement would further 
reduce the potential for AMD.

E. Coal Refuse Distribution

    Over three billion tons of coal refuse were deposited on surface 
lands prior to the enactment of SMCRA. Virtually all of this coal 
refuse has some heating value. However, depending on the sophistication 
of the original coal cleaning process that produced the refuse, the 
heating value of the refuse varies widely.
    In the late 1990s, we sought to obtain factual information on coal 
refuse piles such as their size and number, coal resources available, 
and potential environmental enhancements that might be achieved from 
the remining of the piles and subsequent reclamation of the site. The 
agency anticipated that the results from such a study could be utilized 
in a coal refuse rulemaking in lieu of mostly anecdotal information 
that then existed. Accordingly, we funded a coal refuse 
characterization study conducted by the National Mine Land Reclamation 
Center at West Virginia University. The study included collecting site-
specific field data on the chemical and physical properties of coal 
refuse piles that were less than 25 acres in size, assembling 
information from State inventories of refuse piles, and using these 
data to prepare estimates of coal resources and potential environmental 
gains that might be realized from the remining of those sites. We chose 
the 25-acre size limitation for the study because of the enormous 
number of piles of that size or less, scattered throughout mining 
communities and the fact that their removal would provide a relatively 
quick and dramatic improvement to nearby communities. The study also 
explored the uses of coal refuse and the differences between refuse 
pile removal operations and coal mining operations on previously 
undisturbed lands. The study contained projections of coal resources 
and potential environmental enhancements for all abandoned coal refuse 
sites as well as those sites that were classified as small sites (less 
than 25 acres). Although the findings of the study did not reflect the 
entire universe of abandoned refuse piles, we believe the findings also 
shed light on the benefits that might be realized by remining larger 
piles.
    The final report on this study was provided to us on August 11, 
1999, and was titled ``Physical and Chemical Characteristics of Small 
Coal Refuse Piles.'' The report provides data and projections that 
indicate more than 2000 refuse sites exist (in Alabama, Illinois, 
Kentucky, Ohio, Pennsylvania, Virginia and West Virginia), covering 
approximately 37,000 acres. More than 50% of the area covered by this 
coal refuse has economically mineable coal amounting to approximately 
518 million tons. If all of this mineable coal were removed, acid-
producing material capable of generating 30 million tons of acid would 
also be removed, thus preventing it from leaching into and further 
degrading local ground and surface water. Some of the other 
recommendations and conclusions in the report include:
    1. The refuse piles constitute an economic resource--many piles can 
yield coal for fluidized bed combustion, off-site processing, or other 
uses.
    2. Significant environment improvement is possible through removal 
of the refuse piles and thus elimination of the problem attributed to 
the refuse pile.
    3. There are a number of significant differences between coal 
refuse removal operations and other surface mining operations on 
previously undisturbed sites that would support different regulations 
for these two types of operations.
    4. It appears that the environment can be further protected and 
improved through an expedited permit under SMCRA that would serve as an 
incentive for coal refuse pile removal.

F. Coal Refuse Utilization

    The Btu value of coal refuse varies widely depending upon the 
percentage of coal in the refuse pile. The 1999 final report surveyed 
seven States with coal refuse piles and indicated that the percentage 
of coal that could be recovered from the piles ranged from a low of 
27.5 percent to a high of 98.9 percent. The 1999 final report also 
discussed a number of possible uses for coal refuse. The study found 
that coal refuse can be burned directly or reprocessed to separate the 
waste rock from the burnable coal, by utilizing modern coal cleaning 
technology. Because the early means of processing coal were inefficient 
and did not separate all the coal from the waste material, early refuse 
piles commonly contain material with a heating value of 5,000 Btu or 
more per pound. Refuse burning power plants and co-generation plants 
utilizing fluidized bed combustion technology are currently in use and 
provide a ready market for coal refuse from many sites.
    Because fluidized bed combustion processes accept a wider range 
(size and quality) of material than pulverized coal boilers, fluidized 
bed combustors can burn refuse without prior efforts to separate coal 
from the rock so long as the material is properly sized and contains a 
minimum Btu. This minimum Btu factor is commonly obtained by blending 
(mixing together fuels with higher and lower Btu values) in order to 
maintain a fairly consistent feed stock for the combustion chamber. 
Refuse sites generally have a range of coarse and fine material that 
can either be directly used in a fluidized bed or reprocessed and sized 
prior to such use. However, refuse sites consisting primarily of slurry 
may not be as easily utilized because of restrictive size and moisture 
specifications of the end user, even though the slurry may have a high 
Btu value.
    Waste-burning facilities that use fluidized bed combustors with a 
sorbent limestone bed can burn coal refuse with a 5,000 Btu content, 
limit sulfur and nitrogen oxide (NOX) emissions, and 
maintain higher heat transfer rates within the combustor better than is 
possible using conventional combustion processes. Because of the high 
ash content of the coal refuse feed stock (as much as 50%) and 
limestone bed, the

[[Page 2140]]

resultant ash from the plant may be not only as much as 70% of the 
original volume of the refuse burned but also high in alkalinity. When 
this ash is returned to the refuse area for disposal, it can be very 
effective in counteracting residual acid problems.
    Large power production facilities commonly require that coal refuse 
first be reprocessed to increase its Btu value by separating the 
impurities from the coal. Coal refuse reprocessing operations, 
particularly those that utilize specific gravity to separate coal from 
the waste rock, may require considerable land space. Reprocessing of 
coal refuse by portable washers, however, typically requires minimal 
additional space. The location selected for coal refuse reprocessing 
operations, whether on or off the refuse site, depends on numerous 
factors including, but not limited to, the hauling distance to the end-
user, the volume of material to be cleaned, and the type of 
reprocessing to be used.
    Abandoned coal refuse has also been utilized for purposes unrelated 
to Btu value. Refuse has been used commonly as backfill material in 
large subsidence abatement projects. Also, ``red dog,'' a hard, reddish 
residual material resulting from refuse fires, has long been used for 
road base. The proposed regulations are not intended to apply to or 
regulate removal of abandoned coal refuse for these types of non-energy 
uses.

G. Existing Regulation of Coal Refuse

    Even though SMCRA, as originally enacted, did not directly address 
the regulation of abandoned coal refuse, the Act's implementing 
regulations at 30 CFR 700.5 expressly include the extraction of coal 
from coal refuse piles within the definition of ``surface coal mining 
operations.'' The definition of ``reclaimed coal'' at 30 CFR 870.5 (47 
FR 28593, June 30, 1982), upon which AML fees are owed, includes coal 
recovered ``from a deposit that is not in its original geologic 
location'' as does the definition of ``surface mining activities'' at 
30 CFR 701.5. On this basis, we have historically interpreted the 
permitting requirements and the performance standards promulgated under 
the permanent regulatory program for all surface coal mining operations 
to apply to operations that either remove refuse or reprocess it on-
site. This means that, despite the fundamental differences between 
abandoned coal refuse remining operations and other surface coal mining 
operations, both types of operations are currently subject to the same 
regulations.

H. Abandoned Mine Land Reclamation Projects

    Prior to the enactment of SMCRA and its implementing regulations, 
significant amounts of coal refuse were often discarded and placed with 
little, if any, engineering design. While some abandoned refuse sites 
are quite stable and have naturally revegetated, most sites contribute 
to environmental degradation, constitute safety hazards, or both. 
Problems stemming from these coal refuse sites include fires with 
associated smoke hazards, wind and water erosion from barren surfaces, 
and the leaching of acidic and other toxic materials into the surface 
and ground water. Abandoned coal refuse sites have caused, and continue 
to cause, public health and safety problems and environmental impacts 
that are currently being addressed through our Title IV AML Program.
    At the same time that we were working on the development of a 
proposed rule to implement the EPAct, we published a proposed rule in 
1998 and a final rule in 1999 to enhance reclamation of abandoned coal 
sites under the AML program (64 FR 7470, 7483; February 12, 1999). The 
purpose of that rule, popularly referred to as the ``AML Enhancement 
Rule,'' was to encourage additional AML reclamation with the same 
amount of AML funding by allowing the cost of certain approved AML 
projects to be offset by the extraction and sale of coal, when the 
removal of that coal was physically necessary to accomplish AML 
reclamation of the project. See 30 CFR 707.5 and 874.17. The AML 
Enhancement Rule was designed for situations in which the mining of the 
coal refuse was incidental to a government-financed construction 
project. Among the kinds of AML projects allowed under that rule were 
those that included the removal of coal refuse piles that had little or 
no likelihood of being mined under a Title V permit and that posed 
continuing significant environmental problems such as acid mine 
drainage discharges. The proposed rule supplements but does not 
supersede the AML Enhancement Rule by providing a way to facilitate the 
mining and reclamation under Title V of abandoned refuse sites.
    Since 1977, the AML program has successfully reclaimed about 25,307 
acres of abandoned refuse at an expense of over $320 million. As of 
September 30, 2005, reclamation of an additional 2,515 acres at sites 
with abandoned coal refuse has been funded with $26.5 million, but not 
completed. There are an additional 22,128 acres of coal refuse that 
have been identified as high priority AML sites that would cost an 
estimated $327 million to reclaim but that have not yet been funded.
    Historically, through September 30, 2004, approximately 23 percent 
of the project funds spent through our AML reclamation program have 
been used to remediate public health and safety problems and the 
environmental impacts associated with abandoned coal refuse sites. We 
recognize, however, that the current projections of future AML projects 
may change if conditions at individual abandoned coal refuse sites 
worsen. For example, a low-priority abandoned refuse site generally is 
given a higher priority if it catches fire. Nonetheless, unless the 
industry remedies the problems by first mining abandoned coal refuse 
and then reclaiming the sites, we expect the AML program will require 
many years to fully address all the listed problem refuse piles.

I. National Pollutant Discharge Elimination System Program

    We believe that significant site-specific hydrologic data will be 
available to the SMCRA regulatory authority (RA) from data generated 
under the Clean Water Act and under the National Pollutant Discharge 
Elimination System (NPDES) program. This program is administered by 
either the U.S. Environmental Protection Agency (EPA) or by States that 
have been approved by EPA to implement the NPDES program. The program 
requires all point-source discharges, from both existing and new 
sources, to meet the effluent limitations for the coal mining point 
source category of industrial discharges set out at 40 CFR part 434. In 
certain cases, baseline water quality and flow data for existing 
discharges and receiving streams are required in the NPDES permit 
application. Following NPDES permit approval, regular monitoring of the 
water quality and flow of all discharges and receiving streams is 
required. For an abandoned coal refuse remining site, we envision that 
pre-mining baseline data and monitoring data generated under the NPDES 
program can be used, in whole or in part, to meet some SMCRA permanent 
program requirements for determination of probable hydrologic 
consequences (PHC), cumulative hydrologic impact analysis (CHIA), and 
water monitoring during mining.

II. Discussion of the Proposed Regulations

    We propose to add two definitions and two new parts to our 
regulations in Title 30 of the Code of Federal

[[Page 2141]]

Regulations. One definition will be added to section 701.5 and the 
other definition will be added to section 786.3 of new part 786. The 
permitting requirements for abandoned coal refuse remining operations 
will be in new part 786 and the performance standards for abandoned 
coal refuse remining operations will be in new part 829.
    In those cases where the performance standards in regulations 
implementing a specific provision in section 515 or 516 of SMCRA are 
appropriate to abandoned coal refuse remining operations, we are 
proposing regulations that incorporate or closely follow existing 
regulations.
    In some cases, because of the differences between abandoned coal 
refuse remining operations and other types of surface coal mining 
operations, the performance standards in a specific provision in 
section 515 or 516 of SMCRA would not be appropriate to abandoned coal 
refuse remining operations. However, when these performance standards 
could be adapted to abandoned coal refuse remining operations, we are 
proposing adapted standards. For example, it would be inappropriate, if 
not impossible, to require that an abandoned coal refuse remining 
operation restore the land at the site to a condition capable of 
supporting the uses that it was capable of supporting prior to mining 
as required by section 515(b)(2) of SMCRA; or that an abandoned coal 
refuse remining operation return the land occupied by a refuse pile to 
the pre-mining approximate original contour, as required by section 
515(b)(3). Accordingly, we are proposing land use and contour 
regulations that would provide protection similar to the protection 
provided by the land use and approximate original contour standards of 
SMCRA sections 515(b)(2) and 515(b)(3), but are adapted to the unique 
differences between abandoned coal refuse remining operations and other 
surface mining operations.
    On the other hand, where the performance standards of a specific 
provision in section 515 or 516 of SMCRA would not be appropriate or 
could not be adapted to abandoned coal refuse remining operations, we 
will not be proposing any implementing regulations. For example, we are 
not proposing regulations to implement the prime farmlands standards of 
section 515(b)(7) because that statutory standard would not be 
appropriate for abandoned coal refuse sites.
    Finally, regarding the EPAct provisions for a new permitting system 
for remining of coal refuse, we have reviewed the requirements and 
objectives of the permit application provisions of section 507 of 
SMCRA, and we are proposing some changes in permit information 
requirements for coal refuse remining, particularly with regard to 
hydrology.
    The proposed regulations in large part incorporate existing 
permitting requirements and performance standards. We expect that the 
abandoned coal refuse piles that will be remined will be mostly small-
sized and hydrologically-impacted. Therefore, we believe that the scope 
and complexity of permit application information needed for these 
remining operations should generally be less extensive than the 
information otherwise required for surface coal mining operations.
    In support of this rulemaking, we have carefully considered the 
dramatic environmental results achieved by the Commonwealth of 
Pennsylvania in permitting remining operations. During the period from 
1985 through 1997, Pennsylvania issued 260 remining permits. Notably, 
ninety-eight percent of those permits resulted in pollutional loads 
that were lower than baseline or only slightly exceeded baseline and 
none of these required long-term treatment. We believe that the 
Pennsylvania remining data constitutes powerful, on-the-ground support 
for the appropriateness of our proposed regulations. We anticipate that 
our proposed regulations would also preserve or even enhance the pre-
remining site hydrologic balance. Further details about the 
Pennsylvania remining data can be found below in section II.
    In the next three sections we will discuss our standard-by-standard 
review of the performance standards of sections 515 and 516 of SMCRA, 
our proposed permit system for abandoned coal refuse remining 
operations, and our proposed regulations (section 701.5 and parts 786 
and 829).

A. Standard-by-Standard Review of SMCRA Performance Standards

    The purpose of this standard-by-standard review is to ensure that 
our proposed regulations provide the level of environmental protection 
required under sections 515 and 516 of SMCRA. In making this analysis, 
we considered the distinct differences between abandoned coal refuse 
removal or on-site reprocessing operations and other surface coal 
mining operations. As noted earlier, the most important distinction 
between abandoned coal refuse remining operations and other surface 
coal mining operations is that other surface mining operations disturb 
the original ground surface in order to remove coal from its original 
geologic location over, under, or between rock strata. In contrast, 
abandoned coal refuse remining operations neither disturb the original 
ground surface or any rock strata nor remove coal from its original 
geologic location. Based on this fundamental distinction, we have 
sought to frame regulations that would meet the requirements of EPAct 
to not only provide the same level of environmental protection for 
refuse remining operations as under sections 515 and 516 of SMCRA, but 
also facilitate such operations.
Section 515 of SMCRA--Performance Standards for Surface Coal Mining 
Operations
    (b)(1)--Maximizing utilization and conservation of the fuel 
resource. Abandoned coal refuse constitutes a solid fuel resource that 
often degrades the environment. The objective of this provision is to 
encourage maximum utilization of the coal resource so that the same 
site is not reaffected by successive operations as has sometimes 
occurred. Accordingly, the performance standards of section (b)(1) are 
appropriate to abandoned coal refuse remining operations. Our proposed 
regulation at section 829.3 would incorporate the requirements of 
section 816.59, which implements the standards of section 515(b)(1). 
See the preamble discussion of the proposed general requirements 
regulation at section 829.3. This would provide the same level of 
environmental protection as under section 515(b)(1) of SMCRA.
    (b)(2)--Restoring land to a condition capable of supporting the 
uses it was capable of supporting prior to mining. The performance 
standards of section 515(b)(2) of SMCRA are not, in all cases, 
appropriate to abandoned coal refuse remining operations. For example, 
the land use that existed prior to mining is often not known or is not 
attainable because of limitations in materials either found at the site 
or remaining at the site after remining operations have been completed. 
Our proposed regulation at section 829.133 would require that the 
operator restore the land to a condition capable of supporting a use 
that is equivalent to or higher or better than the land use prior to 
commencement of the abandoned coal refuse remining operation. See the 
preamble discussion of the proposed postmining land use regulation at 
section 829.133. On this basis, our proposed regulation would provide 
the same level of environmental protection as under section 515(b)(2), 
as adapted to the unique characteristics of abandoned coal refuse 
remining operations.

[[Page 2142]]

    (b)(3)--Restoring approximate original contour. Not all the 
performance standards of section (b)(3) are appropriate to abandoned 
coal refuse remining operations. For example, the approximate original 
contour standard would not be appropriate because the amount of 
material left after an abandoned coal refuse remining operation has 
been completed may be more or less than that needed to achieve 
approximate original contour. This is especially true in light of the 
high likelihood that prior mining activities have also been conducted 
at the site. In many cases, it may be impossible to determine the 
original contour of the site. Thus, we are not proposing regulations to 
implement the approximate original contour provision of section 
515(b)(3). However, the backfilling and grading standards of section 
515(b)(3) are adaptable to abandoned coal refuse remining operations. 
Our proposed regulation at section 829.102 would require that grading 
achieve stability, minimize erosion, and support the designated 
postmining land use. See the preamble discussion of the proposed 
grading regulation at section 829.102. Thus, this proposed regulation 
would provide the same level of environmental protection as under 
section 515(b)(3), as adapted to the unique characteristics of 
abandoned coal refuse remining operations.
    (b)(4)--Stabilizing and protecting surface. The performance 
standards of section 515(b)(4) of SMCRA are clearly appropriate to 
abandoned coal refuse remining operations except for their topsoil 
requirements. Our proposed regulation at section 829.95 would 
incorporate the requirements of section 816.95, which implements 
section (b)(4), except that we would provide for the use of vegetative-
support material instead of topsoil because of the common absence of 
topsoil at abandoned coal refuse remining sites. See the preamble 
discussion of the proposed surface stabilization regulation at section 
829.95. On this basis, our proposed regulation would provide the same 
level of environmental protection as under section 515(b)(4), adapted 
to the unique characteristics of abandoned coal refuse remining 
operations.
    (b)(5) and (6)--Removing, storing, and restoring topsoil or most 
suitable material for supporting vegetation. The performance standards 
of sections (b)(5) and (b)(6) are clearly appropriate to abandoned coal 
refuse remining operations except for the topsoil requirements for the 
reason cited in the section discussion of (b)(4). Our proposed 
regulation at section 829.22 would incorporate language analogous to 
the provisions of section 816.22 which implement the statutory 
standards, except that section 829.22 refers to vegetation-support 
material rather than topsoil. See the preamble discussion of the 
proposed regulation on soils and other vegetation-support material at 
section 829.22. On this basis, our proposed regulation would provide 
the same level of environmental protection as under sections 515(b)(5) 
and (b)(6), adapted to the unique characteristics of abandoned coal 
refuse remining operations.
    (b)(7)--Restoring prime farmland. Refuse sites will not qualify as 
prime farm land nor will any overburden be removed. Accordingly, the 
performance standards of section (b)(7) are not appropriate to 
abandoned coal refuse remining operations. Thus, we are not proposing 
regulations to implement the prime farmland provisions of section 
515(b)(7).
    (b)(8)--Retaining permanent impoundments. Many abandoned coal 
refuse sites contain slurry impoundments. Some of those are high hazard 
structures or could become so if impounded fine refuse was removed and 
replaced with water. Other slurry impoundments, particularly in flat 
areas of the Midwest, are relatively shallow. In these latter cases, 
allowing ponds and wetlands to develop following refuse removal would 
be an environmental benefit and would facilitate refuse removal. The 
performance standards of section (b)(8) are, therefore, appropriate to 
abandoned coal refuse remining operations. Our proposed regulation at 
section 829.49 would incorporate the requirements of sections 816.49 
and .56, which implement the statutory standards, and would specify two 
circumstances in which permanent impoundments may be retained. See the 
preamble discussion of the proposed impoundments regulation at section 
829.49. On this basis, our proposed regulation would provide the same 
level of environmental protection as under section 515(b)(8), adapted 
to the unique characteristics of abandoned coal refuse remining 
operations.
    (b)(9)--Conducting auger mining. We will not allow auger mining in 
conjunction with abandoned coal refuse remining operations. 
Accordingly, the performance standards of section (b)(9) would not be 
appropriate to abandoned coal refuse remining operations. Thus, we are 
not proposing regulations analogous to the auger mining provisions of 
section 515(b)(9).
    (b)(10)--Minimizing disturbance to the prevailing hydrologic 
balance. Most of the performance standards of section 515(b)(10) of 
SMCRA are clearly appropriate to abandoned coal refuse remining 
operations. However, the requirement to restore recharge capacity is 
not appropriate for refuse remining operations, because these 
operations neither remove or replace overburden nor remove or disturb 
strata that serve as aquifers. Our proposed regulation would 
incorporate the requirements of sections 816.13 and 816.41 through 
816.57, which implement section (b)(10). See our preamble discussion of 
the hydrologic balance standards in proposed sections 829.3, 829.13, 
and 829.41, 829.45, 829.46, and 829.49. We are also proposing to add at 
section 786.3 a definition for ``Best Management Practices'' (BMPs), 
and in section 786.15(b) we are proposing that the regulatory authority 
may authorize an applicant for a refuse removal permit to use BMPs. 
These BMPs provisions would provide that the regulatory authority may 
allow a removal operation to use a range of actions that have proved 
effective in other remining settings to prevent or mitigate water 
quality problems and to control sediment. These BMPs might be in 
addition to or in lieu of actions that are otherwise called for under 
applicable performance and reclamation standards. On this basis, our 
proposed regulation would provide the same level of environmental 
protection as under section 515(b)(10), adapted to the unique 
characteristics of abandoned coal refuse remining operations.
    (b)(11), (13), (14), & (f)--Disposing of coal waste. In remining 
operations, these standards are appropriate only for the redeposition 
of coal refuse generated during on-site reprocessing operations or the 
sorting and sizing of refuse material handled during removal 
operations. Our proposed regulations at sections 829.3, 829.81, and 
829.89 would incorporate the requirements of section 816.87 for burning 
and burned waste, most of the requirements of sections 816.81, 816.83, 
and 816.84 for coal mine waste, and the requirements of 816.89 for 
noncoal mine waste. These existing regulations implement sections 
515(b)(11), (13), (14), & (f) of SMCRA. The proposed rule reflects the 
distinct differences between abandoned coal refuse remining operations 
and other surface coal mining operations. See the preamble discussion 
of the proposed coal waste regulations at sections 829.3, .81, and .89. 
On this basis, our proposed regulations would provide the same level of 
environmental protection as under sections 515(b)(11), (13), (14), & 
(f), adapted to the unique characteristics

[[Page 2143]]

of abandoned coal refuse remining operations.
    (b)(12)--Mining within five hundred feet from underground mines. 
The performance standards of section (b)(12) are appropriate to 
abandoned coal refuse remining operations. Our proposed regulations at 
section 829.3 would incorporate by reference section 816.79, which 
implements these statutory standards. See the preamble discussion of 
the proposed general requirements regulation at section 829.3. On this 
basis, our proposed regulations would provide the same level of 
environmental protection as under section 515(b)(12).
    (b)(15)--Using explosives. Abandoned coal refuse remining 
operations will rarely involve the use of explosives. Nonetheless, it 
is appropriate to require any use of explosives in abandoned coal 
refuse remining operations to comply with the performance standards of 
section 515(b)(15) of SMCRA. Our proposed regulations at section 829.3 
would incorporate by reference sections 816.61 through 816.68, which 
implement the statutory standards. See the preamble discussion of the 
proposed general requirements regulation at section 829.3. On this 
basis, our proposed regulations would provide the same level of 
environmental protection as under section 515(b)(12).
    (b)(16)--Contemporaneous reclamation. The performance standards of 
section 515(b)(16) of SMCRA are clearly appropriate to abandoned coal 
refuse remining operations, except for the variance for concurrent 
surface and underground mining activities. Coal refuse remining 
operations will not involve both surface and underground mining. Our 
proposed regulations would incorporate the language of section 816.100, 
which implements the statutory standards, without the variance cited 
above. Our proposed regulations would also contain the additional 
requirement of a reclamation schedule. See the preamble discussion of 
the proposed contemporaneous reclamation regulation at section 829.100. 
On this basis, our proposed regulations would provide the same level of 
environmental protection as under section 515(b)(16), adapted to the 
unique characteristics of abandoned coal refuse remining operations.
    (b)(17) and (18)--Access roads. The performance standards of 
sections (b)(17) and (b)(18) are appropriate to abandoned coal refuse 
remining operations. Our proposed regulations would incorporate the 
language of sections 816.150 and .151, which implement the statutory 
standards. See the preamble discussion at section 829.3. On this basis, 
our proposed regulations would provide the same level of environmental 
protection as under sections 515(b)(17) and (b)(18).
    (b)(19) and (20)--Revegetation. The performance standards of 
sections (b)(19) and (b)(20) are generally appropriate to abandoned 
coal refuse remining operations except for the requirement for diverse 
vegetation, which will not be attainable at almost all abandoned coal 
refuse sites because of the lack of topsoil. Nonetheless, at some 
abandoned coal refuse piles, vegetation has naturally reestablished 
itself to completely cover the site. Other sites have sparse vegetation 
consisting of a few annual weeds, and still others have remained 
completely barren for decades. Our proposed regulation at section 
829.111 would require a vegetative cover sufficient to stabilize the 
land surface to prevent erosion regardless of the cover, or lack 
thereof, that existed prior to the abandoned coal refuse remining 
operation. At sites where some vegetative cover exists, our proposed 
regulation would require a final cover no less extensive than that 
existing prior to the redisturbance. Our proposed regulation would also 
adopt the revegetation timing and mulching requirements of sections 
816.111(b)-(d), 816.113 and 816.114, and the revegetation success 
requirements of section 816.116(c)(1) through (4), which implement the 
major requirements of the statutory standards. See the preamble 
discussion of the proposed revegetation regulation at section 829.111. 
On this basis, our proposed regulation would provide the same level of 
environmental protection as under sections 515(b)(19) and (b)(20), 
adapted to the unique characteristics of abandoned coal refuse remining 
operations.
    (b)(21)--Protecting off-site areas. The performance standards of 
section 515(b)(21) of SMCRA are appropriate to abandoned coal refuse 
remining operations. Our proposed regulations would apply, with some 
revision, the requirements of sections 816.81, 816.102, and 816.106, 
which implement the statutory standards. For the reasons set out in the 
preamble discussion of proposed section 829.102, the proposed rule 
would not apply the requirements of sections 816.104 and 816.105. In 
addition, our proposed regulations would assure the stability of the 
toe of the refuse pile, and thus provide protection equivalent to the 
relevant prohibitions of section 816.107, by not allowing remining 
operations on steep slopes to prematurely remove refuse from the toe of 
such piles. See the preamble discussion of the proposed grading 
regulation at section 829.102 for a more detailed comparison with the 
existing rules implementing section 515(b)(21) of SMCRA. On this basis, 
our proposed regulations would provide the same level of environmental 
protection as under section 515(b)(21), adapted to the unique 
characteristics of abandoned coal refuse remining operations.
    (b)(22)--Spoil disposal. Abandoned coal refuse remining operations 
will not create spoil. Therefore, the performance standards of section 
(b)(22) are not appropriate to abandoned coal refuse remining 
operations. Thus, we are not proposing regulations to implement the 
spoil disposal provisions of section 515(b)(22).
    (b)(23)--Other criteria necessary to achieve reclamation. This 
general section is appropriate for abandoned coal refuse remining 
operations, and our proposed regulations contain other requirements, 
discussed above, that address conditions encountered at abandoned coal 
refuse sites. On this basis, our proposed regulations would provide the 
same level of environmental protection as under section 515(b)(23), 
adapted to the unique characteristics of abandoned coal refuse remining 
operations.
    (b)(24)--Fish and wildlife protection. The performance standards of 
section (b)(24) are appropriate to abandoned coal refuse remining 
operations. Our proposed regulations would incorporate by reference 
section 816.97, which implements the statutory standards. In addition, 
we are proposing a change that would add a definition of BMPs and allow 
their use in combating water quality and sediment problems at abandoned 
coal refuse sites. Protection of water quality is important in 
protecting fish and wildlife, because of the importance of water 
quality for fish and wildlife and their habitats. See the preamble 
discussion of the proposed general requirements regulation at section 
829.3, which incorporates by reference existing regulations at section 
816.97. See also preamble discussion of proposed definition of ``BMPs'' 
at new section 786.3. On this basis, our proposed regulations would 
provide the same level of environmental protection as under section 
515(b)(24), adapted to the unique characteristics of abandoned coal 
refuse remining operations.
    (b)(25)--Providing an undisturbed natural barrier. These 
provisions, which address mining coal from its original geologic 
location, are not appropriate for abandoned coal refuse remining 
operations because abandoned coal refuse remining operations will not 
mine coal in its original geologic location. Further, an undisturbed

[[Page 2144]]

natural barrier typically does not exist around coal refuse piles. 
Thus, we are not proposing regulations to implement the natural barrier 
provisions of section 515(b)(25).
    (c)--Mountaintop removal mining. These provisions, which address 
mining coal from its original geologic location, are not appropriate 
for abandoned coal refuse remining operations because abandoned coal 
refuse remining operations will not mine coal in its original geologic 
location. Thus, we are not proposing regulations to implement the 
mountaintop removal provisions of section 515(c).
    (d)--Steep slope mining. These provisions, which address mining 
coal from its original geologic location, are not appropriate for 
abandoned coal refuse remining operations because abandoned coal refuse 
remining operations will not mine coal in its original geologic 
location. Our proposed regulations would, however, add specific 
requirements for abandoned coal refuse remining operations and 
regrading on steep slopes. See the preamble discussion of the proposed 
grading regulation at section 829.102. On this basis, our proposed 
regulations would provide for a higher level of environmental 
protection than that provided under section 515(d), adapted to the 
unique characteristics of abandoned coal refuse remining operations.
    (e)--Postmining land use variances. As explained above in the 
discussion of section 515(b)(2), the land use that existed prior to 
mining is commonly not known, or is not attainable because of 
limitations in material at the abandoned refuse site either before or 
after remining operations are completed. Our proposed regulation at 
section 829.133 would require that the operator restore the land to a 
condition capable of supporting uses that are the same as or higher or 
better than the land use prior to commencement of the abandoned coal 
refuse remining operation. See the preamble discussion of the proposed 
postmining land use regulation at section 829.133. On this basis, our 
regulation would provide the same level of environmental protection as 
under section 515(e), adapted to the unique characteristics of 
abandoned coal refuse remining operations.
Section 516 of SMCRA--Performance Standards for Underground Mining 
Operations
    (b)(1) and (c)--Preventing subsidence damage. This provision is not 
appropriate for abandoned coal refuse remining operations. These 
operations do not involve underground mining and do not cause 
subsidence.
    (b)(2) and (3)--Seal portals and other openings. Because abandoned 
coal refuse remining operations may uncover or otherwise encounter mine 
openings or drill holes, this section has limited applicability to such 
operations. Our proposal would incorporate with limited modifications 
sections 817.13 through 817.15, which implement this statutory 
requirement. See the preamble discussion of the proposed casing and 
sealing regulation at section 829.13. On this basis, our regulation 
would provide the same level of environmental protection as under 
section 516(b)(2) and (3), adapted to the unique characteristics of 
abandoned coal refuse remining operations.
    (b)(4) and (5)--Mine waste. See earlier discussion for sections 
515(b)(11) and (13).
    (b)(6)--Revegetation. See earlier discussion for section 
515(b)(19).
    (b)(7)--Protecting off-site areas. See earlier discussion for 
section 515(b)(21).
    (b)(8)--Fire hazards. See earlier discussion for section 
515(b)(14).
    (b)(9)--Hydrologic balance. See earlier discussion for section 
515(b)(10).
    (b)(10)--Access roads, etc. See earlier discussion for section 
515(b)(17).
    (b)(11)--Fish and wildlife. See earlier discussion for section 
515(b)(24).
    (b)(12)--Locating new drift mine portals to prevent gravity 
discharges. This section is not appropriate for abandoned coal refuse 
remining operations. These operations do not construct drift mine 
portals, and thus do not cause gravity discharges from those portals.

B. Special Permit System for Abandoned Coal Refuse Remining Operations

    The EPAct authorizes the development of separate permit systems for 
abandoned coal refuse remining operations based on the distinct 
differences between such operations and other surface coal mining 
operations. Within this framework, proposed part 786, Requirements for 
Permits for Abandoned Coal Refuse Remining Operations, would specify 
permit information requirements for coal refuse removal and coal refuse 
on-site reprocessing operations. The proposed part would include 
changes to some of the permit information requirements at part 779, 
Surface Mining Permit Applications--Minimum Requirements for 
Information on Environmental Resources, and part 780, Surface Mining 
Permit Applications--Minimum Requirements for Reclamation and Operation 
Plan. In the next section of this discussion, we discuss the reasons we 
are proposing a single permit system at part 786 for both refuse 
removal and on-site reprocessing operations; the provisions of proposed 
part 786; and our rationale for any differences between the provisions 
of proposed part 786 and those of parts 779 and 780.

C. Proposed Regulations

    The regulatory provisions proposed in this rulemaking are intended 
to implement the requirements of section 2503(e) of the EPAct, codified 
at 30 U.S.C. 1251a. The proposed regulations include (1) A new 
definition in section 701.5 of ``abandoned coal refuse remining 
operations,'' distinguishing between those operations that reprocess 
the abandoned coal refuse on-site and those operations that remove the 
refuse; (2) a new definition in section 786.3 of ``BMPs'' as activities 
and practices that can be used with abandoned coal refuse remining 
operations to prevent or reduce chemical or sediment pollution to 
surface and ground water; (3) a new part 786 that would specify the 
permit information requirements for individual abandoned coal refuse 
remining operations; and (4) a new part 829 that would establish the 
performance standards appropriate to abandoned coal refuse remining 
operations permitted under part 786.
    The proposed permit information requirements in part 786 parallel 
the existing surface coal mining permit information requirements in 
parts 779 and 780. The proposed permit information required in proposed 
part 786 will enable the regulatory authority to determine whether the 
applicant can comply with the performance standards proposed in part 
829. The proposed performance standards in part 829 are, in turn, based 
on the surface coal mining performance standards in parts 816 and 817.
    The proposed regulations in parts 786 and 829 apply to coal refuse 
remining operations conducted at an abandoned coal refuse site. They do 
not apply to the off-site reprocessing of abandoned coal refuse already 
regulated under section 785.21 and part 827, Coal Preparation Plants 
not Located Within the Permit Area of a Mine.
    During the development of the proposed regulations, we considered 
the appropriateness of developing separate sets of permitting 
requirements for abandoned coal refuse removal and for on-site 
reprocessing operations. However, our consideration of this issue did 
not identify sufficient differences between the requirements applicable 
to removal and on-site reprocessing

[[Page 2145]]

operations to warrant separate sets of requirements for these two types 
of refuse operations. Therefore, the proposed regulations provide for 
the issuance of ``abandoned coal refuse remining operations'' permits 
that may include either refuse removal or on-site reprocessing 
operations, or both.
    For the most part, the proposed permitting regulations in part 786 
and the proposed performance standards in part 829 apply equally to 
both refuse removal and on-site reprocessing operations. However, some 
of the requirements in each part have been designed specifically for 
either removal or on-site reprocessing operations. For example, the 
proposed part 786 ground-water baseline requirements for refuse removal 
operations are different from those for reprocessing operations. For 
permits that include both removal and on-site reprocessing operations, 
the baseline requirements for the removal portion of the operation must 
be satisfied for the removal area and the area adjacent to it. 
Similarly, the baseline requirement for the on-site reprocessing 
portion of the operation must be satisfied for both the area containing 
the on-site reprocessing support facilities, such as the processing 
equipment, ponds, and reprocessing waste structures, as well as the 
adjacent area. Where an area adjacent to an on-site reprocessing 
operation overlaps the removal portion of the permit, or its adjacent 
area, the reprocessing baseline requirements apply to the overlap area. 
In these cases, both the reprocessing areas and removal areas would be 
covered under one permit.

Section 701.5 Definitions

Abandoned Coal Refuse Remining Operations
    We propose to add a definition of ``abandoned coal refuse remining 
operations'' that identifies the refuse sites that are eligible for 
mining under the regulations proposed in part 786 and part 829 as those 
lands that would otherwise be eligible for expenditure under sections 
404 and 402(g)(4) of SMCRA. The proposed definition then describes the 
principal characteristics of abandoned coal refuse reprocessing 
operations and removal operations, which are the two types of remining 
operations identified in the EPAct. Finally, the definition states that 
the term ``abandoned coal refuse remining operations'' does not 
encompass the removal of refuse for non-fuel uses.
    Section 2503(e) of the EPAct, 30 U.S.C. 1251a, directs the 
Secretary of the Interior by regulation to establish environmental 
protection performance and reclamation standards, and separate permit 
systems for two types of operations: (1) Those that reprocess abandoned 
coal refuse on-site (reprocessing operations) and (2) those that remove 
abandoned coal refuse from the site (removal operations). The statute 
further specifies that these regulations and separate permit systems 
will apply to such operations on ``lands that would otherwise be 
eligible for expenditure under section 404 and section 402(g)(4) of 
[SMCRA].'' The lands referred to are ones that are eligible for 
expenditure from the AML fund established under Title IV of SMCRA; 
i.e., lands that were mined for coal or were affected by such mining 
and abandoned or left in an inadequate reclamation status prior to 
enactment of SMCRA and for which there is no continuing reclamation 
responsibility under State or other Federal laws.
    Although the EPAct refers to the two types of operations, it does 
not explain how they differ. Accordingly, we have characterized 
``reprocessing operations'' and ``removal operations'' in terms of the 
various activities typically associated with each type of operation.
    For purposes of this rulemaking, the principal characteristic of 
``reprocessing operations'' is the use of specific gravity or 
floatation methods to separate coal from waste material. These methods 
require the liberal use of water or other liquids to effect the 
separation of coal from waste material. The resultant discharge from a 
reprocessing operation will commonly be more acid (and possibly toxic) 
than the discharge expected from a removal operation. While the 
reprocessing of coal refuse leads to a significantly higher Btu in the 
refuse product, the residual coal content of refuse waste, although 
low, will vary depending on the separation mediums used. This waste, 
usually redeposited on site, will represent a large percentage of the 
original refuse that has just been processed. In addition, the 
redeposited waste will usually consist of an acidic mixture of fine-
grained materials with high moisture content. As a result, the 
redeposited waste materials will often have altered particle cohesion 
and/or reduced shear strength that can tend towards slope instability.
    Reprocessing operations also typically employ some form of on-site 
mechanical sorting or sizing prior to the liquid processing of refuse 
material. These sorting and sizing activities often involve the use of 
vibrating screens to eliminate larger non-coal objects such as tree 
limbs, rocks, machinery, etc., and then the use of crushers to reduce 
the refuse product to a size appropriate for the liquid processor. For 
purposes of this rulemaking, the proposed description of reprocessing 
includes any on-site sorting and sizing activities.
    The principal characteristic of ``removal operations'' is the 
activity of removing coal refuse from the site. As with reprocessing 
operations, the proposed description of removal operations includes any 
on-site mechanical sorting and sizing of refuse material to eliminate 
larger non-coal objects.
    There are indirect environmental benefits associated with the on-
site sorting and sizing of refuse at both reprocessing and removal 
operations. The waste product of sorting and sizing, which is 
invariably left on site, is mostly noncoal. Our proposed regulations 
would require that this waste material be placed in a stable 
configuration that would almost always be more environmentally secure 
than the abandoned refuse site was before remining. We also believe 
that the environmental impacts of controlled redeposition and 
reclamation of refuse that has been sorted or sized out would be 
preferable to the impacts that would result if operators simply mined 
around portions of a refuse pile and left those portions unreclaimed.
    In almost all cases, the liquid discharge and solid waste of on-
site reprocessing operations have a higher potential for causing 
negative ground- and surface-water impacts and unstable slopes than 
would any of the activities associated with removal operations. This 
difference in potential for environmental harm is because removal 
operations, unlike reprocessing operations, neither introduce a new 
liquid discharge to the site nor redeposit on site a large volume of 
recently processed waste. Based on these important differences between 
the two types of operations, the proposed regulations would, for on-
site refuse reprocessing operations, require additional permit 
information and more stringent performance standards concerning 
stability and hydrology than those required for removal operations.
    Our proposed definition of ``abandoned coal refuse remining 
operations'' specifically excludes the removal of refuse for non-fuel 
uses. Activities such as the removal of refuse cinder (red dog) for 
road base or surfacing, the use of refuse for fill material, or for 
backstowing of underground mine works to prevent subsidence have never 
been regulated as surface coal mining operations nor would they be 
under the proposed regulations.

[[Page 2146]]

Part 786--Requirements for Permits for Abandoned Coal Refuse Remining 
Operations

    Proposed part 786 specifies the minimum permit information that 
would be required for abandoned coal refuse remining operations, 
including information on (1) environmental resources that might be 
impacted or affected, and (2) mining operations and reclamation plans.

Section 786.1 Scope

    In this section we explain that the purpose of part 786 is to set 
forth the requirements for obtaining a permit for abandoned coal refuse 
remining operations. We also explain the use of the pronouns ``we'', 
``our'', and ``us'' that refer to the regulatory authority and the 
pronouns ``you'' and ``your'' that refer to the applicant and operator. 
We use these pronouns throughout this part in order to make the 
regulations more readable.

Section 786.2 Objectives

    In this section we explain that our objective is to ensure that the 
permit applicant obtains a permit to conduct abandoned coal refuse 
remining operations in accordance with the requirements of SMCRA, as 
amended by the EPAct.

Section 786.3 Definitions

Best Management Practices (BMPs)
    We are proposing to add a definition of BMPs at proposed section 
786.3. The definition would be used solely for the purpose of abandoned 
coal refuse remining operations, and would include any number of 
activities, operating and maintenance procedures, practices, or 
prohibition of practices that have as their goal preventing or reducing 
chemical pollution to surface and ground water and controlling 
excessive sediment concentrations to surface water. EPA defines BMPs in 
a similar manner at 40 CFR 122.2, and in EPA's December, 2001, 
publication ``Coal Remining--Best Management Practices Guidance 
Manual.'' (EPA publication 821-B-01-010).
    Our objective in allowing the use of BMPs with abandoned coal 
refuse remining operations is to broaden the tools, subject to 
regulatory authority approval, available for controlling sediment and 
AMD at these sites. The proposed use of BMPs with abandoned coal refuse 
remining operations has substantial basis: (1) The EPA publication 
cited above, which acknowledges the importance of using BMPs to address 
acid mine drainage problems associated with coal mining activities, 
presents information on hydrologic, geochemical and sediment control 
BMPs, efficiencies of the BMPs, and costs for installing specific BMPs; 
(2) BMPs is a term that now, within the mining industry, has a 
widespread history and acceptance, finding application in the reduction 
and/or prevention of chemical pollution to surface and ground water 
with particular emphasis on AMD, a phenomenon commonly associated with 
abandoned coal refuse operations; and (3) BMPs have been developed and 
used in many commercial and industrial applications to control runoff 
and reduce sedimentation as well as to minimize erosion and 
sedimentation during silviculture operations. These applications of 
BMPs have direct transferability to mining activities where erosion and 
sedimentation are also a concern. For these reasons, we believe our 
proposed reliance on BMPs will similarly prove to be both economical 
for operators and environmentally effective in dealing with existing or 
potential environmental problems, as thoroughly documented in the above 
referenced EPA publication.
    Our proposed use of BMPs as approved sediment control measures is 
subject to an important condition. Our 1983 rulemaking at Sec.  
816.46(b)(2) required that all surface drainage from a disturbed area 
be passed through a ``siltation structure,'' which by definition at 
section 701.5 includes a sedimentation pond, a series of sedimentation 
ponds, or other treatment facilities. This requirement of Sec.  
816.46(b)(2) for siltation structures was adopted to implement the 
mandate of sections 515(b)(10)(B) and 516(b)(9)(B) of SMCRA to use the 
best technology currently available (BTCA) to prevent additional 
contributions of suspended solids outside of the permit area. However, 
in response to the successful challenge of Sec.  816.46(b)(2), we 
suspended the siltation structure requirement (51 FR 41961; November 
20, 1986). As a result of that suspension, RAs had to determine on a 
case-by-case basis whether siltation structures or other sediment 
control measures would constitute BTCA. Under our proposed regulations, 
for those BMPs that would constitute sediment control measures, RAs 
will similarly have to determine whether the specific proposed BMP or 
combination of BMPs would constitute BTCA.

Section 786.10 Information Collection

    Proposed Sec.  786.10 contains information on the Office of 
Management and Budget's approval of the information collection 
requirements of part 786. Part 786 sets forth the requirements for 
obtaining a permit for abandoned coal refuse remining operations. The 
requirements ensure that the permit applicant obtains a permit to 
conduct an abandoned coal refuse remining operation in accordance with 
the requirements of SMCRA, as amended by the EPAct. We estimate that 
there will be 16 new applicants per year and that each of the 
applicants will require approximately 469 hours and $4,848 in non-wage 
costs to complete the information required by part 786. In addition, 
the 15 regulatory authorities will require approximately 230 hours with 
no additional non-wage costs to complete the information required by 
part 786.

Section 786.11 General Requirements

    Proposed Sec.  786.11 provides that permits for abandoned coal 
refuse remining operations would be required to comply with the 
requirements of proposed part 786 and would be required to demonstrate 
that the operations will be conducted in compliance with the 
performance standards of proposed part 829. This section makes clear 
that the permit application requirements of parts 779, 780, 783, and 
784 would not apply directly to abandoned coal refuse remining 
operations, but rather would apply only to the extent individual 
provisions are incorporated by reference or adapted by part 786.

Section 786.12 Information on Environmental Resources

    Proposed Sec.  786.12(a) addresses general and climatological 
information requirements. This paragraph would apply the requirements 
of Sec. Sec.  779.11, 779.12, and 779.18.
    Proposed Sec.  786.12(b) addresses pre-remining vegetation 
information requirements. This paragraph specifies the requirements 
that would apply to coal refuse remining, instead of the requirements 
of Sec.  779.19. The paragraph would require photographs and a 
narrative description of the typical vegetative cover at the refuse 
site. The photographs and narrative would have to be of sufficient 
detail to allow an estimate of vegetative ground cover and species 
diversity. Because most abandoned coal refuse sites have sparse 
vegetation and the vegetation found is usually volunteer and does not 
represent the original species diversity, we believe the proposed 
requirements are more suitable for abandoned coal refuse sites than the 
detailed vegetation mapping requirements of Sec.  779.19. Furthermore, 
we believe that to prescribe precise measurements of

[[Page 2147]]

vegetative cover and species diversity would be inappropriate for 
abandoned coal refuse sites because of the poor surface conditions 
found at most sites. The proposed requirements for photographs and 
narrative would ensure that the application adequately describes the 
pre-remining surface cover and would serve as a reference point for 
required reclamation.
    Proposed Sec.  786.12(c) addresses requirements for information on 
soil resources and other vegetation-support material and specifies the 
requirements that would apply to coal refuse remining instead of the 
requirements of Sec.  779.21. This paragraph would require that the 
permit contain sufficient information on the soil or other vegetation-
support material to enable us to determine if revegetation of the site 
can be achieved as required by the revegetation performance standards 
at Sec.  829.111. We believe that the proposed regulation is more 
appropriate for abandoned coal refuse remining operations than Sec.  
779.21 which requires a soil map and other detailed quantitative soil 
information. As noted previously, abandoned coal refuse sites, unlike 
areas covered by the great majority of surface mining permits, do not 
have topsoil and usually have minimal vegetative cover. The information 
on soil resources and vegetation support proposed in this paragraph and 
in Sec.  786.12(b) should provide ample information to assess the site 
revegetation potential.
    Proposed Sec.  786.12(d) would require the application to include 
the mapping information in Sec.  779.24, except as follows:
    1. Instead of the requirement in Sec.  779.24(d) that maps show 
structures within 1000 feet of the operation, the proposed paragraph 
would require that maps show structures within 300 feet of the 
operation if blasting is not planned. The proposed 300-foot requirement 
corresponds to the 300-foot prohibition against mining contained in 
section 522(e) of SMCRA and Sec.  761.11. Proposed section 786.12(d) 
would apply the 1000-foot map requirement in Sec.  779.24(d) for 
operations that are expected to conduct blasting. The coverage to 1000 
feet is appropriate for the evaluation of the anticipated blast design 
required by proposed Sec.  786.13(c). Proposed section 786.12(d) would 
allow the map showing the additional coverage, i.e., the structures in 
the area between 300 and 1000 feet, to be submitted with the 
anticipated blast design after permit issuance but prior to blasting's 
being conducted at the site. This provision for design submission is 
included because of the possibility that the need for blasting may not 
have been anticipated at the time that the permit application was 
prepared.
    2. Proposed Sec.  786.12(d) does not include the requirement in 
Sec.  779.24(f) that maps show proposed reference area boundaries for 
determining the success of revegetation. This requirement is not 
included in proposed Sec.  786.12(d) because the proposed revegetation 
performance standards at Sec.  829.111 would not require reference 
areas.
    Proposed Sec.  786.12(e) addresses cross sections, maps, and plans 
and would retain the requirements of Sec.  779.25 except as follows:
    1. Proposed Sec.  786.12(e) would not apply the requirement of 
Sec.  779.25(a)(3) that cross sections, maps, and plans show the coal 
and overburden strata. This requirement is not appropriate for 
abandoned coal refuse remining operations because such operations will 
not remove overburden strata or coal seams. Instead, the proposed 
regulation would require cross-sections illustrating the refuse site if 
the site is located on a steep slope (as defined at Sec.  701.5). 
Requiring these cross sections only for steep slopes is consistent with 
the steep slope backfilling and grading requirements proposed at 
section 829.102 for abandoned coal refuse operations.
    2. Proposed Sec.  786.12(e) would not apply the requirement in 
Sec.  779.25(a)(4) that maps show all coal crop lines and the ``strike 
and dip,'' i.e., the direction and slant, of the coal to be mined. 
Because abandoned coal refuse remining operations will not mine coal 
seams, this requirement is not appropriate. Instead, the proposed 
regulation would require maps to show all coal outcrops within the 
permit area together with their strike and dip. This latter information 
is needed because coal seams may outcrop within the refuse area and 
affect ground-water movement.
    3. Proposed Sec.  786.12(e) would not apply the requirements in 
Sec.  779.25(a)(6) for information on the location and extent of 
subsurface water, if encountered. Since abandoned coal refuse remining 
operations will only remove or reprocess refuse that has been relocated 
from other areas and will neither remove nor disturb strata that serve 
as aquifers for subsurface water, we do not believe that information as 
to the location and extent of subsurface water is necessary. However, 
the proposed regulation does apply the requirement in Sec.  
779.25(a)(7) that maps show surface water bodies including springs 
(seeps). We believe that the information on springs will provide 
appropriate information related to potential ground-water flow systems, 
if such information is needed.

Section 786.13 Information on Operation Plans

    Proposed Sec.  786.13 specifies the information that would be 
required in the operations plan. The following paragraphs discuss these 
requirements in detail.
    Proposed Sec.  786.13(a) concerning general requirements would 
apply the requirements of Sec.  780.11 that are appropriate to 
abandoned coal refuse operations. The proposed paragraphs would require 
a description of the removal and on-site reprocessing activities to be 
conducted under the abandoned coal refuse remining permit as well as a 
description of associated equipment and facilities. Because the 
proposed requirements of Sec.  786.13(a) would apply solely to 
``abandoned coal refuse remining operations,'' as that term would be 
defined in section 701.5, the extraction of coal by auger, surface, and 
underground methods would not be authorized under permits for abandoned 
coal refuse remining operations.
    Proposed Sec.  786.13(b) concerning existing structures would apply 
the requirements of Sec.  780.12. We believe that the requirements at 
Sec.  780.12 should generally apply to permit applications for 
abandoned coal refuse remining operations. The proposed paragraph would 
require that the narrative identify whether structures are associated 
with removal or reprocessing operations.
    Proposed Sec.  786.13(c) concerning blasting would require a 
blasting plan in accordance with the regulations at Sec.  780.13, 
whenever blasting is planned during the abandoned coal refuse remining 
operation.
    Proposed Sec.  786.13(d) concerning maps and plans would apply the 
requirements of section 780.14 except as follows:
    1. Proposed section 786.13(d)(1) would apply the maps and plans 
requirements of section 780.14(a), except that, in lieu of the 
requirements of Sec. Sec.  779.24 and 779.25 referenced in Sec.  
780.14(a), the requirements of Sec.  786.12(d) and (e) would apply.
    2. Proposed Sec. Sec.  786.13 (d)(1) and (2) contain requirements 
almost identical to those of Sec.  780.14(b)(4) and (5) except that the 
proposed regulation reflects the fact that coal refuse would be 
utilized; that coal or refuse may be the usable product; that new 
``spoil,'' as defined in Sec.  701.5, would not be generated; and that 
vegetation-support material, rather than topsoil, would be used to 
reclaim the sites. Proposed paragraph (2)(ii) would also provide that 
the required maps and plans show the storage areas

[[Page 2148]]

for vegetative support material, ``rock waste'' (e.g., road cut 
material), and combustible and noncombustible noncoal waste. This 
latter requirement corresponds to the proposed provision of Sec.  
829.89 that would allow disposal of noncombustible noncoal waste within 
refuse disposal areas. Proposed paragraph (2)(iii) would apply the 
requirements of Sec.  780.14(b)(11) except for the requirement to show 
the location of excess spoil areas. The reference to excess spoil areas 
would not apply, because spoil will not be generated by abandoned coal 
refuse remining operations.
    Proposed Sec.  786.13(e) concerning requirements for an air 
pollution control plan would apply the requirements of Sec.  780.15 
except that, in lieu of the requirements of Sec.  816.95 referenced in 
Sec.  780.15, the requirements of Sec.  829.95 would apply.
    Proposed Sec.  786.13(f) concerning fish and wildlife information 
would retain the requirements of Sec.  780.16.
    Proposed Sec.  786.13(g) concerning protection of public parks and 
historic places would apply the requirements of Sec.  780.31.

Section 786.14 Information on Reclamation Plans

    Proposed Sec.  786.14 would establish the information that is 
required on plans for reclamation. The following paragraphs discuss 
these requirements in detail.
    Proposed Sec.  786.14(a) essentially would apply the general 
requirements of Sec.  780.18 except that, in lieu of the requirements 
of part 816 referenced in section 780.18, the corresponding 
requirements of part 829 would apply. The proposed regulation would not 
require the same detail and specificity that is required by the 
existing regulations regarding revegetation information. Rather, the 
proposed regulation would require that the application include a plan 
for revegetation as required by proposed Sec.  829.111. We believe this 
requirement would provide us more than adequate information to assess 
the proposed revegetation plan.
    Proposed Sec.  786.14(b) essentially would apply the requirements 
of section 780.23 concerning postmining land use, except those related 
to existing land capability and productivity and those related to the 
information needed to propose a postmining land use different from the 
premining land use. For the reasons discussed above in the evaluation 
of each performance standard in sections 515 and 516 of SMCRA, detailed 
information on existing land capability, productivity, production, and 
land use is inappropriate to coal refuse remining operations. Proposed 
Sec.  786.14(b) would, however, require a written description and 
photographs of existing land uses. The written description and 
photographs would describe and document both the existing land use and 
the location of any abandoned equipment and other noncoal mine waste 
left at the site. The proposed regulation would further require a 
detailed description of the proposed postmining land use and how it 
will be achieved. The proposed regulation would not apply the 
requirement of Sec.  780.23(a) for a discussion of alternative land 
uses. Because the configuration of the abandoned refuse area before 
remining may not readily lend itself to a variety of postmining land 
uses after remining, we do not believe it is appropriate to require the 
permittee to expend the resources to identify such alternative uses. 
The proposed regulation would require that the plan be accompanied by 
any comments from the surface owner or State or local land use agencies 
that would have to initiate, implement, approve, or authorize the 
proposed land use. We believe this process would adequately identify 
any viable land use alternatives that exist.
    Proposed Sec.  786.14(c) would apply the requirements of Sec.  
780.25 for ponds, impoundments, banks, dams, and embankments. 
Therefore, to the extent such structures are included in the 
reclamation plan, they would be described in accordance with this 
section.
    Proposed Sec.  786.14(d) would apply the requirements of Sec.  
780.27 for mining near underground mines.
    Proposed Sec.  786.14(e) would apply the requirements of Sec.  
780.29 for diversions.

Section 786.15 Information on Hydrology

    Section 786.15 would specify the information that is required on 
hydrology. The following paragraphs discuss those requirements in 
detail.

Section 786.15(a) Reprocessing Operations

    Proposed Sec.  786.15(a)(1) would apply the requirements of Sec.  
780.21 for the following types of information: Sampling and Analysis 
methodology, section 780.21(a); baseline hydrologic information, Sec.  
780.21(b); baseline information for the cumulative impact area, Sec.  
780.21(c); modeling, Sec.  780.21(d); alternative water sources, Sec.  
780.21(e); probable hydrologic consequences determinations, section 
780.21(f); cumulative hydrologic impact assessments, Sec.  780.21(g); 
ground-water monitoring plans, section 780.21(i); and surface-water 
monitoring plans, Sec.  780.21(j).
    In addition, the requirements of Sec.  780.21(h) pertaining to the 
hydrologic reclamation plan would be applied under proposed Sec.  
786.15(a)(2), with the exception of the requirement to restore 
approximate premining recharge capacity. Section 816.41(b)(2) does not 
require restoration of recharge capacity in coal mine waste disposal 
areas and fills. We believe that the restoration of recharge capacity 
is also not appropriate for areas affected by abandoned coal refuse 
remining operations.

Section 786.15(b) Removal Operations

    This proposed section would apply, with appropriate adaptations, 
the major requirements for hydrologic information and analysis of the 
regulations at Sec.  780.21 regarding: (1) The probable hydrologic 
consequences (PHC) determination required by section 780.21(f); (2) the 
cumulative hydrologic impact assessment (CHIA) required by Sec.  
780.21(g); and (3) the hydrologic reclamation plan (HRP) required by 
Sec.  780.21(h). In addition, this proposed section would require the 
identification of BMPs that are proposed to either mitigate hydrologic 
impacts or create hydrologic enhancements.
    The proposed rule also would apply, with appropriate adaptations, 
the other supporting requirements of Sec.  780.21, including hydrologic 
information and analysis regarding sampling and analysis methodology, 
Sec.  780.21(a); baseline information including supplemental 
information, Sec.  780.21(b); baseline cumulative impact area 
information, Sec.  780.21(c); modeling, Sec.  780.21(d); alternative 
water source information, Sec.  780.21(e); ground-water monitoring 
plans, section 780.21(i); and surface-water monitoring plans, Sec.  
780.21(j).
    As background on the hydrologic information and analysis required 
by the existing permit regulations, we would like to summarize how the 
PHC, HRP, and CHIA relate to each other. The purpose of the PHC is to 
identify impacts on the hydrologic balance and the purpose of the HRP 
is to identify mitigation measures that would reduce adverse impacts on 
that balance. The PHC and HRP are provided by the operator in the 
permit application. The purpose of the CHIA, which is in part based on 
the PHC, is to determine the cumulative hydrologic effects in a 
specified watershed from the proposed mining operation together with 
all other anticipated mining operations in that watershed. The CHIA is 
prepared by the regulatory authority for an area that

[[Page 2149]]

includes the proposed permit area and is used in evaluating whether the 
operation has been designed to prevent material damage to the 
hydrologic balance outside the permit area.
    With regard to the requirements for hydrologic information and 
analysis, our proposed regulations would differ from the above-
referenced regulations in four principal ways. Our proposed regulations 
would (1) Provide for a narrative PHC and encourage the use of 
available data, including that required by a National Pollutant 
Discharge Elimination System (NPDES) permit, to satisfy baseline 
requirements for seasonal flow conditions; (2) require the PHC to 
estimate improvements and/or enhancements as well as negative impacts 
to the hydrologic balance caused by the operator; (3) require surface 
and ground-water monitoring plans (and associated monitoring data 
collected during the abandoned coal refuse remining operation) only in 
cases where the PHC estimates negative impacts to the hydrology; and 
(4) require the HRP to identify the BMPs that will be proposed for use 
during the operation. These four differences are discussed in more 
detail below.
    The first way our proposed regulation differs from the existing 
regulation on hydrology is that our proposed regulation at Sec.  
786.15(b)(1)(iii) would initially allow for a narrative PHC, including 
its requirement for baseline information on seasonal variations, to be 
based on available data, as opposed to the current requirements for a 
PHC based on site-specific data. We believe that for most coal refuse 
sites sufficient hydrologic information and data already exist to 
satisfy the PHC requirements for baseline information. Thus, our 
proposed regulation provides that a narrative PHC can be based on 
existing hydrologic information derived from (1) Modeling and other 
techniques; (2) data and findings for the proposed site including 
relevant hydrologic information that might have been previously 
required to obtain a point-source discharge permit under the NPDES 
program; or (3) other relevant remining operations. The proposed PHC 
would summarize probable hydrologic impacts or enhancements while 
providing support, generally in terms of available information and 
data, for any conclusions drawn. A PHC that contains an unsupported 
description of seasonal baseline variations or unsupported conclusions 
of probable hydrologic impacts or enhancements would not be acceptable.
    When additional information or data are needed to support the PHC, 
we can request this information or data from the applicant pursuant to 
proposed Sec.  786.15(b)(1)(v), which allows us to request supplemental 
information if adverse impacts are identified in the PHC, and proposed 
Sec.  786.15(b)(3), which allows us to require any additional 
information (including site-specific hydrologic data) needed to ensure 
that the permit applicant will be able to comply with the performance 
standards of proposed part 829. Thus, whatever the initial level of 
hydrologic information and data submitted in the permit application, we 
have ample authority under the proposed regulations to request any 
additional information or data that is necessary to assess the 
applicant's conclusions as to probable hydrologic consequences.
    The second way our proposed regulations would differ from existing 
regulations is that our proposed regulation at Sec.  786.15(b)(1)(iv) 
would require in the PHC a description of the enhancement to local 
ground- and surface-water hydrology expected from the proposed coal 
refuse remining operation, with particular emphasis on decreased loads 
of pollutants achievable through improved water quality, decreased flow 
or infiltration of water, or some combination thereof.
    The third way our proposed regulations would differ from the 
existing regulations is that our proposed regulations would not 
routinely require the operator either to develop monitoring plans for 
surface and ground water or to monitor surface and ground water during 
the abandoned coal refuse remining operation. The rationale for this 
approach and the conditions under which supplemental monitoring plans 
and monitoring data would be required are discussed below.
    The major difference between abandoned coal refuse remining 
operations and other surface mining operations, with regard to the need 
for monitoring, is alluded to in section 517(b)(2) of SMCRA. That 
section requires monitoring of operations that disturb rock strata 
serving as aquifers that significantly ensure the hydrologic balance of 
water use. However, as previously noted, abandoned coal refuse remining 
operations will remove or reprocess only materials that have been 
relocated from other areas and placed on a refuse site. These 
operations will not disturb any strata that serve as aquifers, and thus 
the monitoring requirements of section 517(b)(2) should not apply.
    Our proposed regulations would not routinely require monitoring 
plans (and associated monitoring data) for surface water and ground 
water. If, however, the PHC indicates probable adverse impacts to the 
hydrologic balance, then proposed Sec.  786.15(b)(1)(v) would require 
compliance with the supplemental information requirements of Sec.  
780.21(b)(3) and the ground- and surface-water monitoring requirements 
of Sec.  780.21(i) and (j). In this way, full monitoring would be 
assured whenever probable adverse hydrologic consequences are 
identified in the PHC.
    The fourth way our proposed regulations differ from existing 
regulations is that proposed Sec.  786.15(b)(3) would require that the 
HRP identify the specific BMPs to be used and any additional 
information we might require to ensure compliance with the performance 
standards of part 829. This requirement recognizes that the SMCRA 
regulatory authority always has the inherent authority to require 
additional information, including information pertaining to BMPs, if 
that information is needed to make a decision on a permit application.
    In summary, we believe the approach that we have taken in our 
proposal with respect to baseline information, PHC and HRP 
requirements, and BMPs is reasonable and, at the same time, technically 
sound. Our belief is buttressed by the fact that the ground water and 
surface water at abandoned coal refuse sites are most often already 
adversely impacted. Abandoned coal refuse removal operations, 
therefore, could be reasonably expected to maintain or improve the 
existing hydrologic balance rather than adversely affect it, as 
indicated by statistical evidence presented below in summaries of data 
from the Pennsylvania regulatory program. Thus, our proposed 
regulations, which are intended to facilitate the remining of abandoned 
coal refuse piles and provide the same level of environmental 
protection as under sections 515 and 516 of SMCRA, reasonably could be 
expected to maintain or improve the hydrologic balance of abandoned 
coal refuse sites.
    As noted, Pennsylvania has been a leader in promoting remining and 
in documenting the positive environmental effects of remining 
operations, and has a hydrologic remining data base that goes back to 
1985. See Environmental Protection Agency, 2001, Coal Remining--Best 
Management Practices Guidance Manual, EPA-821-B-01-010, pp. 16-18. This 
EPA manual reports that, of 260 remining permits issued by Pennsylvania 
through 1997, 98 percent resulted in pollutional loads that were either 
lower than baseline or only slightly exceeded baseline and did not 
require long-term treatment.

[[Page 2150]]

    Pennsylvania's database through 2003 contains hydrologic 
information on a total of over 300 remining operations. The two figures 
presented below are derived from information in that database for 
reclaimed sites and detail the environmental enhancements that can 
reasonably be expected from similar remining operations. According to 
staff of the Pennsylvania Department of Environmental Resources 
(personal communication with our staff, 2003), the figures and the 
database from which these figures were prepared consist of remining 
sites permitted in Pennsylvania under the alternative effluent 
provisions of section 301(p) of the Clean Water Act, 33 U.S.C. 1311(p), 
popularly referred to as the ``Rahall amendment of 1987.'' The sites 
represent all types of remining categories including coal refuse 
operations covered by our proposed regulations.
    One hundred of the sites, having about 230 acid discharges prior to 
the remining, have been fully reclaimed. Figure 1 shows that most of 
these 230 discharges were either eliminated, improved, or at least did 
not worsen with respect to acidity, iron and manganese (Mn) loads. 
Figure 2, which is a composite of the 230 discharges, shows a 
significant aggregate reduction in acid and sulfate loads after 
remining.
[GRAPHIC] [TIFF OMITTED] TP17JA07.000


[[Page 2151]]



Section 786.16 Geologic and Refuse Information

    Proposed Sec.  786.16(a) would apply the requirements of sections 
780.22(a)(1) and (3) that the permit application provide sufficient 
geologic data, if appropriate, and refuse data in sufficient detail to 
assist in determining the probable hydrologic consequences of the 
operation upon the quality and quantity of surface and ground water in 
the permit and adjacent areas, including the extent to which surface- 
and ground-water monitoring is necessary; whether the operation has 
been designed to prevent material damage to the hydrologic balance 
outside the permit area, and whether reclamation can be accomplished. 
The ``if appropriate'' caveat, which is not in the existing rule 
language, is included in the proposed language to expressly recognize 
that geologic data may not always be needed or helpful for coal refuse 
sites. The existing rule language does not require the submission of 
refuse data, but such information is clearly needed under the proposed 
rule. Proposed Sec.  786.16(b) also would include the requirement of 
Sec.  780.22(c) that authorizes us to request additional geologic and 
refuse data if deemed necessary to protect the hydrologic balance or 
meet the performance standards of this chapter. Section 780.22(c) does 
not require the submission of refuse data, but such information would 
be required under the proposed rule.
    The proposed regulation would not apply the requirement of Sec.  
780.22(a)(2) for identifying all potentially acid- or toxic-forming 
strata. We do not believe it appropriate to retain this requirement 
because refuse piles are, by their very nature, potentially acid- or 
toxic-forming; they are not homogenous and would, therefore, require 
extensive sampling in order to accurately map their chemical 
variations. Furthermore, the previously noted Pennsylvania study would 
strongly suggest that this identification is not needed because 
abandoned coal refuse remining operations, particularly removal 
operations, would be expected to maintain or improve site conditions.
    The proposed regulation also does not retain the requirements of 
Sec.  780.22(b) to provide a description of the geology down to the 
strata below the coal seam to be mined, or down to any acquifer below 
the coal seam to be mined that could be adversely impacted by mining. 
These requirements are not appropriate because abandoned coal refuse 
remining operations will not disturb or mine any strata, including 
``coal seams.''

Section 786.17 Information on Roads, Support Facilities

    Proposed Sec.  786.17 retains the requirements of Sec.  Sec.  
780.33 and 780.37 for roads, and the requirements of Sec.  780.38 for 
support facilities.
Disposal of Excess Spoil
    We have not proposed a counterpart in section 786 to the 
requirements of Sec.  780.35 on excess spoil. The excess spoil 
requirements are not appropriate to abandoned coal refuse remining 
operations because, in order to mine the refuse, these operations will 
not remove overburden and, consequently, will not produce excess spoil.

Part 829--Special Permanent Program Performance Standards: Abandoned 
Coal Refuse Remining Operations

    Proposed part 829 contains special performance standards for 
abandoned coal refuse remining operations. As discussed below, many of 
the provisions in part 829 incorporate by reference the requirements of 
parts 816 and 817, or adapt them as appropriate.

Section 829.1 Scope

    This proposed section would state that part 829 contains the 
performance standards established under the authority of the EPAct and 
SMCRA. Section 829.1 states that the standards of this part would apply 
to all abandoned coal refuse remining operations unless otherwise 
specified. Where specified, the standards would apply either to refuse 
removal operations or to on-site refuse reprocessing operations. We 
also explain the use of the pronouns ``we'', ``our'', and ``us,'' which 
refer to the regulatory authority and the pronouns ``you'' and 
``your,'' which refer to the applicant and operator. We use pronouns 
throughout this part in order to make the regulations more readable.

Section 829.2 Objectives

    The objective of this part is to ensure that abandoned coal refuse 
remining operations are conducted in a manner that preserves and 
enhances environmental and other values following reclamation in 
accordance with the requirements of SMCRA, as amended by the EPAct.

Section 829.3 General Requirements

    Proposed Sec.  829.3 would require that any person intending to 
conduct abandoned coal refuse remining operations obtain a permit in 
accordance with part 786 and obtain a bond in accordance with 
subchapter J. Proposed Sec.  829.3 specifies that any person who 
conducts abandoned coal refuse remining operations would be subject to 
the existing requirements of:

Sec.  816.43--Diversions.
Sec.  816.47--Hydrologic balance: Discharge structures.
Sec.  816.57--Hydrologic balance: Stream buffer zones.
Sec.  816.59--Coal recovery.
Sec.  816.61--Use of explosives: General requirements.
Sec.  816.62--Use of explosives: Pre-blasting survey.
Sec.  816.64--Use of explosives: Blasting schedule.
Sec.  816.66--Use of explosives: Blasting signs, warnings and access 
control.
Sec.  816.67--Use of explosives: Control of adverse effects.
Sec.  816.68--Use of explosives: Records of blasting operations.
Sec.  816.79--Protection of underground mining.
Sec.  816.87--Coal mine waste: Burning and burned waste utilization.
Sec.  816.97--Protection of fish, wildlife, and related environmental 
values.
Sec.  816.131--Cessation of operations: Temporary.
Sec.  816.132--Cessation of operations: Permanent.
Sec.  816.150--Roads: General.
Sec.  816.151--Primary roads.
Sec.  816.180--Utility installation.
Sec.  816.181--Support facilities.

Section 829.10 Information Collection

    Proposed Sec.  829.10 contains information on the Office of 
Management and Budget's approval of the information collection 
requirements of part 829. Part 829 sets forth the minimum environmental 
protection performance standards for abandoned coal refuse remining 
operations, and requires periodic submission of performance data or 
inspection surveys that relate to these operations. Proposed part 829 
implements sections 515/516 of SMCRA, as amended by the EPAct. We 
estimate that each year, each of the 22 remining operators would 
require approximately 180 hours, depending on which requirements of 
Sec. Sec.  829.3 and 829.81 are met, and $200 per operator to complete 
the requirements of this part. In addition, for each of the 22 remining 
applications that would be reviewed, the regulatory authority would 
require 20 hours, with no non-wage costs, to review the information 
required by part 829.

Section 829.11 Signs and Markers

    Proposed Sec.  829.11 retains the requirements of Sec.  816.11 for 
signs and markers except that, in lieu of the requirements of Sec.  
816.22 referenced in Sec.  816.11(f), our proposal would reference 
Sec.  829.22, which applies to topsoil markers.

[[Page 2152]]

Section 829.13 Casing and Sealing of Drill Holes, Portals, and Other 
Openings

    Proposed Sec.  829.13 retains the requirements of Sec. Sec.  
817.13, 817.14, and 817.15 for the casing and sealing of holes and 
other openings that might be encountered except that, in lieu of the 
requirements of Sec.  817.41 referenced in Sec. Sec.  817.13 and 817.15 
regarding the use of monitoring hole or other openings for water wells, 
the requirements of Sec.  829.41 apply.

Section 829.22 Soils and Other Vegetation-Support Material

    Proposed Sec.  829.22 would provide different requirements than 
those of Sec.  816.22 for reasons discussed below. Under our proposed 
regulations, the operator would be required to select and manage 
vegetation-support materials to achieve a vegetative cover at least 
equal to the existing vegetative cover on the abandoned coal refuse 
site. Proposed Sec.  829.22(b) would apply the requirement of Sec.  
816.22(d)(4) for application of nutrients and soil amendments when 
necessary to establish the vegetative cover.
    The proposed regulation, in part, includes requirements similar to 
those of Sec.  816.22(b) and (e) which apply to surface mining 
operations where existing topsoil is not suitable to sustain 
vegetation. The proposed regulation would not apply the requirements of 
Sec.  816.22(a), (c), and (d), which govern the removal, storage and 
redistribution of topsoil respectively, as most refuse piles have 
little, if any, retrievable topsoil. The proposed regulation at Sec.  
829.22, however, would provide us latitude, on a permit-specific basis, 
to require specific storage and redistribution plans for vegetation-
support material.
    We believe the approach of proposed Sec.  829.22 would reflect the 
soil conditions encountered at the great majority of abandoned coal 
refuse sites. An abandoned coal refuse site usually contains a variety 
of vegetation-support materials that, when enriched with soil 
amendments, would be more suitable for vegetative growth than if the 
vegetation-support materials were left in an unaugmented state. As an 
example, the operator may select weathered earth materials on the 
surface of the abandoned coal refuse pile or refuse site and add 
appropriate soil amendments to produce a material much more suitable 
for sustaining vegetative growth. In this regard, sub-surface materials 
or soil from off the refuse pile or refuse site may also be available 
and better suited for revegetation than the weathered surface materials 
often found on a refuse pile or site. Under the proposed regulation, 
the refuse remining operator would identify, prior to permit approval, 
the vegetation-support material that will be used in reclamation. We 
recognize that sometimes acidic materials may be the only vegetation-
support material available to an operator. In such situations, use of 
acid-tolerant vegetative species and the chemical treatment of the 
vegetative-support materials may be necessary to establish and sustain 
vegetative growth. The operator may use a certified soil scientist to 
certify that the proposed vegetation-support material is equal to or 
better than that existing on the abandoned coal refuse site. This 
certification is not, however, proposed as a requirement.

Section 829.41 Hydrologic-Balance Protection

    Proposed Sec.  829.41(a), which would apply to on-site reprocessing 
operations, would apply most of the requirements of Sec.  816.41, 
hydrologic-balance protection; and Sec.  816.42, hydrologic balance: 
water quality standards and effluent limitations. The proposed rule 
would not apply the requirement in Sec.  816.41(b)(2) to restore 
recharge capacity. Also, in lieu of the requirements of Sec.  780.21(h) 
referenced in Sec.  816.41, the proposed rule would apply the 
requirements of Sec.  786.15(a)(2).
    Because the washing processes associated with on-site reprocessing 
operations often have comparable impacts on surface and ground water 
systems to those caused by other surface coal mining operations, our 
proposed rule would retain existing hydrologic balance performance 
standards. The sole exception is the requirement to restore recharge 
capacity. This requirement is not appropriate to reprocessing 
operations because they neither remove nor replace overburden, nor 
remove or disturb strata that serve as aquifers. Therefore, 
reprocessing does not involve actions that necessitate restoration of 
recharge capacity.
    Proposed Sec.  829.41(b)(1) applies to refuse removal operations 
and would apply most of the principal provisions of Sec.  816.41, 
except for the requirement of Sec.  816.41(b)(2) to restore recharge 
capacity. We believe it is not appropriate to require restoration of 
recharge capacity for sites of removal operations, because, like 
underground mines, removal operations do not remove or replace 
overburden. In order to ensure consistency of requirements related to 
abandoned coal refuse remining operations, the proposed regulation also 
would apply the ground- and surface-water monitoring requirements of 
proposed part 786 instead of those in Sec.  816.41.
    The proposed regulations generally would prohibit discharge of 
waste and water, into underground mine works. These requirements are 
similar to the requirements of Sec.  816.41(i)(2). However, discharges 
from removal operations into underground works may in some cases be 
appropriate. Therefore, proposed Sec.  829.41(b)(iv) would authorize 
discharges into underground mine works if we approve the discharge and 
the operator demonstrates that the operation would meet the following 
requirements of Sec.  816.41(i): The permit would include baseline 
ground-water and geologic information to describe the hydrologic and 
geologic conditions associated with the underground mine works; the PHC 
would address the impacts that the discharges will have on ground- and 
surface-water users; the hydrologic reclamation plan would include 
measures to remediate potential impacts to ground- and surface-water 
users; and provision would be made for monitoring ground- and surface-
water systems.

Section 829.45 Hydrologic Balance: Sediment Control Measures

    Proposed Sec.  829.45 would apply the sediment control requirements 
of Sec.  816.45 except that, in lieu of the requirements of Sec. Sec.  
816.102 and 816.111(b) referenced in Sec.  816.45, the requirements of 
Sec. Sec.  829.102 and 829.111 would apply. See the discussion below of 
Sec. Sec.  829.102 and 829.111.

Section 829.46 Hydrologic Balance: Siltation Structures

    Proposed Sec.  829.46 would apply the requirements of Sec.  816.46 
for siltation structures with the exception of Sec.  816.46(b)(2), 
which is currently suspended. Also, in lieu of the requirements of 
Sec. Sec.  816.42 and 816.49 referenced in section 816.46, the 
requirements of Sec. Sec.  829.41(b) and 829.49 would apply. See the 
discussion infra of Sec. Sec.  829.41(b) and 829.49.

Section 829.49 Impoundments

    Proposed Sec.  829.49 would apply the requirements of Sec. Sec.  
816.49 and 816.56 for impoundments and the rehabilitation of 
sedimentation ponds, diversions, impoundments, and treatment facilities 
except that, in lieu of Sec.  780.25 as referenced in Sec.  816.49, the 
requirements of proposed Sec.  786.14(c), would apply. Furthermore, 
proposed Sec.  829.49(b) would allow the retention of permanent 
impoundments on reclaimed coal refuse in only two circumstances. First, 
the proposed rule would allow

[[Page 2153]]

retention of impoundments that do not have a retaining embankment 
(e.g., dug-out type impoundments). Second, the proposed rule would 
allow the retention of impoundments on non-steep slope locations if the 
impounding structures meet the requirements of Sec.  816.49. A retained 
structure that meets the requirements of Sec.  816.49 would be suitable 
for the approved postmining land use, such as a wetland.
Excess Spoil
    The proposed rule would not apply the excess spoil requirements of 
Sec. Sec.  816.71 through 816.74. Because abandoned coal refuse 
remining operations will not remove overburden in order to extract the 
refuse, they will not generate spoil. Proposed Sec.  829.102 would 
address the grading requirements appropriate to rock and refuse 
disposal.

Section 829.81 Redeposition and Handling of Coal Mine Waste and Coal 
Refuse Piles

    Proposed Sec.  829.81 would apply most of the requirements of Sec.  
816.81, 816.83, and 816.84 for coal mine waste. Proposed Sec.  
829.81(a) would specify that we may, on a site-specific basis, alter 
the ``design certification'' and ``foundation'' standards of Sec.  
816.81(c) and (d), and the inspection requirements of Sec.  816.83(c). 
We are proposing this provision because abandoned coal refuse remining 
operations may occur on refuse sites with different refuse 
characteristics, and for different sites different refuse requirements 
may be appropriate. For example, some refuse remining operations may 
result in total removal of refuse from the site and others may result 
in small amounts of waste being left behind that can be graded into the 
surrounding terrain with little effect on site stability. Still other 
operations may result in relatively significant amounts of material 
being left on the site that would need to be configured during 
reclamation as a mound or refuse pile. And even within the same site, 
different aggregations of refuse material may have different physical 
characteristics and, following weathering, different stability 
characteristics. For example, cohesion is an important factor in slope 
stability analyses and resulting safety factors. Most pre-SMCRA coal 
refuse material has weathered extensively, resulting in finer clay-like 
particle sizes and increased cohesion. However, some refuse material 
has not weathered extensively, so rock sizes are coarse and the refuse 
may have little or no cohesion.
    Because of the wide range in refuse material composition and 
weathering, as well as the varying amount of refuse material that may 
remain on the site following reclamation, we believe that the 
regulatory authority should have the latitude, on a site-specific 
basis, to allow alternate design and foundation standards for handling 
and redeposition of coal refuse. The regulatory authority could, for 
example, require safety factors ranging from 1.3-1.5 in lieu of 
requiring the same value in all cases. For these same reasons, detailed 
site inspections by a professional engineer or other specialist may not 
be warranted in every case. We believe that the regulatory authority 
can best decide, on a site-specific basis, the needed amount of detail 
in the inspection, the required inspection frequency, and/or the 
necessary qualifications of the inspector.
    Proposed Sec.  829.81(b) would provide that refuse waste deposited 
adjacent to the refuse site (i.e., next to the site where the coal 
refuse was originally deposited) must comply with the standards of 
Sec. Sec.  816.81 through 816.84. We believe these standards are 
appropriate because such adjacent disposal would create new coal refuse 
disposal structures.
    Proposed Sec.  829.81(c) authorizes the underground disposal of 
coal refuse waste only when the requirements of both section 816.81(f) 
and proposed Sec.  829.41(b)(1)(i) are met. The rationale for limiting 
the underground disposal of waste solely to refuse removal operations 
is addressed above in the preamble discussion of proposed Sec.  829.41.
    Proposed Sec.  829.81(d) would not apply the 4-foot cover 
requirement of Sec.  816.83(c)(4), because adequate amounts of nontoxic 
and noncombustible cover material are generally not available on 
abandoned coal refuse sites. However, proposed Sec.  829.102, does 
require that any remaining refuse from an abandoned coal refuse 
remining operation must be covered with sufficient noncombustible and 
nontoxic material to prevent sustained combustion. Section 829.81(d) 
would allow us to approve site-specific variations in the amount and 
type of cover material used, to prevent sustained combustion and 
support vegetation.
    Proposed Sec.  829.81(e) would not apply the vegetation removal 
requirement of Sec.  816.83(c)(1) or the permanent impoundment 
prohibition of Sec.  816.83(c)(3), because these two topics are 
addressed in proposed Sec. Sec.  829.22 and 829.49, respectively.
    For placement of coal mine waste, proposed Sec.  829.81(f) would 
apply the requirements of Sec.  816.83(c); except that, in lieu of the 
requirements of Sec.  816.22 referenced in Sec.  816.83(c), the 
requirements of proposed section 829.22 would apply in order to ensure 
consistency of requirements related to abandoned coal refuse remining 
operations.

Section 829.89 Disposal of Noncoal Mine Waste

    Proposed Sec.  829.89(a) would apply the requirements of Sec. Sec.  
816.89(a) and (b) for the disposal of noncoal mine wastes with one 
exception. In lieu of the requirements of Sec. Sec.  816.111 through 
816.116 referenced in section 816.89(b), the operation would be 
required to comply with the cover and vegetation requirements of 
proposed Sec.  829.111.
    Proposed Sec. Sec.  829.89(b) and (c), in lieu of the requirements 
of Sec.  816.89(c), would authorize the disposal of noncombustible 
noncoal mine waste, including coal combustion wastes, within the refuse 
pile if the disposal will not adversely affect final site reclamation 
or public health and safety. This provision recognizes the possible 
benefits of bringing noncombustible alkaline wastes to the site as well 
as the probability of encountering large pieces of abandoned equipment 
or machinery, and would allow on-site disposal of both. We expect that 
the regulatory authority would require the applicant to provide an 
analysis of any noncombustible wastes proposed to be disposed at the 
site and that the regulatory authority would use this analysis to 
determine that the disposal would not adversely affect final site 
reclamation or public health and safety.

Section 829.95 Stabilization of Surface Areas

    Proposed Sec.  829.95 would apply the provisions of Sec.  816.95 
concerning the stabilization of surface areas except that the section 
has been reworded to reflect that vegetation-support material, instead 
of topsoil, would be used to repair rills and gullies.

Section 829.99 Slides and Other Damage

    Proposed Sec.  829.99 would apply the requirements of Sec.  
816.99(b) concerning operator responsibilities if a slide should occur. 
The proposed rule would not apply Sec.  816.99(a), which requires the 
retention of an undisturbed natural barrier. The barrier requirement 
generally applies to contour and mountaintop removal mining operations 
that backfill spoil on the mined-out bench. This barrier provision, 
however, is not appropriate to abandoned coal refuse remining 
operations because these operations do not remove in-place

[[Page 2154]]

rock in order to extract the refuse. Consequently, the opportunity for 
the retention of an undisturbed natural barrier does not exist.

Section 829.100 Contemporaneous Reclamation

    Proposed Sec.  829.100 would apply the requirement of Sec.  816.100 
to reclaim the disturbed area as contemporaneously as practicable with 
the abandoned coal refuse remining operation. In addition, the proposed 
rule would require the permit to establish a schedule for the 
contemporaneous reclamation of the site.
    During the formation of this rulemaking, personnel from OSM, the 
States, industry and the environmental community visited numerous 
abandoned coal refuse sites throughout the country. Some of these sites 
had been remined and reclaimed or were in the process of being 
reclaimed. Other partially remined sites had been abandoned and left 
unreclaimed. In order to minimize the amount of land left unreclaimed 
if a site permitted under this rule is abandoned, we are proposing that 
the permit contain a schedule defining contemporaneous reclamation. A 
schedule would make it possible for the regulatory authority to verify 
that reclamation is proceeding in a timely fashion and to take prompt 
action if there is a question about abandonment.

Section 829.102 Grading

    As discussed below, proposed Sec.  829.102 would apply, with some 
revision, many of the requirements of Sec.  816.102, and would provide 
different requirements than those of Sec. Sec.  816.106 and 816.107. 
The proposed rule would not retain the requirements of Sec. Sec.  
816.102(k), 816.104 and 816.105 because they pertain to removal of thin 
and thick overburden, mountaintop removal, and variances from 
approximate original contour (AOC). These standards all address removal 
and replacement of overburden and, as discussed above, overburden 
removal does not occur in abandoned coal refuse remining operations.
    Proposed Sec.  829.102 also would not apply the requirements of 
Sec.  816.102(a)(1) and (k) for approximate original contour (AOC), the 
requirements of Sec.  816.102(b) and (d) for excess spoil and the 
placement of spoil outside the permit, or the requirements of Sec.  
816.102(i) for permanent impoundments. It is not appropriate to require 
AOC for a remined refuse pile site, because the amount of spoil, rock 
waste, and refuse remaining after refuse remining may be either less 
than or greater than the amount needed to make the site closely 
resemble the general surface configuration of the land prior to the 
original placement of the refuse.
    Because abandoned coal refuse remining operations will not remove 
overburden to extract the refuse, ``spoil,'' as defined in Sec.  701.5, 
will not be generated by these operations. Rather, these operations may 
encounter existing spoil left by the abandoned mine operation. See the 
definition of ``spoil'' in section 701.5, which would encompass any 
existing spoil encountered at an abandoned coal refuse site. The 
proposed references to ``rock waste'' would refer to rock produced from 
such activities as road construction and highwall stabilization.
    More specifically, proposed Sec.  829.102(a) would require that 
grading be done in accordance with the redeposition handling 
requirements of proposed section 829.81. Proposed Sec.  829.102(a) also 
would require that grading activities be completed according to the 
reclamation plan schedule required by proposed Sec.  786.14(a).
    Proposed Sec.  829.102(b) would apply the requirements of Sec.  
816.102(a) except for the requirement to achieve AOC. As discussed 
above, a requirement to achieve AOC is not appropriate because the land 
surface and elevations of abandoned coal refuse remining sites have 
already been altered from their original pre-mined conditions, and 
refuse remining does not remove overburden. Proposed Sec.  829.102(b) 
would apply the 1.3 static safety factor that is required by Sec.  
816.102(a)(3) and 816.102(e).
    The proposed rule would not apply the requirements of Sec.  
816.102(b), (c), and (d), which primarily relate to spoil. As noted 
above, spoil will not be generated by abandoned coal refuse remining 
operations. The requirement of Sec.  816.102(c) to compact waste where 
advisable is duplicative of Sec.  816.81(a), which would be applied to 
abandoned coal refuse remining operations by proposed Sec.  829.81(a).
    Proposed Sec.  829.102(c) would allow land adjacent to the refuse 
remining site to be graded to conform to the remining site. This 
paragraph further requires that vegetation-support material from the 
adjacent area be removed and stored prior to such grading so that it 
will be available for future use at both sites.
    Proposed Sec.  829.102(d) would apply the requirements of section 
816.102(f) concerning covering or treating both exposed coal seams and 
combustible material to prevent sustained combustion. The requirement 
of Sec.  816.102(f) to cover acid- and toxic-forming material would be 
addressed by proposed Sec.  829.41.
    Proposed Sec.  829.102(e), (f), and (g) would generally apply the 
requirements of sections 816.102(g), (h) and (j). The permanent 
impoundments requirements of section 816.102(i) would be addressed at 
Sec.  829.49 and would not be addressed in section 829.102.
    Proposed Sec.  829.102(h) would apply the principal elements of 
Sec.  816.106. Under this proposed provision, highwalls and other 
mining-related rock cuts encountered or uncovered during refuse 
remining operations would be eliminated to the extent technically 
practicable given available backfill material and stability 
considerations. Such rock cuts may exist in refuse sites located in 
valley fills, hillside areas, and strip cuts. The proposed paragraph 
would require that available spoil, rock waste, or refuse from the 
abandoned coal refuse site disturbed by the operation would be used to 
eliminate rock cuts in a safe manner consistent with achieving site 
stability. Proposed Sec.  829.102(h) does not contain an ``other 
reasonably available spoil'' provision comparable to that found in 
Sec.  816.106(b)(1) concerning elimination of highwalls. This provision 
was not included because it could involve disturbance and potential 
destabilization of previously mined areas adjacent to those where the 
refuse remining will occur. While grading of adjacent areas may be 
necessary in some instances for stability purposes, it may not be 
desirable to disturb those areas in other instances, solely to obtain 
backfill material.
    Proposed Sec.  829.102(i) would apply to remining of abandoned coal 
refuse sites located on steep slopes. Unlike Sec.  816.107(c), this 
paragraph would not prohibit disturbing land above the highwall, and 
would allow us to authorize up-slope disturbances when warranted for 
diversions or other operations-related activities. Proposed Sec.  
829.102(i)(1), which prohibits placing specified materials on the 
downslope below the elevation of the refuse site, would be consistent 
with the prohibitions in Sec.  816.107(b) against placing materials on 
the downslope. Proposed Sec.  829.102(i) would impose additional 
requirements to minimize the potential that refuse remining activities 
on steep slopes will result in unstable conditions. More specifically, 
proposed Sec.  829.102(i)(2)(i) would require refuse on steep slopes to 
be removed in horizontal lifts, i.e., in horizontal layers, starting at 
the top of the refuse pile. Proposed Sec.  829.102(i)(2)(ii) further 
would prohibit the removal of the toe of the refuse until the removal 
of refuse by

[[Page 2155]]

horizontal lifts progresses down to that level. Because alternate 
extraction methods may be necessary for some refuse remining sites, 
proposed Sec.  829.102(i)(3) would allow us to waive the requirements 
of Sec.  829.102(i)(2)(i) and (ii) if the permit demonstrates, on the 
basis of stability analyses, that the alternate methods would not 
result in unstable conditions during refuse remining.

Section 829.111 Revegetation, Standards for Success, and Bond Liability 
Period

    Proposed Sec.  829.111 would require compliance with the 
revegetation requirements of Sec. Sec.  816.111(b)-(d), 816.113, and 
816.114, while establishing revegetation success standards and 
responsibility periods that differ from those of Sec.  816.116.
    Proposed Sec.  829.111(a) generally would retain the requirements 
of Sec.  816.111(a), with the exception of the requirement for a 
diverse vegetative cover. Because of limitations often found in the 
quality of the soil or other surface materials at abandoned coal refuse 
sites, proposed paragraph (a) would not include the requirement of 
Sec.  816.111(a)(1) to achieve a diverse cover on regraded areas and 
all other disturbed areas. For sites that are currently barren or 
sparsely vegetated, the proposal would require that the operator 
establish sufficient vegetation to stabilize the surface area. Such 
stabilization of the surface area should be attainable using surface 
materials found at the site, augmented by soil amendments and, where 
necessary, by additional soil brought in from borrow areas. This 
requirement for sufficient vegetation to stabilize the surface area is 
comparable to existing requirements for AML refuse reclamation 
projects. Proposed Sec.  829.111(b) and (c) would require that the 
operator stabilize the surface from erosion in accordance with proposed 
Sec.  829.95 and establish a vegetative cover no less than that which 
existed on the site prior to the abandoned coal refuse remining 
operation. In our field review of abandoned coal refuse sites, we found 
that many sites had little or no ground cover. When there was ground 
cover at these sites, the cover most often consisted of only a few 
species. Other abandoned coal refuse sites were reforested with a full 
tree canopy or contained wetlands with an extensive cover of marsh 
vegetation, often of a single species that developed on slurry ponds. 
In light of these observations, the proposed rule would require that 
erosion be stabilized and a vegetative cover be established that is no 
less than that encountered at the site prior to remining.
    Proposed Sec.  829.111(d) would incorporate Sec.  816.116(c), which 
establishes the revegetation responsibility period and contains certain 
related requirements pertaining to the evaluation of revegetation 
success, with two modifications. As proposed, the rule would establish 
a revegetation responsibility period of two full years after the last 
year of augmented seeding, fertilizing, irrigating or other work for 
areas with an average annual precipitation greater than 26.0 inches. 
The responsibility period would be five full years after the last year 
of augmented seeding, fertilizing, irrigating or other work for areas 
with an average annual precipitation equal to or less than 26.0 inches.
    At present, Sec.  816.116(c)(2) contains two responsibility periods 
for areas with an average annual precipitation greater than 26.0 
inches. Under paragraph (c)(2)(i), the period is five full years after 
the last year of augmented seeding, fertilizing, irrigating or other 
work; but paragraph (c)(2)(ii) reduces that period to two full years 
for lands eligible for remining if those lands are included in a permit 
issued under 30 CFR 785.25. Similarly, Sec.  816.116(c)(3) currently 
contains two responsibility periods for areas with an average annual 
precipitation equal to or less than 26.0 inches. Under paragraph 
(c)(3)(i), the period is ten full years after the last year of 
augmented seeding, fertilizing, irrigating or other work; but paragraph 
(c)(3)(ii) reduces that period to five full years for lands eligible 
for remining if those lands are included in a permit issued under 30 
CFR 785.25.
    The shortened revegetation responsibility periods in paragraphs 
(c)(2)(ii) and (c)(3)(ii) of Sec.  816.116 correspond to a provision in 
section 2503(b) of the Energy Policy Act of 1992 that added similar 
language to section 515(b)(20) of SMCRA as an incentive for remining 
operations.

Section 829.133 Postmining Land Use

    Proposed Sec.  829.133 would provide different requirements for 
postmining land use than those of Sec.  816.133 which sets forth 
detailed criteria for determining premining uses of the land as well as 
detailed criteria for alternative postmining land uses. In lieu of 
these existing provisions, the proposed rule would require that all 
areas disturbed by abandoned coal refuse remining operations be 
restored to a condition capable of supporting the uses or higher or 
better uses than those that existed at the abandoned coal refuse site 
prior to commencement of the refuse remining operations.
    Our proposal to require that the operator restore the abandoned 
coal refuse site to a condition capable of supporting an equivalent or 
higher or better use than that which existed before the remining 
operation is a function of the physical characteristics typically 
encountered at abandoned coal refuse sites. Most abandoned coal refuse 
sites pose environmental problems and are eligible for reclamation and 
acid mine drainage abatement under the Abandoned Mine Land Reclamation 
Fund. The range of environmental and safety problems typically found at 
these sites includes acid mine drainage and acid ponds, dust and 
erosion, unstable conditions, slides, lack of topsoil, refuse fires, 
etc. Many of these sites are little more than ``moonscapes'' where the 
existing vegetative cover is dramatically less than what one would 
ordinarily expect from an undeveloped land use. In such cases, the 
cost-effective postmining land use options available to the site are 
extremely limited. Accordingly, our proposed rule would require the 
site at least to be stabilized and covered with vegetation that would 
grow in available vegetative-support material and in a manner similar 
to the reclamation done under the AML program. In some cases, 
revegetation will involve planting wetland species, whereas in other 
cases, acid-tolerant species will be planted as the only species 
capable of achieving revegetation. In all cases, the site must be 
restored to a condition capable of supporting at least an equivalent 
use or a higher or better use than that which existed at the time of 
the abandoned coal refuse remining operation.

III. Public Comment Procedures

    Electronic or Written Comments: If you submit written comments, 
they should be specific, confined to issues pertinent to the proposed 
regulations, and explain the reason for any recommended change(s). We 
appreciate any and all comments, but those most useful and likely to 
influence decisions on the final regulations will be those that either 
involve personal experience or include citations to and analyses of 
SMCRA, its legislative history, its implementing regulations, case law, 
other pertinent State or Federal laws or regulations, technical 
literature, or other relevant publications.
    Except for comments provided in an electronic format, you should 
submit three copies of your comments if possible. We cannot ensure that 
comments received after the close of the comment period (see DATES) or 
at

[[Page 2156]]

locations other than those listed above (see ADDRESSES) will be 
considered or included in the Administrative Record.
    Availability of Comments: Our practice is to make comments, 
including names and home addresses of respondents, available for public 
review during regular business hours at the OSM Administrative Record 
Room (see ADDRESSES). Individual respondents may request that we 
withhold their home address from the rulemaking record, which we will 
honor to the extent allowable by law. There also may be circumstances 
in which we would withhold from the rulemaking record a respondent's 
identity, to the extent allowed by law. If you wish us to withhold your 
name and/or address, you must state this prominently at the beginning 
of your comment and you must submit your comment by regular mail, not 
by e-mail. We will make all submissions from organizations or 
businesses, and from individuals identifying themselves as 
representatives or officials of organizations or businesses, available 
for public inspection in their entirety.
    Public hearings: We will hold a public hearing on the proposed 
regulations upon request only. The time, date, and address for any 
hearing will be announced in the Federal Register at least 7 days prior 
to the hearing.
    Any person interested in participating at a hearing should inform 
Andy DeVito (see FOR FURTHER INFORMATION CONTACT), either orally or in 
writing by 4:30 p.m., Eastern time, on February 7, 2007. Any disabled 
individual who requires special accommodation to attend a public 
hearing should also contact Andy DeVito so that appropriate 
arrangements can be made.
    If no one has contacted Mr. DeVito to express an interest in 
participating in a hearing by that date, a hearing will not be held. If 
only one person expresses an interest, a public meeting rather than a 
hearing may be held, with the results included in the Administrative 
Record.
    The public hearing will continue on the specified date until all 
persons scheduled to speak have been heard. If you are in the audience 
and have not been scheduled to speak and wish to do so, you will be 
allowed to speak after those who have been scheduled. We will end the 
hearing after all persons scheduled to speak and persons present in the 
audience who wish to speak have been heard. To assist the transcriber 
and ensure an accurate record, we request, if possible, that each 
person who testifies at a public hearing provide us with a written copy 
of his or her testimony.

IV. Procedural Matters

What Are the Effects of This Rule on Federal Program States and on 
Indian Lands?

    The proposed revisions, if adopted, will apply through cross-
referencing in those States with Federal programs: California, Georgia, 
Idaho, Massachusetts, Michigan, North Carolina, Oregon, Rhode Island, 
South Dakota, Tennessee, and Washington. The Federal programs for these 
States appear at 30 CFR parts 905, 910, 912, 921, 922, 933, 937, 939, 
941, 942, and 947, respectively. The proposed regulations, if adopted, 
will also apply through cross-referencing to abandoned coal refuse 
remining operations on Indian lands, because we will amend the 
regulations in parts 750 and 785 for the purpose of incorporating by 
reference parts 786 and 829 into the programs for Indian lands and the 
Federal program States. Comments are specifically solicited as to 
whether unique conditions exist in any of these Federal program States 
or on Indian lands relating to this proposal that should be reflected 
either as changes to the national regulations or as specific amendments 
to any or all of the Federal programs or the Indian lands program.

How Will This Rule Affect State Programs?

    Following publication of the final regulations, we will evaluate 
the State programs approved under section 503 of SMCRA to determine if 
any changes in those programs may be necessary. When we determine that 
a State program should be amended, the particular State will be 
notified in accordance with the provisions of 30 CFR 732.17. On the 
basis of the proposed regulations, we have made a preliminary 
determination that States may adopt similar regulations if they choose 
to, but we will not require them to amend their programs.
    Section 529 of SMCRA authorizes the Secretary to promulgate 
separate regulations for anthracite coal mines. That provision is 
implemented through Sec.  785.11 for permitting requirements and part 
820 for performance standards. The Federal regulatory requirements 
essentially incorporate the anthracite program of the Commonwealth of 
Pennsylvania. That program, therefore, applies to anthracite culm banks 
and refuse piles. No change to Sec.  785.11 or part 820 is considered 
necessary to apply these proposed regulations to anthracite refuse 
sites. Once proposed regulations for abandoned coal refuse remining 
operations are finalized, Pennsylvania may modify its anthracite 
program in accordance with part 732 to incorporate the provisions 
provided herein in order to facilitate the removal and/or reprocessing 
of anthracite refuse sites.

Executive Order 12866--Regulatory Planning and Review

    These regulations are considered significant and are subject to 
review by the Office of Management and Budget under Executive Order 
12866.
    a. The regulations may raise novel legal or policy issues, which is 
the reason why they are considered significant under Executive Order 
12866.
    b. The regulations would not create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency.
    c. The regulations would not alter the budgetary effects of 
entitlements, grants, user fees, or loan programs or the rights or 
obligations of their recipients.
    d. The regulations will not have an effect of $100 million or more 
on the economy. They will not adversely affect in a material way the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, Tribal, or local governments or 
communities. The proposed regulations will not have an adverse economic 
impact on the coal industry or State regulatory authorities. This 
determination is based on the fact that the proposed regulations will 
facilitate the removal and/or reprocessing of coal refuse piles, 
abandoned prior to the enactment of SMCRA, by private industry for use 
as fuel for electric power generation. Coal refuse removal and 
reprocessing operations conducted under the new regulations are by 
choice. It is expected that such operations will result in significant 
positive benefits, both tangible and intangible. The benefits of such 
operations include:
Elimination of Health and Safety Problems
    Serious health and safety problems are associated with refuse 
disposal sites. These problems include:
    Refuse piles placed on hillsides, such as exist throughout 
Appalachia, may be unstable and slip, resulting in landslides.
    Refuse is often easily combustible because of its significant coal 
content. As a result, burning refuse banks have been serious problems, 
both in terms of the noxious fumes emitted and the potential for fires 
spreading to adjacent areas and to nearby residences. Most of the 
burning piles have been reclaimed using AML Fund monies, but 
unreclaimed refuse piles have the

[[Page 2157]]

potential for catching on fire and becoming a hazard.
    Refuse piles are attractive for off-road vehicle use which, because 
of the piles' unstable and steep slopes, can result in injury and even 
death.
    Automobile accidents have been reported where dirt and rock have 
washed across highways from an adjacent abandoned refuse pile.
    Many of these hazards will be eliminated by the removal and 
reclamation of the refuse piles that will be facilitated by the 
proposed regulations.
Elimination or Reduction of Existing Ongoing Environmental Problems
    Refuse pile removal, followed by grading and revegetating the site, 
will eliminate or significantly reduce environmental problems 
associated with such piles including (1) Acid drainage and pollution of 
adjacent streams resulting from the large amounts of pyritic materials 
that are often present; (2) uncontrolled erosion resulting in stream 
siltation and downstream flooding; and (3) diminished aesthetic 
qualities.
Establishment of Vegetative-Support Material and Vegetative Cover
    There is generally little or no topsoil existing on the surface of 
abandoned refuse sites. Typically, the topsoil was either buried or 
lost during the original refuse placement. Vegetation may be sparse and 
vary widely throughout the site. Removal of refuse material followed by 
reclamation of the site would allow identification of more suitable 
vegetation-support materials such as weathered earth or sub-surface 
materials that, with appropriate soil amendments, would be more 
suitable for vegetative growth than the existing vegetation-support 
materials without soil amendments. OSM recognizes that sometimes acidic 
materials are the only vegetation-support material available to an 
operator. In such situations, use of acid-tolerant vegetative species 
may be necessary in addition to surface treatment with chemicals. The 
end result would be establishment of a vegetative cover sufficient to 
prevent erosion and sedimentation, and compatible with a higher land 
use.
Recovery of Lost Coal Values
    Refuse piles may have a carbon content ranging from a low of 27.5 
percent to a high of 98.9 percent of the original coal values that were 
mined. Recovery of these formerly ``lost'' coal values, either by 
reprocessing or by directly burning the refuse, in a sense increases 
the nation's coal resources. Since the percentage of recoverable coal 
varies widely, we are, for computation purposes, assuming that the coal 
refuse, on average, contains from 5,000 to 8,000 Btu/lb, or about half 
the Btu value of bituminous coal. Therefore, the 9 million tons of 
refuse projected to be recovered/utilized annually represents, 
theoretically, at least 4.5 million tons of coal that could be added to 
the coal reserve base each year.
Reclamation Without Recourse to Limited Abandoned Mine Land Funds
    Available data on reclaiming refuse sites indicates that the 
average reclamation costs will range from $200 to $70,000 per acre. 
These data also indicate that, depending on its size and configuration, 
a refuse pile contains approximately 40,000 tons of refuse per acre. 
Assuming that the analysis provided in the previous paragraph is 
reasonable, the 9 million tons of refuse projected to be recovered 
annually equates to 222 acres reclaimed annually. Reclamation costs for 
these 222 acres are estimated, using an average cost of $14,797 per 
acre, to be $3.3 million. Therefore, there is the potential for an 
estimated annual savings of $3.3 million in AML fund expenditures 
because government will be relieved of most reclamation costs for sites 
remined under the proposed regulations.
Increased Employment
    It is projected that refuse burning power plants will be fueled by 
20-22 refuse removal/reprocessing operations that will be active at any 
given time. Four categories of employees that will be working at either 
the co-generation stations or the refuse recovery operations have been 
identified. These categories include the construction workers for 
building new power generating stations; the power plant employees; 
refuse removal/reprocessing operation employees; and truck drivers.
Increased and Improved Variety of Potential Land Uses
    Land use alternatives for these reclaimed sites could include, for 
example, returning the site to a forest, grassy field, or wildlife 
habitat that existed prior to mining; or creating areas that will allow 
residential or commercial development, or construction of parks, ball 
fields, gun clubs or other sports facilities.
    Numerous examples of these uses for former refuse sites abound 
throughout the coal regions. It is expected that such uses will be 
enhanced by the proposed regulations.
Enhancement of Local Quality of Life and Adjacent Property Values
    Removal or reprocessing these refuse sites will have a significant 
synergistic effect in that, by eliminating the attendant health, 
safety, and environmental problems, land use alternatives at the site 
will increase, the quality of life in nearby communities will be 
improved, and, it is anticipated, adjacent property values will often 
be enhanced.
Costs Associated With the Rule
    Once fully implemented, the annual costs of this rule is estimated 
to be approximately $624,000 per year. That figure is based on an 
assumption that approximately 16 permit applications will be submitted 
each year under this rule and that it will cost each applicant $28,000 
to prepare a permit application, and $11,000 for a regulatory authority 
to review and approve the application. Costs resulting from the rule 
would include the following:
     Industry costs. We estimate that annually, approximately 
16 companies will apply for permits under these regulations. The 
estimated cost to prepare a permit application under the proposed 
regulations is approximately $28,000 per applicant. This estimate is 
based on the burden hours associated with the regulatory wage hour 
requirements in the rule multiplied by industry compliance costs of 
$60.00 per hour. See the burden hour tables below in the section on the 
Paperwork Reduction Act. Permit applicant costs would be covered by the 
profits derived from the sale of the coal removed.
     State Costs. There would be costs to those States that 
decide to issue equivalent State regulations. We estimate that 
approximately 7-10 States may voluntarily decide to promulgate 
equivalent State regulations. Fifty percent of State costs would be 
covered by the annual regulatory grant to the State from the Federal 
government. Costs would vary by State; however, grants to the States do 
not have per regulation cost breakdown. We can estimate that it will 
cost a State approximately $4500 to promulgate regulations and submit a 
State program amendment to OSM. This estimate is based on the burden 
hours associated with the regulatory requirements in 30 CFR 732.17 for 
submitting a State program amendment. The State cost is then reduced by 
50 percent to $4,500 as a result of the annual regulatory grant given 
to the State by OSM. In addition, it will cost States approximately 
$11,000 to review and approve an application submitted under the

[[Page 2158]]

proposed regulations. This estimate is based on the burden hours 
associated with the regulatory requirements in the rule multiplied by 
State compliance costs of $45.00 per hour. See the burden hour tables 
below in the section on the Paperwork Reduction Act.
     Federal Costs. There would be costs to the Federal 
government in reviewing and approving submitted State program 
amendments. Data for FY 2005, available from OSM's cost accounting 
system, indicates that the average cost to process a proposed State 
program amendment is approximately $830.00 and for a final rule, 
$6,120. If 10 States were to submit proposed and final State program 
amendments the cost to the Federal Government would be approximately 
$130,700 (10 x [$830 + $6,120] = $130,700).

Regulatory Flexibility Act

    The Department of the Interior certifies that these regulations 
will not have a significant economic impact on a substantial number of 
small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.). For the reasons previously stated, the proposed regulations will 
not have an adverse economic impact on the coal industry or State 
regulatory authorities. Further, the regulations will not produce 
adverse effects on competition, employment, investment, productivity, 
innovation, or the ability of United States enterprises to compete with 
foreign-based enterprises in domestic or export markets.

Small Business Regulatory Enforcement Fairness Act

    For the reasons previously stated, the regulations are not 
considered ``major'' under 5 U.S.C. 804(2), the Small Business 
Regulatory Enforcement Fairness Act. The regulations:
    a. Do not have an annual effect on the economy of $100 million or 
more.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions.
    c. Do not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises for 
the reasons stated above.

Unfunded Mandates

    These regulations do not impose an unfunded mandate on State, 
Tribal, or local governments or the private sector of more than $100 
million per year. The regulations do not have a significant or unique 
effect on State, Tribal, or local governments or the private sector. A 
statement containing the information required by the Unfunded Mandates 
Reform Act (2 U.S.C. 1501 et seq.) is not required.

Executive Order 12630--Takings

    In accordance with Executive Order 12630, the regulations do not 
have takings implications to require a takings implication analysis.

Executive Order 12988--Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that the regulations do not unduly burden the 
judicial system and that they meet the requirements of sections 3(a) 
and 3(b)(2) of the Order.

Executive Order 13132--Federalism

    In accordance with Executive Order 13132, the regulations do not 
have Federalism implications sufficient to warrant the preparation of a 
Federalism Assessment for the reasons discussed above.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of these regulations on Federally-recognized Indian 
tribes and have determined that the proposed additions of parts 786 and 
829 would not have substantial direct effects on the relationship 
between the Federal Government and Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
Government and Indian Tribes.

Executive Order 13211--Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    These regulations are not considered a significant energy action 
under Executive Order 13211. The proposed additions of parts 786 and 
829 would not have a significant effect on the supply, distribution, or 
use of energy.

Paperwork Reduction Act

    In accordance with 44 U.S.C. 3507(d), OSM has submitted the 
information collection and recordkeeping requirements of 30 CFR parts 
786 and 829 to the Office of Management and Budget (OMB) for review and 
approval.
30 CFR Part 786
    Title: Requirements for Permits for Abandoned Coal Refuse Remining 
Operations--30 CFR part 786.
    OMB Control Number: 1029-XXX1.
    Summary:Proposed 30 CFR part 786 sets forth the requirements for 
obtaining a permit for abandoned coal refuse remining operations. The 
requirements would ensure that the permit applicant obtains a permit to 
conduct an abandoned coal refuse remining operation in accordance with 
the requirements of the Surface Mining Control and Reclamation Act of 
1977 (SMCRA), as amended by the Energy Policy Act of 1992 (EPAct).
    Bureau Form Number: None.
    Frequency of Collection: Once.
    Description of Respondents: 16 Surface coal mining permit 
applicants and 15 State regulatory authorities.
    Total Annual Responses: 31.
    Total Annual Burden Hours: 10,542.

                               Summary Annual Burden to Respondents for 30 CFR 786
----------------------------------------------------------------------------------------------------------------
                                     Number of       Hours per       Number of       Hours per      Total hours
             Section                applicants       applicant        States           State         requested
----------------------------------------------------------------------------------------------------------------
786.12(a).......................              16              25              15               5             475
786.12(b) & (c).................              16              17              15               1             287
786.12(d).......................              16              16              15               6             346
786.12(e).......................              16              35              15              20             860
786.13(a).......................              16              15              15               5             315
786.13(b).......................              16               8               2             158
786.13(c).......................               2               4               2               2              12
786.13(d).......................              16              40              15              20             940
786.13(e).......................               2               3               2               1               8
786.13(f).......................              16               8              15               4             188
786.13(g).......................              16               8              15               4             188

[[Page 2159]]

 
786.14(a).......................              16              60              15              40           1,560
786.14(b).......................              16              10              15               5             235
786.14(c).......................              16              25              15              10             550
786.14(d).......................               8              30               8               5             280
786.14(e).......................              16              30              15              20             780
786.15..........................              16              75              15              50           1,950
786.16..........................              16              30              15              20             780
786.17..........................              16              30              15              10             630
                                 -------------------------------------------------------------------------------
    Total.......................  ..............  ..............  ..............  ..............          10,542
----------------------------------------------------------------------------------------------------------------

    Total Non-Wage Burden Costs: $77,560.

                            Summary Annual Non-Wage Cost to Respondent for 30 CFR 786
----------------------------------------------------------------------------------------------------------------
                                                                  Number of         Cost per
                           Section                                applicants       applicant       Total costs
----------------------------------------------------------------------------------------------------------------
786.12(a)....................................................               16               50              800
786.12(b) & (c)..............................................               16               50              800
786.12(d)....................................................               16               50              800
786.12(e)....................................................               16               50              800
786.13(a)....................................................               16               50              800
786.13(b)....................................................               16               50              800
786.13(c)....................................................                2              100              200
786.13(d)....................................................               16              120            1,920
786.13(e)....................................................                2               20               40
786.13(f)....................................................               16              100            1,600
786.13(g)....................................................               16              200            3,200
786.14(a)....................................................               16              600            9,600
786.14(b)....................................................               16               25              400
786.14(c)....................................................               16              300            4,800
786.14(d)....................................................                8               25              200
786.14(e)....................................................               16              145            2,320
786.15.......................................................               16            2,000           32,000
786.16.......................................................               16            1,000           16,000
786.17.......................................................               16               30              480
                                                              --------------------------------------------------
    Total....................................................  ...............  ...............           77,560
----------------------------------------------------------------------------------------------------------------

30 CFR part 829
    Title: Special Permanent Program Performance Standards--Abandoned 
Coal Refuse Remining Operations--30 CFR part 829.
    OMB Control Number: 1029-XXX2.
    Summary: Proposed 30 CFR part 829 sets forth the minimum 
environmental protection performance standards and would require 
periodic submission of performance data or inspection surveys that 
would apply to abandoned coal refuse remining operations. These 
regulations would implement sections 515 and 516 of SMCRA, as amended 
by EPAct.
    Bureau Form Number: None.
    Frequency of Collection: Once and quarterly.
    Description of Respondents: 22 Surface coal mining operators and 22 
State regulatory authorities.
    Total Annual Responses: 44.
    Total Annual Burden Hours: 4,372.

                               Summary Annual Burden to Respondents for 30 CFR 829
----------------------------------------------------------------------------------------------------------------
                                     Number of       Hours per       Number of       Hours per     Total  hours
             Section                 operators       operator         states           state         requested
----------------------------------------------------------------------------------------------------------------
.3..............................              22  ..............              22  ..............           2,200
(i).............................              22              16               0               0             352
(iii)...........................               0               0              22              20             440
(vi)............................               4             120               0               0             480
(vii)...........................               4               4               0               0              16
(ix)............................               4              50               0               0             200
(x).............................               4              12               0               0              48
(xii)...........................              22              12               0               0             264
(xiv)...........................               4              16               0               0              64

[[Page 2160]]

 
(xvii)..........................              22              15               0               0             330
.41.............................              22              80               0               0           1,760
.49.............................              22              16               0               0             352
.81.............................               4              15               0               0              60
                                 -------------------------------------------------------------------------------
    Total.......................  ..............  ..............  ..............  ..............           4,372
----------------------------------------------------------------------------------------------------------------

    Total Non-Wage Burden Costs: $4,400.

                          Summary of Annual Non-Wage Cost to Respondents for 30 CFR 829
----------------------------------------------------------------------------------------------------------------
                                                                                                    Total  non-
             Section                 Number of       Cost per        Number of       Cost per       wage costs
                                     operators       operator         states           state         requested
----------------------------------------------------------------------------------------------------------------
.3..............................              22             150               0               0           3,300
.41.............................               0               0               0               0               0
.49.............................              22              50               0               0           1,100
.81.............................               0               0               0               0               0
                                 -------------------------------------------------------------------------------
    Total.......................  ..............  ..............  ..............  ..............           4,400
----------------------------------------------------------------------------------------------------------------

    Comments are invited on:
    (a) Whether the proposed collection of information is necessary for 
the proper performance of OSM and State regulatory authorities, 
including whether the information will have practical utility;
    (b) The accuracy of OSM's estimate of the burden of the proposed 
collection of information;
    (c) Ways to enhance the quality, utility, and clarity of the 
information to be collected; and
    (d) Ways to minimize the burden of collection on the respondents.
    Under the Paperwork Reduction Act, OSM must obtain OMB approval of 
all information and recordkeeping requirements. No person is required 
to respond to an information collection request unless the form or 
regulation requesting the information has a currently valid OMB control 
(clearance) number. These numbers appear in Sec. Sec.  786.10 and 
829.10. To obtain a copy of OSM's information collection clearance 
requests, explanatory information, and related forms, contact John A. 
Trelease at (202) 208-2783 or by e-mail at [email protected].
    By law, OMB must respond to OSM's request for approval within 60 
days of publication of these proposed regulations, but may respond as 
soon as 30 days after publication. Therefore, to ensure consideration 
by OMB, you must send comments regarding these burden estimates or any 
other aspect of these information collection and recordkeeping 
requirements by February 16, 2007, to the Office of Management and 
Budget, Office of Information and Regulatory Affairs, Attention: 
Interior Desk Officer, via e-mail to [email protected], or via 
facsimile to (202) 395-6566. Also, please send a copy of your comments 
to John A. Trelease, Office of Surface Mining Reclamation and 
Enforcement, Room 210--SIB, 1951 Constitution Ave, NW., Washington, DC 
20240, or electronically to [email protected].

National Environmental Policy Act

    We have prepared a draft environmental assessment (EA) of the 
proposed regulations as required by the procedures implementing the 
National Environmental Policy Act of 1969 (NEPA). We have made a 
tentative determination that the proposed regulations would enhance 
reclamation of abandoned coal refuse piles while guaranteeing 
environmental protection to the same level provided under sections 515 
and 516 of SMCRA. We anticipate that a finding of no significant impact 
will be made for the final regulations in accordance with our 
procedures under NEPA. The EA is on file in the OSM Administrative 
Record at the address specified previously (see ADDRESSES). The EA will 
be completed and a finding made on the significance of any resulting 
impacts before we publish the final regulations.

Clarity of This Regulation

    Executive Order 12866 requires each agency to write regulations 
that are easy to understand. We invite your comments on how to make the 
proposed regulations easier to understand, including answers to 
questions such as the following: (1) Are the requirements in the 
proposed regulations clearly stated? (2) Do the proposed regulations 
contain technical language or jargon that interferes with its clarity? 
(3) Does the format of the proposed regulations (grouping and order of 
sections, use of headings, paragraphing, etc.) aid or reduce their 
clarity? (4) Would the regulations be easier to understand if they were 
divided into more (but shorter) sections (a ``section'' appears in bold 
type and is preceded by the symbol ``Sec.  '' and a numbered heading; 
for example, Sec.  786.11)? (5) Is the description of the proposed 
regulations in the SUPPLEMENTARY INFORMATION section of this preamble 
helpful in understanding the proposed regulations? (6) What else could 
we do to make the proposed regulations easier to understand? Send a 
copy of any comments that concern how we could make the proposed 
regulations easier to understand to: Office of Regulatory Affairs, 
Department of the Interior, Room 7229, 1849 C Street, NW., Washington, 
DC 20240. You may also e-mail the comments to this address: 
[email protected].

[[Page 2161]]

List of Subjects

30 CFR Part 701

    Law enforcement, Surface mining, Underground mining.

30 CFR Part 786

    Reporting and recordkeeping requirements, Surface mining, 
Underground mining.

30 CFR Part 829

    Reporting and recordkeeping requirements, Environmental protection, 
Surface mining.

    Dated: May 19, 2006.
Julie A. Jacobson,
Deputy Assistant Secretary, Land and Minerals Management.

    For the reasons discussed in the preamble, the Office of Surface 
Mining proposes to amend 30 CFR Chapter VII as set forth below:

PART 701--PERMANENT REGULATORY PROGRAM

    1. The authority citation for part 701 continues to read as 
follows:

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

    2. Section 701.5, is amended by adding alphabetically the 
definition of ``abandoned coal refuse remining operations'' to read as 
follows:


Sec.  701.5  Definitions.

* * * * *
    Abandoned coal refuse remining operations means those surface 
mining activities for the on-site reprocessing of abandoned coal refuse 
and for the removal of abandoned coal refuse on lands that would 
otherwise be eligible for expenditure under section 404 and section 
402(g)(4) of the Act. Reprocessing operations include on-site 
activities that separate the coal from waste material using specific 
gravity or floatation methods, as well as activities that use 
mechanical means to sort and size the refuse material prior to 
separation. Removal operations include on-site activities that remove 
refuse from the site as well as those activities that use mechanical 
means to sort and size the refuse material prior to its removal. The 
term ``abandoned coal refuse remining operations'' does not encompass 
the removal of refuse for non-fuel uses.
* * * * *
    3. Add part 786 to read as follows:

PART 786--REQUIREMENTS FOR PERMITS FOR ABANDONED COAL REFUSE 
REMINING OPERATIONS

Sec.
786.1 Scope.
786.2 Objectives.
786.3 Definitions.
786.10 Information collection.
786.11 General requirements.
786.12 Information on environmental resources.
786.13 Information on operation plans.
786.14 Information on reclamation plans.
786.15 Information on hydrology.
786.16 Information on geology and refuse.
786.17 Information on roads and support facilities.

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


Sec.  786.1  Scope.

    This part sets forth requirements for obtaining a permit for 
abandoned coal refuse remining operations. Unless otherwise specified 
in this part, the requirements of this part apply to removal and 
reprocessing operations. As used throughout this part, the pronouns 
``we'', ``our'', and ``us'' refer to the regulatory authority and the 
pronouns ``you'' and ``your'' refer to the applicant and operator.


Sec.  786.2  Objectives.

    The objective of this part is to ensure that you obtain a permit to 
conduct your abandoned coal refuse remining operations in accordance 
with the requirements of the Surface Mining Control and Reclamation Act 
of 1977, as amended by the Energy Policy Act of 1992.


Sec.  786.3  Definitions.

    As used in this part, the term:
    Best management practices (BMPs) means schedules of activities, 
operating and maintenance procedures, treatment requirements, practices 
or prohibition of practices that have as their goal preventing or 
reducing chemical pollution to off-site surface or ground water, and 
controlling excessive sediment concentrations to off-site surface 
water.


Sec.  786.10  Information collection.

    The collections of information contained in part 786 have been 
approved by the Office of Management and Budget (OMB) under 44 U.S.C. 
3501 et seq. and assigned clearance number 1029-XXX1. We will use the 
information collected to determine if a permit to conduct abandoned 
coal refuse remining operations should be issued and to ensure that 
such operations are conducted in accordance with the requirements of 
Act. A federal agency may not conduct or sponsor, and you are not 
required to respond to, a collection of information unless it displays 
a currently valid OMB control number. Response is required to obtain a 
benefit in accordance with Public Law 95-87. Send comments regarding 
burden estimates or any other aspect of this collection of information, 
including suggestions for reducing the burden, to the Office of Surface 
Mining Reclamation and Enforcement, Information Collection Clearance 
Officer, Room 210-SIB, 1951 Constitution Avenue, NW., Washington, DC 
20240.


Sec.  786.11  General requirements.

    An abandoned coal refuse remining operation, as defined in Sec.  
701.5 of this chapter, includes both reprocessing operations and 
removal operations. If you intend to conduct an abandoned coal refuse 
remining operation, then you must submit a permit application that 
contains the information required by subchapter G except that part 786 
applies in lieu of the information required for surface mining 
activities under parts 779 and 780 of this chapter, or the information 
required for underground mining activities under parts 783 and 784 of 
this chapter. Your permit application must also demonstrate that the 
operation will be conducted in compliance with the performance 
standards of part 829 of this chapter. You may not begin a remining 
operation until we have issued you a permit.


Sec.  786.12  Information on environmental resources.

    (a) General and climatological information. Your permit application 
must include the information required under Sec. Sec.  779.11, 779.12, 
and 779.18 of this chapter.
    (b) Vegetation information requirements. Your permit application 
must contain photographs and a written description of the vegetative 
cover prior to redisturbance. The photographs and written description 
must be in sufficient detail to estimate the vegetative ground cover 
and species diversity on the abandoned coal refuse site.
    (c) Soil resources and other vegetation-support material 
information requirements. Your permit application must provide 
information about soil or other vegetation-support material for the 
permit area, and the adjacent area if required, that is sufficient to 
assure us that suitable soil materials will be available to achieve the 
vegetative cover and species diversity approved in the reclamation 
plan.
    (d) Maps: general requirements. Your permit application must 
include the information required under Sec.  779.24 of this chapter 
except as follows:
    (1) If you do not plan to blast, in lieu of the information 
required by Sec.  779.24(d) of this chapter, you must provide the 
location, with identification

[[Page 2162]]

of the current use, of all buildings on and within 300 feet of the 
proposed permit;
    (2) If you plan to blast, you must provide the location, with 
identification of the current use, of all buildings on and within 1000 
feet of the proposed permit area, provided that this additional map 
coverage may be submitted with the anticipated blast design required in 
Sec.  816.61 of this chapter; and
    (3) The requirements of Sec.  779.24(f) of this chapter, do not 
apply.
    (e) Cross sections, maps, and plans. Your permit application must 
include the information required under Sec.  779.25 of this chapter, 
except as follows:
    (1) For operations on steep slopes, instead of the information 
required by Sec.  779.25(a)(3) of this chapter, you must include 
typical cross sections showing the projected ground line underlying the 
refuse, adjacent ground line, and the surface of the refuse;
    (2) Instead of the information required by Sec.  779.25(a)(4) of 
this chapter, you must include cross sections, maps, and plans that 
show the coal crop lines and the strike and dip of coal seams that 
outcrop within the proposed permit area; and
    (3) The requirements of Sec.  779.25(a)(6) of this chapter do not 
apply.


Sec.  786.13  Information on operation plans.

    (a) General requirements. Your permit application must contain a 
description of the abandoned coal refuse remining operations proposed 
to be conducted during the life of the operations within the proposed 
permit area. At a minimum, you must include the following:
    (1) A narrative description of the type and method of proposed 
engineering techniques, the anticipated annual and total tonnage of 
refuse removed and/or reprocessed, and the major equipment to be used 
for all aspects of those operations; and
    (2) Separate narratives for removal operations and reprocessing 
operations. Your narratives must identify the facilities associated 
with those operations and explain the construction, modification, use, 
maintenance, and removal of the facilities associated with removal 
operations and with reprocessing operations (unless retention of such 
facilities is necessary for the postmining land use as specified in 
part 829 of this chapter). The facilities include:
    (i) Dams, embankments, and other impoundments;
    (ii) Refuse handling, storage, and transportation areas and 
structures;
    (iii) Refuse and noncoal waste screening, removal, handling, 
storage, transportation, and disposal areas and structures;
    (iv) Reprocessing equipment and associated facilities;
    (v) Removal equipment and associated facilities; and
    (vi) Water and air pollution control facilities.
    (b) Existing structures. Your permit application must include the 
information required under Sec.  780.12 of this chapter. The 
description of existing structures must indicate whether the structures 
are associated with removal operations or with reprocessing operations.
    (c) Blasting. Your permit application must include information 
required under Sec.  780.13 of this chapter if you plan to blast during 
the abandoned coal refuse remining operation.
    (d) Maps and plans. Your permit application must contain maps and 
plans as follows:
    (1) Maps and plans that show the lands proposed to be affected 
throughout the life of the operation and any change in a facility or 
feature to be caused by the proposed operation, if the facility or 
feature was identified by the maps and plans required by paragraphs (d) 
and (e) of Sec.  786.12.
    (2) Maps and plans that delineate removal areas and reprocessing 
areas must include the information required by Sec.  780.14 of this 
chapter, except as follows:
    (i) Instead of the information required by Sec.  780.14(b)(4) of 
this chapter, the maps and plans must show the areas for storing, 
sorting, sizing and blending of coal refuse; the areas for reprocessing 
refuse; any waste redisposal areas associated with a refuse removal or 
on-site reprocessing operation; and the areas for loading the refuse 
product or coal for sale;
    (ii) Instead of the information required by Sec.  780.14(b)(5) of 
this chapter, the maps and plans must show the storage areas for 
vegetation-support material, rock waste, noncombustible noncoal waste, 
and combustible noncoal waste;
    (iii) Instead of the information required by Sec.  780.14(b)(11) of 
this chapter, the maps and plans must show the location of each 
sediment pond and permanent water impoundment, coal reprocessing waste 
bank, coal reprocessing waste dam, or embankment;
    (3) The preparation and certification requirements of Sec.  
780.14(c) of this chapter apply to the maps and plans prepared in 
accordance with this paragraph.
    (e) Air pollution control plan. Your permit application must 
contain the information required by Sec.  780.15 of this chapter, 
except that the fugitive dust control plan required by Sec.  
780.15(b)(2) of this chapter must comply with the requirements of Sec.  
829.95 of this chapter, instead of the requirements of Sec.  816.95 of 
this chapter.
    (f) Fish and wildlife information. Your permit application must 
contain the information required by Sec.  780.16 of this chapter.
    (g) Protection of public parks and historic places. Your 
application must contain the information required by Sec.  780.31 of 
this chapter.


Sec.  786.14  Information on reclamation plans.

    (a) General requirements. Your permit application must contain a 
plan for reclamation of the lands within the proposed permit area, 
showing how you will comply with section 515 of the Act, subchapter K 
of this Chapter, and the environmental protection performance standards 
of the regulatory program. The plan must include, at a minimum, all of 
the information for the proposed permit area as follows:
    (1) A detailed timetable for the completion of each major step in 
the reclamation plan;
    (2) A detailed estimate of the cost of reclamation of the proposed 
operations that we require to be covered by a performance bond under 
subchapter J of this chapter, with supporting calculations for the 
estimate;
    (3) A plan for grading, soil stabilization, and compacting, with 
contour maps or cross sections that show anticipated final surface 
configuration of the proposed permit area, in accordance with Sec.  
829.102 of this chapter;
    (4) A plan for removal, storage, and redistribution of soil or 
other vegetation-support material that meets the requirements of Sec.  
829.22 of this chapter. We may require chemical and physical analyses, 
field-site trials, or greenhouse tests if we determine them necessary 
or desirable for demonstrating the suitability of the vegetation-
support materials;
    (5) A plan for revegetation as required by Sec.  829.111 of this 
chapter, including mulching techniques that you plan to use and 
measures you propose for determining revegetation success;
    (6) A description of the measures that you will use for maximizing 
the use and conservation of solid fuel resources as required in Sec.  
816.59 of this chapter;
    (7) A description of measures that you will use for ensuring that 
all debris, acid-forming and toxic-forming materials, and materials 
constituting a

[[Page 2163]]

fire hazard are disposed of in accordance with the requirements of 
Sec. Sec.  829.89 and 829.102 of this chapter, and a description of 
contingency plans that you will use to preclude sustained combustion of 
such materials;
    (8) A description, including appropriate cross sections and maps, 
of the measures that you will use to seal or manage any mine openings, 
and to plug, case, or manage exploration holes, other bore holes, 
wells, and other openings occurring within the proposed permit area, in 
accordance with Sec.  829.13 of this chapter, and
    (9) A description of steps that you will take to comply with the 
applicable requirements of the Clean Air Act (42 U.S.C. 7401 et seq.), 
the Clean Water Act (33 U.S.C. 1251 et seq.), and other applicable 
Federal and State air and water quality laws and regulations and health 
and safety standards.
    (b) Postmining land use. Your application must contain a narrative 
description of the existing land uses, with photographs, and a plan 
describing the proposed use, following reclamation, of the land within 
the proposed permit area. You must also include in your plan a copy of 
any comments regarding the proposed postmining land use made by persons 
who hold equitable or legal title to the surface of the proposed permit 
area, or made by State or local agencies that would have to initiate, 
implement, approve, or authorize the proposed use of the land following 
reclamation. The description of the proposed land use must explain:
    (1) How you will achieve the proposed postmining land use and the 
necessary support activities that you will need to achieve this land 
use; and
    (2) The consideration that you have given to making all of the 
proposed abandoned coal refuse remining operations consistent with 
surface owner plans and applicable State and local land use plans and 
programs.
    (c) Ponds, impoundments, banks, dams, and embankments. Your 
application must contain the plans required under Sec.  780.25 of this 
chapter. These plans must be consistent with the requirements of part 
829 of this chapter.
    (d) Surface mining near underground mining. If your abandoned coal 
refuse remining operation is within 500 feet of an underground mine, 
your application must describe the measures that you will use to comply 
with Sec.  816.79 of this chapter.
    (e) Diversions. Your application must contain descriptions, 
including maps and cross sections, of stream channel diversions and 
other diversions that you will construct within the proposed permit 
area to comply with Sec.  816.43 of this chapter.


Sec.  786.15  Information on hydrology.

    (a) Reprocessing operations. Your application for a reprocessing 
operation must contain:
    (1) All of the information required under Sec.  780.21(a) through 
(g) and (i) through (j) of this chapter; and
    (2) A hydrologic reclamation plan with maps and descriptions, 
indicating how you plan to meet the relevant requirements of Sec.  
829.41 of this chapter. The plan must be specific to the local 
hydrologic conditions and must address any potential adverse impacts to 
the hydrologic balance identified in the probable hydrologic 
consequences (PHC) determination required by Sec.  780.21(f). You must 
include preventive and remedial measures and the steps you will take 
during refuse removal and reclamation through bond release to:
    (i) Minimize disturbances to the hydrologic balance within the 
permit and adjacent areas;
    (ii) Prevent material damage outside the permit area;
    (iii) Meet applicable Federal and State water quality laws and 
regulations; and
    (iv) Protect the rights of present water users;
    (v) Avoid acid or toxic drainage;
    (vi) Prevent, to the extent possible using the best technology 
currently available, additional contributions of suspended solids to 
stream flow;
    (vii) Provide water-treatment facilities when needed;
    (viii) Control drainage; and
    (ix) Protect or replace rights of present water users.
    (b) Removal Operations. (1) Your application for a removal 
operation must meet the following requirements for hydrologic 
information and analysis:
    (i) A determination of the probable hydrologic consequences (PHC), 
as required by Sec.  780.21(f), of expected enhancements or adverse 
impacts to the hydrologic balance on or off the permit area that may 
result from the coal refuse removal operation and subsequent 
reclamation;
    (ii) Any data you collect for the PHC determination must comply 
with the requirements for sampling and analyses of Sec.  780.21(a) of 
this chapter;
    (iii) You may prepare a narrative PHC determination based on 
existing relevant hydrologic information. For example, you may derive 
the required baseline descriptions of seasonal flow rates from modeling 
and other techniques, as provided by Sec.  780.21(d) of this chapter, 
from data and findings of other mining operations in the area, or even 
from point-source discharge permits obtained under the National 
Pollutant Discharge Elimination System (NPDES);
    (iv) A discussion of expected enhancements of the local hydrologic 
balance on or off the permit area, including discussion of the 
decreased loads of pollutants achievable through improved water 
quality, decreased flow, or infiltration of water, or some combination 
thereof. You must support this discussion with data from paragraphs 
(b)(1)(ii) or (b)(1)(iii) of this section and identification of the 
Best Management Practices (BMPs) that you propose under paragraph 
(b)(3) of this section.
    (v) The supplemental information requirements in Sec.  780.21(b)(3) 
of this chapter and the ground- and surface-water monitoring plan 
requirements of Sec. Sec.  780.21(i) and (j) of this chapter will apply 
if the PHC identifies adverse impacts to the hydrologic balance on or 
off the permit area. Also, if the PHC identifies adverse impacts to 
legitimate water uses, the requirements of Sec.  780.21(e) of this 
chapter pertaining to alternative water source information will apply.
    (2) We must comply with the requirements of Sec.  780.21(g) for a 
cumulative hydrologic impact assessment.
    (3) You must include a hydrologic reclamation plan (HRP) with maps 
and descriptions and identification of specific BMPs, including 
sediment control measures, and any additional information that we may 
require in order to ensure compliance with the requirements of 
subchapter K, part 829.
    (4) You must monitor discharges as required by a National Pollutant 
Discharge Elimination System permit obtained under 40 CFR part 434.


Sec.  786.16  Information on geology and refuse.

    (a) Your application must include geologic information, if 
appropriate, and refuse information in sufficient detail to assist us 
in determining the probable hydrologic consequences of the operation 
upon the quality and quantity of surface and ground water in the permit 
and adjacent areas, including the extent to which ground- and surface-
water monitoring is necessary; whether reclamation can be accomplished; 
and whether the operation has been designed to prevent material damage 
to the hydrologic balance outside the permit area.
    (b) We may require the collection and analysis of additional refuse 
or geologic information if we determine it to be necessary to protect 
the hydrologic

[[Page 2164]]

balance or to meet the performance standards of this chapter.


Sec.  786.17  Information on roads and support facilities.

    (a) Relocation or use of public roads. Your application must 
contain the information required by Sec.  780.33 of this chapter.
    (b) Road systems. Your application must contain the information 
required by Sec.  780.37 of this chapter, and must be in accordance 
with Sec.  816.150 of this chapter.
    (c) Support facilities. Your application must contain the 
information required by Sec.  780.38 of this chapter, and must be in 
accordance with Sec.  816.181 of this chapter.
    4. Part 829 is added to read as follows:

PART 829--SPECIAL PERMANENT PROGRAM PERFORMANCE STANDARDS-ABANDONED 
COAL REFUSE REMINING OPERATIONS

Sec.
829.1 Scope.
829.2 Objectives.
829.3 General requirements.
829.10 Information collection.
829.11 Signs and markers.
829.13 Casing and sealing of drill holes, portals or other openings.
829.22 Soils and other vegetation-support material.
829.41 Hydrologic-balance protection.
829.45 Hydrologic-balance protection: Sediment control measures.
829.46 Hydrologic-balance protection: Siltation structures.
829.49 Impoundments.
829.81 Redeposition and handling of coal mine waste, and coal refuse 
piles.
829.89 Disposal of noncoal mine wastes.
829.95 Stabilization of surface areas.
829.99 Slides and other damage.
829.100 Contemporaneous reclamation.
829.102 Grading.
829.111 Revegetation, standards for success, and bond liability 
period.
829.133 Postmining land use.

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


Sec.  829.1  Scope.

    This part sets forth special environmental protection performance 
standards for abandoned coal refuse remining operations. Unless 
otherwise specified in this part, the requirements of this part apply 
to removal and reprocessing operations. As used throughout this part, 
the pronouns ``we'', ``our'', and ``us'' refer to the regulatory 
authority and the pronouns ``you'' and ``your'' refer to the applicant 
and operator.


Sec.  829.2  Objectives.

    This part is intended to ensure that you conduct your abandoned 
coal refuse remining operations in a manner that preserves and enhances 
environmental and other values in accordance with the Surface Mining 
Control and Reclamation Act of 1977, as amended by the Energy Policy 
Act of 1992.


Sec.  829.3  General requirements.

    (a) If you intend to conduct abandoned coal refuse remining 
operations, you must obtain a permit in accordance with part 786 of 
this chapter and comply with the bond and insurance requirements of 
subchapter J of this chapter.
    (b) You must conduct your operation in accordance with the 
following requirements of part 816 of this chapter:
    (1) Sec.  816.43 Diversions.
    (2) Sec.  816.47 Hydrologic balance: Discharge Structures.
    (3) Sec.  816.57 Hydrologic Balance: Stream buffer zones.
    (4) Sec.  816.59 Coal Recovery.
    (5) Sec.  816.61 Use of explosives: General requirements.
    (6) Sec.  816.62 Use of explosives: Pre-blasting survey.
    (7) Sec.  816.64 Use of explosives: Blasting schedule.
    (8) Sec.  816.66 Use of explosives: Blasting signs, warnings, and 
access control.
    (9) Sec.  816.67 Use of Explosives: Control of adverse effects.
    (10) Sec.  816.68 Use of Explosives: Records of blasting 
operations.
    (11) Sec.  816.79 Protection of underground mining.
    (12) Sec.  816.87 Coal mine waste: Burning and burned waste 
utilization.
    (13) Sec.  816.97 Protection of fish, wildlife, and related 
environmental values.
    (14) Sec.  816.131 Cessation of operations: Temporary.
    (15) Sec.  816.132 Cessation of operations: Permanent.
    (16) Sec.  816.150 Roads.
    (17) Sec.  816.151 Roads: Primary.
    (18) Sec.  816.180 Utility installations.
    (19) Sec.  816.181 Support facilities.
    (c) In addition, you must conduct your operations in accordance 
with the requirements of this part.


Sec.  829.10  Information collection.

    The collections of information contained in part 829 have been 
approved by the Office of Management and Budget under 44 U.S.C. 3501 et 
seq. and assigned clearance number 1029-XXX2. We will use the 
information collected to ensure that permittees conducting abandoned 
coal refuse remining operations will meet appropriate performance 
standards. A federal agency may not conduct or sponsor, and you are not 
required to respond to, a collection of information unless it displays 
a currently valid OMB control number. Response is required to obtain a 
benefit in accordance with Public Law 95-87. Send comments regarding 
burden estimates or any other aspect of this collection of information, 
including suggestions for reducing the burden, to the Office of Surface 
Mining Reclamation and Enforcement, Information Collection Clearance 
Officer, Room 202-SIB, 1951 Constitution Avenue, NW., Washington, DC 
20240.


Sec.  829.11  Signs and markers.

    You must comply with the requirements of Sec.  816.11 of this 
chapter except that, instead of the requirements of Sec.  816.22 of 
this chapter referenced in Sec.  816.11(f), the requirements of Sec.  
829.22 apply.


Sec.  829.13  Casing and sealing of drill holes, portals or other 
openings.

    You must comply with the requirements of Sec. Sec.  817.13, 817.14, 
and 817.15 of this chapter except that, instead of the requirements of 
Sec.  817.41 of this chapter referenced in Sec. Sec.  817.13 and 817.15 
regarding the use of monitoring holes or other openings for water 
wells, the requirements of Sec.  829.41 apply.


Sec.  829.22  Soils and other vegetation-support material.

    (a) You must select readily available vegetation-support materials 
and demonstrate to us that such material is suitable to support the 
level of vegetation required by Sec.  829.111. You may use material 
from off site as vegetation-support material. You must remove and 
stockpile material from the remining site or off site that is to be 
used for vegetation support, before any other surface disturbance. You 
must distribute the vegetation support material as approved by us.
    (b) You must apply nutrients and soil amendments to the 
redistributed material when necessary to establish the vegetative 
cover.


Sec.  829.41  Hydrologic-balance protection.

    (a) Reprocessing operations. You must comply with the hydrologic 
balance requirements of Sec. Sec.  816.41 and 816.42 of this chapter 
for reprocessing operations except that the requirement in Sec.  
816.41(b)(2) to restore recharge capacity does not apply. Also, instead 
of the requirements of Sec.  780.21(h) of this chapter referenced in 
Sec.  816.41, the requirements in Sec.  786.15(a)(2) of this chapter 
apply.
    (b) Removal operations. (1) You must comply with the hydrologic 
balance requirements of Sec. Sec.  816.41 and 816.42 of

[[Page 2165]]

this chapter for removal operations except as follows:
    (i) Instead of the requirements in sections of 30 CFR part 780 
referenced in Sec. Sec.  816.41 and 816.42, the requirements of Sec.  
786.15(b) of this chapter apply;
    (ii) The requirement of Sec.  816.41(b)(2) of this chapter to 
restore recharge capacity does not apply;
    (iii) Ground- and surface-water monitoring must be conducted in 
accordance with the requirements of Sec.  786.15(b) of this chapter; 
and
    (iv) Discharges into an underground mine are prohibited unless we 
expressly authorize such discharge and you meet the following 
requirements:
    (A) The requirements of Sec.  816.41(i) of this chapter are met;
    (B) The permit application includes baseline ground-water and 
geologic information in sufficient detail to describe the geologic and 
hydrologic conditions associated with the underground mine works;
    (C) The determination of Probable Hydrologic Consequences addresses 
the impacts that the discharges will have on ground- and surface-water 
users and the potential for seepage or drainage of water from the 
underground works;
    (D) The hydrologic reclamation plan includes measures to remediate 
potential impacts to ground- and surface-water users and potential 
impacts from seepage and drainage out of the underground works; and
    (E) The ground- and surface-water monitoring plans provide for the 
monitoring of the ground- and surface-water systems that could be 
impacted by the underground discharges.
    (2)[Reserved]


Sec.  829.45  Hydrologic balance: Sediment control measures.

    You must comply with the requirements of Sec.  816.45 of this 
chapter except that, instead of the requirements to Sec. Sec.  816.102 
and 816.111(b) referenced in Sec.  816.45, the requirements in 
Sec. Sec.  829.102 and 829.111(b) apply.


Sec.  829.46  Hydrologic balance: Siltation structures.

    You must comply with the requirements of Sec.  816.46 of this 
chapter, except as currently suspended. However, instead of the 
requirements of Sec.  816.42 and the requirements for siltation 
structures and spill ways incorporating Sec. Sec.  816.49, and 
816.49(a)(9) referenced in Sec.  816.46 of this chapter, the 
requirements of Sec. Sec.  829.41(b) and 829.49 apply.


Sec.  829.49  Impoundments.

    You must comply with the impoundments requirements of Sec. Sec.  
816.49 and 816.56 of this chapter except that:
    (a) Instead of the requirements of Sec.  780.25 referenced in Sec.  
816.49 of this chapter, the requirements of Sec.  786.14(c) of this 
chapter apply.
    (b) Upon completion of the operation, you may only retain permanent 
impoundments on reclaimed coal refuse:
    (1) Where the impoundment is not confined by a constructed dam, 
e.g., is a dug-out type impoundment; or
    (2) You have removed the abandoned coal refuse from within the 
confines of an impounding structure located on non-steep slope land, 
and the remaining or reconstructed impounding structure meets the 
appropriate design, construction, inspection, and certification 
requirements of Sec.  816.49 of this chapter.


Sec.  829.81  Redeposition and handling of coal mine waste, and coal 
refuse piles.

    You must place coal mine waste from an abandoned coal refuse site 
or generated as a result of a coal refuse remining operation according 
to the standards of Sec. Sec.  816.81, 816.83, and 816.84 of this 
chapter, except:
    (a) We may alter, on a site-specific basis, the design 
certification, foundation requirements, and inspection requirements of 
Sec. Sec.  816.81(c), 816.81(d), and 816.83(d) of this chapter.
    (b) If you take refuse reprocessing waste or waste generated by 
removal operations and deposit it adjacent to the abandoned coal refuse 
site, you must meet the standards of Sec. Sec.  816.81, 816.83, and 
816.84 of this chapter.
    (c) You may not take coal mine waste generated by removal 
operations and deposit it in underground mine works unless you meet the 
requirements of Sec. Sec.  816.81(f) and 829.41(b)(1)(i) of this 
chapter.
    (d) Instead of the cover requirement at Sec.  816.83(c)(4) of this 
chapter, you must cover or treat refuse piles generated by abandoned 
coal refuse remining operations with sufficient noncombustible and 
nontoxic material to prevent sustained combustion, as required under 
Sec.  829.102(d), and to support revegetation, as required under Sec.  
829.111.
    (e) Instead of the vegetation removal and impoundment requirements 
of Sec.  816.83(c)(1) and (c)(3) of this chapter, you must comply with 
the requirements of Sec. Sec.  829.22 and 829.49.
    (f) Instead of the topsoil and subsoil storage requirements of 
Sec.  816.22 of this chapter referenced in Sec.  816.83(c) of this 
chapter, you must comply with the requirements of Sec.  829.22.


Sec.  829.89  Disposal of noncoal mine wastes.

    (a) You must comply with the requirements of Sec.  816.89(a) and 
(b) of this chapter except that you must cover and revegetate the site 
in accordance with the requirements of Sec.  829.111 instead of the 
requirements of Sec. Sec.  816.111 through 816.116 of this chapter 
referenced by Sec.  816.89(b).
    (b) Instead of the requirements of Sec.  816.89(c) of this chapter, 
you may dispose in refuse piles any noncombustible, noncoal waste 
encountered during refuse remining and/or any combustion byproducts 
generated from coal burning facilities.
    (c) You must demonstrate that the disposal will not adversely 
affect final site reclamation or public health and safety and that it 
accords with other applicable provisions of State and Federal law.


Sec.  829.95  Stabilization of surface areas.

    (a) You must protect and stabilize all exposed surface areas to 
provide equal or better erosion control and air pollution control than 
existed before disturbing the abandoned coal refuse site.
    (b) In areas where refuse has been regraded and covered with 
vegetation-support material, if rills and gullies form, you must fill, 
regrade, or otherwise stabilize with vegetation support material, and 
reseed or replant the areas, whenever such rills and gullies either:
    (1) Disrupt the approved postmining land use or the reestablishment 
of the vegetative cover; or
    (2) Cause or contribute to a violation of water-quality standards 
for receiving streams.


Sec.  829.99  Slides and other damage.

    You must comply with the requirements of Sec.  816.99(b) of this 
chapter for abandoned coal refuse remining operations.


Sec.  829.100  Contemporaneous reclamation.

    Your reclamation efforts, including but not limited to, grading, 
soil or vegetation-support material replacement, and revegetation, on 
all disturbed land that is reaffected by on-site abandoned coal refuse 
remining operations must occur as contemporaneously as practicable with 
the abandoned coal refuse remining operations. Before we approve your 
permit, you must provide a schedule that meets this requirement for 
contemporaneous reclamation in a manner we determine is acceptable.


Sec.  829.102  Grading.

    (a) You must conduct grading activities:

[[Page 2166]]

    (1) According to this section and Sec.  829.81, and
    (2) According to the schedule we approve in the reclamation plan 
required under Sec.  786.14(a) of this chapter.
    (b) You must grade disturbed areas to:
    (1) Achieve a postmining slope that does not exceed either the 
angle of repose or such lesser slope as is necessary to achieve a 
minimum long-term static safety factor of 1.3 or greater, and to 
prevent slides;
    (2) Minimize erosion and water pollution both on and off the site; 
and
    (3) Support the approved postmining land use.
    (c) You may grade land adjacent to the abandoned coal refuse 
remining operations to blend with the refuse extraction area to achieve 
the postmining land use and stability requirements under paragraph 
(b)(1) of this section. If you do so, you must remove and stockpile the 
vegetation-support material from the affected adjacent land for use as 
required by Sec.  829.22.
    (d) You must adequately cover or treat the coal seams and 
combustible materials exposed, used, or produced during mining with 
noncombustible and nontoxic materials to prevent sustained combustion.
    (e) You may use cut-and-fill terraces where:
    (1) Needed to conserve soil moisture, ensure stability, and control 
erosion on final-graded slopes, if the terraces are compatible with the 
approved postmining land use; or
    (2) Specialized grading, foundation conditions, or roads are 
required for the approved postmining land use, in which case the final 
grading may include a terrace of adequate width to ensure the safety, 
stability, and erosion control necessary to implement the postmining 
land-use plan.
    (f) You may leave small depressions if they are needed to retain 
moisture, minimize erosion, create and enhance wildlife habitat, or 
assist revegetation and are compatible with the stability of the 
reclaimed site.
    (g) You must conduct preparation of final-graded surfaces in a 
manner that minimizes erosion and provides a surface for soils and 
other vegetation-support material that will minimize slippage.
    (h) You must eliminate highwalls and other rock cuts encountered 
during operations to the maximum extent technically practical in 
accordance with the following criteria:
    (1) All spoil, rock waste and refuse waste generated or encountered 
by the operation must be used to backfill the highwalls and rock cuts 
to the extent that use of the material satisfies the stability 
requirements of paragraph (b)(1) of this section; and
    (2) Any highwall and rock-cut remnant must be stable and not pose a 
hazard to the public health and safety or to the environment. You must 
demonstrate to our satisfaction that the remnant is stable.
    (i) You must comply with these standards when conducting abandoned 
coal refuse remining activities on steep slopes:
    (1) You must not place the following materials on steep slopes 
below the elevation of the abandoned refuse:
    (i) Spoil and rock waste;
    (ii) Waste materials of any type;
    (iii) Debris, including that from clearing and grubbing; and
    (iv) Abandoned or disabled equipment.
    (2) You must conduct refuse extraction and grading operations on 
steep slopes in a manner to prevent instability of the refuse area, and 
must comply with the following:
    (i) You must extract the refuse by horizontal lifts starting at the 
highest elevation of the refuse pile; and
    (ii) You must not remove the toe of the refuse pile until the 
extraction by horizontal lifts has progressed to the elevation of the 
toe.
    (3) We may waive, in writing, the requirements of paragraphs 
(i)(2)(i) and (i)(2)(ii), if the permit demonstrates with stability 
analyses that the refuse will retain a static safety factor of 1.3 
during extraction activities.


Sec.  829.111  Revegetation, standards for success, and bond liability 
period.

    (a) Revegetation timing and mulching must comply with Sec. Sec.  
816.111(b) through (d), 816.113 and 816.114 of this chapter.
    (b) On regraded areas and on all other disturbed areas except water 
areas and surface areas of roads that are approved as part of the 
postmining land use, you must establish a vegetative cover that is in 
accordance with the approved permit and reclamation plan and that is:
    (1) Effective and permanent;
    (2) Comprised of species native to the area or of introduced 
species when we approve the use of those species as desirable and 
necessary to achieve the approved postmining land use;
    (3) Capable of stabilizing the surface from erosion as required by 
Sec.  829.95.
    (c) You must establish a vegetative ground cover that is no less 
than the ground cover that existed before redisturbance, as required by 
Sec.  816.116(b)(5) of this chapter.
    (d) The requirements of Sec.  816.116(c) of this chapter concerning 
revegetation responsibility periods and evaluation of revegetation 
success are applicable to abandoned coal refuse remining operations 
with the following modifications:
    (1) For operations in areas with an average annual precipitation 
greater than 26.0 inches, the revegetation responsibility period will 
be two full years rather than the times specified in Sec.  
816.116(c)(2); and
    (2) For operations in areas with an average annual precipitation of 
26.0 inches or less, the revegetation responsibility period will be 
five full years rather than the times specified in Sec.  816.116(c)(2).


Sec.  829.133  Postmining land use.

    You must restore all areas disturbed by abandoned coal refuse 
remining operations to a condition capable of supporting the use that 
the abandoned coal refuse site was capable of supporting before 
commencement of abandoned coal refuse remining operations, or a higher 
or better use.

[FR Doc. E7-453 Filed 1-16-07; 8:45 am]
BILLING CODE 4310-05-P