Kentucky Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

Kentucky Regulatory Program

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

Interior.

action: Final rule; approval of amendment.

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summary: OSM is approving a proposed amendment to the Kentucky

regulatory program (hereinafter referred to as the ``Kentucky

program'') under the Surface Mining Control and Reclamation Act of 1977

(SMCRA). Kentucky proposed revisions to and additions of statutes to

the Kentucky Revised Statutes (KRS) pertaining to disposal of coal

combustion fly ash, bottom ash, and scrubber sludge. The amendment is

intended to improve operational efficiency.

effective date: September 16, 1994.

for further information contact: William J. Kovacic, Director,

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

Telephone: (606) 233-2896.

supplementary information:

I. Background on the Kentucky Program

II. Submission of the Proposed Amendment

III. Director's Findings

IV. Summary and Disposition of Comments

V. Director's Decision

VI. Procedural Determinations

I. Background on the Kentucky Program

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

approved the Kentucky program. Background information on the Kentucky

program, including the Secretary's findings, the disposition of

comments, and the conditions of approval can be found in the May 18,

1982, Federal Register (47 FR 21404). Subsequent actions concerning

conditions of approval and program amendments can be found at 30 CFR

917.11, 917.13, 917.15, 917.16, and 917.17.

II. Submission of the Proposed Amendment

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

Kentucky submitted a proposed amendment to its program pursuant to

SMCRA. It replaces a previous proposed amendment dated November 17,

1993 (Administrative Record No. KY-1260). Kentucky submitted the

proposed amendment at its own initiative. Known as Senate Bill 266, the

amendment was passed by Kentucky's General Assembly during the 1994

regular session. It consists of proposed new and amended statutes to

KRS pertaining to disposal of coal combustion fly ash, bottom ash,

waste from fluidized bed combustion, and scrubber sludge. The statutes

offer surface coal mining permittees the option to dispose of coal

combustion waste on the permit area. Kentucky proposes to revise KRS

350.010 to define coal combustion by-products, and add a new section of

KRS chapter 350 to specify the procedures governing the disposal of

coal combustion by-products.

OSM announced receipt of the proposed amendment in the May 19,

1994, Federal Register (59 FR 26153), and in the same document opened

the public comment period and provided an opportunity for a public

hearing on the adequacy of the proposed amendment. The public comment

period closed on June 20, 1994.

III. Director's Findings

Set forth below, pursuant to SMCRA and the Federal regulations at

30 CFR 732.15 and 732.17, are the Director's findings concerning the

proposed amendment.

Revisions not specifically discussed below concern nonsubstantive

wording changes, or revised cross-references and paragraph notations to

reflect organizational changes resulting from this amendment.

Revisions to Kentucky's Statutes With No Corresponding Federal

Regulations

1. KRS 350.010--Definition

At KRS 350.010(22), Kentucky is defining ``coal combustion by-

products'' to mean fly ash, bottom ash, scrubber sludge, and waste from

fluidized bed combustion, produced by the combustion of coal. Coal

combustion by-products do not include boiler slag, or residues of

refuse-derived fuels, such as municipal solid waste, tires, and

solvents.

There is no direct Federal counterpart for this definition.

However, the Director finds the proposed definition at KRS 350.010(22)

to be not inconsistent with the requirements of SMCRA and the Federal

regulations.

2. KRS 350--Additions to Statute

(a) At KRS 350(1), Kentucky is adding a provision allowing the

State to issue permits authorizing the disposal of coal combustion by-

products at surface coal mining operations.

(b) At KRS 350(2), Kentucky is restricting the application of the

statute to the disposal of waste from burning clean oil or gas with

coal, if the oil or gas is used only for startup or flame

stabilization. The types of by-products excluded from application are

those coal combustion by-products: (1) For which a special waste formal

permit or a special waste permit-by-rule is required under KRS Chapter

224; (2) that have been mixed or otherwise co-managed with low volume

waste or with materials that exhibit hazardous waste characteristics;

(3) generated prior to the effective date of this Act, unless the

applicant can demonstrate that these by-products have not been mixed or

otherwise co-managed with low volume waste or with materials that

exhibit hazardous waste characteristics, or (4) which are injected

underground.

(c) At KRS 350(3), Kentucky is requiring that an application to

modify an existing permit to initially include disposal of coal

combustion by-products be an application for a major revision or an

amendment under KRS 350.070.

(d) At KRS 350(4), Kentucky is specifying that modifications for an

existing permit that includes coal combustion by-product disposal may

be made by application for a minor revision, where the application

proposes disposal of the same by-products in the same location as

approved in the existing permits.

(e) At KRS 350(5), Kentucky is specifying that modifications for an

existing permit to increase the amount of coal combustion by-products

to be received, to change the components of the by-products, or to

change the generating facility may be made by application for a minor

revision. If the proposed changes result in an increase of

concentrations of heavy metals, or if public notice is deemed

necessary, an application for a major revision will be required.

(f) At KRS 350(6), Kentucky is requiring that a permittee keep

accurate records, to be available upon request, to the Kentucky Natural

Resources and Environmental Protection Cabinet (Cabinet) showing the

source and amount of each shipment of coal combustion by-products

received.

(g) At KRS 350(7), Kentucky is requiring that prior to disposal of

coal combustion by-products, any material not approved for disposal

shall be removed from the coal combustion by-productions and records

kept.

(h) At KRS 350(8), Kentucky is requiring that coal combustion by-

products be disposed of only in the pit or extraction area, unless the

permittee makes a demonstration that no adverse environmental impacts

will occur.

(i) At KRS 350(9), Kentucky is prohibiting the disposal of any

component of the coal combustion by-products listed or meeting the

criteria of hazardous waste as specified in the State's law and

administrative regulations governing hazardous wastes.

(j) At KRS 350(10), Kentucky is requiring that the permittee

prepare and maintain accurate maps showing each location where coal

combustion by-products have been disposed of and the volume of coal

combustion by-products disposed of at that location. Phase I bond

release is not permitted unless the appropriate maps have been

submitted.

(k) At KRS 350(11), Kentucky is requiring that the permittee or

applicant provide representative samples of the coal combustion by-

products, if requested or if required by the issued permit.

(l) At KRS 350(12), Kentucky is requiring that the permittee

annually obtain and submit to the Cabinet a laboratory analysis to

characterize the coal combustion by-products in the manner required by

KRS Chapter 224 and the Resources Conservation and Recovery Act of 1976

(Pub. L. 94-580), as amended.

(m) At KRS 350(13), Kentucky is requiring that if the disposal of

coal combustion by-products is proposed, any required newspaper

advertisement include the intended action and the name, address, and

location of the facility that will generate the by-products.

(n) At KRS 350(14), Kentucky is requiring that the application

include a demonstration that the applicant has the legal right to

dispose of coal combustion by-products on the proposed areas. A copy of

the applicable conveyance must also be included. If the mineral estate

has been severed from the surface estate, a written consent from the

surface owner for the disposal or a copy of the conveyance that

expressly grants or reserves the right to dispose of coal combustion

by-products must also be included.

(o) At KRS 350(15), Kentucky is requiring that the application

include certain identifying information for the generating facility, a

listing of each of the component materials the coal combustion by-

products will contain, and the approximate volume in cubic yards and

the approximate tonnage that will be received from the generating

facility annually and for the term of the permit.

(p) At KRS 350(16), Kentucky is requiring that the application

include the results of representative sampling and laboratory analysis

of each component of the coal combustion by-products for contaminants

listed in Kentucky's administrative regulations. The analysis must test

for certain metals and address neutralization potential and potential

acidity and a demonstration must be made that each component of the by-

products does not contain any contaminant at a concentration that

equals or exceeds specified regulatory levels.

(q) At KRS 350(17), Kentucky is requiring that the application

describe the proposed methods of by-product handling and disposal,

including methods of record keeping.

(r) At KRS 350(18), Kentucky is requiring that the application

include appropriate maps and drawings of all areas and facilities to be

used in the permit area for by-product handling and disposal.

(s) At KRS 350(19), Kentucky is requiring that the application

contain a determination of the probable hydrologic consequences of the

disposal of coal combustion by-products for the permit and adjacent

area and contain a description of the measures to be taken to assure

that the disposal will not pose a threat to human health or the

environment, to minimize disturbances to the hydrologic balance, and to

prevent material damage to the hydrologic balance outside the permit

area. Certain protective and preventative measures must also be

described, including measures to be taken to prevent coal combustion

by-products from becoming airborne.

(t) At KRS 350(20), Kentucky is requiring that the application

include baseline data to characterize the quality of ground and surface

water in areas that may be affected by disposal of the by-products.

(u) At KRS 350(21), Kentucky is requiring that surface and ground

water baseline data collection and monitoring stations be established,

as appropriate. In determining the number and locations of monitoring

wells, the Cabinet shall recognize the distinct differences between

disposal of coal combustion by-products under this section and the

disposal of coal combustion by-products for which a special waste

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

under KRS Chapter 224.

(v) At KRS 350(22), Kentucky is requiring that the characterization

of ground water include certain specified parameters.

(w) At KRS 350(23), Kentucky is requiring that the characterization

of surface water include certain specified parameters.

(x) At KRS 350(24), Kentucky is requiring that the minimum number

of sampling events for ground and surface water for parameters beyond

those usually required be in accordance with Kentucky's administrative

regulations promulgated pursuant to KRS Chapter 224, pertaining to

special waste landfills used solely for the disposal of coal combustion

by-products.

(y) At KRS 350(25), Kentucky is requiring that the application

include a plan for the monitoring and reporting, until final bond

release, of the quality of ground and surface water in areas that may

be affected by disposal of by-products and for the monitoring of

contaminants in the ground and surface water.

(z) At KRS 350(26), Kentucky is requiring that the performance bond

for the surface mining permit cover the disposal of by-products on the

permit area.

(aa) At KRS 350(27), Kentucky is requiring that a permittee,

operator, or person disposing of coal combustion by-products comply

with certain specified environmental performance standards. The

performance standards address the handling, disposal, and placement of

the by-products. They include the following requirements: (1) Coal

combustion by-products shall be handled and disposed by the method

approved in the permit; (2) disposal areas and facilities used for coal

combustion by-products handling and disposal shall be designed,

located, operated, and maintained to assure that the handling and

disposal will not pose a threat to human health or the environment, to

minimize disturbances to the hydrologic balance within the permit area

and adjacent area, and to prevent material damage to the hydrologic

balance outside the permit area; (3) to the extent practical, areas to

receive coal combustion by-products shall be selected to minimize water

contact with the by-products; (4) the coal combustion by-products shall

be placed at least four feet above the seasonal high-water table,

unless the applicant demonstrates that no adverse environmental impacts

will occur; (5) the coal combustion by-products shall not be placed

within four feet horizontally of a final highwall, exposed coal seam,

or coal outcrop; (6) the volume of coal combustion by-products disposed

of on the permit area shall not exceed the in-place volume of the

marketable coal seams to be removed from the permit area; (7) disposal

of coal combustion by-products shall not result in a greater amount of

excess spoil than the amount that would result if disposal of by-

products were not part of the permitted operation; (8) the thickness of

coal combustion by-products at any point in any disposal area shall not

exceed forty feet; (9) the Cabinet may reduce the allowable maximum

volume or thickness of coal combustion by-products for a disposal area

if it determines that the reduction is necessary to assure protection

of human health and the environment; and (10) after the coal combustion

by-products are placed in the disposal area, they shall be covered as

contemporaneously as practicable with at least four feet of nonacid-

forming spoil material.

(bb) At KRS 350(28), Kentucky is requiring that the permittee

monitor and report the quality of surface and ground water quarterly,

with certain exceptions for water quality parameters which are not

normally required to be monitored.

(cc) At KRS 350(29), Kentucky is requiring that the monitoring and

reporting of ground water quality include the parameters used in the

baseline characterization of ground water specified in subsection (22),

unless the State requires different parameters.

(dd) At KRS 350(30), Kentucky is requiring that the monitoring and

reporting of surface water quality include the parameters used in the

baseline characterization of surface water specified in subsection

(23), unless the State requires different parameters.

(ee) At KRS 350(31), Kentucky is requiring that applications

submitted under this section be processed in the same manner as other

applications submitted under KRS Chapter 350.

(ff) At KRS 350(32), Kentucky is authorizing the promulgation of

administrative regulations under this section pertaining to the

disposal of coal combustion by-products.

There are no direct Federal counterparts to the provisions of the

proposed amendment. However, the Director finds that provided the

proposed provisions are in addition to, not in place of or to establish

a variance from existing Kentucky program provisions, the proposed

revisions to KRS Chapter 350 are not inconsistent with the requirements

of SMCRA and the Federal regulations.

IV. Summary and Disposition of Comments

Public Comments

The Director solicited public comments and provided an opportunity

for a public hearing on the proposed amendment. Because no one

requested an opportunity to speak at a public hearing, no hearing was

held.

Two public comments were received. The first commenter supported

the amendment. The second generally supported the amendment provided

that the provisions of the amendment are supplemental to the

requirements of the approved state program and impose additional,

rather than exclusive, permitting and performance obligations on mine

operators. The commenter also felt clarification should be sought in

the areas of characterization requirements for surface and ground water

and variances in contemporaneous reclamation obligations. The Director

notes that the proposed amendment is being approved with the provision

that the statutes will be implemented in addition to, and not in place

of, existing State program provisions. Therefore, because the

provisions of the proposed amendment are in addition to the

requirements of SMCRA and are not inconsistent with the SMCRA, and

because OSM is approving the proposed regulations to the extent that

the additional characterization requirements for surface and ground

water are required to be collected in the same manner and for the same

duration as the baseline hydrologic information required under SMCRA

and no delays in contemporaneous reclamation will be permitted based on

waste disposal, additional clarification is not required.

Federal Agency Comments

Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited

comments on the proposed amendment from various Federal agencies with

an actual or potential interest in the Kentucky program.

The U.S. Department of the Interior, Bureau of Land Management, and

the U.S. Department of Labor, Mine Safety and Health Administration,

concurred without comment. The U.S. Department of the Interior, Bureau

of Mines, suggested that certain provisions be required in the

implementing regulations relating to type of fill, testing procedures,

baseline data characterization and monitoring, and hydrologic models.

The Director notes that the comments will be forwarded to the State for

consideration. However, the proposed statutes, as submitted, are not

inconsistent with the provisions of SMCRA.

Environmental Protection Agency (EPA)

Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the

written concurrence of the EPA with respect to those provisions of the

proposed program amendment that relate to air or water quality

standards promulgated under the authority of the Clean Water Act (33

U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).

On May 20, 1994, OSM solicited EPA's concurrence with the proposed

amendment. On June 9, 1994, EPA gave its written concurrence

(Administrative Record No. KY-1291).

V. Director's Decision

Based on the above findings, the Director approves the proposed

amendment as submitted by Kentucky on April 18, 1994.

The Federal regulations at 30 CFR Part 917, codifying decisions

concerning the Kentucky program, are being amended to implement this

decision. This final rule is being made effective immediately to

expedite the State program amendment process and to encourage States to

bring their programs into conformity with the Federal standards without

undue delay. Consistency of State and Federal standards is required by

SMCRA.

VI. Procedural Determinations

Executive Order 12866

This 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

corresponding 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 corresponding Federal regulations.

List of Subjects in 30 CFR Part 917

Intergovernmental relations, Surface mining, Underground mining.

Dated: September 12, 1994.

Tim L. Dieringer,

Acting Assistant Director, Eastern Support Center.

For the reasons set out in the preamble, Title 30, Chapter VII,

Subchapter T of the Code of Federal Regulations is amended as set forth

below:

PART 917--KENTUCKY

1. The authority citation for Part 917 continues to read as

follows:

Authority: 30 U.S.C. 1201 et seq.

2. Section 917.15 is amended by adding paragraph (ww) to read as

follows:

Sec. 917.15 Approval of regulatory program amendments.

* * * * *

(ww) The following amendment to the Kentucky Revised Statutes (KRS)

submitted to OSM on April 18, 1994, are approved effective September

16, 1994:

KRS 350.010--Definitions

KRS 350(1)-(32)--Coal Combustion By-Products

[FR Doc. 94-22959 Filed 9-15-94; 8:45 am]

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