Proposed National Rules On Coal Ash Disposal At Coal Mines Are Subject Of Comments

Proposed National Rules On Coal Ash Disposal At Coal Mines Are Subject Of Comments  Posted: June 27, 2007
June 25, 2007

COMMENTS CONCERNING ADVANCE NOTICE OF PROPOSED RULEMAKING ON PLACEMENT OF COAL COMBUSTION BYPRODUCTS IN ACTIVE AND ABANDONED COAL MINES; 72 FEDERAL REGISTER 12026 (MARCH 14, 2007), DOCKET NO. 1029-AC54

John Craynon, P.E. Chief
Division of Regulatory Support
Office of Surface Mining Reclamation and Enforcement
1951 Constitution Avenue NW, MS-202
Washington, D.C. 20240

Dennis Rice
Division of Regulatory Support
Office of Surface Mining Reclamation and Enforcement
1951 Constitution Avenue NW, MS-202
Washington, D.C. 20240]

Dear Mssrs. Craynon and Rice:

These comments are submitted on behalf of the following organizations:

Army for a Clean Environment
Clean Water Action of South Dakota
Coal River Mountain Watch
Delaware Riverkeeper Network
Environmental Integrity Project
Earthjustice
Kentucky Resources Council, Inc.
Plains Justice

in response to the publication of an Advance Notice of Proposed Rulemaking (ANPR) by the Office of Surface Mining Reclamation and Enforcement (OSMRE) seeking comment on a proposed approach to placement of coal combustion byproducts in active and abandoned coal mines.

Army for a Clean Environment is located in Tamaqua, Pennsylvania. The 1100-member Army for a Clean Environment works to promote a safe environment through education and fostering the prevention of the dumping of harmful materials in the community and surrounding areas.

Clean Water Action of South Dakota is a nonprofit organization supporting citizen efforts to protect water resources, promoting sound solid waste management, pushing for agriculture policies that strengthen rural communities and working for a transition to clean renewable energy.

Coal River Mountain Watch is a grassroots organization formed to stop the destruction of our communities and environment by mountaintop removal mining, to improve the quality of life in our area and to help rebuild sustainable communities.

Delaware Riverkeeper Network is a nonprofit membership organization with over 7000 members throughout the Delaware River Watershed. The Delaware Riverkeeper is the voice of the Delaware River and its streams, championing their rights as living members of our community, and is leader for the Delaware Riverkeeper Network. The Delaware Riverkeeper and the Delaware Riverkeeper Network stand as vigilant protectors and defenders of the River, its tributaries and its watershed committed to restoring the natural balance where it has been lost and ensuring its preservation where it still exists.

The Environmental Integrity Project (EIP) is a nonpartisan, nonprofit organization that works closely with local communities to protect the public's health and resources by promoting better enforcement of federal environmental laws.

Plains Justice is a nonprofit environmental law firm that represents communities and organizations across the Northern Plains on environmental justice issues.

For the reasons stated below, these organizations respectfully request that OSMRE reconsider the proposed approach in the context of development of an Environmental Impact Statement, and that the approach to regulation of the use and disposal of coal combustion wastes in coal mining operations be made more consonant with the recommendations of the both the U.S. Environmental Protection Agency?s 2000 Regulatory Determination on Wastes from the Combustion of Fossil Fuels, 65 FR 32214, May 22, 2000, and the National Academy of Sciences report Managing Coal Combustion Residues In Mines, March 1, 2006.

Summary of Agency Proposal

OSMRE seeks comment on a proposed approach to addressing the placement of coal combustion wastes in active and abandoned coal mines. The agency, after summarizing the recommendations of the National Academies of Science for development of an enforceable set of federal standards addressing characterization of coal combustion residues (CCRs), comprehensive site characterization, site-specific management plants, minimization of hydration of CCRs, design of monitoring systems to enable detection of any potential movement of CCR-associated contaminants, site-specific performance standards tailored to address potential environmental problems associated with CCR disposal, and a requirement that placement in abandoned mine workings be subject to the same enforceable standards as those for active mines, proposes an approach that fails to meet the recommended requirements in all respects.

Instead, while inviting comment on “how these recommendations should be implemented, i.e., how we should revise the regulations implementing Titles IV and V of SMCRA to regulate the placement of CCBs on active and abandoned coal minesites and what type of guidance documents we should issue, if any[,]” OSMRE outlines an approach which does not address the recommendations of the National Academies of Science, but instead proposes simply to “identify the permit application requirements and performance standards in our existing regulations in 30 CFR Chapter VII that apply to the use and disposal of CCBs in mines.” This approach is at variance with the recommendations of the National Academies of Science and is underprotective of public health and the environment. The answer to the question posed by the agency, which is “whether our existing permit application requirements and performance standards are sufficient to ensure proper management of CCBs,” is a resounding “no,” as is reflected in the pages that follow.

Summary of Comments

The proposed approach to regulation of placement of coal combustion wastes (called “coal combustion residues” by the NAS and “coal combustion by-products” by OSMRE in its proposal) that is outlined in the Advance Notice of Proposed Rulemaking almost entirely fails to address the recommendations of the National Academies of Science. Rather than developing a specific set of regulations that require characterization of the waste and of the site, a plan for management and performance standards as well as monitoring to demonstrate achievement of the goals, OSMRE proposes to rely on the existing permitting and performance standards that were neither designed nor intended for management of wastes generated by combustion of the coal.

After reviewing the limitations on the use of the 1977 Surface Mining Control and Reclamation Act as the primary vehicle for regulation of use or disposal of coal combustion wastes (CCWs, used interchangeably in these comments with CCRs) at coal mining operations, commenters review the NAS recommendations in depth and recommend a procedural and substantive approach to management of CCWs at mines. In sum:

1. OSMRE should initiate scoping for an Environmental Impact Statement under the National Environmental Policy Act, in conjunction with the Environmental Protection Agency, on the placement for use or disposal of coal combustion residues in active and abandoned coal mines;

2. OSMRE and USEPA should engage in consultation with the Office of Civil Rights regarding Environmental Justice implications of the use of active and abandoned coal mines for coal combustion waste disposal;

3. Further activity towards adoption of SMCRA-based regulations should be tolled pending completion of those analyses and outreach.

4. OSM and EPA should jointly establish an advisory committee pursuant to the Federal Advisory Committee Act (FACA) that includes stakeholders from affected communities, scientists familiar with the adverse impacts of CCW disposal and environmental advocates to inform the rulemaking process.

5. When regulatory activity resumes, OSM should work with EPA to promulgate regulations under both the Resource Conservation and Recovery Act (RCRA) and SMCRA to govern the disposal and placement of CCW in coal mines in order to provide protection of health and environment in coalfield communities.

Introduction

Coal combustion wastes are being backhauled and disposed, or “beneficially reused,” in mine workings (including both underground mine voids and more commonly, in surface mine backfills or spoil/mine waste fills) not because of the inherently beneficial or desirable attributes of the wastes relative to other backfill or soil amendment materials, or the lack of alternative locations available to utilities and non-utility customers for coal combustion waste disposal. Rather, such use and disposal is occurring largely because the coal companies offer the backhauling and disposal as a "service" or incentive in order to attract buyers for their coal in an increasingly competitive marketplace.

Absent federal intervention to establish appropriate regulatory benchmarks for characterization and management of the wastes based on their intended end use or disposal, the competitive forces of the coal and electric utility marketplace will continue to result in a parochial failure of the individual states to effectively control the disposal of CCW, and will increase pressure on coal companies to remain "competitive" with each other, and with other coalfields across the nation, by offering the ultimate "out of sight, out of mind" solution to the generation of the coal combustion waste – indiscriminate blending in mine backfill or disposal in active or abandoned mine workings or pits.

What is known concerning the potential toxicity of the leachate from coal combustion ash suggests that a general federal floor of management standards is needed, particularly when considering disposal or use of such wastes in the highly fractured, geologically disturbed and hydrologically transmissive environment of active or abandoned mine workings.

The 2000 EPA determination that coal combustion wastes need not be regulated under RCRA Subpart C as hazardous, was predicated on the assumption that mitigative measures under RCRA Subpart D such as installation of liners, leachate collection systems, ground water monitoring systems and corrective action to clean up ground-water contamination would be employed to protect public health and the environment. The failure of EPA to require such measures has harmed both. OSM's authority under SMCRA is not sufficient, standing alone, to assure proper management of coal mine co-disposal, and was never intended by Congress to supplant EPA's primary and non-delegable responsibility under RCRA to assure proper management of such wastes. As improvements continue to be achieved in both pre- and post-combustion scrubbing and capture of particulates and metals, we will of necessity change the composition and increase the potential toxicity of the wastes and leachate.

The proper management of CCW is essential for protection of human health and the environment. Adequate and comprehensive safeguards will prevent trafficking in environmental contamination by removing the incentive for those more interested in currying market share and short-term economic gain rather than the long-term public interest to undermanage the wastes. Adoption of a program of uniform, comprehensive and appropriate minimum standards for the characterization and management of coal combustion wastes for reuse and disposal is the best way to improve the beneficial utilization of CCW.

The report released on March 1, 2006 by the National Academies of Science (NAS) entitled Managing Coal Combustion Residues in Mines outlined the essential elements of a uniform, comprehensive and appropriate program for characterization and management of coal combustion residues. Acknowledging concerns over the poor state of monitoring of coal combustion residues at minefills, the NAS called for national regulations that would set minimum safeguards at CCR placement sites.

The NAS, the most prestigious scientific instrument of government in America, established by Abraham Lincoln to give the government independent advice for tackling scientific questions, examined minefilling and concluded that this practice can cause unacceptable harm if it is not carried out under enforceable safeguards. These safeguards must:

(1) characterize the waste and the disposal sites credibly,

(2) monitor the sites competently, and

(3) clean up pollution found by that monitoring.

The NAS recommended that EPA and OSM collaborate on developing enforceable federal regulations for minefilling and that these regulations should employ a level of protection consistent with EPA’s planned regulation of CCW landfills and surface impoundments. Lastly, the NAS report stated that the public should be actively involved in developing these regulations and enforcing them in permits at mine sites.

The OSMRE approach outlined in the ANPR fails to address the NAS recommendations on all counts.

A Summary of the NAS Recommendations

The National Research Council accepted a request from Congress to study the health, safety, and environmental risks associated with using coal combustion wastes for reclamation in active and abandoned coal mines. As defined by the National Academies of Science, the study is reviewing the placement in abandoned and active, surface and underground coal mines in all major coal basins, and has defined several specific questions and areas of focus, including:

1. The adequacy of data collection from surface water and ground water monitoring points established at CCW sites in mines.

2. The impacts of aquatic life in streams draining CCW placement areas and the wetlands, lakes, and rivers receiving these drainage.

3. The responses of mine operators and regulators to adverse or unintended impacts such as the contamination of ground water and pollution of surface waters.

4. Whether CCWs and the mines they are being put in are adequately characterized for such placement to ensure that monitoring programs are effective and groundwater and surface waters are not degraded.

5. Whether there are clear performance standards set and regularly assessed for projects that use CCW for "beneficial purposes" in mines.

6. The status of isolation requirements and whether they are needed.

7. The adequacy of monitoring programs including:

a. The status of long-term monitoring and the need for this monitoring after CCW is placed in abandoned mines and active mines when placement is completed and bonds released;

b. Whether monitoring is occurring from enough locations;

c. Whether monitoring occurs for relevant constituents in CCW as determined by characterization of the CCW; and

d. Whether there are clear, enforceable corrective actions standards regularly required in the monitoring.

8. The ability of mines receiving large amounts of CCW to achieve economically productive post mine land uses.

9. The need for upgraded bonding or other mechanisms to assure that adequate resources area available for adequate periods to perform monitoring and address impacts after CCW placement or disposal operations are completed in coal mines.

10. The provisions for public involvement in these questions at the permitting and policy-making levels and any results of that involvement.

11. Evaluate the risks associated with contamination of water supplies and the environment from the disposal or placement of coal combustion wastes in coal mines in the context of the requirements for protection of those resources by RCRA and SMCRA.

The NAS concluded that placement of CCW in coal mines may be a viable option only if “(1) CCR placement is properly planned and is carried out in a manner that avoids significant adverse environmental and health impacts and (2) the regulatory process for issuing permits includes clear provision for public involvement.” (p 1.)

Regarding potential impacts from CCW placement in mines, the Committee “concludes that the presence of high contaminant levels in many CCR leachates may create human health and ecological concerns at or near some mine sites over the long term.”

To reduce the potential impacts associated with the placement of CCWs in mines, the Committee recommended that:

1. Consider safer alternatives: Other secondary uses of CCW that pose minimal risks to human health and the environment should be strongly encouraged before CCW is used at any coal mine. (p.4)

2. “Beneficial use programs,” operative in many states, should not limit the effective regulation or oversight of CCW placement.

3. Characterization of the CCW material and the mine placement site is essential to engineering design, permitting decisions, reclamation management and the development of monitoring programs.

4. CCW must be characterized prior to significant mine placement and with each new source of CCWs. CCW characterization should continue periodically throughout the mine placement process to assess any changes in CCW composition and behavior.

5. A comprehensive site characterization specific to CCW placement should be conducted at all mine sites prior to substantial placement of CCW.

6. Site-specific management plans, including site-specific performance standards that are tailored to address potential environmental problems associated with CCW disposal, should be required.

7. CCW placement in mines should be designed to minimize reactions with water and the flow of water through CCW.

8. The number and location of monitoring wells, the frequency and duration of sampling, and the water quality parameters selected for analysis should be carefully determined for each site, in order to accurately assess the present and potential movement of CCW-associated contaminants.

9. Placement of CCW in abandoned and remining sites should be subject to the same CCW characterization, site characterization and management planning standards recommended for active coal mines.

10. Research should be conducted to provide more information on the potential ecological and human health effects of placing CCWs in coal mines.

11. Enforceable federal standards should be established for the disposal of CCW in minefills.

I. The NAS Was Correct In Concluding That Enforceable National Standards Are Needed For Management Of Coal Combustion Residues

Sufficient evidence of instances of contamination from the undermanagement of coal combustion wastes at coal mine sites exists to warrant the development of national minimum standards concerning the characterization, storage, disposal and reuse of these wastes. The evidence is sufficient to justify an immediate nationwide moratorium on further co-disposal of coal combustion wastes in mine voids and pits until the United States Environmental Protection Agency and federal Office of Surface Mining develop national minimum standards governing the co-disposal of such wastes in mine voids and backfill as recommended by the NAS.

The OSMRE ANPR highlights, without citation to peer-reviewed studies to support the assertions, the “benefits of placing CCBs in active and abandoned coal mines,” yet fails to properly grasp and reflect the limitations and potential problems of introducing metals-laden combustion wastes into the mine environment.

What is known concerning the potential toxicity of the leachate from coal combustion ash suggests that a federal floor of management standards is needed. It is a myth of dangerous proportion to suggest that there is no potential public health and environmental impact of improper management of coal combustion wastes because the wastes are not classified as “hazardous.” The 1988 US Environmental Protection Agency Report to Congress concerning coal combustion wastes acknowledged the existence of potential for causing groundwater contamination among and within the categories of coal combustion waste. According to the Wastes from the Combustion of Coal by Electric Utility Power Plants, EPA/530-SW-88-002:

The primary concern regarding the disposal of wastes from coal-fired power plants is the potential for waste leachate to cause ground-water contamination. Although most of the materials found in these wastes do not cause much concern (for example, over 95 percent of ash is composed of oxides of silicon, aluminum, iron and calcium), small quantities of other constituents that could potentially damage human health and the environment may also be present. These constituents include arsenic, barium, cadmium, chromium, lead, mercury and selenium. At certain concentrations these elements have toxic effects.

Id., at ES-4.

While the findings of the EPA Report and review of industry-generated studies indicated generally that metals did not, utilizing the TCLP test, leach out of coal combustion waste at levels 100x the primary drinking water standard (i.e. characteristically hazardous by TCLP toxicity), hazardous levels of cadmium and arsenic were found in ash and sludge samples, and boiler cleaning wastes sometimes contained hazardous levels of chromium and lead. Id. EPA has subsequently recognized that the characterization was based on a “worst-case scenario” of co-disposal of the coal wastes in MSW landfills and may not reflect concentrations liberated from ash in other disposal conditions.

The literature suggests that, among other things,

l. Neither EP nor TCLP tests provide a good indication of leachability of CCW in natural disposal settings. Long-term leaching tests conducted until equilibrium has been achieved for each element of concern, using a leaching solution that approximated percolating groundwater, would give a more accurate depiction of ground-water contamination potential at a disposal site.

2. At least 17 potentially toxic elements are commonly present in CCW: aluminum, antimony, arsenic, barium, beryllium, boron, cadmium, chromium, copper, lead, manganese, mercury, molybdenum, nickel, selenium, vanadium, and zinc.

3. Fluidized bed combustion (FBC) wastes retain volatile and semi-volatile elements in the bottom ash to a greater extent than conventional pulverized coal combustion, thus enhancing the leachability of FBC waste elements.

4. Leachates from coal power plant ash and flue gas desulfurization wastes typically exceed drinking water standards, but by a factor less than hazardous levels (i.e. 100 x DWS). The major leaching studies on CCW indicate that drinking water standards are typically exceeded by CCW ash leachate at a factor of 1.1 to 10, and often by a factor greater than 10 for one or more elements.

Other reports indicate a concern with enhanced levels of radionuclides in coal combustion fly ash, including radium-226 and other daughters of the uranium and thorium series that pose significant long-term management challenges.

The available evidence suggests that disposal of coal combustion wastes in mine pits or other workings may be of particular concern, due to a number of factors:

1. The increase in surface area available for leaching of elements resulting from fracturing of overburden and confining layers;

2. Higher total dissolved solids levels in mine spoils that compete for sorption sites on solids with toxic elements released from the buried ash;

3. Direct communication between surface and underground mine workings and aquifers through stress-relief fracture systems and subsidence-induced fracture flow;

4. The dependence of residents of coal-bearing regions on private, groundwater supplies and the significant potential for contamination of those supplies; and

5. The presence of site conditions conducive to creation of acid or toxic-forming material that can solubilize constituents of concern from the waste.

In choosing the appropriate regulatory endpoint for assertion of jurisdiction over the disposal of these wastes in mine workings, the goal should be not be whether the waste leaches at 100 times the drinking water standards (which is the relevant TCLP characteristic of the wastes' "hazard"), but should be whether, if improperly managed or undermanaged, the wastes will leach constituents of health concern into groundwater at above the maximum contaminant level goals. Much of the groundwater resource in the coalfields is utilized through private water supply wells rather than from public drinking water supplies, and elevations in metals well below a “hazardous” level are of public health concern and render the water unusable. Since the evidence shows that such leaching does occur, intervention to assure proper siting, construction, and use of barrier technology to prevent the wastes from contacting groundwater or rainfall percolation is needed.

The 1988 EPA Report concluded preliminarily that coal combustion waste need not be regulated under RCRA Subpart C as hazardous, but rather that the wastes should continue to be regulated under Subpart D as solid wastes. This conclusion rested on the assumption that mitigation measures under Subpart D such as installation of liners, leachate collection systems, ground water monitoring systems and corrective action to clean up ground-water contamination, would be adequate for protecting public health and the environment. The EPA recommendation was predicated on the application of such measures to the management of coal combustion wastes. Unfortunately, such measures are not being employed universally among the states.

Information developed by the Hoosier Environmental Council demonstrates the wide variability among states in the caliber of the management programs for coal combustion wastes disposed of at mine sites. States may have the capacity, but apparently lack the political will, to properly regulate these wastes. The draft EPA 2001 Regulation and Policy Concerning Mine Placement of Coal Combustion Wastes in 26 States likewise reflects a patchwork of state regulation of coal combustion wastes.

The uneven and inadequate state regulation of disposal of coal combustion wastes at mine sites is evident. The coal combustion waste stream, having been accorded by many states a legal status that is "neither fish nor fowl," neither solid nor hazardous waste but instead "special waste," has been subject to disposal without protections appropriate to the potential toxicity of the waste and the potential problems from improper management. The failures regarding management of these wastes include a failure to require adequate background characterization of geologic and hydrogeologic conditions relative to the disposal of these wastes, and the haphazard characterization of the toxicity, fate and transport of these wastes under proposed disposal conditions, leading to disposal without adequate precautions against future pollution. In some states, CCW is being placed indiscriminately in unlined backfills of coal mining operations in direct communication with ground water, and without proper characterization, isolation, management, closure, financial responsibility, monitoring and post-closure corrective action requirements attendant to such wastes. These failures are the direct and predictable result, the bitter fruit, of the failure of OSM and USEPA to establish a federal "floor" of regulation of coal combustion wastes.

Does the co-disposal of coal combustion wastes in mining areas present heightened risks of contamination of ground water and injury to public health that warrant adoption by USEPA of specific standards governing such practices? Clearly it does. The evidence of ground water contamination from disposal of coal combustion wastes in situations comparable to the dumping of such wastes in mine backfill, is more than sufficient to warrant federal involvement in establishing baseline standards for coal combustion waste disposal in mining sites and for “beneficial reuse” of such wastes.

The lack of federal standards has resulted in uneven standard-setting among the states; a regulatory "one-downsmanship" in which states are unwilling to establish stronger standards that might disadvantage their coal industry relative to those standards of other states. This destructive interstate competition in environmental degradation has long been acknowledged as a problem among the coal states, particularly in those areas of the east, midwest and west where the coalfields span a number of states. Congress enacted a national regulatory program over coal mining operations including federal minimum performance and design standards, federal oversight and a federal enforcement component precisely because of the inability of the states to overcome this problem:

For a number of predictable reasons - including insufficient funding and the tendency for State agencies to be protective of local industry – State enforcement has in the past, often fallen short of the vigor necessary to assure adequate protection of the environment.

House of Representatives Report 95-218, 95th Cong., 1st Sess. 129 (1977).

In the absence of federal action, coal combustion wastes are being undermanaged, and the harms intended to be avoided by Congress are becoming manifest. USEPA should cease dithering and adopt a comprehensive regulatory program governing management (including “beneficial reuse” and “disposal”) of CCW.

Both USEPA and OSM have flirted with the concept of deferring any regulatory action in light of OSM’s regulatory authority. While SMCRA may provide supplemental authority to regulate the potential adverse consequences of CCW disposal/use at minesites, SMCRA was never intended nor is it structured to be the primary mechanism for assuring that CCW is properly managed.

II. USEPA Should Live Up To Its Commitment To Regulate CCW Through National Regulations Rather Than Guidance

USEPA must cease its flirtation with issuing guidance and instead assert regulatory authority over the disposal of coal combustion wastes and over beneficial reuse of such wastes, developing minimum standards for the states to adopt in order to level the playing field. The USEPA must take the lead since it, and not OSMRE, is the appropriate agency to develop national minimum standards and assure state implementation of standards for disposal and other land application of coal combustion wastes in mine pits and backfill sufficient to protect human health and the environment.

OSMRE’s proposal to reference existing regulations and to rely on “guidance” documents rather than regulations is not a sufficient or appropriate solution. The failure of EPA to complete the commitment to promulgate regulations establishing minimum standards for coal combustion waste disposal, including "beneficial" uses of coal combustion wastes and the disposal of coal combustion wastes at mine sites, and the proposal by EPA and now OSMRE to instead issue "guidance" raises a number of regulatory and environmental concerns.

First, as noted earlier, the lack of federal minimum standards results in uneven state standards and under-regulation of wastes that typically exceed drinking water standards for a number of metals. Kentucky, for example, has more rigorous standards for mine filling than many other states, but extremely weak controls on beneficial reuse and disposal in "ash ponds." The lack of enforceable and adequate federal minimum standards has and will continue to result in one-downsmanship and a "race to the bottom" among the coal states, as companies desirous of securing market share from the purchaser of the lion's share of their output, the utility industry, offer to backhaul and dispose of coal combustion wastes as a package deal.

Second, issuance of national guidance is insufficient to assure proper management of these wastes, since some 23 states have a version of "no more stringent" provisions in their laws that would restrict or preclude those states’ agencies from asserting regulatory authority over use or disposal of the wastes by incorporating federal guidance. Those states are typically limited to adoption and imposition of counterpart state rules based only on those standards that have been adopted by regulation at the federal level. Also, some states cannot under state law impose substantive requirements based on "policies."

Third, the lack of minimum standards penalizes those coal-fired utilities who manage their own wastes under higher standards relative to other companies who allow disposal of coal wastes by the coal industry either for "beneficial" uses or as mine fill without concern for long-term contamination. As coal companies seek to improve market share by offering to backhaul wastes resulting from coal combustion, the lack of standards encourages corner-cutting in management of the wastes.

Fourth, the lack of standards heightens conflicts between host communities and the utility and coal industries due to concerns with under-regulation of the coal combustion wastes relative to their potential to leach metals and other constituents at levels posing environmental or health risks.

Finally, the failure of USEPA to assert federal leadership in establishing up-front baseline standards for management of the disposal of coal combustion wastes invites significant judicial intrusion into the field after the fact, and implicates the disposers, transporters and generators in a web of liability under CERCLA and RCRA that is as open-ended as are the state management programs themselves.

The uneven and inadequate state regulation of disposal of coal combustion wastes, including a failure of states to require adequate background characterization of geologic and hydrogeologic conditions relative to the disposal of these wastes, and the haphazard analysis of the fate and transport of these wastes under proposed disposal and "reuse" conditions, is the inevitable and predictable product of the failure of USEPA to establish a federal “floor” of regulation of coal combustion wastes.

The crux of the problem is that the short-term interests of those that are managing or disposing of the wastes are not consistent with the long term interests of either the host communities or the generators of these materials.

III. The Roles of USEPA and OSM

With respect to disposal of coal combustion wastes in mining areas, we believe that SMCRA is not the appropriate vehicle for primary management of co-disposal at coal mines. OSM's authority under SMCRA is not sufficient, standing alone, to assure proper management of coal mine co-disposal, and was never intended by Congress to supplant EPA's primary and non-delegable responsibility under RCRA to assure proper management of such wastes.

Disposal of coal combustion wastes is of particular concern at coal mines. Coal combustion wastes containing leachable metals at levels well above accepted drinking water standards for safe potability of water, yet are in some states being placed in unlined backfills of coal mining operations in direct communication with ground water, and without proper characterization, isolation, management, closure, financial responsibility, monitoring and post-closure corrective action requirements attendant to such wastes. The information concerning the leaching potential of these wastes, the vulnerability of coalfield ground water resources, and the documented cases of damage are sufficient to warrant immediate action by USEPA to control such wastes where co-disposed in coal mines.

It must be understood that the "drivers" concerning the disposal of coal combustion wastes backhauled and disposed of in mine workings (including both underground mine voids and more commonly, in surface mine backfills or spoil/mine waste fills) is not the inherently preferential beneficial attributes of the wastes relative to other backfill materials, or the lack of alternative locations available to utilities and non-utility customers for coal combustion waste disposal. The primary “drivers” are certain companies within the coal industry seeking to improve their relative contractual position with utilities by offering backhauling and disposal as a “service” or incentive in order to attract buyers for their coal in an increasingly competitive marketplace.

The Surface Mining Control and Reclamation Act of 1977 is not the appropriate primary vehicle to regulate coal combustion wastes. SMCRA was neither intended nor designed to address the use and disposal of these wastes. A number of potential conflicts with the core provisions of SMCRA are created in any proposal for disposal of CCW at a minesite, and some of these limitations were acknowledged in the OSMRE Western Region guidance document:

* Since all spoil material generated by a mining operation must be returned to the mine site in order to restore the mined area to the “approximate original contour” and to minimize off-site placement of “excess” mine spoil, no CCW could lawfully be placed in a location where it would displace spoil and cause more material to be disposed of in a hollow fill. Since disturbance of the strata overlying coal seams results in a typical “swell” of 15-25%, addition of CCW to the active works likely displaces spoil and violates this mandate.

* The requirement for contemporaneous reclamation of mined areas is offended by any delay in reclamation associated with disposal of coal combustion wastes in active mining and reclamation areas. The essence of SMCRA is that mining is to be a temporary use of land, not a permanent dedication of land for waste disposal, and the requirement of contemporaneous reclamation is intended to effectuate the mandate that backfilling, grading, and revegetation follow coal removal promptly.

* Blending of coal combustion wastes in backfill without proper barriers to prevent migration to groundwater and to prevent saturation of the waste from infiltration of rainfall or groundwater, would violate provisions of the SMCRA which require protection of the hydrologic balance and prevention of off-site damage, and which specifically demand isolation of acid- or toxic-forming materials from surface or groundwater.

* Right of entry and other approvals and waivers under the mining laws are intended to authorize specific coal extraction-related activities, and do not extend to include the backhauling and dumping or blending of wastes generated from combustion of the removed coal. Issues concerning right-of-entry and responsibility for contamination could be complex since SMCRA's enforcement, insurance, bonding and right-of-entry provisions are focused on mining regulation. Disposal of coal combustion waste on a mine site, where a part of a surface coal mining operation, would need to be subject to all of the procedural protections, including demonstration of the right to enter and conduct such disposal activities, and all enforcement procedures of the federal Act and state regulatory program attach. Separate approval by the landowner and local government would be needed since the typical right-of-entry document would not authorize waste disposal.

* Additionally, where CCW use or disposal at a mine is contemplated, the typical mining permit public notice and public comment period would not be adequate to inform the public. The proposed consideration of disposal / placement of CCWs in mines as being a “significant revision” would trigger only one public notice – plainly insufficient in both content and duration to allow for meaningful public comment. In contrast, the enhanced public participation provisions of RCRA encourage a broad and active program of outreach and public involvement prior to submittal of applications for RCRA permits and during the permit review process. Four newspaper notices does not achieve the active stakeholder involvement recommended by the NAS Committee.

* The duration of monitoring and bonding for coal mines is far too short relative to the timeframe needed to demonstrate that the disposed wastes have been properly isolated to prevent off-site contamination.

* SMCRA does not require that the chemical, physical, and radiological characteristics of the wastes be assessed, nor that the fate and transport mechanics of those wastes be evaluated. Neither are the groundwater monitoring requirements of SMCRA designed to identify the presence of and migration of constituents of concern from CCW disposal; nor does SMCRA require testing for the full panoply of contaminants present in CCW.

As mentioned earlier, the groundwater system in many coal fields is particularly vulnerable to contamination because of the high transmissivity of the fracture-dominated aquifer system, and because of the high degree of interconnection of aquifers through subsidence-induced deformation of strata above underground coal seams.

* To satisfy the surface coal mining regulatory program obligations under federal and state law of protecting the hydrologic balance on and off the mine site, a broad array of metals and any other constituents identified through chemical characterization of the composition of the coal combustion waste, would need to be imposed as monitoring parameters for on-going groundwater and surface water monitoring. Each of the 17 potentially toxic elements are commonly present in CCW: aluminum, antimony, arsenic, barium, beryllium, boron, cadmium, chromium, copper, lead, manganese, mercury, molybdenum, nickel, selenium, vanadium, and zinc, as well as other metals present, radionuclides, and in the case of fluidized bed combustion (FBC) wastes, volatile and semi-volatile elements would need to be assessed.

* The placement and spacing of groundwater monitoring wells would need to be significantly upgraded to be sufficient to detect leachate generation and movement off-site at the bench elevation and through fracture systems, for strip mine bench disposal, and along and below the seam for pit disposal. Monitoring parameters and well location would need to be altered to detect contamination at the waste boundary, necessitating continuous monitoring wells along the area where the waste is disposed. Long-term site maintenance and groundwater monitoring after mining bond release would need to be addressed.

* Finally, financial responsibility requirements would need to be addressed, since the performance bond under SMCRA guarantees only reclamation under Title V and is neither calculated to cover nor extensive enough in the scope of liability to cover on of off-site damage and reclamation needs associated with CCW disposal. Separate bonding, insurance, and long-term financial responsibility would need to be established.

SMCRA is a poor fit as the primary or sole regulatory vehicle for management of CCW use and disposal at minesites, as it was never intended by Congress that OSM take the lead in regulating disposal of CCW, but instead OSM’s authority was supplemental to but not to supplant RCRA and EPA's role in standard setting. Current SMCRA regulations do not fully address issues of proper characterization of and long-term management of CCWs.

CCW disposal in mining areas should not be encouraged or “incentivized” through lax regulation. The placement of uncontrolled and unconsolidated deposits of coal combustion waste in mine backfills, valley or hollow fills, or underground mine voids, is irresponsible, and shifts off-budget the costs of management of wastes that will remain chemically active long after responsibility for their containment is extinguished. Ample hydrologic evidence is available to suggest that co-disposal of coal combustion wastes should be prohibited pending development of sufficient standards for the characterization, management, placement and monitoring of such disposal, and that EPA should move promptly to develop such standards in conjunction with OSMRE.

IV. Placement of CCW in Mines is Disposal of Solid Waste and Must Be Regulated Under RCRA

The Resource Conservation and Recovery Act (RCRA) of 1976, which amended the Solid Waste Disposal Act, was the first substantial effort by Congress to establish a regulatory structure for the management of solid and hazardous waste. Subtitle C of RCRA establishes "cradle-to-grave" requirements for hazardous waste from the point of generation to disposal. Subtitle D of RCRA contains less restrictive requirements for non-hazardous solid waste. According to the national policy statement set forth in Section 1002(b) of RCRA, the purpose of RCRA is to ensure that the generation of waste is minimized and that solid waste is treated, stored or disposed of to minimize the present and future threat to human health and the environment. (42 USC §6902(b)).

The placement of CCW in active or abandoned coal mines is, under most conditions, the “disposal of solid waste as those terms are defined in RCRA. According to Section 6903(27) of RCRA, solid waste is defined as:

any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting form industrial, commercial, mining and agricultural operations, and from community activities[.]

42 USC §6903(27). According to Section 6903(3), disposal means:

the discharge, deposit, injection, dumping, spilling, leaking or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any water, including ground waters.

42 USC §6903(3)

The placement of CCW in mines has in numerous documented cases caused hazardous constituents of coal ash to enter the environment, to be released as fugitive dust and to be discharged into groundwater and surface water. The following reports (attached) provide documentation of coal ash placement in mines in a manner constituting disposal that have caused adverse environmental impacts:

1. Norris, Charles H. Geo-Hydro, Inc. Water Quality Impacts from Remediating Acid Mine Drainage with Alkaline Addition, October 2005. This paper documents increases in arsenic concentrations in acid mine drainage at mine sites where coal combustion waste was used as an alkaline agent.

2. Hansen, Evan and Martin Christ, Downstream Strategies, LLC. Water Quality Impacts of Coal Combustion Waste in Two West Virginia Coal Mines, April 2005. This report documents very high selenium and thallium in surface waters, and high levels of selenium and arsenic in groundwater downstream from the Stacks Run Refuse Site and Albright Site, respectively, two West Virginia coal combustion waste disposal areas in surface mines.

3. Zimmerman, D.A., P.E. SETA, Inc. A Preliminary Evaluation of the Potential for Surface Water Quality Impacts from Fly Ash Disposal at the Navajo Mine, New Mexico. May 2005. This report examines the evidence of groundwater contamination from coal ash disposal in the Navajo Mine, adjacent to the Four Corners Power Plant on the Navajo Reservation in Farmington, New Mexico. This paper is one of several reports documenting the contamination of groundwater and surface water from coal combustion waste placed in mines.

In addition, a fourth report, entitled Impacts on Water Quality from Placement of Coal Combustion Waste in Pennsylvania Coal Mines (Clean Air Task Force, June 2007) provides a large body of evidence detailing the environmental degradation of numerous coal combustion waste mine placement sites in Pennsylvania. This report will be submitted to the docket by the Clean Air Task Force by June 30, 2007.

The National Academies of Science acknowledged the threat posed by disposal of coal ash in mines, landfills and surface impoundments. Both the NRC and EPA have documented extensively the poisoning of groundwater and surface water by coal ash. OSM’s proposed rule attempts to address the large scale disposal of millions of tons of coal ash in active and abandoned mines. Yet it is untenable to delegate the responsibility for such disposal to state mining programs that have no experience with solid or hazardous waste disposal. The above-cited report by the Clean Air Task Force describes the damage that occurs when “coal ash placement” is treated as a reclamation activity and not as waste disposal. As shown in the report, in Pennsylvania, where mandatory safeguards are not in place and the state encourages placement of coal ash in active and abandoned mines, widespread damage to water resources is occurring.

Given the wealth of documented damage to groundwater and surface water from past disposal of CCW in coal mines, it is essential that federal rules governing coal ash placement mandate RCRA safeguards in both active and inactive mines, as specified in Subtitles C and D of RCRA and its implementing regulations. While such regulations should be tailored to mine disposal, the regulations must address the basic safeguards required for all land disposal activities under RCRA. Such safeguards must include, at a minimum, waste characterization, site characterization, isolation of the waste from water, leachate collection systems, long-term groundwater monitoring, closure requirements, post-closure care, corrective action requirements, financial assurance during disposal activities and after closure, and post-closure land use restrictions.

On January 31, 2007, Earthjustice, Sierra Club, Clean Air Task Force, Environmental Integrity Project and 23 other environmental groups submitted to EPA model draft regulations for CCW disposal in landfills and surface impoundments. While there are numerous provisions in these proposed regulations that apply specifically to landfills and surface impoundments and, conversely, there are many provisions missing from the proposed regulations that would be required for regulation of coal ash in mines, we believe it would be useful for OSM and EPA to consider the breadth of the proposed regulations in Appendix 4 as a rough template for CCW minefill regulations. We believe OSM and EPA must promulgate regulations that are at least as stringent, that are roughly equivalent in coverage, but which are tailored more specifically for mine disposal.

V. State Solid Waste Programs are Insufficient to Address Coal Combustion Waste Disposal in Mines

We firmly believe that OSM and EPA cannot rely on existing state solid waste programs for the regulation of coal ash in mines. Reliance on existing state programs was never meant to be an option according to the NRC recommendations and the EPA 2000 Determination. 72 Fed. Reg. at 12027. However, we emphasize in these comments that federal regulations under RCRA and SMCRA are indeed necessary because OSM appears to be taking a contrary stand. In the proposed regulations, OSM holds up the Western Region policy guidance as a model approach for coal ash disposal. 72 Fed. Reg at 12029. This guidance document discusses the coordination of existing SMCRA authorities with state solid waste programs, indicating that such an arrangement would be satisfactory. This combination of authorities, however, is not adequate to protect human health and the environment. For the following reasons, state solid waste programs across the country have failed to provide the necessary protections for coal combustion waste minefilling. The imposition of SMCRA standards will not resolve the deficiencies. Only the promulgation of complimentary federal RCRA standards will close the regulatory gaps described below.

A. Coal Ash “Beneficial Use” Programs Fail to Protect Health and the Environment and Provide Inadequate Opportunity for Public Participation

States with coal ash beneficial use programs allow placement of very large quantities of coal ash in active and abandoned mines without mandating basic safeguards to protect health and water resources. Most states with coal ash beneficial use programs remove coal combustion waste from the reach of their state solid waste regulations. Because the beneficial use regulations tend to apply very few protections, large quantities of dangerous waste fall through the regulatory cracks.

An examination of the Pennsylvania coal ash beneficial use program is illustrative. The Clean Air Task Force’s 2007 study of Pennsylvania minefills, Impacts on Water Quality from Placement of Coal Combustion Waste in Pennsylvania Coal Mines, describes in detail the deficiencies of the program and reveals the damage that has occurred to groundwater and surface water as a result of ash placement. The following deficiencies were noted in a 2006 review of the state program:

• Failure to require effective, long-term water quality monitoring;

• Failure to require adequate waste characterization prior to placement;

• Failure to require corrective action when contamination is detected;

• Failure to require adequate financial assurance sufficient to perform cleanup;

• Failure to provide opportunity for public participation in permitting decisions;

• Failure of the program to set clear and enforceable goals for coal ash placement.

The water quality problems identified at numerous coal ash minefills in Pennsylvania can be traced directly to the above deficiencies in the state regulations. In its zeal to reclaim mines and provide an affordable means of ash disposal, Pennsylvania created a program that lacks many critical safeguards.

These deficiencies are not specific to the Pennsylvania program. All states fail to impose a minimum of consistent and essential safeguards at CCW minefills. For example, other state programs have serious deficiencies in their waste characterization requirements. Eight of 23 minefilling states surveyed by EPA failed entirely to set characteristic limits (Alabama, Alaska, Colorado, Kansas, New Mexico, North Dakota, Washington and Wyoming). Twelve of the states also failed to require mine operators to test waste during mine placement (Alabama, Alaska, Colorado, Kansas, Maryland, Montana, New Mexico, North Dakota, Texas, Virginia, Washington, and Wyoming,). In addition, Pennsylvania is not alone in failing to set enforceable corrective action limits. Of the 23 states surveyed by EPA, none had enforceable limits for coal ash placement permits. Furthermore, all states that engage in minefilling lack financial assurance regulations except Kentucky. Thus the promulgation of minimum federal regulations under RCRA is entirely necessary to ensure that these safeguards are employed in every state. Without national standards, state regulators, faced with enormous financial pressures, engage in a “race to the bottom.”

B. Exemptions for Onsite Disposal of Coal Combustion Waste in Mines Fail to Protect Health and Environment and Provide Inadequate Opportunity for Public Participation

When power plants dispose of coal ash in mines owned by the plant or located adjacent to the power plant, state solid waste programs often exempt the on-site disposal from permitting requirements. This lower standard of scrutiny results in inadequate protection of health and the environment. It may leave a neighboring community wholly without knowledge of coal ash dumping and without recourse to participate in siting decisions. For example, in Texas, the state that generates the largest amount of coal combustion waste in the nation, a solid waste disposal permit is not required for on-site disposal of coal ash. This disposal frequently occurs in lignite mines. Texas’ capacity planning documentation for its approximately 18 coal-burning power plants, its annual waste summaries, the power plant TRI reports and other regulatory data document that the vast majority of Texas’ coal combustion wastes are being managed and disposed of on-site at the generating facilities. Federal RCRA standards are needed to ensure that onsite disposal at minemouth plants does not escape solid waste permitting, public notice and participation requirements, and other necessary safeguards.

C. Exemptions for Coal Ash Monofills Fail to Protect Health and Environment and Provide Inadequate Opportunity for Public Participation

Several states provide permitting exemptions and less stringent requirements when coal ash is disposed in a monofill, as opposed to a mixed waste landfill. In Massachusetts, for example, a coal combustion waste monofill need not comply with the state’s stringent siting regulations and may completely bypass local board of health approval. New York has a similar loophole for monofills. The relaxation of disposal standards endangers health and the environment and prevents public participation in siting, expansion and other permitting decisions. A national rule with uniform standards for solid waste disposal under RCRA is needed to eliminate this problem.

D. Examples of Solid Waste Disposal Regulatory Concerns That Were Not Addressed by OSM’s Proposed Rule

In direct contradiction of the NAS / NRC’s directives, OSM states in the ANOPR that SMCRA regulations are already in place that are applicable to coal ash minefilling and that, with a minor exception, these regulations do not need to be supplemented. OSM cites its Western Region Policy Guidance as a prototype for applying existing SMCRA permitting requirements to coal ash landfills. There are many critical regulatory gaps, however, that are not filled by this scheme. The guidance does not address some of the key problems identified by the NAS Committee that arise from the disposal of coal ash in mines.

Coming at this problem from a different direction, EPA, in April 2002, identified many of those same gaps in a memorandum entitled “Minefill Regulatory Concerns.” In this memorandum, EPA compared the protections afforded by RCRA’s Subtitle D municipal solid waste landfill regulations to current SMCRA regulation over coal ash in mines. While the regulations found in 40 C.F.R Part 258 do not apply to placement of coal ash in mines, EPA imagined the regulation of coal ash based on the framework found in these landfill regulations.

This section summarizes the critical concerns of EPA that arose from the RCRA/SMCRA comparison. The section illustrates how the provisions of RCRA, written explicitly to protect health and the environment from waste disposal contain the necessary specificity that is lacking in current SMCRA regulations. The inadequacy of current SMCRA regulations to control waste disposal cannot be solved by guidance from either OSM or EPA. This inadequacy must be solved by enforceable federal regulations, as EPA and the NRC directed. Thus, it is incumbent upon EPA to promulgate regulations that will fill these gaps, since it is apparent from EPA’s own analysis that the framework to regulate waste disposal in mines is well established in RCRA Subtitle D regulations, as well as in the more stringent Subtitle C regulations. We look forward to EPA’s active participation in this process and to future proposed rulemakings under RCRA.

1. Groundwater Monitoring:

Pursuant to RCRA, 40 C.F.R. Part 258, the owner/operator is to monitor groundwater on-site to detect adverse impacts of waste placement on on-site groundwater such that the owner/operator will have opportunity to intervene to avoid adverse impacts on off-site users and uses of groundwater, including users and uses of surface waters affected by groundwater. For example, pursuant to section 258.51(a), (c) and (d), (well design and deployment) the purpose of monitoring wells is to allow the acquisition of groundwater samples from which adverse impacts on groundwater could be detected. Wells too few in number or which are located or screened in the wrong horizontal or vertical planes may fail to produce samples that adequately characterize impacts on groundwater. Location is critical to the ability to detect effects of waste placement before the effects can spread widely, thereby adversely affecting current or future uses of the water resource.

In addition, pursuant to sections 261.24 and 258.54(a) and Appendix I, samples are to be analyzed for specific constituents which will detect and define adverse impacts on groundwater and for which valid statistical comparisons can be made among well samples to detect adverse impacts. Of particular concern in defining and detecting adverse impacts are the eight metals that define the RCRA toxicity characteristic (arsenic, barium, cadmium, chromium, lead, mercury, selenium, and silver). Lastly, pursuant to sections 258.50(b) and 258.61(a), (b), and (e), groundwater monitoring samples are to be acquired and analyzed over the time period for which the effects on groundwater from waste placement could be reasonably expected to be measured or observed; i.e., considering aquifer recharge times and rate of migration of groundwater through and away from the waste. This time period may extend beyond the completion of reclamation and the time of bond release for the overall mine site. Where the owner/operator can demonstrate that there is no longer a potential for adverse impacts from the waste, monitoring may cease.

In contrast, SMCRA does not require specific numbers of wells, design specifications, or requirements for well placement. Furthermore SMCRA monitoring design and deployment do not focus on waste impacts, but instead the purpose is to examine the impacts from the mine as a whole. Monitoring design is not intended to separate impacts from waste disposal from impacts of mining. Furthermore, SMCRA regulations lack levels of concern for monitoring parameters and require only a limited list of parameters, intended to capture mining, not waste, impacts (TDS or specific conductance, pH, total iron, total manganese and water levels). SMCRA does not require monitoring for Appendix I or for specific ash parameters, although on a permit-by-permit basis, additional monitoring may be required. Also, SMCRA regulations provide for cessation of groundwater monitoring at bond release, typically within a number of years following completion of revegetation. This can be as soon as 3 years after revegetation. This would be far too soon to assess impacts from disposal of large quantity of coal ash.

2. Performance Standards:

Under RCRA, the Maximum Contaminant Levels (MCLs) specified under the Safe Drinking Water Act serve as the groundwater performance standard. The facility is to be operated so that it does not cause groundwater quality to exceed the MCLs. The point at which compliance is demonstrated is to be no more than 150 meters from the waste placement boundary and located on the facility property. (40 C.F.R. 258.40(d) and 258.2)

In contrast, SMCRA regulations do not identify the elements of a performance standard: parameters to be assessed, allowable concentration levels, and point of compliance. The statute and regulations fail to define key terms such as “contamination,” “material damage,” and “minimize disturbance.”

3. Deed Recordation

Section 258.60(i) requires the owner/operator is to ensure that official land records note the locations and dates for all waste placement on all portions of the property, particularly where the property may be subdivided for future use. SMCRA does not contain a requirement for recordation. SMCRA regulations require restoration of all disturbed areas to conditions capable of supporting those uses which the land supported prior to mining or to higher or better uses. There are no apparent restrictions on post-mining uses of land which would protect future users.

4. Corrective Action

In the case of exceedence of performance standards, the owner/operator must undertake corrective action to protect human health and the environment. The first step in response to an exceedence may be to assess the scope of the problem through additional monitoring. The owner/operator may demonstrate that the exceedance results from a source other than the waste placement or that the exceedance results from error in sampling, analysis, statistical evaluation, or natural variation in ground-water quality. If the exceedance is determined to result from the ash placement, however, corrective measures should be implemented. The steps in the corrective action process include: assessment of corrective measures, selection of a remedy, selection of a schedule for the remedy, and implementation of corrective action, including interim measures that may necessary for the immediate protection of human health and the environment. (See 40 C.F.R. Sections 258.54(c)(3), 258.56, 258.57, and 258.58.)

Under SMCRA, triggers for corrective action and determination of remedial measures must be specified through permit-specific conditions and the hydrologic reclamation plan, rather than set forth in the regulations.

5. Post-closure/Post-reclamation Care

RCRA sections 258.61(a), (b) and (c) require monitoring and maintenance of the ash placement area should continue throughout the time period for which the effects on groundwater from waste placement could be reasonably expected to be measured or observed. This time period may extend beyond the completion of reclamation and the time of bond release for the overall mine site. Post-closure activities are to include inspection and maintenance as needed of the vegetation over the waste placement area and of any other engineered controls, such as a final cover, that may have been placed. In addition, section 258.619a)(3) requires that maintenance and operation of the groundwater monitoring system should continue throughout the post-reclamation period.

These activities are to include evaluation of results against the performance standards, and implementation, if needed, of corrective action.

In contrast under SMCRA, regulations provide for cessation of maintenance and monitoring at bond release, typically within a number of years following completion of revegetation. The period of time is usually far too short to guarantee meaningful maintenance of the cap or cover.

6. Financial Assurance

RCRA regulations require the owner/operator of the waste disposal unit to establish financial assurance to provide for maintenance and monitoring of the waste disposal area, specifically, and for any potential corrective action associated with waste placement. (See 40 C.F.R. 258.72, 258.73 and 258.74.) SMCRA does not require such financial assurance and SMCRA bond release typically is within a number of years following completion of revegetation.

VI. Mere Reference To Existing SMCRA Regulations Does Not Provide The Essential Elements of a Responsible Management Framework For Coal Combustion Wastes

Any program developed under RCRA for CCW management at mines must include the elements outlined by the NAS and these elements:

1. The applicant should demonstrate, prior to being allowed to utilize CCWs at a minesite, that other more environmentally sound options of CCW management are not feasible.

Chapter 8 of the NAS Report presents a list of steps that should be followed when CCW is being generated with coal mines as its presumed destination. It is significant that the Report makes the first step the consideration of options other than minefilling. On page 148, the Report states:

Some of these residues, however, are valuable for other uses. CCR use in the production of cement and wallboard, for example, results in a needed product for society and reduces the impacts of other resource extraction activities (e.g., gypsum or limestone mining). The value of these residues has produced its own industry association—the American Coal Ash Association—founded to promote the use of these CCR products[.]

Valuable residues that become part of the waste stream may represent a missed opportunity for waste reduction and environmentally sound management. Thus the committee recommends that secondary uses of CCRs that pose minimal risks to human health and the environment be strongly encouraged. (emphasis in original)

2. The second step, and one critical to proper management of CCWs, is the thorough characterization of the waste prior to placement. Use of TCLP tests or other short-term batch or shake tests to predict the leaching characteristics of CCWs in mine environments is technically unsound and legally indefensible.

The NAS Report devotes an entire chapter (Chapter 6) to the need to characterize thoroughly both the CCW and the coal mine where the waste is to be placed. The Report emphasizes the need for doing a much better job than is currently being done at minefill sites. The Report states that “improved methods for characterization are needed” and outlines those improvements by explaining that “decisions regarding CCR placement cannot be made based on broad generalizations but instead require careful specific characterization of both the CCR material and the mine site in the context of CCR placement.” p. 107. Permits must integrate adequate waste- specific and site-specific characterization for decisionmakers to understand the risks that CCW poses and develop competent monitoring systems to ensure that adverse impacts are addressed. The Report states:

As described in Chapter 4, unmanaged disposal of CCRs can lead to contaminant exposures, which can increase the risk of adverse impacts on public health and the environment. Viable management strategies are those that reduce CCR exposure and associated risks of adverse impacts to a level considered unlikely or acceptable considering the associated benefits.

The Report emphasizes that an evaluation of the risk posed by CCW must inform the management strategies. According to the NAS, understanding the risks posed by CCW disposal at a particular mine site requires knowledge of the following:

- CCR characteristics;

- The transport potential of CCW-derived contaminants in the mine environment);

- Toxicological properties of CCW constituents and an assessment of potential human or ecological impacts, including knowledge of the location of potential receptors and intended post-mining land uses;

- The performance of various engineered CCW placement designs to mitigate any CCW impacts to some standard of acceptability; and

- Post-placement monitoring results to confirm predictions of contaminant transport and the performance of the CCW placement design. pp. 107-8.

Reliance on references to SMCRA regulations provide none of these essential components of CCW characterization recommended by the NAS.

The NAS notes that CCW varies greatly in chemical and mineralogical composition. Proponents of dumping frequently describe CCW as being comprised of non-leaching glass-like beads, however, the Report observes that trace elements “can occur as easily leachable coatings on grain surfaces.” Because of the variability of CCW, the Report states that “to understand the potential risks involved in placing significant volumes of a particular CCR in the mine setting, careful CCR characterization is needed.” (Emphasis added, p. 119, Chapter 6)

The NAS wrote:

Characterization of CCRs is an essential component in the development of a site conceptual model that will help site managers and regulators make management decisions regarding CCR placement at mine sites. Characterization of CCRs prior to mine placement may involve analyses of bulk chemical and physical properties and trace element leaching potential. The results of these characterization tests should be used in conjunction with an assessment of the mine hydrogeology and biogeochemistry to provide an evaluation of the potential for beneficial and/or deleterious impacts from CCR placement at a mine site.

States use a variety of tests, primarily leaching tests, to characterize CCW. The NAS Report notes that many of these tests have significant limitations. Chapter 6 finds a host of basic shortcomings in the characterization of CCW being undertaken by the states. None of the CCW leaching tests being used by the states are good predictors of the potential for CCW to contaminate waters at a mine site. The tests are not good predictors because: (1) the tests fail to use leaching fluids that are representative of the range of leaching water in a coal mine; (2) they do not use the liquid (water) to solid (ash) leaching ratios that are in the mine where relatively smaller amounts of water may be moving through much larger, more concentrated quantities of ash; (3) they are done in labs or at ground surface amid lots of atmospheric oxygen unlike “suboxic” leaching conditions that will occur when ash is dumped below the water table that will reestablish in many coal mines; and 4) they are carried out for much shorter periods (usually 18-24 hours) than the indefinite periods for which large volumes of ash are left in disposal sites. To quote from the Report:

These tests do not use leaching solutions that are representative of the large range of geochemical conditions likely to be encountered in mines, and they may greatly underestimate the actual leaching that will occur. It is recommended that leaching procedures be continually improved to encompass the range of pH and oxidation-reduction conditions that might be encountered in pore-water close to the CCR placement area over an extended time (many decades to centuries). Leaching tests should also assess slower dissolution reactions.

Until some recently proposed leaching protocols are evaluated more thoroughly, some simple improvements to currently applied leaching protocols can be made. As a first step, a wider range of leaching conditions should be applied in static leach tests. These leaching conditions should include low-pH leaching solutions to represent the aggressive leaching that may occur in the most reactive areas of the unsaturated zone. The composition of the leaching solution should be monitored both before and after leaching is complete to ensure that the final leaching solution is representative of expected conditions at the mine site. Leaching tests should be conducted over longer periods (e.g. several weeks) and a few solid-to-solution ratios should be evaluated to assess whether precipitation controls are limiting leaching characteristics. Samples that do not pass a predetermined criterion should be rejected for mine placement. Samples that do pass the criterion may still have to be evaluated in greater detail, depending on the potential risks of CCR placement determined from site characterization, including column leaching tests and longer-term evaluations of leaching as CCR materials age. (page 127, Chapter 6)

Interestingly, the Report shows that the “predetermined criterion” (mentioned in the paragraph above) used as a leaching test limit for whether a CCW can be disposed in a coal mine is dramatically different from state to state. For example, according to Table 6.1 (page 122), the maximum acceptable concentration of arsenic allowed to leach from an ash sample in Illinois before it is rejected for mine placement is equal to the former drinking water standard (DWS) of 0.05 mg/L. Yet the maximum concentration of arsenic that can leach from that ash sample in Pennsylvania is 1.25 mg/L (25 times the old DWS), and the maximum concentration of arsenic that can leach from the sample in West Virginia is 5.0 mg/L (100 times the old DWS and 500 times the current DWS) before the ash would be prohibited from mine placement. West Virginia’s criterion is equal to the level of arsenic that would define a solid waste as a hazardous waste by characteristic. (EPA’s 2000 Regulatory Determination exempts CCW from hazardous waste regulation regardless of its leaching results.) Granted these states are using different leach tests, but the Report does not comment on the degree to which this justifies such different allowable leaching levels from coal ashes. Furthermore Ohio uses the same TCLP test as West Virginia but sets its maximum level of leachable arsenic at 0.30 mg/L, (six times the old DWS).

The differences are even greater for other heavy metals. For leachable thallium, a highly toxic metal, Illinois sets the test limit at the DWS (0.002 mg/L), Pennsylvania and Ohio set no limit, and West Virginia sets its test limit at 7 mg/L, 3500 times the DWS.

The Report does point out a central deficiency however by explaining that these standards defining ash as acceptable or not acceptable for mine disposal “do not consider site specific conditions and are applied across an entire state.” (page 121, Sidebar 6.3) By revealing such inconsistencies, Table 6.1 and much of the rest of the discussion of the Report establish a substantive basis for the need for a national minefilling regulation to set requirements that will eliminate such inconsistencies and afford a minimum, acceptable level of protection for all who must live around CCW minefills.

The Report notes that state minefill programs typically characterize the CCW independently of their characterization of the site, performing a leaching test and a bulk analysis on the ash in one part of the permit and discussing the site in another part without ever considering how the CCW might react with the particular site. States should instead be integrating the two into a “site conceptual model” in the permit to predict the risks of the disposal operation more accurately. To quote from the Report:

For example, site characterization data are needed to inform the design of relevant leaching tests, by providing the range of geochemical conditions that might be encountered over long periods of time (decades to centuries) at the mine site. Likewise, an understanding of the total mass and leachability of the contaminants in CCRs to be disposed at a mine site is needed to evaluate the potential for attenuation through reaction with geological materials. Given the complex hydrology and geochemistry of mine sites, the site conceptual model should be reevaluated as additional site data are obtained (at least annually during active placement). (page 127, Chapter 6)

Not one state minefill program in the country requires that the characterizations of CCW and the disposal site be integrated in a “site conceptual model” much less that any site conceptual model developed in minefill permits be reevaluated annually, for example as additional monitoring data is collected during ash placement. Any new or renewed permit to dump or “beneficially use” ash in a coal mine integrate these characterizations into a conceptual model specific to each disposal site and require its reevaluation by regulators annually or whenever new information emerges suggesting impacts to water quality that were not predicted in the permit.

VII. TCLP Testing Insufficient For Prediction of Leaching Potential

In determining the characteristics of the CCW and predicting the probable hydrologic consequences, specific attention must be given to the choice of testing and modeling methods. Current SMCRA regulations do not provide for the rigorous testing of CCWs necessary to support their use as soil amendments, fill, for AMD treatment, or for disposal. The reliance of state and federal regulatory authorities on the use of short-term batch leaching tests such as the TCLP test are technically inappropriate and insufficient to enable any meaningful prediction of the consequences of placement / disposal of CCWs at mine sites, and EPA has acknowledged as much.

While EPA indicated in the Report to Congress concerning regulation of CCWs under RCRA Subpart C that coal combustion wastes (fly ash and scrubber sludge) do not usually exhibit sufficiently high toxic properties to be classified as "hazardous" based on TCLP toxicity (meaning they don't leach metals at 100x safe drinking water levels), the literature suggests that the use of the TCLP test is neither a valid nor sufficient predictor of the environmental fate and transport of constituents in coal combustion ash when placed in a mine environment. Boulding, J. Russell, Disposal of Coal Combustion Waste in Indiana: An Analysis of Technical and Regulatory Issues (1991) conducted an extensive literature review and analysis of coals burned in Indiana utilities (including Kentucky coals), and concluded that:

1. Neither EP [toxicity] nor TCLP tests provide a good indication of leachability of CCW in natural disposal settings. Long-term leaching tests conducted until equilibrium has been achieved for each element of concern, using a leaching solution that approximated percolating groundwater, would give a more accurate depiction of ground-water contamination potential at a disposal site.

2. 17 potentially toxic elements are commonly present in CCW: aluminum, antimony, arsenic, barium, beryllium, boron, cadmium, chromium, copper, lead, manganese, mercury, molybdenum, nickel, selenium, vanadium, and zinc.

3. Fluidized bed combustion (FBC) wastes retain volatile and semi-volatile elements in the bottom ash to a greater extent than conventional pulverized coal combustion, thus enhancing the leachability of FBC waste elements.

4. Leachates from coal power plant ash and flue gas desulfurization wastes typically exceed drinking water standards, but by a factor less than hazardous levels (i.e. 100 x DWS). The major leaching studies on CCW indicate that drinking water standards are typically exceeded by CCW ash leachate at a factor of 1.1 to 10, and often by a factor greater than 10 for one or more elements.

The EPA Report and Boulding study indicate that the management of CCW must be attuned to the variability of the concentrations of potentially toxic elements in the waste, to the different problems presented by disposal sites, and by the type of special waste (i.e. FBC v. non-FBC wastes).

Initially, analysis of total metals does not provide any indication of the leaching potential or leaching characteristics of coal combustion wastes, and the U.S. EPA has recommended that management decisions not be based on total content of constituents in coal combustion residues since total content does not consistently relate to quantity released.

Additionally, the literature summarized below reflects clearly that TCLP testing is insufficient to predict short-and long-term leaching characteristics of coal combustion fly and bottom ash as mine fill. The use of short-term batch leaching tests, such as TCLP, EP-Toxicity, SPLP, and ASTM-D2987 (Shake Extraction) are not necessarily reflective of field conditions and long-term leaching potential. According to Ann Kim of the National Energy Technology Laboratory,

[t]he utilization of coal combustion by-products (CCB) as bulk fill and mine backfill has raised questions about the potential contamination of surface and groundwater. . . . Leaching is related to the solubility of a specific compound and can be influenced by pH, temperature, complexation, and oxidation/reduction potential. . . . Regulatory tests and standard methods are not necessarily appropriate for leaching tests intended to stimulate natural processes.”

Kim, CCB Leaching Summary: Survey of Methods and Results.”

The TCLP test method is a batch test developed by EPA in response to deficiencies in an earlier test, the Extraction Procedure (EP). The test

was designed as a screening test to consider conditions that may be present in a municipal solid waste (MSW) landfill. It is acetic acid buffered to pH 5 (initial); 20: 1 liquid/solid ratio; particle size reduction to 9.5 mm; equilibrium. The reason it was designed this way was because, under RCRA, EPA is required to regulate as hazardous all wastes that may pose a hazard to human health and the environment if they are mismanaged. . . . co-disposal of industrial solid waste with MSW is considered to be a plausible “worst-case” management of unregulated waste.

Helms, US EPA Leach Testing of Coal Combustion Residues.

As Gregory Helms with the EPA Office of Solid Waste explained, the EPA Science Advisory Board commented on the TCLP test method in 1991 and again in 1999, expressing concern “about overbroad use of the TCLP test.” Id. The SAB found that TCLP is a screening test that evaluates leaching potential under a single set of environmental conditions. The SAB has expressed concern over the use of the TCLP when it has been applied to determine the leaching potential of wastes in disposal settings other than municipal waste co-disposal has been criticized.

The U.S. EPA utilized a new multi-tiered testing framework in a research program designed to evaluate the potential for mercury release from various types of coal combustion wastes. The alternative framework evaluates the potential leaching of waste constituents over a range of values for parameters that affect the leaching potential. In explaining the EPA decision to utilize a leach testing approach developed by Kosson et al. at Vanderbilt in evaluating leaching from coal combustion residues resulting from mercury emissions controls, Helms explained that TCLP wasn’t used for evaluating coal combustion residues from enhanced mercury controls because “TCLP is not technically appropriate” where the disposal is not co-disposal with MSW.

Other commentators have noted the limitations of the use of TCLP as an analytical method for predicting leaching potential of coal combustion wastes. Hassett notes that the TCLP is often used in a generic manner for the prediction of leaching trends of wastes, although the intent of this test was for the prediction of leaching under co-disposal conditions in sanitary landfills. The application of acidic conditions to predict field leaching that can occur under a wide range of conditions may lead to false prediction of leaching trends. Additionally, conditions imposed on leaching systems by inappropriate leaching solutions may alter the distribution of redox species that would be found in the field and, in some cases with reactive wastes, 18 hours, as specified in the TCLP and other short-term leaching tests, may be an insufficient equilibration time. In order for a batch leaching test to be used, in determining potential for environmental impact . . . when being used with CCBs, the test must take into account the unique properties of the material, especially the hydration reactions of alkaline CCBs.

Hassett and Pflughoeft-Hassett, Evaluating Coal Combustion By-Products (CCBs) For Environmental Performance.

Because the tests are not designed for use with CCBs, they do not account for several typical reactions in CCBs under hydration. It has long been known that laboratory leaching procedures cannot precisely simulate field conditions nor predict field leachate concentrations. However, with careful application of scientifically valid laboratory procedures, it is possible to improve laboratory-field correlations and modeling efforts focused on predicting leachate concentrations. Id.

Hassett recommends the development of a selection of laboratory leaching procedures that more closely simulate field management scenarios, focusing specifically on technical and scientific variables such as the long-term hydration reactions that can impact leachate concentrations of several constituents of interest, the means by which water contacts the CCW in order to simulate the reduced permeability frequently exhibited in CCW utilization applications, the impact of pH and other CCW properties on the leachate and on resulting leaching; and the prediction of, and changes in, leaching over time. Id. Hassett recommends use of Synthetic Groundwater Leaching Procedure with a long-term leaching (LTL) procedure as a better predictor of leaching under field conditions. His work reflects that “[I]n many applications, the extended-time SGLP “has demonstrated trends significantly different from TCLP and other commonly used leaching protocols.”

The explanation for the differing results and trends between the extended-time SGLP and TCLP “can be explained by the fact that many commonly used leaching tests impose conditions different from those in a field environment on samples, and, thus, bias data in a manner leading to inappropriate interpretation for environmental impact. Elements most often affected include arsenic, boron, chromium, vanadium, and selenium.” Id.

The EPA Report on Characterization of Mercury-Enriched Coal Combustion residues from Electric Utilities Using Enhanced Sorbents for Mercury Control, EPA/600/R-06/008 (January 2006) further underscores both the importance of utilizing proper test methods for characterization of these coal combustion wastes, and the trend towards increasing potential toxicity of such wastes as air pollution controls better capture metals entrained in and released during combustion of the coal. Among the observations of the agency were that “arsenic and selenium may be leached at levels of potential concern from CCRs generated at some facilities both with and without enhanced mercury control technology [and that] further evaluation of leaching or arsenic and selenium from CCRs that considers site specific conditions is warranted.”

With respect to the sufficiency of TCLP, EPA noted that leaching tests “focused on a single extraction condition” would not have allowed for an evaluation of the variations in anticipated leaching behavior under the anticipated field disposal conditions.

The placement of CCWs at coal mines will usually take one of two forms – placement as disposal, in which case the NAS recommendation for isolating the material from contact with water and the mandate of SMCRA that acid and toxic-forming material be isolated from contact with surface and groundwaters, would dictate one type of management; and the proposed use of alkaline ash materials for neutralization of AMD. In the latter circumstance, the fate and leaching potential of metals and organics in the ash must be evaluated over a range of pH conditions, as suggested by Ziemkiewicz, since interactions of the CCWs and mine water over time, and geochemical reactions of dissolution/precipitation, adsorption/desorption, and oxidation/reduction will change with changes in pH as the alkalinity is exhausted and the pH of the leachate returns to that of the mine water.

In sum, OSMRE and EPA should evaluate, in the context of the preparation of an Environmental Impact Statement, and solicit public comments on the appropriate test methods and approaches to determining the short and long-term trends in leaching of constituents of concern from coal combustion wastes when utilized for acid-mine drainage treatment and for disposal at coal mines.

VII. SMCRA Regulations Are Inadequate To Address The NAS Recommendations Regarding Site Characterization

The NAS Report explains that characterizing a site involves developing “a site conceptual model.” The Report states, “[s]ite characterization is a dynamic process of developing and continually refining a site conceptual model, which captures relevant aspects of the site that affect the behavior and potential impacts of CCR’s in the mine environment.” p. 109

The Report identifies three broad categories of information that are essential components of this model: (1) the hydrogeologic setting of the placement area, (2) the biogeochemical environment of the minesite where the waste will be placed, and (3) the proximity of the waste to sensitive receptors. These three categories are discussed in detail below.

The Report also explains that there will be inherent uncertainty in the CCW management decision making process, “given the complex scenario of CCR placement in the mine environment.” The Report proposes several strategies to cope with this uncertainty:

Uncertainties about long-term performance could be reduced by the incorporation of redundant engineered liners and/or impermeable caps rather than more intensive characterization of the disposal site. Uncertainties about the potential for contaminant transport may be answered by more intensive characterization, perhaps including long-term column leaching experiments, investigations of the extent of fracturing within natural geologic barrier materials, or research on the ability of geologic materials to naturally attenuate contaminant migration. Intensive subsurface monitoring could be used to manage uncertainty and provide early warning of any problems, although site managers would have to be prepared to take additional steps to address unacceptable levels of contamination were they to occur. P. 109.

The claim of purported benefits from dumping CCW in coal mines, including the treatment of acid mine drainage (AMD), should never be used to shortchange the characterization of mine sites where CCW is to be “placed.” The Report states:

As uncertainty in the site characteristics and behavior of CCR increases, more effort should be placed on characterization. As discussed in Chapter 5, although the potential benefits of CCR mine placement are important to consider in CCR management decisions, these benefits do not reduce the need to characterize potential risks. Managers and regulators cannot make sound decisions about CCR placement unless both the benefits and the potential risks are well understood. Inadequate investment in site characterization up front may lead to an erroneous assessment of potential CCR impacts and improper placement or engineering design. The costs of adequate site characterization are likely to be far lower than the costs of remediating groundwater and surface water contamination from a mine site with improperly sited CCRs. P. 110, emphasis added)

To reiterate, the Report identifies three essential components of site characterization: (1) the hydrogeologic setting; (2) the biogeochemical environment; and (3) the proximity of sensitive receptors. Each of these critical topics is discussed in more detail below.

There is a lot of detailed information needed to understand the hydrogeologic setting at mines that no state is collecting sufficiently in CCW minefill permits. On pages 111-114, the Report lays out the specific data and information that are often overlooked entirely or not provided in enough detail to be useful for decision makers, but that is “essential to site characterization [of the hydrogeologic setting] for CCW placement:

Meteorological Data. Local meteorological data, such as rates of precipitation, evapotranspiration, and groundwater recharge provide information on water inputs to the mine site and the relative importance of overland and groundwater flow. CCRs are often placed in the unsaturated zone; therefore, information on recharge rates is particularly important. Local recharge data are rarely available, but regional values should be used only with the understanding that there may be large uncertainty in these estimates (NRC, 1990). Variations in temperature throughout the year can provide useful information on freeze-thaw cycles that could affect the integrity of any protective caps.

Geologic Materials. The geological materials in a mine site may offer a natural means for isolating CCRs, by limiting subsurface flow. To fully evaluate the potential for natural geologic isolation, the thicknesses, orientation, and hydraulic conductivity of the strata forming the sides and bottom of the CCR placement site should be determined. The characterization should examine the potential for fracture- or conduit-dominated flow in addition to flow through unfractured porous media, such as spoil materials. The presence of thick sequences of strata with hydraulic conductivities of 10-7 centimeters/second or lower should reduce off-site groundwater flow, provided the orientation of these strata is optimal relative to the direction of groundwater flow. Depending on the depth to the water table, geologic units with higher conductivities may represent higher-risk placement sites.

Subsurface Water Flow. To understand the potential for contaminant transport from CCR placement sites, three-dimensional flow processes should be included in the site conceptual model based on current theories of unsaturated and saturated flow in heterogeneous systems. The placement of CCR calls for thorough characterization of pre-mining groundwater flow and predictions of post-reclamation flow through the entire mine area, including disturbed areas such as the mine spoil and the emplaced CCR. Site data to characterize groundwater flow would include seasonal fluctuations of the water table with respect to the CCR placement zone and hydraulic conductivities, rates, and directions of groundwater flow in all aquifers potentially influenced by the CCR.

Information on unsaturated flow characteristics is required to define the rate of contaminant migration into the groundwater zone, especially when CCRs are placed above but in close proximity to the water table. Prediction of water movement in the unsaturated zone requires information on values of hydraulic conductivity for CCR, spoil, and other materials as a function of water content and wetting and drying histories. Information on surficial topography relative to hydraulic conductivity variations may provide additional information about local infiltration at the land surface.

Sufficient data should be collected to estimate travel times for contaminants to the habitats of sensitive receptors and to the nearest monitoring wells. A thorough groundwater flow characterization will also inform the design of an effective groundwater monitoring network that will intercept any contaminant plume from the CCR placement site. However, site managers should recognize the degree of uncertainty in groundwater flow data to determine the appropriate number of downgradient monitoring wells, with greater uncertainty warranting more monitoring wells.

Surface water flow. Large amounts of data are typically collected in the standard mine permit application. However, the addition of CCR placement at a mine site, necessitates that there be a clear understanding of the interconnections between groundwater and surface water flow under pre-mining, mining, and post-reclamation conditions. Due to concerns about flooding and erosion at the CCR placement site, the configuration of the site with respect to the 100-year floodplain should also be verified.

The current SMCRA permitting requirements are not designed for nor appropriate to providing the site characterization needed to support a decision to allow co-disposal of combustion ash at mine sites, and fail to meet these requirements outlined by the NAS.

IX. Integration of Characterization Data

The NAS Report recommends that the site and waste characterization data be integrated to guide the management, engineering and monitoring plans at the site, including how the CCW will be placed to minimize movement of contaminant. This involves consideration of the volume and well as the disposal location within the mine site. In summary, the Report makes the following recommendations regarding waste and site characterization for every CCW minefill. The committee recommended:

- Comprehensive site characterization specific to CCR placement at all mine sites prior to substantial placement of CCRs.

- Characterization of CCRs prior to significant mine placement and with each new source of CCRs. CCR characterization should continue periodically throughout the mine placement process to assess any changes in CCR composition and behavior.

- Additional research to continually improve and field-validate leaching tests to better predict the mobilization of constituents from CCRs in mine settings.

- Additional research to apply existing reactive transport models to real field sites and to evaluate whether the transport and reaction processes included in the model adequately describe the processes taking place at CCR mine disposal sites, including those processes that occur over protracted time scales. (Pages 128-129, Chapter 6, emphasis in original.)

None of these recommendations are properly addressed in the OSMRE proposal to simply reference general permitting and performance standards that were designed for regulation of “surface coal mining operations” and to make them applicable to disposal of non-coal wastes. SMCRA does not provide for ongoing characterization of materials once the permit is issued, nor does it adequately specify test methods, transport of contaminants through the environment (other than a very limited set of parameters that do not include those constituents of most transport concern in CCWs – arsenic, boron, vanadium and selenium).

X. SMCRA Regulations Do Not Adequately Incorporate The NAS Recommendations For Long-Term Management Plans For CCWs

Chapter 7 of the Report sets forth minimum standards for reclamation and monitoring that should apply to all large-volume minefills of CCW.

A. Topsoil Replacement and Revegetation

SMCRA regulations contain specific requirements for the removal and replacement of topsoil. However, stringent topsoil replacement requirements apply only to those areas designated as prime farmland. Some states, like Pennsylvania, allow CCW to be used as a “soil amendment” in reclamation. No fewer than three times in Chapter 7, the NAS Report warns that “uptake of contaminants must be considered when CCW is used as a soil replacement” or additive. p. 135, Chapter 7. When CCW is used as a soil additive to neutralize acidic soil, the NAS Report indicates that “the uptake by vegetation of metals and other contaminants in CCW is a concern, especially when the reclaimed land will be used as farmland.” (p. 138, Chapter 7). Accordingly the Report states that “sufficient soil cover, which is appropriate for the type of vegetation, is necessary to minimize plant uptake. Id.

Current SMCRA regulations do not require consideration of uptake of contaminants, nor leaching potential of CCWs used as soil amendments which, by definition, will come into routine contact with infiltrating rainfall.

B. Design Considerations to Limit Contact with Groundwater

The NAS states that CCR placement in mines should be designed to minimize reactions with water and flow of water through CCRs. According to the Report, “Regardless of whether the CCR is placed in an active or an abandoned coal mine, the issue of limiting the interactions of CCRs with groundwater should be a priority.” (p. 136, Chapter 7. The utilization of CCRs for soil amendments or for AMD treatment contemplate hydration of the CCRs, and the fate and transport over time of constituents in the CCRs must be evaluated under a range of pH conditions – requirements that are not embedded in the existing SMCRA regulations for soil amendments.

The Report notes that many states have regulations requiring CCW to be placed a minimum distance above the regional or seasonal water table. However the Report emphasizes that these “high and dry” requirements “do not guarantee that there will be no interaction with groundwater.”

C. Reclamation Bonding

The NAS Report postulates that possible parallels exist between impacts from CCWs and the formation of acid mine drainage (AMD) at surface coal mines requiring long-term treatment. The Report notes that if AMD is detected before final bond release, OSM has the authority to require the bond amount to be adjusted accordingly and held indefinitely until it is replaced by some other enforceable contract or mechanism to ensure continued treatment. If such a parallel exists between generation of polluting leachate from CCW and generation of AMD, it follows that there should be similar authority to require that a bond amount be adjusted to address the long-term contamination at the site or that the bond be replaced with enforceable corrective action mechanism to monitor and treat the contamination. (P. 138, Chapter 7)

Reliance on existing performance bonds under SMCRA is insufficient, since it guarantees only reclamation under Title V and is neither calculated to cover nor extensive enough in the scope of liability to cover on of off-site damage and reclamation needs associated with CCW disposal. Separate bonding, insurance, and long-term financial responsibility would need to be established.

D. Monitoring

The NAS characterizes monitoring as an essential tool to help protect human and ecological health at CCW placement sites. Monitoring can confirm predictions of contaminant behavior, detect movement of contaminants off-site and help characterize the extent of contamination. In their review of monitoring requirements, the committee focused on three areas: regulatory framework, assessment of existing programs and recommended monitoring strategies. The conclusions of the committee in each of these areas are summarized below.

1. Regulatory Framework for Monitoring

In describing regulatory requirements for monitoring, the NAS compares the stringency and specificity of RCRA and SMCRA. As noted by the NAS, states have developed and implemented current monitoring programs as required by SMCRA. However, SMCRA requirements are not very prescriptive, so the state programs vary widely. The NAS cites EPA data that some states with monitoring requirements for CCW placement essentially mirror SMCRA, while a few have additional monitoring requirements. A comparison of states that have additional requirements reveals the same pattern; each state program varies in its requirements. Monitor placement, frequency of sampling and the number and type of parameters monitored are all different from state to state.

The NAS gives reasons for some of this variability by explaining the basic objectives of the two different statutes. While RCRA is concerned with the containment of hazardous wastes, SMCRA is meant to govern the reclamation of mine lands. Thus, RCRA is more prescriptive in many ways than SMCRA, for example imposing specific requirements on the groundwater monitoring network design; sampling and analysis procedures; surface water monitoring; and constituents sampled. While the SMCRA regulations allow a regulatory agency to impose requirements similar to those required in RCRA, adoption of more stringent rules is not required, and in states with “no more stringent than” clauses, imposition of more prescriptive requirements might be determined unlawful absent federal lead. Specific deficiencies in SMCRA that were noted by the committee were:

- The surface and groundwater monitoring plans required by SMCRA “do not specifically address the number and location of wells, spatial coverage of wells or duration of monitoring”

- SMCRA monitoring rules do have a minimum requirement for monitoring of certain constituents, but “they do not address the full suite of contaminants that might be expected to leach from CCRs in a minefill setting”

Thus, merely referencing groundwater monitoring requirements under existing SMCRA regulations would be wholly inadequate. 2. Assessment of Existing Monitoring Programs

In assessing the adequacy of existing monitoring programs, the NAS noted numerous concerns. Based on its reviews of CCW post-placement monitoring:

[T]he committee concludes that the number of monitoring wells, the spatial coverage of wells, and the duration of monitoring at CCR minefills are generally insufficient to accurately assess the migration of contaminants.” (p 145.)

The committee was particularly concerned with the appropriate placement of monitoring wells (based on the location of CCWs), the characterization of subsurface flow paths and whether there were an appropriate number of monitoring wells to characterize and sample groundwater along these flow paths. Other concerns related to characterization of field leachate concentrations, the adequacy of analysis of constituents in surface and groundwater, the length of monitoring and the timeliness of data processing.

a. Defining Subsurface Flow Paths

The NAS found that under the current regulatory system, groundwater flow paths are often characterized in the mine permit under a general discussion of aquifer characteristics with hypothesized or measured flow directions and water quality data. However, this information is often not refined for the placement of CCW even if the mining operation disturbed the groundwater flow pathway. Thus, the original mine permit is not sufficiently accurate to site monitoring wells for CCW placement and may result in a monitoring well network that does not intersect a contaminant plume if one were to occur, or lead to confusing data as to the source of contamination.

b. Number and Placement of Wells and Length of Monitoring

The committee found that monitoring networks were “inadequate to accurately assess the movement of contaminants within a reasonable timeframe.” At some sites there were large distances (up to a mile) between the monitoring network and the CCW placement. In these cases, monitoring over a limited time period would not detect a problem if one existed. In addition, the committee noted concerns with the locations of upgradient or background monitors which are critical to collect long-term baseline data for comparison to data collected after CCW placement.

c. Characterization of Field Leachate

The collection of field leaching data is important to evaluate the potential for contaminants to migrate off-site, and when combined with hydraulic data, can provide information on other in-field process such as adsorption, precipitation and attenuation. These data can also be used to refine and assess the validity of laboratory leachate tests. At some sites the committee observed monitors placed within the CCW itself to collect field leaching data, however the practice was not universal.

d. Constituents Analyzed in Surface and Groundwater

The committee noted that most of the monitoring programs appeared to be analyzing samples for appropriate constituents to evaluate whether contaminants were migrating. However, not all sites analyzed for selenium or boron which, because of their mobility in the subsurface, are good indicators of the presence of CCW-related contaminants in groundwater and downgradient surface waters.

e. Information and Data Management

The committee observed many instances where analytical data were questioned because of the lack of quality control and quality assurance. Clearly defined QA/QC protocols are needed prior to CCW placement to address errors in analytical procedures, data validation and information management, and should include how the data will be made available to the public. With respect to information management, the committee noted that electronic reporting, rather than companies submitting reams of paper data to state agencies, speeded the review process and facilitated closer attention and earlier recognition of water quality problems. In instances where large volumes of data were received by the state agency, the review process and data entry was so time-consuming that the field data were not consistently given the level of attention and scrutiny needed to recognize early problems with CCW contamination.

3. Recommended Monitoring Strategies

The committee made several general recommendations for consistent monitoring programs for CCW mine placement. In short, the committee recommended that a site-specific monitoring plan needs to be developed with the characteristics of the CCW and the site itself taken into consideration. The committee stated:

In general, the committee recommends that the number and location of monitoring wells, the frequency and duration of sampling, and the water quality parameters selected for analysis be carefully determined for each site, in order to accurately assess the present and potential movement of CCR-associated contaminants.” (p. 146.)

As to specifics, the committee made numerous recommendations in the areas of groundwater monitoring, surface water monitoring, ecological monitoring and performance standards. The recommendations are listed below.

a. Groundwater Monitoring

a.1. The monitoring network should be designed based on a careful assessment of site characterization, CCR characterization and the design of CCR emplacement and should be certified by a regulatory official experienced in contaminant transport processes.

2. The number of monitoring wells and the spatial coverage of the wells should be consistent with the potential for material damage to groundwater. 3. Wells should be installed at multiple locations and multiple depths concentrated in the direction of probably groundwater flow with additional wells located upgradient to measure background water quality.

4. Well screens should be placed in a variety of materials including the CCR, coal spoils, blended materials and undisturbed sites. At least one, preferably two wells should be placed directly in the CCR. Results of the CCR monitoring should be compared to the site modeling projections.

5. Downstream wells should be located along predicted flow paths and should be placed with an understanding of travel time of contaminants to reach these points. Several monitoring points should be established downgradient of the CCR placement that will yield data during the established bonding period.

6. The duration of groundwater monitoring should be addressed on a site-specific basis. Terminating groundwater monitoring at the time of bond release may underestimate contaminant release from many sites.

7. The frequency of monitoring should reflect the variation in chemistry expected at a site. Where groundwater velocity is high, sampling should occur more frequently.

8. A rigorous CCR characterization should be performed to identify potentially leachable contaminants. Results of this characterization should inform the field monitoring program.

b. Surface Water Monitoring

1. Surface water monitoring is a key component of any monitoring program to protect the ecosystem.

2. CCR monitoring programs must identify any surface waters that might receive either direct surface discharge or subsurface discharge.

3. The frequency of surface water monitoring should capture the change over time of the upgradient background condition plus any change in point or non-point discharges. 4. Surface water monitoring should continue for the same duration as groundwater monitoring. 5. Parameters measured should include water chemistry (pH, temperature, conductivity, major cations and anions, hardness, total organic carbon, CCR-related metals), and suspended sediments. Constituents should be analyzed from both filtered and non-filtered samples. 6. In addition, hydraulic monitoring data may need to be collected at every site where water chemistry is monitored.

c. Ecological Monitoring

1. While existing SMCRA regulations require monitoring of water and sediment as it moves to surface waters, the impact of such discharges on the biota of surface water systems is not specifically addressed. Consequently, monitoring tissue concentrations in biota upstream and downstream of CCR placements sites may be necessary.

2. If tissue concentrations are elevated above reference values, then more intensive monitoring of, for example, reproductive performance, species diversity and abundance, should be considered.

d. Performance Standards for Monitoring

1. Performance standards should be established for groundwater and surface water monitoring points.

2. Performance standards associated with SMCRA should be followed to develop specific metrics.

3. Performance standards could be based on best available data, model predictions, water quality conditions and tissue-based standards.

4. Exceedance of performance standards should trigger more intensive monitoring and if needed, development of a remediation plan.

Absent incorporation of these recommendations into enforceable federal regulations, the OSMRE approach would fall short of addressing the identified needs for an effective regulatory program for coal combustion residue placement at coal mines. In addition to the NAS recommendations, commenters believe that these issues must be addressed in any effective program for regulating placement of coal combustion residues at active or abandoned coal mines:

1. Separation and proper disposal of other fossil fuel-related wastes that may contain higher levels of toxic constituents, such as (1) fluidized bed combustion (FBC) wastes that may contain residual unburned organics not associated with typical coal ash. Greater scrutiny is warranted for FBC waste, which presents a higher potential for leaching elements of concern; (2) wastes generated through the firing of hazardous waste fuels and waste oils with or without coal; and (3) wastes fired or co-fired with waste tires and refuse-derived fuel. Each of these categories adds constituents to the combustion process which may significantly increase the hazards of improper disposal of the waste, including a range of products of incomplete combustion of chlorinated and other synthetic organic compounds that warrant extensive analysis, characterization and careful management beyond that necessary for coal combustion waste.

2. Clarification that coal combustion wastes do not include utility wastes such as metal and boiler cleaning wastes, nor other wastes generated from power plants beyond those directly resulting from combustion of coal and control of emissions from the combustion process.

3. Screening of all coal combustion wastes for radionuclides and management as low-level radioactive wastes in accordance with the applicable state and federal laws, where those wastes exhibit activity that is above background levels. Coal combustion waste containing elevated radionuclides is properly classified as technologically enhanced low-level radioactive waste.

4. Blending of mine wastes containing fly ash with spoil in the backfill should be treated as prohibited open dumping.

5. A requirement for controlled placement in a discrete, properly engineered and lined land disposal facility with groundwater monitoring, leachate collection, closure and post-closure care, and financial responsibility. When EPA determined that issuance of regulations under Subtitle C of RCRA was not necessary to adequately manage the environmental risks associated with disposal of coal combustion wastes, it premised that determination on the assumption that the environmental performance standards and protections of Subtitle D would be extended to the management of that industrial waste stream.

XI. OSMRE And EPA Should Begin The Scopoing Process For An Environmental Impact Statement On The Various Approaches To Management Of Coal Combustion Wastes

As outlined above, OSMRE’s preferred approach is to simply adopt a regulation identifying existing surface mining regulations that would be deemed applicable to coal combustion waste disposal at active and abandoned mines, rather than to develop a comprehensive set of regulations for characterization of the material, the site, fate and transport of the constituents in the coal combustion wastes, and other components of an effective enforceable program as outlined by the NAS.

It is past time for both OSMRE and EPA to begin the scoping process under the National Environmental Policy Act for an Environmental Impact Statement on the human and ecological consequences of the proposed approaches to federal management of such wastes. The decisions by EPA not to follow-through on the development of a regulatory program for coal combustion waste management, and the proposal by OSMRE to merely reference existing general mining regulations rather than to respond to the NAS recommendations for a specific program for characterization and management of such wastes, are under any fair interpretation of the phrase “major federal actions” that will significantly affect the human environment.

The National Environmental Policy Act (NEPA) requires all federal agencies to prepare an Environmental Impact Statement (EIS) for “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. §4332(2)(C). The statutory delineation of when NEPA applies is intentionally broad. Scientists’ Institute for Public Information, Inc. v. Atomic Energy Commission, 481 F.2d 1079, 1088 (D.C. Cir. 1973). Federal actions that potentially fall under the gamut of “major Federal actions” include revisions to agency rules, regulations, plans, policies and procedures. Id. at 1088; 40 C.F.R. §1508.18(a). In fact, NEPA regulations specifically identify one category of typical federal actions as including:

Adoption of official policy, such as rules, regulations, and interpretations adopted pursuant to the Administrative Procedure Act, 5 U.S.C. 551 et seq.; …[and] formal documents establishing an agency’s policies which will result in or substantially alter agency programs.

40 C.F.R. §1508.18(b)(1).

OSMRE’s announced intention to revise its existing regulations to allow for the placement of CCWs on active and abandoned mine sites and to draft additional guidance documents on the placement and handling of CCWs is unquestionably a federal action for the purposes of NEPA as it proposes to revise agency regulations, create new policy and procedures, and adopt formal documents which will substantially and substantively alter the agency’s SMCRA program. 40 C.F.R. §1508.1; National Wildlife Federation v. Babbitt, 835 F.Supp. 654, 670 (D.D.C. 1993).

The rulemaking proposed by OSMRE would not fall under a categorical exclusion since OSMRE is not purporting to promulgate only interim regulations, nor is it proposing regulations or guidelines that are merely of an administrative, financial, procedural or technical nature. Cf. Department of the Interior, Departmental Manual, Part 516, Chapter 13, Sec. 13.5(A)(1); Department of the Interior, Departmental Manual, Part 516, Chapter 2, Appendix 1, par. 1.10. The advance notice is for a rulemaking that would change the breadth and substantive limitations of SMCRA with regard to the placement of CCWs. In the cases of states that have more rigorous state-lead programs that have been developed in the absence of OSMRE action, such federal regulations might result in a lowering of state protections. The proposed rulemaking does not fall under any of the categorical exclusions recognized by the Department of the Interior.

A federal action is considered “major” whenever it has or may have significant environmental impacts. See 40 C.F.R. §1508.18 (“Major reinforces but does not have a meaning independent of significantly (§1508.27).”). The determination of whether an action may significantly impact the environment requires the consideration of numerous factors related to the context of the action and the severity of impact. 40 C.F.R. §1508.27.

“In general, "new or revised agency rules, regulations ... or procedures," … constitute "major federal actions" requiring an EA or EIS pursuant to NEPA.” California v. Dept. of Agriculture, 459 F.Supp.2d at 894 (citations omitted). Consistent with the general rule regarding the application of NEPA to agency rulemaking, the proposed OSMRE rulemaking would constitute a major federal action triggering NEPA review. The OSM has posited that its proposed rulemaking concerning the use of CCWs in coal mine reclamation was urged by the National Research Council (NRC), which had acknowledged the possible significant adverse effects of the placement of CCWs and the need for federal involvement in the regulation of this waste. OSMRE has already acknowledged that it has undertaken this rulemaking to affect public health and safety. 40 C.F.R. §1508.27(b)(2).

OSMRE has also acknowledged that the rulemaking will allow individuals on a nationwide basis to take actions currently impermissible under SMCRA. 40 C.F.R. §1508.27(b)(6-7). It is irrelevant that the OSM believes that changes to the regulations will result in potentially beneficial impacts. An EIS is required regardless of whether the impacts of the federal action are expected to be adverse or beneficial. 40 C.F.R. §1508.27(b)(1).

Furthermore, the NRC has acknowledged that the effects of allowing CCWs to be used as fill in mine reclamation have not been fully determined and that the use of this material in mine reclamation may have some unknown and/or unstudied adverse environmental effects. As there is no universal agreement that use of CCWs as fill in reclamation is safe or beneficial, an EIS is essential to address this uncertainty. 40 C.F.R. §1508.27(b)(4-5).

Considering the foregoing, it is indisputable that the proposed rulemaking and subsequent changes to the regulations will significantly affect the human environment. 40 C.F.R. §1508.27. As such, the proposed OSM rulemaking is a major federal action triggering NEPA and an EIS must be prepared.

XII. The Environmental Justice Implications Of The Proposed Rules Demand Consultation By EPA And OSMRE With The Office Of Civil Rights

The proposal to craft rules allowing the disposal and placement of coal combustion residues in active and abandoned coal mines is one that is fraught with environmental justice concerns. Despite the wealth realized from those who extract coal from this nation’s coal-bearing regions, the wealth is not realized by the residents who live downhill, downstream and downwind of the mining activities; rather many of the coal-producing communities have significant low-income populations and suffer disproportionately the effects of coal extraction, transportation and beneficiation. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations demands that each Federal agency must make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minorities and low-income populations. 59 FR 7629, February 16, 1994. Executive Order 12898 requires OSMRE and EPA to take into account the environmental justice consequences of their actions. Id. EPA states that its goals are “to ensure that no segment of the population, regardless of race, color, national origin, income, or net worth bears disproportionately high and adverse human health an environmental impacts as a result of EPA’s policies, programs and activities.” 72 Fed. Reg. 14214.

It is incumbent upon OSMRE and EPA to identify and address the disproportionately high and adverse human health and environmental impacts on low-income populations in coalfield communities that could be adversely affected in (a) diminished air quality associated with transportation and placement of coal ashes; (b) diminished surface and groundwater quality associated with contamination caused by leaching of constituents from disposed of or “beneficially used” coal ash; (c) diminished use of active or abandoned coal mine properties from use of such properties for long-term waste disposal. Both EPA and OSMRE guidance demand that environmental justice issues be considered at all stages of policy, guidance and regulation development, beginning with preliminary efforts. The agencies should, in consultation with the Office of Civil Rights, evaluate the subject matter for the possibility of disproportionately high and adverse impacts on minority and low-income communities, the ecological, human health (taking into account subsistence patterns and sensitive populations) and socio-economic impacts of the proposed regulatory approach in minority and low-income communities; and at all critical stages of development, there should be meaningful input from stakeholders, including members of the environmental justice community and members of the regulated community.

There is little doubt that OSMRE’s proposal raises significant environmental justice issues. The suggestion in the Advance Notice that disposal of coal combustion wastes would be appropriate at minesites even if for no beneficial purpose since the lands were already disturbed, adds insult to injury for landowners whose lives are adversely affected by the mining activities. Their expectation that mining will be a temporary use of land resulting in proper reclamation, and that those mining activities will not result in a determination from a federal agency that they should also be obligated to host the dumping of coal combustion wastes, is entitled to the same protection as that of individuals residing outside of the coalfields.

The Executive Order and agency guidance requires that the Environmental Justice analysis occur prior to publishing a proposed rule. OSMRE should, in conjunction with EPA and as part of the scoping process for the Environmental Impact Statement, begin the required analysis, consideration and outreach.

XIII. Placement / Use At Abandoned Mines

With respect to placement in abandoned mines, it is clear that properly-crafted and adequate regulation are required under RCRA to address disposal or use of such materials on former mine sites, since OSMRE jurisdiction over pre-law operations is limited to reclamation under the AML program and in those instances where post-Act remining occurs (in which case Title V would attach). All of the concerns regarding the hydrogeology and characterization of the waste, site and fate and transport of the material are equally applicable to abandoned sites, and more so because of the lack of even basic geologic, hydrologic and other baseline data for pre-1977 mine sites.

Utilization of CCWs as a component of AML-funded projects is of great concern for these same reasons, and because of the current lack of an enforceable framework to assure that such co-disposal or utilization does not cause long-term groundwater damage. Pending development of an Environmental Impact Statement concerning the standards under which the utilization of such materials can be accomplished in an environmentally responsible manner, OSMRE should not allow the use by regulatory authorities of such materials in conjunction with AML projects conducted under Title IV of SMCRA. The change in the manner of allocation of fund accomplished in the Surface Mining Control and Reclamation Act Amendments of 2006 Congress does not alter or diminish the underlying responsibility of OSMRE to assure that such projects are conducted in a manner that will protect public health and the environment.

Thank you in advance for your consideration of these comments.

Cordially,
Tom FitzGerald, Esq.
Director
Kentucky Resources Council, Inc.

Lisa G. Evans, Esq.
Project Attorney
Earthjustice

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