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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

KRC Comments On Proposed Rule On Coal Refuse Sites Remining  Posted: April 10, 2007
Andy DeVito
Office of Surface Mining
Reclamation and Enforcement
MS-252-SIB
U.S. Department of the Interior
1951 Constitution Avenue NW
Washington, D.C. 20240
E-mail: osmregs@osmre.gov

Re: Proposed Rule: Abandoned Coal Refuse Sites
72 Fed. Reg. 2136 (January 17, 2007)

Dear Andy:

These comments are submitted on behalf of the membership and Board of Directors of the Kentucky Resources Council, Inc. (KRC), a nonprofit environmental advocacy organization providing legal and technical assistance without charge to low-income individuals, community organizations, and local governments regarding air, waste, water, mining, and resource extraction and development concerns. The Kentucky Resources Council has reviewed the proposed rule, and offers these comments for consideration by the agency in the finalization of the rule. KRC appreciates the additional time granted by Mr. DeVito in which to research and draft these comments.

BACKGROUND

As noted by the agency, the authorization for development of a separate set of permitting and performance standards for abandoned coal refuse sites is found in the 1992 Energy Policy Act, which amended Title V of the 1977 Surface Mining Control and Reclamation Act to create a new Section 501a to read:

ABANDONED COAL REFUSE SITES

(1) Notwithstanding any other provision of the Surface Mining Control and Reclamation Act of 1977 to the contrary, the Secretary of the Interior shall, within one year after the enactment of this Act, publish proposed regulations in the Federal Register, and after opportunity for public comment publish final regulations, establishing environmental protection performance and reclamation standards, and separate permit systems applicable to operations for the on-site reprocessing of abandoned coal reuse and operations 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 Surface Mining Control and Reclamation Act of 1977.

(2) The standards and permit systems referred to in paragraph (1) shall distinguish between those operations which reprocess abandoned coal refuse on-site, and those operations which completely remove abandoned coal refuse from a site for the direct use of such coal refuse, or for the reprocessing of such coal refuse, at another location. Such standards and permit systems shall 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.

(3) The Secretary of the Interior may devise a different standard than any of those set forth in section 515 and section 516 of the Surface Mining Control and Reclamation Act of 1977, and devise a separate permit system, if he 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 section 515 and section 516.

(4) Not later than 30 days prior to the publication of the proposed regulations referred to in this subsection, the Secretary shall submit a report to the Committee on Interior and Insular Affairs of the United States House of Representatives, and the Committee on Energy and Natural resources of the United States Senate containing a detailed description of any environmental protection performance and reclamation standards and separate permit systems, devised pursuant to this subsection.

30 U.S.C. 1251a.

The legislative history sheds some additional light on Congress’ goals in amending SMCRA to specifically address abandoned coal refuse sites:

Section 2801(e) is premised on the Committee’s view that encouraging reclamation of abandoned coal reuse piles is a critical element in any remining strategy.

The Committee intends for the standards and permit systems to distinguish between those operations which reprocess abandoned coal refuse piles on-site, and those operations which completely remove an abandoned coal refuse pile from a site either for the direct use, or the reprocessing, of coal refuse at another location. As such, the Committee’s intention is for more than one type of permit system to be devised, i.e. a permit for on-site reprocessing, a permit for the removal of coal refuse for its direct use at another location such as at a small power generating plant that burns coal waste, and a permit for the removal of coal refuse for processing at another location such as at a coal preparation plant.

Except for operations for the on-site reprocessing of coal refuse, the Committee intends for the Secretary to consider devising permit systems that enable an operator to engage in a contractual arrangement with a state regulatory authority for coal refuse removal operations. Under such an arrangement, the operator would still be required to reclaim the site under the standards devised by the Secretary pursuant to this subsection.

House Report No. 102-474(VIII) pp. 2345-6.

The Secretary of Interior is authorized, but not obligated, to establish performance standards and permitting systems distinct from those of other “surface coal mining operations” for reprocessing of abandoned coal refuse piles on-site and for removal of such piles. According to the statute, “[s]uch standards and permit systems shall 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[,]” and where the Secretary departs from the existing performance standards in Sections 515 or 516 of the Act, that departure is required to be justified on a “standard-by-standard” basis as being equally protective of the environment as would be the application of the standard itself.

In reviewing the proposed rules, KRC has these comments and concerns:

I. Questions Concerning Agency “Background” Assumptions

Prior to turning to the specific proposals for definitions, performance standards and permitting requirements for “abandoned coal refuse sites,” KRC has some questions and some concerns regarding background assumptions that the agency has made in the preamble to the proposed rule, and which affect the agency’s determination on the protectiveness or sufficiency of alternative standards.

A. Appalachian coalfield hydrogeology must be considered in determining the potential for adverse effect on aquifers during redisturbance and reprocessing of coal refuse piles

On p. 2138 of the proposed rule, the agency observes that abandoned coal refuse operations to not “have the potential to remove or otherwise disturb rock strata that serve as aquifers.” On that same page, the agency notes that abandoned coal refuse remining operations do not “remove the host rock of the groundwater aquifers.”

KRC is concerned that OSMRE has not considered the diversity in groundwater flow regimes among the various coalfields, and in particular, of the Appalachian region. The lack of disturbance of rock strata does not mean lack of disruption of aquifers, since in the Appalachian coalfields, the aquifer(s) most directly impacted by mining and by coal refuse piles are surficial stress-relief fracture flow aquifer systems where the dominant groundwater flow system is a secondary permeability flow through stress-relief fractures and bedding planes, with the aquifer being an unconfined aquifer located in the unconsolidated colluvial material.

Baseline groundwater data to confirm the presence or absence of impacts, and during-operation monitoring is necessary to determine the presence of and trends in qualitative impacts on these shallow aquifer systems.

B. The likelihood of increased conductivity and decreased pH during redisturbance of abandoned coal refuse sites must be considered and controlled adequately

KRC does not disagree that “surface- and ground- water impacts have commonly resulted” from the prior dumping of coal refuse. The placement of the material has, in the case of abandoned coal refuse sites, likely resulted in direct leaching of elevated metals into the shallow groundwater system. As noted by Stewart and Tyson in their paper Potential Use of Coal Combustion Byproducts in the Eastern Coal Region: Site Characteristics, the abandoned coal refuse piles are likely to exhibit low to extremely pH due to the weathering and production of acidity from pyritic materials, and high electrical conductivity values indicative of high levels of dissolved salts produced during pyrite oxidation and subsequent acid attack on minerals. As the oxidation runs its course, the pH values will rise and the EC values will decrease as the salts are leached away. Id. For abandoned pre-law sites the leaching of materials exposed to air and water may have run its course, so that the site may be stabilized in terms of chemical leaching.

The agency needs to keep in mind that because the leaching that has occurred from these abandoned sites occurs through the interaction of exposed pyritic material, water and air, the redisturbance of the material in conjunction with reprocessing and removal will expose new material and new surfaces of rock and coal fines to oxidation and cause new leaching and dramatic declines in pH and elevation of conductivity values over a short-term period in removal operations and over a longer period where the material is to be reprocessed on site.

Baseline surface runoff data and during-operation controls on run-on and treatment and monitoring of run-off that is in contact with disturbed coal refuse and associated rock and colloidal material is necessary to determine the presence of and trends in qualitative impacts on receiving streams.

In this, and in other alternative standards proposed by the agency, it is also important to bear in mind that the repermitting and redisturbance of these sites under Title V makes the sites ineligible for future expenditure of Title IV monies.

C. Absence of topsoil or other soil medium

Another assumption that KRC questions is the assumption assumes that abandoned coal refuse sites generally lack topsoil or other on-site material that could be utilized for revegetation. The factual basis of this assumption is unclear, since KRC is not aware that historic coal refuse dumping included site preparation through removal of existing soil material.

D. Disturbance of lands associated with reprocessing

The final observation on p. 2138 that concerns KRC is the suggestion that on-site reprocessing operations “typically affect very little, if any, previously undisturbed land.” This observation is contradicted by the description of the modern coal processing operation utilizing heavy-medium separators, which the agency acknowledges to “utilize a great deal of water, and commonly need considerable land area for associated ponds and slurry cells.”

E. Assumption of Existence of Baseline Data

KRC is concerned that the proposed rule assumes 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 assumption is not accurate in Kentucky, and likely not accurate in other coalfield states.

Initially, OSMRE needs to bear in mind that Kentucky, as is the case with 23 other states, has “no more stringent than” clauses that prohibit the state from imposing any conditions or adopting any standards that are in excess of the minimum federal standards. The federal “floor” preemption contemplated by Congress has become the “ceiling” for state regulation of surface coal mining, KRS 350.465(2), and for adoption of standards in state-counterpart permits under the NPDES program. KRS 224.16-050. In Kentucky, the state regulatory agency cannot “impose under any permit issued… any effluent limitation, monitoring requirement, or other condition which is more stringent than the effluent limitation, monitoring requirement, or other condition which would have been applicable under federal regulation if the permit were issued by the federal government.” There is no requirement for the surface coal mining category of effluent limitations that baseline monitoring of in-stream conditions or site runoff be collected or reported, or that the biological or chemical health of receiving waters be documented prior to mining activities, and Kentucky would not be authorized to impose such an obligation through the NPDES program unless such a requirement would have been imposed had the permit been issued by EPA. The assumption on p. 2140 that “baseline water quality and flow of all discharges and receiving waters is required in the NPDES permit application” is inaccurate, particularly in those cases where (as in Kentucky) there has been a categorical “general permit” issued that allows a permittee to opt under the coverage of the general permit without detailed water agency permit review based on the possession by that permittee of a Title V SMCRA permit.

OSMRE should be careful not to assume baseline data collection or hydrologic analysis under the Clean Water Act has been undertaken, or is sufficient to satisfy Sections 515 and 516 of SMCRA.

II. Specific Comments On Proposed Regulations

KRC’s specific comments concerning the proposed performance standards and permitting requirements follows, referenced by proposed regulation:

A. Section 515(b)(2)

KRC opposes the lowering of the standard for site restoration. The agency posits that the “land use that existed prior to mining is often not known,” yet by reference to areas adjacent to and not affected by the dumping of coal refuse, it is likely that the prior use(s) of the land can be determined.

The replacement of a requirement to restore lands to a condition capable of supporting uses prior to mining with a standard that merely requires the restoration of the land to a condition capable of supporting a use “equivalent to . . .the land use prior to commencement of the abandoned coal refuse remining operation” allows the permittee to leave the abandoned coal refuse site in the current condition after reprocessing, thus allowing the removal of recoverable coal fines and re-abandonment of the site in an unreclaimed status.

For removal operations, there is no justification for failure to fully restore the land to those potential uses existing prior to any coal refuse dumping. For reprocessing operations where the material will be separated from recoverable coal and redeposited in a compacted, constructed fill on site, the permittee should be held to a standard of proper revegetation and reclamation of the redisturbed area comparable to other Title V sites.

B. Section 515(b)(3)

Where the abandoned coal refuse pile was placed on a mine bench, OSMRE is obligated to apply the AOC requirements in conjunction with the reprocessing and reclamation of an abandoned coal refuse pile. Additionally, in considering the redepositing on-site of reprocessed coal refuse material for those operations that are not completely removing the refuse piles, OSMRE should consider, consistent with the protection of the hydrologic balance and minimization of impacts on streams, requiring that the permittee evaluate the potential for disposal of the reprocessed material on previously-mined benches and abandoned mine land areas rather than redepositing of reprocessed material in valley fills or coal waste impoundments.

C. Section 515(b)(4), (b)(5) and (b)(6)

Where topsoil material exists at an abandoned coal refuse disposal site, OSMRE cannot categorically ignore the obligation to separate remove and replace the material. An obligation to remove, segregate and replace the topsoil should be incorporated in addition to allowing the use of “other vegetation-support material” where the topsoil was previously removed. The diversity of coal refuse sites in how native soil materials underlying the historic refuse piles were handled and whether they were disturbed, militates against categorical assumptions of the lack of existing topsoil and blanket waivers of obligations to remove, store and restore such soils.

D. Section 515(b)(10) / Proposed Section 786.3

KRC questions the agency’s assumption that coal refuse piles and the reprocessing of same will have no impact on the recharge capacity of an aquifer. The deploying of heavy earth-moving equipment, removal of, redeposition and compaction of coal refuse materials can impact the unconsolidated materials and near-surface fractured materials that constitute the shallow groundwater system in the Appalachian coalfields, and can alter the recharge capacity of soils and spoils in a manner that can cause localized alterations in the groundwater flow. Changes in recharge capacity should be monitored during and after reprocessing or removal operations in areas where the coal refuse piles are in hydrologic communication with unconsolidated or unconfined valley bottom or stress-relief aquifers.

The proposal to allow use of best management practices in lieu of actions otherwise required under applicable performance and reclamation standards is opposed for the reason that there is no evidence that employment of best management practices results in a predictable or replicable reduction in water pollution. The agency proposes to allow state regulatory authorities to “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,” yet identifies no such evidence. The comments of the Commonwealth of Kentucky in response to EPA’s promulgation of remining regulations offers a markedly different perspective on the use of “best management practices” in lieu of, rather than in addition to, performance standards:

With regards for the substitution of BMPs for effluent limitations, the application of BMPs are for the prevention of environmental degradation from sources which are not easily controlled through the application of point source requirements. BMPs can also be used as a supplement to a point source program, but they are not a stand-alone control device. As an example, the Division of Water requires the use of BMPs on all mining and remining sites as a supplement to the point source requirements. Kentucky has developed a BMP guidance document with recommended BMPs for use by the industry, however none of these BMPs have a documented reproducible correlation between the application of a BMP and a quantifiable improvement in water quality.

Absent that “documented reproducible correlation between the application of a BMP and a quantifiable improvement in water quality,” the OSMRE proposal to allow BMPs to be used in lieu of those measures required by the performance standards of Section 515(b)(10), such as sediment ponds, cannot be supported as being as protective as the requirements of that section.

Congress did not intend that OSMRE blanketly waive Section 515(b)(10) obligations on the basis that the state could impose BMPs; rather if there are specific BMPs that the agency believes are as protective as regulations OSMRE has imposed and which are necessary because the regulations are inappropriate to the proposed reprocessing or removal operations, OSMRE must identify those BMPs and provide the basis and documentation for the assumption that they will provide equivalent environmental protection. Any proposal by a refuse reprocessing operation to use a specific BMP must be accompanied by documentation that such practice is effective, monitoring to demonstrate the efficacy, and an enforceable limit to gauge effectiveness of the practice. BMPs cannot be used in lieu of applicable of categorical effluent limitations for this category of operations, since Congress did not authorize the agency to vary the terms or requirements of the Clean Water Act when it allowed case-by-case departures from Section 515 and 516 performance standards. See: Section 702(a)(3).

E. Section 701.5 Definitions

KRC believes that the distinctions reflected in the proposed definitions between the impacts of coal refuse removal operations and reprocessing operations are generally valid, regarding the temporary impact of removal operations relative to the potential impacts on land and water resources of reprocessing operations. The re-placement of reprocessed material should be regulated consistently with operations that process run-of-mine coal and dispose of coal refuse, since other than the source of the coal, the processing facilities have a similar “footprint” on land, air and water resources. For all reprocessing facilities, the agency should require the permittee to evaluate the alternative of pneumatic or hydraulic backstowing of refuse in mined-out workings, both in order to minimize subsidence and to avoid or minimize the necessity of surface disposal sites affecting navigable waters. While the agency is correct that “backstowing of underground mine works “has not been regulated as a surface coal mining operation,” 72 F.R. 2145, and is instead regulated as a Class V well under the Safe Drinking Water Act Underground Injection Control program, OSMRE has authority to require the minimization of impacts to the hydrologic balance and can and should require that the applicant avoid surface redeposition of processed mine wastes where feasible.

Conclusion

In closing, KRC appreciates the effort that OSMRE has expended in finalizing the effort begun in 1993 to promulgate regulations addressing abandoned coal refuse removal and reprocessing operations. In seeking to alter the Section 515 and 516 standards, however, KRC is concerned that the agency has weakened or waived protections that may be applicable to these refuse disposal sites. It must be remembered that the repermitting and redisturbance of these sites under Title V will make the sites ineligible for future expenditure of Title IV monies, so that proper planning and execution of a mine plan for recovery of the combustible fraction of the abandoned refuse, and permitting and bonding of such activities, should be done in a manner that will assure long-term protection of landowners and the environment.

Thank you for your consideration of these comments. Please let me know if you need copies of any documents cited herein.

Cordially,
Tom FitzGerald
Director


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