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5 Current Regulatory Framework T his chapter describes the basic federal laws for mine reclamation and environmental protection that could be applied to placement of coal com- bustion residues (CCRs) in coal mines. Of particular importance are the Surface Mining Control and Reclamation Act (SMCRA) and the Resource Con- servation and Recovery Act (RCRA), although other directly relevant federal laws are also covered, including the Safe Drinking Water Act (SDWA) and the Clean Water Act (CWA; Table 5.1). Activities such as mining and environmental protection involve nationally variable, locally specific conditions that can be difficult to address with national rules. On the other hand, national standards are sometimes necessary to address inequities among states' authorities and regula- tions to ensure that minimum environmental safeguards are met. Many federal programs address these concerns by allowing the delegation of primary regula- tory authority to states and state agencies that can adapt their programs to address local conditions and needs. The final sections of this chapter briefly examine the ways in which federal rules (e.g., SMCRA, RCRA) interface with state authori- ties and programs. THE SURFACE MINING CONTROL AND RECLAMATION ACT OF 1977 SMCRA establishes permitting, performance, and bonding requirements for the operation and reclamation of surface coal mining and the surface impacts of underground mining (30 U.S.C. 1201 et seq.). SMCRA is administered by the Office of Surface Mining (OSM) in the U.S. Department of the Interior. Under 105

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106 MANAGING COAL COMBUSTION RESIDUES IN MINES TABLE 5.1 Summary of Major Federal Regulations that Apply to CCR Generation and Placement Federal Law Summary Surface Mining Control and Establishes standards for coal mining operations and Reclamation Act (SMCRA), reclamation. 30 U.S.C. 1201 et seq. Sets permitting standards, bonding requirements, performance standards, and inspection and enforcement standards. Does not specifically address the placement of CCRs in mines, but its scope is broad enough to encompass CCR use in reclamation. Also establishes a program for abandoned mined land reclamation funded through a tax imposed on all mined coal. Resource Conservation and Establishes a cradle-to-grave management system to ensure Recovery Act (RCRA), 41 tracking and appropriate handling of hazardous waste. U.S.C. 6901 et seq. (an In 2000, the U.S. Environmental Protection Agency (EPA) amendment to the Solid determined that regulation of CCRs as hazardous waste was Waste Disposal Act) not required but that regulation under RCRA's solid waste program was appropriate for CCRs disposed in landfills and surface impoundments. For minefilling, EPA concluded that regulation was warranted under either RCRA or SMCRA or some combination. Safe Drinking Water Act Authorizes EPA to set standards for contaminants that may (SDWA), 42 U.S.C. 300f occur in public drinking water supplies. et seq. Regulates the underground injection of substances that may contaminate groundwater that is, or may be, a source of public drinking water. For example, mine backfill wells that may be used to inject CCRs into underground mines would be regulated under SDWA. Clean Water Act (CWA), Focuses primarily on discharges of pollutants into surface 33 U.S.C. 1251 et seq. waters. Establishes separate programs for industrial point-source pollution discharges, dredge and fill activities, non-point source pollution, and ambient water quality. Coal mining operations typically obtain point-source discharge permits for their surface runoff. Emergency Planning Requires businesses to report the location and quantity of Community Right to Know certain chemicals stored on-site and to report releases (e.g., Act (EPCRA), 42 U.S.C. the discharge or transfer off-site, or disposal on-site) of 11001 et seq. certain chemical constituents through the Toxics Release Inventory (TRI). This applies to generators of CCRs, such as electric utilities. Pollution Prevention Act Promotes reduction, reuse, and recycling of waste materials (PPA), 42 U.S.C. 13101 before considering disposal. Requires companies that generate waste and file TRIs to prepare and file an annual report on toxic chemical source reduction and recycling for their facilities, including source reduction practices and techniques used to identify source reduction opportunities. xxx

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CURRENT REGULATORY FRAMEWORK 107 SMCRA, states have the option of developing and implementing state programs, subject to strict federal standards (30 U.S.C. 1253). If a state fails to adopt an adequate program, as approved by the Secretary of the Interior, a federal program is imposed on the state (30 U.S.C. 1254). SMCRA applies to all surface coal mining and reclamation operations, which are defined to encompass surface mining operations and "all activities necessary and incident to reclamation activities" (30 U.S.C. 1291(27)). Surface coal min- ing operations are defined, in turn, to encompass: (A) activities conducted on the surface of lands in connection with a surface coal mine and surface impacts incident to an underground mine . . . ; and (B) the areas upon which such activities occur or where such activities disturb the natural land surface. Such areas also include . . . excavations, workings, impoundments, dams, . . . refuse banks, dumps, stockpiles, overburden piles, spoil banks, culm banks, tailings, . . . or other properties or materials on the surface, resulting from or incident to such activities (30 U.S.C. 1291(28)). Mine Planning and Permitting SMCRA requires surface coal mining operators to submit detailed operation and reclamation plans for approval by the state (or federal) regulatory authority before mining operations begin (30 U.S.C. 1257-1258). A substantial perfor- mance bond must also be posted, sufficient to guarantee full reclamation of the mine site (30 U.S.C. 1259). Notice of permit applications must be advertised in local newspapers, and interested parties have an opportunity to file objections to the application, request an informal conference with the permitting agency, and request a formal hearing within 30 days of the decision to approve or disapprove a permit application (30 U.S.C. 1263, 1264). Although the law provides for the staged release of bonds as reclamation proceeds, a portion of the bond must remain in effect during the period in which the operator is responsible for revegetation. In the case of lands that receive more than 26 inches of rainfall annually, the period is five full years after the last year of augmented seeding, fertilizing, or other work; in the case of lands that receive 26 inches of rainfall or less, the period is ten full years after augmentation work (30 U.S.C. 1259(b), 1265(b)(20)(A)). A more detailed explanation of reclamation is found in Chapter 7. Neither SMCRA nor the regulations developed by OSM to implement SMCRA specifically address the issue of placement of CCRs in mines as part of reclamation. Nonetheless, many SMCRA requirements should indirectly impact how such disposal is carried out. Among the permit requirements most relevant to current concerns about CCR disposal are those that relate to water and hydrology. Section 508(b)(11) of SMCRA requires the applicant to provide the regulatory agency with

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108 MANAGING COAL COMBUSTION RESIDUES IN MINES . . . a determination of the probable hydrologic consequences of the mining and reclamation operations, both on and off the mine site, with respect to the hydro- logic regime, quality and quantity of water in surface and groundwater systems . . . and the collection of sufficient data for the mine site and surrounding areas so that an assessment can be made by the regulatory authority of the probable cumulative hydrologic impacts of all anticipated mining in the area upon the hydrology of the area . . . (30 U.S.C. 1258(a)(11)). The probable hydrologic consequences determination, prepared by the per- mit applicant, followed by the cumulative hydrologic impact assessment, pre- pared by the regulatory authority, are two of the key permitting requirements relating to water resources. In addition, SMCRA requires the permit application to contain (13) a detailed description of the measures to be taken during the mining and reclamation process to assure the protection of: (A) the quality of surface and ground water systems, both on- and off-site, from adverse effects of the mining and reclamation process; (B) the rights of present users to such water; and (C) the quantity of surface and ground water systems, both on- and off- site, from adverse effects of the mining and reclamation process or to provide alternative sources of water where such protection of quantity can- not be assured . . . (30 U.S.C. 1258(a)(13)). These requirements are supplemented by detailed regulations that include, for example, requirements for baseline hydrologic information, a hydrologic reclama- tion plan, and surface and groundwater monitoring plans (see 30 CFR 780.21). Another provision central to SMCRA is the requirement to restore the pre- mining land-use capability. Section 515(b)(2) requires the operator "to restore the land affected to a condition capable of supporting the uses which it was capable of supporting prior to any mining, or higher or better uses . . . " (30 U.S.C. 1265(b)(2)). In turn, SMCRA's permitting standards require submission of a reclamation plan. This plan must include, among other things, a statement of "the engineering tech- niques proposed to be used in mining and reclamation and a description of the major equipment; a plan for the control of surface water drainage and of water accumula- tion; a plan, where appropriate, for backfilling, soil stabilization, and compacting, grading, and appropriate revegetation; a plan for soil reconstruction, replacement, and stabilization" (30 U.S.C. 1258(a)(5); see also 30 CFR 780.18). SMCRA also gives the regulatory authority the power to impose other per- mitting requirements not specifically authorized under the statute as long as it is done by regulation (30 U.S.C. 1258(a)(14)). This means that states with ap- proved programs or OSM, using its authority to set minimum national standards,

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CURRENT REGULATORY FRAMEWORK 109 could develop and impose more specific requirements related to placement and disposal of CCRs in mines. Such standards could be promulgated only after notice and comment rulemaking procedures. Numerous regulations implement these statutory permitting provisions. For example, OSM has established permitting rules requiring applicants to submit detailed geological information as needed to determine the hydrologic conse- quences of mining as well as the existence of potentially acidic or toxic-forming strata, down to and including the stratum immediately below the seam to be mined (30 CFR 780.22(a)). Chemical analysis of potentially toxic-forming ma- terials is also required (id. at 780.22(b)). In addition, the rules specifically authorize OSM to require the collection, analysis, and description of additional geologic information as may be necessary to protect the hydrologic balance (id. at 780.22(c)). Permits must be renewed every five years (30 U.S.C. 1256(b), (d)). Permits may also be revised and revisions that propose significant alterations are subject to the public notice and hearing requirements that generally apply to new permit applications (30 U.S.C. 1261; 30 CFR 774.13(b)(2)). However, OSM's regula- tions do not provide guidance as to when a revision should be treated as signifi- cant (see 30 CFR 774.13). If a regulatory agency fails to treat the modification of a reclamation plan to use CCRs as minefill as a significant revision, then no public notice or hearings on the revision would be required. Performance Standards In addition to these permitting standards, SMCRA establishes performance standards for all mining and reclamation operations (30 U.S.C. 1265). Several of these performance standards could be applied without modification to mine placement of CCRs. For example, the following lists some of the most relevant performance standards that require mine operators to: (3) backfill, compact (where advisable to insure stability or to prevent leaching of toxic materials), and grade in order to restore the approximate original con- tour of the land . . . . (4) stabilize and protect all surface areas including spoil piles affected by the surface coal mining and reclamation operation to effectively control erosion and attendant air and water pollution; . . . (10) minimize the disturbances to the prevailing hydrologic balance at the mine- site and in associated offsite areas and to the quality and quantity of water in surface and ground water systems both during and after surface coal mining operations and during reclamation by-- (A) avoiding acid or other toxic mine drainage by such measures as, but not limited to--

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110 MANAGING COAL COMBUSTION RESIDUES IN MINES (i) preventing or removing water from contact with toxic producing deposits; (ii) treating drainage to reduce toxic content which adversely affects downstream water upon being released to water courses; (iii) casing, sealing, or otherwise managing boreholes, shafts, and wells and keep acid or other toxic drainage from entering ground and surface waters; . . . (11) with respect to surface disposal of mine wastes, tailings, coal processing wastes, and other wastes in areas other than the mine working or excavations, stabilize all waste piles in designated areas through construction in compacted layers including the use of incombustible and impervious materials if necessary and assure the final contour of the waste pile will be compatible with natural surroundings and that the site can and will be stabilized and revegetated accord- ing to the provisions of this chapter; (14) insure that all debris, acid-forming materials, toxic materials, or materials constituting a fire hazard are treated or buried and compacted or otherwise dis- posed of in a manner designed to prevent contamination of ground or surface waters and that contingency plans are developed to prevent sustained combustion; (16) insure that all reclamation efforts proceed in an environmentally sound manner and as contemporaneously as practicable with the surface coal mining operations . . . (30 U.S.C. 1265(b)). Beyond these statutory requirements, the federal rules establish minimum performance standards that address topsoil and subsoil management and use (30 CFR 816.22), management and protection of the hydrologic balance (30 CFR 816.41-816.47), contemporaneous reclamation (30 CFR 816.100), and back- filling and grading (30 CFR 816.101-816.107). In particular, ground- and surface-water protection are required by handling earth materials and runoff in a manner that minimizes acidic, toxic, or other harmful contamination of water resources (30 CFR 816.41(b), (d)). Ground- and surface-water monitoring data are required to be submitted at least quarterly (30 CFR 816.41(c), (e)). Thus, 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 require regulation of the use or placement of CCRs. Managing Abandoned Mine Lands Including Remining Title IV of SMCRA establishes an abandoned mined land (AML) reclama- tion program that is funded through a reclamation fee imposed on each ton of coal mined (30 U.S.C. 1232(a)). States are entitled to receive at least 50 percent of the fees paid by coal mining operations in their jurisdiction for AML reclamation

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CURRENT REGULATORY FRAMEWORK 111 projects if they have both an approved regulatory program (30 U.S.C. 1235(c)) and an approved AML reclamation program (30 U.S.C. 1232(g)). Under the original law, AML money could be spent only for lands and waters affected by mining and "abandoned or left in an inadequate reclamation status . . . , and for which there is no continuing reclamation responsibility . . . " (30 U.S.C. 1234). As a result of this language, coal operators interested in engaging in activities to extract additional coal resources from coal refuse piles, particularly abandoned anthracite culm banks and coal waste piles, were not eligible to receive AML funds. Furthermore, extraction of the coal refuse poten- tially imposed on the operator the full regulatory burdens for any other surface coal mining operation regulated under SMCRA. The Energy Policy Act of 1992 (Public Law 102-486) amended several provisions of SMCRA in an effort to promote such beneficial extraction and reclamation activities at abandoned mines. Under those amendments, AML money may be used to restore lands that are eligible for such refuse remining under OSM's standards (30 U.S.C. 1234). In addition, operators at refuse remining sites are not subject to having other permit applications blocked for SMCRA violations that occur at a refuse remining site, as would otherwise happen under 510(c) of SMCRA, if such violations resulted from an unantici- pated event or condition. Finally, the period of responsibility for successful revegetation at AML refuse remining sites is reduced from ten to five years in areas that receive 26 inches of rainfall or less annually, and from five to two years in areas that receive in excess of 26 inches of annual rainfall. In addition to these changes to SMCRA, the CWA was amended to make it easier for refuse remining operators to obtain a National Pollutant Discharge Elimination System (NPDES) permit. Under this provision, sometimes called the Rahall Amendment, remining operators are allowed to meet modified discharge limits for pH, iron, and manganese based on economically achievable best avail- able technology, as determined on a case-by-case basis, subject to the require- ment that the remining operation improves water quality (33 U.S.C. 1311(p)). Congress also made changes in the policies for regulating public utilities that were designed to provide incentives for generating electricity from the combus- tion of coal refuse and other waste products and from renewable energy sources. These changes in federal policy contributed to the viability of the coal refuse remining and reclamation industry (Sidebar 5.1). Both general AML and AML refuse-remining projects sometimes use CCRs to neutralize acid-forming materials or as fill for mine pits during reclama- tion. To the extent that these activities do not involve any remining, they are not subject to the same SMCRA standards that apply to active surface coal mining operations. Although as noted previously, remining projects may be eligible for AML money and are not subject to the same permit block and bonding standards that apply to other mines, these projects are otherwise subject to the same general regulatory standards that apply to active coal mining and reclamation activities.

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112 MANAGING COAL COMBUSTION RESIDUES IN MINES Thus, OSM and its state partners are in a position to regulate CCR use in AML projects that involve refuse-remining activities. OTHER FEDERAL ENVIRONMENTAL LAWS Several environmental laws are directly or indirectly applicable to the place- ment of CCR in mines. The section below discusses pertinent issues in RCRA, the Safe Drinking Water Act (42 U.S.C. 300(f)-(j)-326), the Clean Water Act (33 U.S.C. 1251-1385), the Emergency Planning and Community Right To Know Act (42 U.S.C. 11021-11023), and the Pollution Prevention Act (42 U.S.C. 13101-13109). In addition, the Clean Air Act (42 U.S.C. 7401- 7671q) can impact CCR management indirectly by mandating air pollution con- trols that affect the characteristics of the CCRs and thus its suitability for certain productive uses. The Resource Conservation and Recovery Act RCRA (42 U.S.C. 6901 et seq.) was enacted in 1976 to address the prob- lem of hazardous waste disposal.1 The act establishes a cradle-to-grave tracking system whereby hazardous waste is managed from the time it is generated until the time that it is properly disposed in an approved and permitted treatment, storage, and disposal facility. A written manifest, which contains information about the waste as well as the generator, transporters and treatment, storage, and disposal facility, is used to track the waste through to discharge or disposal. Because of the cost of tracking and treating hazardous waste, RCRA provides an economic incentive to minimize or eliminate wastes so that the law does not apply. Moreover, RCRA requires generators to certify that they have a program in place to minimize the quantity and toxicity of the waste generated to the extent economically practicable (id. at 6922(b)(1)). In 1980, Congress passed the Bevill Amendment to RCRA (42 U.S.C. 6982(n)), which required the EPA to conduct a detailed and comprehensive study and submit a report on the adverse effects on human health and the environ- 1Hazardous waste is defined as "solid wastes, or a combination of solid wastes, which . . . may (A) cause or significantly contribute to an increase in mortality, or an increase in serious irreversible, or incapacitating reversible, illness; or (B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported or disposed of, or otherwise managed. 42 U.S.C. 6903(5). Solid wastes are broadly defined to encompass "discarded material, including solid, liquid, semi-solid, or contained gaseous material . . . ." 42 U.S.C. 6903(27). EPA rules establish essentially two ways for a solid waste to be deemed "hazardous": (1) by exhibiting one of four hazardous characteristics (ignitability, corrosivity, reactivity, or toxicity), or (2) by being listed as hazardous by rule. See 40 CFR part 261.

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CURRENT REGULATORY FRAMEWORK 113 SIDEBAR 5.1 One Person's Trash Is Another Person's Treasure: PURPA and Waste Coal Independent Power Producers In the Public Utility Regulatory Policies Act (PURPA) of 1978, Congress found that "the protection of the public health, safety, and welfare, the preservation of national security, and the proper exercise of congressional authority under the Constitution to regulate interstate commerce require--(1) a program providing for increased conservation of electric energy, increased efficiency in the use of facili- ties and resources by electric utilities, and equitable retail rates for electric con- sumers . . ." (16 U.S.C. 2601 et seq.). PURPA requires that public utilities buy electricity from generating facilities that meet certain criteria, such as the use of nontraditional fuels including waste-derived fuels (18 CFR 292). These electricity generating facilities are known under PURPA as "qualifying facilities." Part of PURPA's intent was to create a regulatory environment in which small indepen- dent power producers could generate electricity from coal refuse and other waste products and be economically viable in the electricity supply market. Under 18 CFR 292.202(b), waste-derived fuels include: (1) anthracite culm produced prior to July 23, 1985; (2) anthracite refuse that has an average heat content of 6,000 British thermal units (Btu) or less per pound and has an average ash content of 45 percent or more; and (3) bituminous coal refuse that has an average heat content of 9,500 Btu per pound or less and has an average ash content of 25 percent or more If an electricity-generating facility meets additional requirements for efficiency and ownership (see 18 CFR 292.203-292.206) and obtains certification as a qualified facility, an electric utility is obligated to purchase any power produced from the qualifying facility at a fair rate (18 CFR 292.304). Although PURPA was originally enacted in 1978, the circulating fluidized bed boiler technology that allowed waste coal to be used as a viable fuel option did not come on-line for commercial use until the late 1980s. As a result, nearly 10 years passed between the enactment of PURPA and the development of the waste coal independent power production industry (PADEP, 2004). ment, if any, of the disposal and utilization of fly ash waste, bottom ash waste, slag waste, flue gas emission control waste, and other by-product materials gen- erated primarily from the combustion of coal or other fossil fuels. Separately, Congress provided that these coal combustion by-products would not be regulated under RCRA until at least six months after the date of the required study (42 U.S.C. 6921(b)(3)(A)(1)). On March 8, 1988, EPA released its first report to Congress under the Bevill Amendment, and on August 9, 1993,

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114 MANAGING COAL COMBUSTION RESIDUES IN MINES EPA concluded that the regulation of fly ash, bottom ash, boiler slag, and scrub- ber sludge as hazardous wastes was not warranted (58 FR 42466).2 RCRA Subtitle C Wastes determined to be hazardous are regulated under subtitle C of RCRA. Under subtitle C, EPA issues management standards tailored to particular wastes and generators. RCRA allows the EPA to delegate subtitle C hazardous waste authority to the states. As under SMCRA, states that opt to manage subtitle C hazardous waste must adopt their own laws and regulations that are consistent with federal standards. Such state programs are subject to review and approval by EPA and standards established under subtitle C are also enforceable by EPA. RCRA Subtitle D The EPA also promulgates rules for nonhazardous solid wastes (such as municipal solid waste) under subtitle D of RCRA. EPA's subtitle D regulations establish minimum national performance criteria for all sanitary landfills (40 CFR part 257 (2004)). Facilities that fail to meet these criteria are considered open dumps and are illegal (40 CFR 257.1(a)(1)). In addition, EPA's rules set minimum criteria for the design, siting, operation, and closure of municipal solid waste landfills (40 CFR part 258 (2004)). Regular groundwater monitoring is part of this program, and the rules require remedial action to address releases that may pose a threat to human health or the environment. The EPA's design standards are flexible so that state and local agencies can design landfills that will accom- modate local hydrogeologic and climatic conditions, as well as the particular characteristics of the site. Subtitle D provides for the promulgation of EPA regu- lations and guidelines for identifying units for solid waste management and to assist states in developing and implementing solid waste management plans (42 U.S.C. 6942). Unlike the subtitle C hazardous waste program, however, subtitle D is not a delegated program, and EPA does not implement or enforce standards in states that do not adopt federal standards. While all states have developed standards that govern landfills and solid waste disposal and many have adopted the RCRA D guidelines, states are not bound by the federal standards. A facility that does not comply with subtitle D regulations is in violation of prohibitions 2It bears noting here that the U.S. Supreme Court struck down EPA's attempt to exempt incinera- tor ash from regulation under subtitle C (City of Chicago v. Environmental Defense Fund, 511 U.S. 328 (1994)). EPA claimed that incinerator ash was exempt pursuant to the "household waste exclu- sion"--a provision in RCRA that exempts municipal incinerators that burn household waste from regulation as a treatment, storage, and disposal facility, even though some of that household waste likely includes material that would be deemed hazardous waste under RCRA standards.

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CURRENT REGULATORY FRAMEWORK 115 against open dumping (42 U.S.C. 6945(a)), but this prohibition is enforceable only by private citizens and the states (42 U.S.C. 6972(a)(1)). Federal technical and financial assistance is also available to state and re- gional authorities to assist them in developing environmentally sound waste dis- posal practices (42 U.S.C. 6941). Although states are not required to submit their solid waste management plans to the EPA for approval, states whose plans are approved by the EPA are eligible for federal assistance (42 U.S.C. 6943). On May 22, 2000, the EPA published a regulatory determination on wastes from the combustion of fossil fuels (65 FR 32214; USEPA, 2000) wherein it concluded that CCRs do not warrant regulation under subtitle C of RCRA. The EPA also determined, however, that national regulations for CCRs are warranted under subtitle D of RCRA when they are disposed in landfills or surface im- poundments and that regulations under subtitle D of RCRA and/or SMCRA are warranted when these wastes are used to fill surface or underground mines. The 2000 regulatory determination summarized EPA's research and findings, which are pertinent to this study. Some of this information is presented in Chapter 4 and some is reviewed later in this chapter. The EPA and OSM have prepared a side-by-side document that compares the language and approach of SMCRA and RCRA as they relate to the possible regulation of CCR placement in mines. The document includes citations from SMCRA and RCRA rules. For RCRA, it presents potential approaches that might be used if RCRA D regulations are proposed. For SMCRA, it offers citations of actual rules, with some interpretive additions, to show how SMCRA can be interpreted to cover CCR use in reclamation or how language might be added to address CCRs specifically. The EPA-OSM document is presented in Appendix E. The Safe Drinking Water Act The SWDA (42 U.S.C. 300(f)-300(j)-326) was established to protect public health by regulating the quality of drinking water in the United States. The law focuses on all surface and groundwaters that actually or potentially provide drink- ing water. The SDWA authorizes the EPA to set national health-based drinking water standards.3 These standards include maximum contaminant level goals (MCLGs), set at a level below which there is no known or expected health risk (40 CFR 141.2), and maximum contaminant levels (MCLs), enforceable stan- dards set as close as possible to the MCLGs, taking into account feasibility and cost (42 U.S.C. 300(f)(1)). While the standards apply only to public drinking 3The statute requires EPA to set both primary and secondary drinking water standards. Primary standards protect public health, whereas secondary standards protect the public welfare and might encompass, for example, standards designed to address aesthetic issues such as the odor and appear- ance of water (42 U.S.C. 300(f)(1), (2)).

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116 MANAGING COAL COMBUSTION RESIDUES IN MINES water systems, these systems are defined broadly to encompass all systems that serve as few as 25 people (or 15 service connections) at least 60 days each year (42 U.S.C. 300(f)(4)). They do not apply, for example, to single-family, private well water supplies in rural areas. However, even where these standards do not apply directly, they offer a guidepost for determining the level of pollutants that may pose a threat to public health or the environment. For example, in many RCRA applications, drinking water MCLs may be applied as performance stan- dards for the quality of groundwater migrating off-site from a waste disposal facility. The SDWA also contains an underground injection control program to regu- late underground injection wells. The underground injection control program is designed to protect groundwater from contamination by the injection of liquid wastes into wells. Liquid wastes are typically injected at high pressure. Injection wells must usually be cased and cemented into the surrounding foundation to avoid contamination of nearby groundwater sources. The underground injection control program encompasses five specific classes of underground injection wells that correspond to different levels of regulation. Class I wells are those that inject hazardous, industrial, or municipal wastes below the lowest underground drinking water source. Class II wells inject liquids related to hydrocarbon storage and oil and natural gas production. Class III wells inject fluids associated with the mining of minerals. Class IV wells are those that inject radioactive or hazardous wastes into or above an aquifer and are prohibited by law. Class V wells are those injection wells not identified in Classes I-IV (40 CFR 144.6). Federal standards are designed to protect public health by prevent- ing injection wells from contaminating underground sources of drinking water (USDWs) (40 CFR parts 144, 146). USDWs are aquifers or portions of aquifers that have water quantities adequate to supply a public water system and whose waters contain less than 10,000 mg/L total dissolved solids (i.e., water that could be treated to meet public drinking water standards). SDWA includes all current and future USDWs. Mine backfill wells can be used to inject materials (e.g., sand and water, mine tailings, sometimes CCRs) into underground mined-out areas for subsid- ence control, fire control, and disposal of debris from mine operations (see Chap- ter 2). Underground injection control regulations would apply if CCRs were to be injected into underground mines for reclamation or other purposes. Mine backfill wells are regulated by permit or rule in various states. The EPA estimates that there are approximately 7,800 mine backfill wells in 17 states, but only a few of these inject CCRs; however, this is a common practice in underground metal mines. Ninety percent of the documented wells occur in Idaho, North Dakota, Ohio, and West Virginia (USEPA, 1999c). The EPA can delegate SDWA authority to the states, subject to federal approval and oversight, and all states except Wyoming have approved SDWA programs. States must adopt the federal MCLs and must meet the federal Under-

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CURRENT REGULATORY FRAMEWORK 117 ground Injection Control Program standards as a minimum, but they can adopt more stringent standards as authorized under state law. The Clean Water Act The CWA makes it illegal to discharge pollutants into navigable waters except as authorized by the act (33 U.S.C. 1311(a), 1362(12)). Of particular relevance is section 402 of the CWA, which establishes the National Pollution Discharge Elimination System (NPDES). Section 402 requires an NPDES permit for the discharge of any pollutant (33 U.S.C. 1342(a)). Discharge of a pollutant is defined to mean "any addition of any pollutant to navigable waters from any point source" (33 U.S.C. 1362(12)). The meaning of each of the substantive terms in this definition has evolved over the course of the last 30 years. The CWA defines a point source to mean "any discernible, confined, and discrete conveyance . . ." (33 U.S.C. 1362(14)) and the term has historically been defined broadly to include essentially any "man-induced gathering system" (Beck, 1991; CFR 53.01(b)(3) 1991). One court has held, for example, that "surface runoff from rainfall, when collected and channeled by coal miners in connection with mining activities, constitutes point source pollution."4 Since all surface drainage from disturbed areas at surface coal mining operations must pass through a sediment discharge control structure before it leaves the mine site (see 30 CFR 816.46(b)(2)), any discharge from such structures is likely to be consid- ered a point source requiring an NPDES permit. Hence, active mines have NPDES permits to control their discharges to surface waters. It is not clear if adding placement of CCRs into the mine during ongoing reclamation would require revisiting the terms of an existing permit. It is also not clear whether a discharge of leachate into an aquifer from a minefill that might include CCRs would be considered a point-source discharge subject to the NPDES program. The courts are split as to whether discharges into groundwater are covered by the NPDES program. Courts have found that dis- charges into groundwater that are hydrologically connected to surface water are subject to the program.5 Other courts, however, have held that the CWA does not apply to groundwater.6 At least two circuit courts appear to agree with the proposi- 4Sierra Club v. Abston Construction Company, 620 F.2d 41 (5th, 2d Cir. 1980). See also, Con- cerned Area Residents for the Environment v. Southview Farm, 34 F.3d 114 (2d Cir. 1994), cert. denied, 514 U.S. 1082 (1995), holding that "liquid manure spreading operations" at concentrated animal feeding operations are point sources. 5Williams Pipe Line Co. v. Bayer Corp., 964 F. Supp. 1300, 1320 (S.D. Iowa 1997); Friends of Santa Fe County v. LAC Minerals, 892 F. Supp. 1333, 1357-1358 (D.N.M. 1995); Washington Wilderness Coalition v. Hecla Mining Co., 870 F. Supp. 983, 989-090 (E.D. Wash. 1994); Sierra Club v. Colorado Refining Co., 838 F. Supp. 1428, 1434 (D. Colo. 1993). 6Umatilla Waterquality Protective Ass'n., Inc. v. Smith Frozen Foods, Inc., 962 F. Supp. 1312, 1318 (D. Oregon 1997); Town of Norfolk v. U.S. Army Corps of Engineers, 968 F.2d 1438, 1451

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118 MANAGING COAL COMBUSTION RESIDUES IN MINES tion that the CWA does not apply to groundwater although they have not specifi- cally ruled on the issue.7 In jurisdictions that have ruled that the CWA applies to certain discharges into groundwater, companies responsible for such discharges are required to obtain an NPDES permit. Eventually, this issue will likely be settled by either the Congress or the U.S. Supreme Court. In addition, to the extent that the placement of CCRs requires any kind of federal permit, issuance of the permit may be subject to certification by the state that any discharge from the facility will comply with the requirements of the CWA (33 U.S.C. 1341). The CWA also requires states to establish and periodically review water quality standards for water bodies. These standards consist of both designated uses, which signify the purposes for which the water body is to be protected, and water quality criteria, which are maximum ambient pollution levels that must be achieved to safeguard the designated uses (33 U.S.C. 1313). The EPA generally requires that designated uses meet at least the "fishable or swimmable" goal established under section 101(a)(2) of the CWA (33 U.S.C. 1251(a)(2)) and a "use attainability analysis" must be prepared where designated uses are set below that goal (40 CFR 131.10(j)(1)). Water quality criteria must include standards for toxic pollutants that "could reasonably be expected to interfere with those designated uses . . ." (id. at 1313(c)(2)(B)). The CWA requires states to identify waters that fail to meet the established water quality standards and to set total maximum daily loads for these waters at a level necessary to achieve the stan- dards (33 U.S.C. 1313(d)(1)). Like SMCRA and SDWA, the CWA is implemented primarily by state agencies. Forty-five states have been delegated the major components of the CWA with the approval and oversight of EPA. The Clean Air Act Like the CWA, the Clean Air Act (CAA) addresses point sources of pollu- tion through a complex permit program, as well as ambient air pollution, which is addressed largely through state programs called state implementation plans (42 U.S.C. 7401-7671(q)). Although the CAA has no direct application to CCR placement in mines, it is implicated indirectly because of the impact that air pollution control technologies, required by EPA rules and individual permit deci- sions, can have on CCR constituents. For example, EPA's CAA rules on NOx (1st Cir. 1992); Kelley v. United States, 618 F. Supp. 1103, 1106-1107 (W.D. Mich. 1985); United States v. GAF Corp., 389 F. Supp. 1379, 1383-1384 (S.D. Texas 1975). 7See Village of Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962 (7th Cir.), cert. denied, 513 U.S. 930, 130 L. Ed. 2d 282, 115 S. Ct. 322 (1994); Exxon Corp. v. Train, 554 F.2d 1310, 1312 n. 1, 1318-1319 (5th Cir. 1977).

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CURRENT REGULATORY FRAMEWORK 119 controls (40 CFR part 76) could increase the chemical content in CCRs of con- stituents such as ammonia, which can adversely affect the pozzolanic properties of CCRs and render them less marketable (e.g., Butalia and Wolfe, 2000). The Emergency Planning and Community Right to Know Act The primary purpose of the Emergency Planning and Community Right to Know Act (EPCRA) is to inform communities and citizens of chemical hazards in their local areas. Sections 311 and 312 of EPCRA require businesses to report the locations and quantities of chemicals stored on-site to state and local govern- ments to help communities develop plans to respond to chemical spills and simi- lar emergencies (42 U.S.C. 11021-11022). Section 313 of EPCRA further requires EPA and the states to collect annual data on releases and transfers of certain toxic chemicals from industrial facilities that generate wastes and to make the data available to the public in the Toxics Release Inventory (TRI) (42 U.S.C. 11023). Because CCRs contain toxic constituents, facilities that produce CCRs (e.g., electric utilities, not mine operations) are generally required to file TRIs under the requirements of EPCRA. (Note that the volume of CCRs produced is not reported, only the volume of qualifying constituent chemicals, such as arsenic is reported.) EPCRA does not impose any other regulatory obligations on parties that release materials covered by the statute. Instead, it works by informing the public about the extent of releases by individual facilities. The TRI is publicly available on EPA's web site at http://www.epa.gov/tri/. The Pollution Prevention Act One additional law relevant to the utilization and disposal of CCRs is the Pollution Prevention Act of 1990 (PPA) (42 U.S.C. 13101 et seq.). The PPA establishes as the national policy of the United States: . . . that pollution should be prevented or reduced at the source whenever feasible; pollution that cannot be prevented should be recycled in an environ- mentally safe manner, whenever feasible; pollution that cannot be prevented or recycled shall be treated in an environmentally sound manner whenever feasi- ble; and disposal or other release into the environment should be employed only as a last resort. . . . The PPA does not contain enforceable standards, but it does require that each owner of a facility required to file an annual toxic chemical release form (a TRI report under EPCRA) for a toxic chemical shall include with each such annual filing a toxic chemical source reduction and recycling report for the preceding calendar year (42 U.S.C. 13106(a)). Since CCR producers must typically file EPCRA reports on the toxic con-

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120 MANAGING COAL COMBUSTION RESIDUES IN MINES stituents in the CCRs they produce, the source reduction and recycling reports mandated by this section afford state and federal regulators a useful tool for encouraging CCR reuse. The report is required to describe "source reduction practices," the "techniques . . . used to identify source reduction opportunities," and the amount of any chemical entering a waste stream, or "otherwise released into the environment" (42 U.S.C. 13106(b)). These provisions are implemented through TRI Form R, which is filed by all facilities subject to the TRI (EPA Form 9350-1 (Rev. 02/2004) (Form R)). Section 8 of Form R requires facilities to describe source reduction and recycling activities. This provides a vehicle for utilities to identify opportunities to recycle CCRs into useful by-products such as cement and wallboard. EPA'S REGULATORY DETERMINATION OF 2000 As noted above, in 2000, EPA published a regulatory determination on wastes from the combustion of fossil fuels (65 FR 32214) and concluded that CCRs do not warrant regulation under subtitle C of RCRA but do warrant regulation under subtitle D of RCRA when CCRs are disposed in landfills or surface impound- ments or used as fill in surface or underground mines.8 The EPA further indicated its interest in deciding whether regulation of CCR disposal in minefills should occur under SMCRA or RCRA subtitle D, or a combination of the two. The EPA announced its intent to issue proposed rules for public review and comment. Some of EPA's findings in making this determination are pertinent to the issues considered in this report and are summarized below. The Determination and RCRA C Versus RCRA D Chapter 4 reviewed some of EPA's findings from damage cases and other considerations related to the risks of CCR disposal in non-coal mine settings. In addition to considering the risks and implications of the damage cases, EPA's 2000 regulatory determination also reviewed the management practices currently associated with CCRs. The EPA recognized that the utility industry has made significant improvements in its CCR management practices over recent years and that most state regulatory programs are similarly improving. For example, the use of liners and groundwater monitoring at landfills and surface-water impound- ments has increased substantially. Nonetheless, on the basis of its own analysis and public comments, the EPA concluded that there is sufficient evidence that adequate controls may not be in place, even for landfills and surface impound- 8So that CCRs are regulated consistently across all waste management scenarios, the EPA noted that it also intends to make these national regulations for disposal in surface impoundments, landfills, and minefilling applicable to CCRs generated at electric utility and independent power producing facilities that are not co-managed low-volume wastes.

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CURRENT REGULATORY FRAMEWORK 121 ments, and that CCRs pose a risk to human health and the environment if not managed adequately. This, the EPA noted, justifies the development of national regulations. Having decided that national CCR disposal rules are necessary, the EPA also found that the risks were not substantial enough to warrant regulation as hazard- ous waste under subtitle C of RCRA. Instead, it concluded that rules are more appropriate under subtitle D. While failure to comply with subtitle D disposal standards would violate the prohibition against open dumping, such a violation is enforceable only by states and private citizens, not by the EPA. One advantage to subtitle D rules, however, is that they can be applied and enforced more quickly than subtitle C rules, which must first be incorporated into the delegated state authorities and programs. The EPA further justified its choice of subtitle D regulation by noting that it did not want to place any unnecessary barriers on the beneficial reuse of CCRs and the consequent environmental benefits associated with such reuse (see fol- lowing section). In the context of minefilling in particular, the EPA noted the concern expressed by the states and industry "that regulation under subtitle C could cause a halt in the use of coal combustion wastes to reclaim abandoned and active mine sites" (40 CFR Part 261). The EPA also expressed a belief that the states would expand and upgrade programs to address the emerging practice of using CCRs in minefills, as they did for surface impoundments and landfills. Ultimately, the EPA concluded that either SMCRA or RCRA subtitle D stan- dards, or a combination of the two, were warranted to ensure the proper handling and management of CCRs (see Appendix E, which contains a side-by-side pre- sentation of possible SMCRA and RCRA approaches). Beneficial Use There is broad recognition that the physical and chemical properties of many CCRs are applicable for a variety of uses. Some of these uses involve the recy- cling of CCRs into new products that are helpful to society and some involve using CCRs to mitigate certain negative aspects of mining. In some states, uses of CCRs that have associated benefits have been desig- nated as a beneficial use in statutes or regulations that deal with CCR utilization and disposal. This designation is not based on any federal program; however, the Energy Policy Act of 2005 may impact the use of CCRs in the future (Sidebar 5.2). In establishing the beneficial use designation, the states, while recognizing the potential risk of negative impacts of utilizing CCRs in the environment, also concluded that benefits can accrue and should be considered in the permitting process. The relative risks and benefits vary with the application (e.g., using CCRs in the production of new cement products versus their application in the environment for land reclamation). The evaluation of risks and benefits is always a complicated analysis, con-

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122 MANAGING COAL COMBUSTION RESIDUES IN MINES SIDEBAR 5.2 The Energy Policy Act of 2005-- The Latest Laws That May Impact the Use of CCRs On August 9, 2005, President Bush signed the Energy Policy Act of 2005. Among other things, the new law amends the Solid Waste Disposal Act by adding Section 6005, "Increased Use of Recovered Mineral Content in Federally Funded Projects Involving Procurement of Cement or Concrete" (Pub. L. No 109-58, Sec. 108). Recovered mineral content is defined to mean "(A) ground granulated blast furnace slag . . . ; (B) coal combustion fly ash; (C) any other material or byproduct recovered or diverted from solid waste that the [EPA] Administrator determines should be treated as recovered mineral component . . . for use in cement and concrete projects . . . ." The term cement or concrete project is defined to mean "the construction or maintenance of a highway or other transportation facility or a federal, state or local government building or other public facility that--(A) involves the procurement of cement or concrete; and (B) is carried out, in whole or in part, using Federal funds." The statute requires the EPA Administrator, in cooperation with the Secretaries of Transportation and Energy, to complete a study within 30 months that, among other things, quantifies the extent to which recovered mineral components are being substituted for portland cement and the energy savings and environmental benefits associated with the substitution; identifies barriers in procurement require- ments that are preventing additional energy savings and environmental benefits; and identifies potential mechanisms for achieving greater substitution of recovered mineral component in cement and concrete products. Unless the study identifies problems that warrant delay, the EPA Administrator has one year from its completion to "take additional actions to establish procure- ment requirements and incentives" to promote the increased use of recovered mineral component in cement and concrete products. Given the vast amount of concrete currently used in federal highway projects alone, the impact of this new legislation on the market for CCRs could be substantial. founded by who may bear the risks and who may accrue the benefits. Also, there are always trade-offs. In cases such as AML and refuse-remining applications, the use of CCRs in reclamation may help to resolve serious, acute land-use and water quality problems, but may potentially produce undesirable consequences such as release of metals and other toxic elements into the environment. The EPA recognized these issues in its 2000 regulatory determination, in which it is explicitly noted that CCRs should remain exempt from regulation as hazardous wastes under RCRA to the extent that they are used for beneficial purposes other than minefilling. In support of this conclusion, the EPA noted that it had not identified these beneficial uses as likely to present significant risks to human health or the environment. In particular, the EPA found that for many

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CURRENT REGULATORY FRAMEWORK 123 uses, CCRs would be bound or encapsulated in construction materials (e.g., ce- ment products, wallboard) and that there is very low potential for exposure from most uses. Moreover, some aspects associated with the manufacturing of these products are separately regulated under RCRA and/or the CWA. As discussed, the EPA determined that minefilling represented a higher-risk use of CCR, war- ranting consideration of regulation. The process for permitting beneficial use varies among the states and in many states the designation of beneficial use may limit the regulation or over- sight of CCR placement. Such designation may also make it unnecessary for operators to obtain permit revisions for CCR minefilling. As a result, many citizen groups believe that treating mine placement of CCRs as a beneficial use translates into less rigorous permit conditions, a conclusion that is shared by some state regulators. As a consequence, the beneficial use of CCRs in minefilling has become a problematic issue. Hence, the committee elected to avoid the term "beneficial use" wherever practical in this report. As discussed in the following chapters, the committee believes that the use of CCRs in minefilling operations can have advantages, but that such practices should not result in the circumvention of appropriate characterization and permit- ting processes where CCRs are used in mines. Although the potential advantages should not be ignored, the full characterization of potential risks should not be cut short in the name of beneficial use. STATE PROGRAMS Activities such as mining, reclamation, and waste disposal are often subject to variable, local conditions that can be difficult to address with national rules. On the other hand, national rules prevent disparities among states in the regula- tion of such activities. Federal environmental legislation typically addresses this problem by offering states the opportunity to establish their own regulatory pro- grams subject to minimum national standards and federal oversight. SMCRA, RCRA subtitle C, the SDWA, and the CWA all set minimum enforceable stan- dards while establishing programs that allow federal agencies to delegate author- ity to the states for granting permits and participating in monitoring, inspection, and enforcement activities. State programs must be approved by the federal gov- ernment as consistent with baseline national standards and the federal govern- ment typically retains independent enforcement authority in such delegated pro- grams. This ensures a "level playing field" among the states. However, states typically have flexibility to adapt their program to local conditions or to imple- ment standards that are more stringent than those required by federal law. As new circumstances or practices arise that are not explicitly covered by national regulations, such as the disposal of CCRs in mines, state practices can vary significantly. Moreover, even when programs look similar on paper, differ- ences in implementation and enforcement practices among the states can lead to

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124 MANAGING COAL COMBUSTION RESIDUES IN MINES significant differences in the performance of the program. Finally, many states have statutes that prohibit state agencies from adopting standards that are more stringent than federal standards. This led some state representatives who ap- peared before the committee to express concern about their authority to impose permit conditions and performance requirements for the disposal of CCRs in mines. For example, some states conduct groundwater monitoring only for the basic parameters specified in SMCRA regulations, such as total dissolved solids, specific conductance, pH, and dissolved iron. Other states require monitoring for a suite of RCRA metals, such as arsenic, cadmium, lead, and mercury. STATE REGULATORY AGENCIES For active mining and reclamation operations, the primary regulatory author- ity is typically the state SMCRA authority. In most instances, however, the min- ing operation will also need an NPDES permit under the CWA, which might be issued by a different agency, usually a state department of environmental protec- tion. When CCRs are used as minefill, CCR placement activities fall under the jurisdiction of these agencies. In contrast to minefills, CCRs that are placed in surface impoundments or disposed of in a landfill are regulated under state rules governing waste disposal and landfills that most likely were derived from RCRA subtitle D guidelines. This typically would be authorized by the state department of environmental protection, sometimes with review by a public health agency. SUMMARY This chapter describes the basic federal laws for mine reclamation and envi- ronmental protection that can be applied to placement of CCRs in coal mines. Of particular importance are the SMCRA and RCRA. Other relevant federal laws are also discussed, including the SDWA, the CWA, and the PPA. Activities such as mining and environmental protection involve nationally variable, locally spe- cific conditions that can be difficult to address through national rules. On the other hand, national standards are necessary to ensure that basic environmental protection requirements are met. These concerns can be addressed by establish- ing minimum federal standards administered by the states and by affording states the option of adopting more stringent standards as necessary to satisfy local concerns. After reviewing the laws and other relevant literature, the committee con- cludes that although SMCRA does not specifically regulate CCR placement at mine sites, its scope is broad enough to encompass such regulation during recla- mation 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

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CURRENT REGULATORY FRAMEWORK 125 rules explicitly address regulation of the use or placement of CCRs. The commit- tee also believes that the use of CCRs in minefilling operations has advantages, but that it should not result in the circumvention of appropriate characterization and permitting processes. With regard to beneficial use of CCRs in minefills, the committee concludes that although potential advantages should not be ignored, the full characterization of possible risks should not be cut short in the name of beneficial use.

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