Abandoned Coal Refuse Sites, 2136-2166 [E7-453]

Agencies

• DEPARTMENT OF THE INTERIOR
• Office of Surface Mining Reclamation and Enforcement
• Surface Mining Reclamation and Enforcement Office

[Federal Register Volume 72, Number 10 (Wednesday, January 17, 2007)]
[Proposed Rules]
[Pages 2136-2166]
From the Federal Register Online via the Government Printing 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: osmregs@osmre.gov. 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: https://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 OIRA--DOCKET@omb.eop.gov 
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: adevito@osmre.gov.

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 par