Kentucky Permanent Regulatory Program; Disposal of Coal Fly Ash, Bottom Ash, and Scrubber Sludge

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

Kentucky Permanent Regulatory Program; Disposal of Coal Fly Ash,

Bottom Ash, and Scrubber Sludge

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),

Interior.

ACTION: Proposed rule.

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SUMMARY: OSM is announcing the receipt of a proposed amendment to the

Kentucky permanent regulatory program (hereinafter referred to as the

Kentucky program) under the Surface Mining Control and Reclamation Act

of 1977 (SMCRA). By letter of April 18, 1994 (Administrative Record No.

KY-1276), Kentucky submitted a proposal program amendment that replaces

a previous proposed program amendment dated November 17, 1993

(Administrative Record No. KY-1260). The amendment consists of proposed

new and amended statutes to Kentucky Revised Statutes (KRS) relating to

disposal of coal combustion fly ash, bottom ash, and scrubber sludge

under special waste permit-by-rule at KRS chapter 224. The proposed

amendment, known as Senate Bill 266, was passed by Kentucky's General

Assembly during the 1994 regular session.

This document sets forth the times and locations that the Kentucky

program and the proposed amendment are available for public inspection,

the comment period during which interested persons may submit written

comments on the proposed amendment, and the procedures that will be

followed regarding a public hearing if one is requested.

DATES: Written comments must be received on or before 4 p.m., [e.s.t]

on June 20, 1994. If requested, a public hearing on the proposed

amendment will be held at 10 a.m., [e.s.t] on June 13, 1994. Requests

to present oral testimony at the hearing must be received on or before

4 p.m., [e.s.t] on June 3, 1994. Any disabled individual who has need

for a special accomendation to attend a public hearing should contact

the individual listed under FOR FURTHER INFORMATION CONTACT.

ADDRESSES: Written comments and requests to testify at the hearing

should be mailed or hand delivered to: William J. Kovacic, Director,

Lexington Field Office, Office of Surface Mining Reclamation and

Enforcement, 2675 Regency Road, Lexington, Kentucky 40503.

Copies of the Kentucky program, the proposed amendment, and all

written comments received in response to this document will be

available for review at the addresses listed below, Monday through

Friday 9 a.m. to 4 p.m., excluding holidays. Each requestor may

receive, free of charge, one copy of the proposed amendment by

contacting OSM's Lexington Field Office.

Office of Surface Mining Reclamation and Enforcement, Lexington

Field Office, 2675 Regency Road, Lexington, Kentucky 40503,

Telephone: (606) 233-2896

Office of Surface Mining Reclamation and Enforcement, Eastern

Support Center, Ten Parkway Center, Pittsburgh, Pennsylvania 15220,

Telephone: (412) 937-2828

Department of Surface Mining Reclamation and Enforcement, No. 2

Hudson Hollow Complex, Frankfort, Kentucky 40601, Telephone: (502)

564-6940

If a public hearing is held, its location will be: The Harley

Hotel, 2143 North Broadway, Lexington, Kentucky 40505.

FOR FURTHER INFORMATION CONTACT: William J. Kovacic, Director,

Lexington Field Office, Telephone (606) 233-2896.

SUPPLEMENTARY INFORMATION:

I. Background

On May 18, 1982, the Secretary of the Interior conditionally

approved the Kentucky program. Information pertinent to the general

background, revisions, modifications, and amendments to the proposed

permanent program submission, as well as the Secretary's findings, the

disposition of comments, and a detailed explanation of the conditions

of approval can be found in the May 18, 1982, Federal Register (47 FR

21404-21435). Subsequent actions concerning the conditions of approval

and program amendments are identified at 30 CFR 917.11, 917.15, 917.16,

and 917.17.

II. Discussion of Amendment

By letter of April 18, 1994 (Administrative Record No. KY-1276),

Kentucky submitted a proposed program amendment that replaces a

previous proposed program amendment dated November 17, 1993

(Administrative Record No. KY-1260). The amendment consists of proposed

new and amended statutes to KRS relating to disposal of coal combustion

fly ash, bottom ash, and scrubber sludge under special waste permit-by-

rule at KRS chapter 224. The proposed amendment, known as Senate Bill

266, was passed by Kentucky's General Assembly during the 1994 regular

session.

These proposed statutes offer surface coal mining permittees the

option to dispose of coal combustion waste on the permit area under the

special waste permit-by-rule established at KRS Chapter 224. Applicants

who obtain a permit from the Cabinet's Department for Surface Mining

Reclamation and Enforcement under these proposed revised statutes are

deemed to have received a permit from the Cabinet's Department for

Environmental Protection, Division of Waste Management, without having

applied separately to the Division Of Waste Management. A person who

wishes to dispose of coal combustion waste on a surface mining permit

area in a manner that is not authorized in Senate Bill 266 may, as at

present, apply separately to the Division of Waste Management for a

special waste formal permit under KRS Chapter 224.

Senate Bill 266 contains the following changes:

Amend KRS 350.010 to define coal combustion by-products; create new

sections of KRS 350 to allow the Department of Surface Mining

Reclamation and Enforcement to issue a permit authorizing the disposal

of coal combustion by-products at surface coal mining operations;

exclude from application of the Act, coal combustion by-products for

which a special waste formal permit or registered permit-by-rule is

required under Chapter 224, and coal combustion by-products that have

been mixed with hazardous or low volume waste; require an application

to modify an existing surface mining permit to initially include

disposal of coal combustion by-products to be a major amendment; in

other cases involving coal combustion by-products, allow for minor

revisions unless the cabinet determines otherwise; require removal of

other materials from coal combustion by-products before disposal;

confine disposal of coal combustion by-products to the pit or

extraction area from which coal was removed--except that disposal may

be allowed in other places within the permit area if the applicant

demonstrates that no adverse environmental impacts will occur; prohibit

disposal of any hazardous component of the coal combustion by-products

from being disposed of under the permit; require maps showing locations

and volumes of by-products disposed; require a lab analysis to

characterize the coal combustion by-products; require newspaper

advertisements stating that an application proposes disposal of coal

combustion by-products; require an application to demonstrate the legal

right to dispose to coal combustion by-products on the proposed

disposal area; require the application to identify the facility that

will generate the coal combustion by-products, a responsible official,

components of the by-products, and the coal combustion by-products

materials, weight, and volume; require analysis and a demonstration

that each component of the coal combustion by-products does not contain

any contaminant at a concentration that exceeds cabinet regulations;

require the application to include a determination of the probable

hydrologic consequences of disposal and measures to minimize

disturbances; require a description of measures to be taken to keep the

by-products from becoming airborne; require baseline ground and surface

water data and monitoring wells; require that performance bond required

under Chapter 350 cover disposal of coal combustion by-products when

applicable; require the permittee to comply with environmental

performance standards, to include placing the by-products at least four

feet above the seasonal high water table unless exempted, limiting the

volume of by-products disposed of on the permit area to the volume of

the marketable coal seams to be removed, limiting the thickness of the

disposed by-products to forty feet at any point, and requiring covering

the by-products as contemporaneously as practicable with at least four

feet of nonacid-forming spoil material; and require water quality

monitoring and reporting until final bond release.

III. Public Comment Procedures

In accordance with the provisions of 30 CFR 732.17(h), OSM is now

seeking comment on whether the amendment proposed by Kentucky satisfies

the applicable approval criteria of 30 CFR 732.15. If the amendment is

deemed adequate, it will become part of the Kentucky program.

Written Comments

Written comments should be specific, pertain only to the issues

proposed in this rulemaking, and include explanations in support of the

commentor's recommendations. Comments received after the time indicated

under DATES or at locations other than the Lexington Field Officer will

not necessarily be considered in the final rulemaking or included in

the Administrative Record.

Public Hearing

Persons wishing to comment at the public hearing should contact the

person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., [e.s.t]

on June 3, 1994. If no one requests an opportunity to comment at a

public hearing, the hearing will not be held. Filing of a written

statement at the time of the hearing is requested as it will greatly

assist the transcriber. Submission of written statements in advance of

the hearing will allow OSM officials to prepare adequate responses and

appropriate questions.

The public hearing will continue on the specified date until all

persons scheduled to comment have been heard. Persons in the audience

who have not been scheduled to comment, and who wish to do so, will be

heard following those scheduled. The hearing will end after all persons

scheduled to comment and persons present in the audience who wish to

comment have been heard.

Public Meeting

If only one person requests an opportunity to comment at a hearing,

a public meeting, rather than a public hearing, may be held. Persons

wishing to meet with OSM representatives to discuss the proposed

amendment may request a meeting at the OSM, Lexington Field Office

listed under ADDRESSES by contacting the person listed under FOR

FURTHER INFORMATION CONTACT. All such meetings will be open to the

public and, if possible, notices of meetings will be posted in advance

at the locations listed under ADDRESSES. A written summary of each

meeting will be made a part of the Administrative Record.

IV. Procedural Determinations

Executive Order 12866

This proposed rule is exempted from review by the Office of

Management and Budget (OMB) under Executive Order 12866 (Regulatory

Planning and Review).

Executive Order 12778

The Department of the Interior has conducted the reviews required

by section 2 of Executive Order 12778 (Civil Justice Reform) and has

determined that, to the extent allowed by law, this rule meets the

applicable standards of subsections (a) and (b) of that section.

However, these standards are not applicable to the actual language of

State regulatory programs and program amendments since each such

program is drafted and promulgated by a specific State, not by OSM.

Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30

CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State

regulatory programs and program amendments submitted by the States must

be based solely on a determination of whether the submittal is

consistent with SMCRA and its implementing Federal regulations and

whether the other requirements of 30 CFR parts 730, 731, and 732 have

been met.

National Environmental Policy Act

No environmental impact statement is required for this rule since

section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency

decisions on proposed State regulatory program provisions do not

constitute major Federal actions within the meaning of section

102(2)(C) of the National Environmental Policy Act (42 U.S.C.

4332(2)(C)).

Paperwork Reduction Act

This rule does not contain information collection requirements that

require approval by OMB under the Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

Regulatory Flexibility Act

The Department of the Interior has determined that this rule will

not have a significant economic impact on a substantial number of small

entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

The State submittal which is the subject of this rule is based upon

counterpart Federal regulations for which an economic analysis was

prepared and certification made that such regulations would not have a

significant economic effect upon a substantial number of small

entities. Accordingly, this rule will ensure that existing requirements

previously promulgated by OSM will be implemented by the State. In

making the determination as to whether this rule would have a

significant economic impact, the Department relied upon the data and

assumptions for the counterpart Federal regulations.

List of Subjects in 30 CFR Part 917

Intergovernmental relations, Surface mining, Underground mining.

Dated: May 12, 1994.

Robert J. Biggi,

Acting Assistant Director, Eastern Support Center.

[FR Doc. 94-12265 Filed 5-18-94; 8:45 am]

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