[Federal Register Volume 72, Number 49 (Wednesday, March 14, 2007)]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-4669]
Department of the Interior
Office of Surface Mining Reclamation and Enforcement
30 CFR Chapter VII
Placement of Coal Combustion Byproducts in Active and Abandoned Coal
Mines; Proposed Rule
Federal Register / Vol. 72, No. 49 / Wednesday, March 14, 2007 /
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Chapter VII
Placement of Coal Combustion Byproducts in Active and Abandoned
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
ACTION: Advance notice of proposed rulemaking.
SUMMARY: We are seeking comments on our intention to propose
regulations pertaining to permit application requirements and
performance standards related to the placement of coal combustion
byproducts (CCBs) on sites with a surface coal mining operations permit
under Title V of the Surface Mining Control and Reclamation Act of 1977
(SMCRA or the Act) or in the reclamation of abandoned mine lands (AML)
as part of projects funded or approved under Title IV of the Act. We
would base the proposed regulations on existing SMCRA authorities. We
will consider the comments received in response to this notice in
developing the scope and framework of the proposed rule.
DATES: To ensure consideration, we must receive your comments on or
before May 14, 2007.
ADDRESSES: You may submit comments, identified by docket number 1029-
AC54, by any of the following methods to the indicated address:
E-Mail: [email protected]. Please include docket
number 1029-AC54 in the subject line of the message.
Mail/Hand-Delivery/Courier to the OSM Administrative
Record Room: Office of Surface Mining Reclamation and Enforcement,
Administrative Record, Room 252-SIB, 1951 Constitution Avenue, NW.,
Washington, DC 20240.
Federal e-Rulemaking Portal: http://www.regulations.gov.
The notice is listed under the agency name ``Surface Mining Reclamation
and Enforcement Office.'' Click ``Add Comments'' to submit comments.
FOR FURTHER INFORMATION CONTACT: John Craynon, P.E., Chief, Division of
Regulatory Support, Office of Surface Mining Reclamation and
Enforcement, 1951 Constitution Ave, NW., MS-202, Washington, DC 20240;
Telephone 202-208-2866; E-mail: [email protected].
Table of Contents
I. What are CCBs?
II. Why are we publishing this notice?
III. Background on SMCRA.
IV. Which provisions of SMCRA authorize the adoption of regulations
governing the use and disposal of CCBs?
V. How is the use of CCBs currently regulated at mines with SMCRA
VI. What are the benefits of placing CCBs in active and abandoned
VII. How do we plan to revise our regulations to implement the
National Research Council (NRC) recommendations?
VIII. Will comments on this notice be available for public review?
I. What are CCBs?
The legal definition of coal combustion byproducts (CCBs) at 42
U.S.C. 13364(a) provides that ``the term `coal combustion byproducts'
means the residues from the combustion of coal including ash, slag, and
flue gas desulfurization materials.'' CCBs are produced when coal is
burned. Electrical generating facilities are the primary producers.
CCBs from power plants consist of four large-volume waste streams--fly
ash, bottom ash (including fluidized-bed combustion residues, when
applicable), boiler slag, and flue gas emission control residue.
The University of North Dakota Coal Ash Research Center defines the
following five categories of CCBs on its Web site (http://www.undeerc.org/carrc/html/Terminology.html):
(1) Boiler slag--[M]olten ash collected at the base of slag tap and
cyclone boilers that is quenched with water and shatters into black,
angular particles having a smooth glassy appearance.''
(2) Bottom ash--``[A]gglomerated ash particles formed in pulverized
coal boilers that are too large to be carried in the flue gases and
impinge on the boiler walls or fall through open grates to an ash
hopper at the bottom of the boiler. Bottom ash is typically gray to
black in color, is quite angular, and has a porous surface structure.''
(3) Fluidized-bed combustion materials--``[U]nburned coal, ash, and
spent bed material used for sulfur control. The spent bed material
(removed as bottom ash) contains reaction products from the absorption
of gaseous sulfur oxides (SO2 and SO3).''
(4) Flue gas desulfurization materials--Waste ``derived from a
variety of processes used to control sulfur emissions from boiler
stacks. These systems include wet scrubbers, spray dry scrubbers,
sorbent injectors, and a combined sulfur oxide (SOSOx) and
nitrogen oxide (NOX) process. Sorbents include lime,
limestone, sodium-based compounds, and high-calcium coal fly ash.''
(5) Fly ash--``[C]oal ash that exits a combustion chamber in the
flue gas and is captured by air pollution control equipment such as
electrostatic precipitators, baghouses, and wet scrubbers.''
CCBs are also known as ``coal combustion residues'' (CCRs), which
is the term preferred by the National Research Council, and ``coal
combustion wastes'' (CCWs).
II. Why are we publishing this notice?
In 2003, Congress directed the Environmental Protection Agency
(EPA) to commission an independent study of the health, safety, and
environmental risks associated with the placement of CCWs in active and
abandoned coal mines in all major U.S. coal basins. As a result, the
National Research Council (NRC) established the Committee on Mine
Placement of Coal Combustion Wastes in September 2004. The NRC
published the committee's findings on March 1, 2006, in a report
entitled ``Managing Coal Combustion Residues in Mines,'' which is
available online at http://newton.nap.edu/openbook/0309100496/html/index.html.
Page one of the report states that the committee ``concluded that
putting CCRs in coal mines as part of the reclamation process is a
viable management option as long as (1) CCR placement is properly
planned and is carried out in a manner that avoids significant adverse
environmental and health impacts and (2) the regulatory process for
issuing permits includes clear provisions for public involvement.'' In
the same paragraph, the committee notes that the placement of CCRs in
coal mines ``can assist in meeting reclamation goals (such as
remediation of abandoned mine lands)'' and ``avoids the need, relative
to landfills and impoundments, to disrupt undisturbed sites.'' However,
the committee cautioned that ``an integrated process of CCR
characterization, site characterization, management and engineering
design of placement activities, and design and implementation of
monitoring is required to reduce the risk of contamination moving from
the mine site to the ambient environment.'' See p. 12 of the report. In
addition, page four of the report states that ``comparatively little is
known about the potential for minefilling to degrade the quality of
groundwater and/or surface waters particularly over longer time
The committee recommended the establishment of ``enforceable
federal standards'' to govern the placement of
CCRs in mines. See p. 11 of the report. The following excerpt from
pages 11-12 of the report (emphasis in the original) explains both the
committee's reasoning for its recommendation and its suggestions for
implementation of that recommendation:
After reviewing the laws and other relevant literature, the
committee concludes that although SMCRA does not specifically
regulate CCR placement at mine sites, its scope is broad enough to
encompass such regulation during reclamation activities.
Furthermore, while SMCRA and its implementing regulations indirectly
establish performance standards that could be used to regulate the
manner in which CCRs may be placed in coal mines, neither the
statute nor those rules explicitly address regulation of the use or
placement of CCRs, and some states have expressed concern that they
do not have the authority to impose performance standards specific
to CCRs. Therefore, the committee recommends that enforceable
federal standards be established for the disposal of CCRs in
minefills. Enforceable federal standards will ensure that states
have adequate, explicit authority and that they implement adequate
minimum safeguards. As with current federal regulations, these rules
should provide sufficient flexibility to allow states to adapt
permit requirements to site-specific conditions, while providing the
needed focus on the protection of ecological and human health.
There are three primary regulatory mechanisms that could be used
to develop enforceable standards:
Changes to SMCRA regulations to address CCRs
Joint Office of Surface Mining (OSM) and EPA rules
pursuant to the authority of SMCRA and RCRA [the Resource
Conservation and Recovery Act, 42 U.S.C. 6901 et seq.]; or
RCRA-D rules that are enforceable through a SMCRA
permit. [``RCRA-D'' refers to Subtitle D of RCRA at 42 U.S.C. 6941-
* * * Regardless of the regulatory mechanism selected,
coordination between OSM and EPA efforts is needed and would foster
regulatory consistency with EPA's intended rule-making proposal for
CCR disposal in landfills and impoundments.
In all cases, guidance documents will also be necessary to help
states implement their responsibility for managing CCR[s]. However,
guidance alone is not adequate to achieve the needed improvements in
state programs for CCR minefills. Only through enforceable standards
can acceptable minimum levels of environmental protection from CCR
placement in coal mines be guaranteed nationally.
The committee also made other recommendations that relate to and
expand upon the recommendation for enforceable federal standards. Among
other things, it suggested that:
``CCRs [should] be characterized prior to significant mine
placement and with each new source of CCRs. The CCR characterization
should continue periodically throughout the mine placement process to
assess any changes in CCR composition and behavior.'' See p. 6 of the
``[C]omprehensive site characterization specific to CCR
placement [should] be conducted at all mine sites prior to substantial
placement of CCRs.'' See p. 7 of the report.
Management plans for CCR disposal in mines should be site-
specific, with site-specific performance standards. Id.
``CCR placement in mines [should] be designed to minimize
reactions with water and the flow of water through CCRs.'' See p. 8 of
``[T]he number and location of monitoring wells, the
frequency and duration of sampling, and the water quality parameters
selected for analysis [should] be carefully determined for each site,
in order to accurately assess the present and potential movement of
CCR-associated contaminants.'' See p. 9 of the report.
``[T]he disposal of CCRs in coal mines [should] be subject
to reasonable site-specific performance standards that are tailored to
address potential environmental problems associated with CCR
The ``placement of CCRs in abandoned and remining sites
[should] be subject to the same CCR characterization, site
characterization, and management planning standards recommended for
active coal mines.'' See pp. 9-10 of the report.
``[A]ny proposal to dispose of substantial quantities of
CCRs in coal mines [should] be treated as a `significant alteration of
the reclamation plan' under SMCRA'' to ensure that the public is
afforded adequate notice of, and an opportunity to comment on, the CCR
placement proposal. See p. 11 of the report.
We are publishing this advance notice of proposed rulemaking in
response to the NRC recommendations summarized above. We invite comment
on how these recommendations should be implemented, i.e., how we should
revise the regulations implementing Titles IV and V of SMCRA to
regulate the placement of CCBs on active and abandoned coal minesites
and what type of guidance documents we should issue, if any. We also
seek comment on our tentative preferred approach regarding the proposed
regulations, as discussed in Part VII of this notice, or whether other
approaches would be more appropriate. In developing your comments, we
urge you to review the entire NRC report, the background provided in
this notice, and the information available on the EPA Web site at
http://www.epa.gov/epaoswer/other/fossil/index.htm and our Web site at
III. Background on SMCRA
In fashioning SMCRA, Congress created two major programs:
An abandoned mine land reclamation program, primarily in
Title IV of the Act, funded by fees that operators pay on each ton of
coal mined, to reclaim land and water resources adversely affected by
coal mines abandoned before August 3, 1977, and left in an inadequately
A regulatory program, primarily in Title V of the Act, to
ensure that surface coal mining operations initiated or in existence
after the effective date of the Act (August 3, 1977) are conducted and
reclaimed in an environmentally sound manner.
Section 501 of SMCRA, 30 U.S.C. 1251, created a limited initial
regulatory program directly administered and enforced by OSM. However,
Congress intended that this initial regulatory program be only a
temporary measure until States adopted permanent regulatory programs
consistent with the Act. Section 101(f) of SMCRA, 30 U.S.C. 1201(f),
specifies that because of the diversity in terrain, climate, biology,
geochemistry, and other physical conditions under which mining
operations occur, the primary governmental responsibility for
regulating surface mining and reclamation operations should rest with
the States. To achieve primary regulatory responsibility, often
referred to as primacy, a State must develop and obtain Secretarial
approval of a program under section 503 of the Act, 30 U.S.C. 1253,
that meets the requirements of the Act and that is no less effective
than the Federal regulations in achieving the requirements of the Act.
Among other things, each regulatory program must include permitting
requirements and performance standards for surface coal mining and
reclamation operations. To date, 24 of the 26 coal-producing states
have achieved primacy.
Following approval of a State regulatory program, we assume a
monitoring role. Section 517(a) of SMCRA, 30 U.S.C. 1267(a), requires
that we make such inspections as are necessary to evaluate the
administration of approved State programs. The primary purpose of both
the State program review and approval process and the oversight of
State programs is to ensure that all States attain and maintain
environmental protection requirements and inspection and
enforcement efforts consistent with the Act.
States with primacy are eligible to apply for the authority to
administer AML reclamation programs within their borders. Once the
Secretary approves their AML reclamation plans under section 405 of
SMCRA, 30 U.S.C. 1235, those States are also eligible to receive grants
for AML reclamation programs and projects. SMCRA does not establish
requirements for AML reclamation projects analogous to the permitting
requirements and performance standards that apply to surface coal
mining operations. However, in consultation with the States, we have
developed a guidance document entitled ``Final Guidelines for
Reclamation Programs and Projects,'' which contains provisions and
recommendations relating to protection of public health, safety, and
the environment as part of project planning, design, and construction.
See 66 FR 31250-31258, June 11, 2001. Our regulations at 30 CFR
874.13(a) encourage the use of the guidelines, but, as stated at 66 FR
31251, the guidelines do not establish new legal requirements or
IV. Which provisions of SMCRA authorize the adoption of regulations
governing the use and disposal of CCBs?
SMCRA does not directly address the placement of CCBs in active or
abandoned coal mines. (In the context of this notice, an ``active''
mine is a surface coal mining and reclamation operation with a SMCRA
permit.) Sections 515(b)(11) and 516(b)(4) of SMCRA contain
requirements applicable to ``surface disposal of mine wastes, tailings,
coal processing wastes, and other wastes'' on permitted mine sites, but
only when those wastes are placed in ``areas other than the mine
workings or excavations.'' 30 U.S.C. 1265(b)(11) and 1266(b)(4)
(emphasis added). Consequently, those provisions would not apply to
most CCB placements in active mines, because CCBs are most frequently
placed in mine workings or excavations. However, as discussed below, we
believe that other provisions of SMCRA provide adequate authority for
the adoption of regulations governing the placement of CCBs with
respect to both permitted mines and abandoned mine reclamation projects
conducted under an AML reclamation plan approved under section 405 of
A. Provisions Applicable to Both Active Mines and AML Reclamation
Section 102 of SMCRA, 30 U.S.C. 1202, sets forth the purposes of
the Act. Those purposes relevant to this notice are summarized below:
Paragraph (a) states that one purpose is to ``establish a
nationwide program to protect society and the environment from the
adverse effects of surface coal mining operations.''
Paragraph (b) states that another purpose is to ``assure
that the rights of surface landowners and other persons with a legal
interest in the land or appurtenances thereto are fully protected from
[surface coal mining] operations.''
Paragraph (d) states that another purpose is to assure
that surface coal mining operations are conducted in a manner that
protects the environment.
Paragraph (e) states that another purpose is to ``assure
that adequate procedures are undertaken to reclaim surface areas as
contemporaneously as possible with the surface coal mining
Paragraph (h) states that another purpose is to ``promote
the reclamation of mined areas left without adequate reclamation prior
to the enactment of [SMCRA] and which continue, * * * to substantially
degrade the quality of the environment, prevent or damage the
beneficial use of land or water resources, or endanger the health or
safety of the public.''
Section 201(c)(2) of the Act authorizes the Secretary, acting
through OSM, to ``publish and promulgate such rules and regulations as
may be necessary to carry out the purposes and provisions of the Act.''
30 U.S.C. 1211(c)(2). Therefore, should we find it necessary to achieve
one of the purposes in section 102 of the Act listed above, section
201(c)(2) provides a basis for the adoption of rules governing the
placement of CCBs both as part of surface coal mining and reclamation
operations for which a permit is required under Title V of SMCRA and on
abandoned mine lands where the placement occurs in connection with a
project conducted under an abandoned mine reclamation program approved
under section 405 of SMCRA.
B. Provisions Applicable Only to Active Mines (Title V)
Section 501(b) of SMCRA requires the Secretary to publish
regulations ``covering a permanent regulatory procedure for surface
coal mining and reclamation operations performance standards based on
and conforming to the provisions of title V * * *.'' 30 U.S.C. 1251(b).
This provision, taken together with, at a minimum, sections 507(b)(11),
508(a)(13), 510(b)(3), 515(b)(10) and (14), and 516(b)(9) and (10) of
SMCRA, 30 U.S.C. 1257(b)(11), 1258(a)(13), 1260(b)(3), 1265(b)(10) and
(14), and 1266(b)(9) and (10), provides express authority to impose
performance standards to protect the hydrologic balance and to require
sufficient permit application information to conclude that the proposed
surface coal mining and reclamation operations will be conducted in a
manner that protects the hydrologic balance. Therefore, we believe we
have the authority under SMCRA to adopt regulations containing specific
requirements to monitor and control the placement of CCBs in mines with
SMCRA permits to protect against adverse impacts to surface waters and
C. Provisions Applicable Only to AML Reclamation Projects (Title IV)
With respect to the reclamation of AML sites, section 405(a) of
SMCRA requires the Secretary to publish ``regulations covering
implementation of an abandoned mine reclamation program * * * and
establishing procedures and requirements for * * * annual submissions
of projects.'' 30 U.S.C. 1235(a). Also, section 413(a) authorizes the
Secretary ``to do all things necessary or expedient, including
promulgation of rules and regulations, to implement and administer the
provisions of this title [Title IV].'' 30 U.S.C. 1242(a).
Sections 403(a) and 411(c) of SMCRA, 30 U.S.C. 1233(a) and
1240a(c), do not provide any rulemaking authority, but they do
establish priorities for project funding, with an emphasis first on
protection of public health and safety from the adverse effects of past
mining practices, followed by restoration of land and water resources
and the environment previously degraded by the adverse effects of
mining practices. By logical extension, AML reclamation projects
involving the placement of CCBs should be designed and constructed in a
manner that would not create new threats to public health or safety or
the environment. However, our authority to establish requirements for
AML reclamation project designs is somewhat limited by section 405(i),
which provides that ``States shall not be required at the start of any
project to submit complete copies of plans and specifications.'' 30
U.S.C. 1235(i). We seek comment on whether this provision would
prohibit the adoption of any regulations analogous to the permit
application requirements of the
regulatory program or whether there is sufficient latitude to require
that project submissions include site-specific plans and requirements
concerning the placement of CCBs, consistent with the recommendations
of the NRC report.
V. How is the use of CCBs currently regulated at mines with SMCRA
Generally, CCB disposal operations are regulated under State solid
waste management programs under Subtitle D of RCRA. 42 U.S.C. 6941 et
seq. If the disposal site is a mine with a SMCRA permit, then the
requirements of the applicable SMCRA regulatory program also apply.
On August 9, 1993, EPA published a final regulatory determination
for coal combustion wastes that concluded that the State industrial
solid waste management programs implemented under Subtitle D of RCRA
contained adequate regulatory controls for managing the disposal of
those CCBs. For that reason, EPA determined that regulation of CCBs
under the hazardous waste provisions of RCRA was not warranted. See 58
FR 42466, August 9, 1993 for further discussion regarding EPA's basis
for reaching this conclusion. However, this determination applied only
to large-volume coal combustion wastes generated at electric utility
and independent power-producing facilities that manage the wastes
separately from certain other low-volume and uniquely associated coal
combustion wastes. Id.
On May 22, 2000, EPA published another regulatory determination
that addressed those CCBs that were not included in the 1993 regulatory
determination. This determination similarly concluded that regulation
of those types of CCBs as hazardous waste under Subtitle C of RCRA was
not warranted. See 65 FR 32214. However, EPA also concluded that
establishment of national regulations to govern the use of CCBs to fill
surface and underground mines was appropriate. EPA reached this
decision because it found that CCBs used as minefill could present a
danger to human health or the environment under certain circumstances
and because there were few states that currently operate comprehensive
programs that specifically address the unique circumstances of
minefilling with CCBs. See 65 FR 32231. EPA noted that a comprehensive
national program could be developed by adopting regulations under
Subtitle D of RCRA, by modifying SMCRA regulations, or by a combination
of both. See 65 FR 32215, 32232. Currently, EPA and OSM are
coordinating with each other and with other interested parties in the
implementation of this determination. You can find more information
regarding the history of CCB regulation under RCRA, including links to
referenced documents, on EPA's Web site at http://www.epa.gov/epaoswer/other/fossil/index.htm.
There is no express mention of CCBs in SMCRA and only two of our
regulations directly reference CCBs: 30 CFR 816.41(i)(2)(iii) and (v)
and 30 CFR 817.41(h)(2)(iii) and (v), which specify that fly ash from a
coal-fired facility and flue-gas desulfurization sludge may be
discharged into an underground coal mine if certain demonstrations are
made. The paucity of references to CCBs does not mean that SMCRA
regulatory programs do not apply to placement of CCBs on permitted
minesites. In fact, the opposite is true, as litigation has established
that any material placed in mine pits or otherwise used to reclaim a
permitted minesite must comply with SMCRA permitting requirements and
performance standards, regardless of whether the material originates
within the permit area or whether it is imported from outside the
permit area, and that we have the authority to establish monitoring and
analysis requirements for those materials. See Pacific Coal Co. v. OSM,
Civ. No. 03-0260Z, (W.D. Wash. Feb. 2, 2004). As with all material
being placed in the backfill, CCBs must be characterized to assure
compliance with the performance standards.
In luncheon remarks published in the proceedings of the interactive
forum on Coal Combustion By-Products Associated with Coal Mining
(October 29-31, 1996), Katherine L. Henry, then the Acting Director of
OSM, summarized the SMCRA requirements that apply to CCB disposal in a
mine with an SMCRA permit:
When the use or disposal of coal combustion by-products happens
at surface coal mines, state coal mining regulators are involved to
the extent that SMCRA requires:
The mine operator to ensure that all toxic materials
are treated, buried, and compacted, or otherwise disposed of, in a
manner designed to prevent contamination of the ground or surface
Making sure the proposed land use does not present any
actual or probable threat of water pollution.
And ensuring the permit application contains a detailed
description of the measures to be taken during mining and
reclamation to assure the protection of the quality and quantity of
surface and ground water systems, both on- and off-site, from
adverse effects of the mining and reclamation process and also to
assure the rights of present users of such water are protected.
On February 6, 2001, OSM's Western Region issued a policy guidance
document that applies to CCB disposal operations being conducted
concurrently with surface coal mining and reclamation operations on
lands where OSM's Western Region is the regulatory authority under
SMCRA; i.e., on Indian lands, in states with Federal programs, and on
Federal lands in states without a cooperative agreement under section
523 of SMCRA. The document, which is entitled ``Guidance On Disposal of
Coal Combustion Byproducts In the Western United States When OSM
Western Region is the Regulatory Authority,'' may be reviewed online at
http://www.wrcc.osmre.gov/Guidances/CCBguidance.html. It provides
guidance to ensure that CCB disposal at surface coal mines will comply
with the requirements of SMCRA and the applicable regulatory program
approved under SMCRA. Among other things, it identifies the SMCRA
regulations that apply to CCB placement in mines and explains how those
OSM has no authority to regulate CCB disposal in mines for which no
permit is required under Title V of SMCRA. However, we believe
regulation under Title V of SMCRA can serve as a template for state
regulation of other minesites, in coordination with EPA, under other
authorities available to the states.
As a supplement to the regulatory efforts discussed above, OSM has
taken an active role in encouraging and promoting technological
advances, research, and technology transfer related to the placement of
CCBs in mines. A multi-interest group known as the Coal Combustion By-
Product Steering Committee has conducted six national interactive
forums on CCB-related topics and edited, published, and distributed the
forum proceedings. The Committee also provided technical assistance to
the American Society of Testing Methods on draft guidance for CCB use
in mines and developed and manages a Web site (http://www.mcrcc.osmre.gov/ccb/) dedicated to providing a user-friendly guide
to CCB literature, organizations, EPA rulemaking, and educational
VI. What are the benefits of placing CCBs in active and abandoned coal
The use of properly managed CCBs on both active and abandoned mines
can contribute to successful reclamation. For example, alkaline CCBs
with cement-like properties can be used to encapsulate acid-forming or
other toxic-forming materials to isolate those
materials from contact with water and thus reduce or eliminate the
formation of acidic or toxic mine drainage. When used as an alkaline
addition to mine spoil, CCBs can improve soil quality and productivity
as a medium for vegetation. In addition, CCBs can serve as base
material for the construction of haul and access roads to support the
heavy trucks and machinery used in mining. In thin overburden
situations, the use of CCBs to backfill the pit can assist in restoring
mined lands to elevations and grades similar to those that existed
before mining, i.e., the approximate original contour.
Abandoned mine lands with exposed acidic spoils that result in acid
mine drainage (AMD), contaminated streams, and barren or unproductive
land also can benefit from the addition of CCBs. Alkaline CCBs can
neutralize acidic and toxic-forming materials, thereby reducing AMD
formation and improving the ability of the land to support a wider
array of vegetation and land uses.
Even when there is no site-specific beneficial aspect to CCB
placement in mines, the use of mines as CCB disposal sites benefits the
environment by preventing the surface disruption that would otherwise
result from disposal of CCBs in landfills and surface impoundments,
which normally are constructed on previously undisturbed sites or sites
with productive land uses.
VII. How do we plan to revise our regulations to implement the NRC
After discussions with EPA and state regulatory authorities under
SMCRA, we have tentatively decided to propose to revise our regulations
so that they will expressly provide for the placement of CCBs as part
of surface coal mining and reclamation operations permitted under Title
V of SMCRA and in the reclamation of abandoned mine lands under an AML
reclamation program approved under section 405 of the Act. We intend
for these regulations to minimize the possibility that the placement of
CCB could cause adverse impacts on public health and the environment.
With respect to CCB placement in mines with SMCRA permits, we are
considering the adoption of regulations that would specifically
identify the permit application requirements and performance standards
in our existing regulations in 30 CFR Chapter VII that apply to the use
and disposal of CCBs in mines. The OSM Western Region policy guidance
document discussed in Part V of this notice lists the Federal
regulations that we believe are most germane to the placement of CCBs
in mines. We seek comment on that list and on whether our existing
permit application requirements and performance standards are
sufficient to ensure proper management of CCBs. If you believe that
additional requirements and standards are needed, please identify those
requirements and why you believe they are needed.
In addition, consistent with the NRC recommendation emphasizing the
need for public involvement in permitting decisions, we are considering
modifying 30 CFR 774.13(b) to specify that permit revision applications
proposing the placement of CCBs must be processed as significant
revisions, which means that they would be subject to all the notice and
public participation requirements that apply to applications for new
With respect to CCB placement on abandoned mine lands, we are
considering revising 30 CFR Part 874 to include minimum requirements
that would apply to any AML reclamation project funded or otherwise
conducted under an AML reclamation plan and program approved under
section 405 of SMCRA. Those requirements would apply to any reclamation
project funded under the grants awarded pursuant to section 405(h) and
to AML reclamation projects conducted under the provisions of 30 CFR
874.17. The requirements would not apply to other types of AML
reclamation projects, as those projects would be outside the scope of
SMCRA. However, we believe that any requirements that we develop could
serve as a template for states to impose comparable requirements for
the use and disposal of CCBs on other abandoned mine lands under other
provisions of law.
In addition, we are evaluating the impacts of the Surface Mining
Control and Reclamation Act Amendments of 2006, Pub. L. No. 109-432,
Division C, Title II, Subtitle A, on OSM's authority to regulate CCB
placement on reclamation projects approved or funded under Title IV.
We invite comment on the approach described above.
Comments received in response to this notice will help us scope and
frame the proposed rule. We encourage commenters to be as detailed as
possible and to explain how any suggested regulatory changes relate to
the NRC recommendations and the rulemaking authority that we have under
Consistent with the requirements of the Administrative Procedure
Act, we will publish in the Federal Register any proposed regulations
that we may subsequently draft and provide the public with a 60-day
period to review and comment on those proposed regulations.
As recommended in the NRC report, we are coordinating our
rulemaking actions with EPA.
VIII. Will comments on this notice be available for review?
Yes. We will log all comments that are received prior to the close
of the comment period into the administrative record; however, we
cannot ensure that comments received after the close of the comment
period (see DATES) or at locations other than those listed above (see
ADDRESSES) will be included in the administrative record and
Before including your address, phone number, e-mail address, or
other personal identifying information in your comment, you should be
aware that your entire comment--including your personal identifying
information--may be made publicly available at any time. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.
Dated: March 5, 2007.
C. Stephen Allred,
Assistant Secretary, Land and Minerals Management.
[FR Doc. E7-4669 Filed 3-13-07; 8:45 am]
BILLING CODE 4310-05-P