4.3.1.1 Federal—The U.S. Department of the Interior Office of Surface Mining (OSM) is charged with the responsibility of ensuring that the national requirements for protecting the environment during coal mining are met and making sure the land is reclaimed after it is mined. When the use of CCPs happens at surface coal mines, state or federal coal-mining regulators are involved to the extent that SMCRA (Surface Mining Control and Reclamation Act) requires the mine operator to ensure that:
(1) All toxic materials are treated, buried, and compacted, or otherwise disposed of, in a manner designed to prevent contamination of ground or surface water (30 CFR 816/817.41).
(2) The proposed land use does not present any actual or probable threat of water pollution (30 CFR 816/817.133).
(3) The permit application contains a detailed description of the measures to be taken during mining and reclamation to ensure the protection of the quality and quantity of surface and ground water systems, both on- and off-site, from adverse effects of the mining and reclamation process (30 CFR 780.21 and Sections 401.402, or 404 of the Clean Water Act).
(4) The rights of present users of such water are protected (30 CFR 816/817.41).
(5) Any disposal of CCPs at mine sites must be in accordance with those standards and with applicable solid waste disposal requirements (30 CFR 816/817.89).
SMCRA gives primary responsibility for regulating surface coal mine reclamation to the states, and 24 coal-producing states have chosen to exercise that responsibility. On federal lands and Indian reservations (Navajo, Hopi, and Crow) and in the coal states that have not set up their own regulatory programs (Tennessee and Washington), OSM issues the coal mine permits, conducts the inspections, and handles the enforcement responsibilities. As a result of the activities associated with the SMCRA, coal mine operators now reclaim as they mine, and mined lands are no longer abandoned without proper reclamation. OSM also collects and distributes funds from a tax on coal production to reclaim mined lands that were abandoned without being reclaimed before 1977. OSM has a Coal Combustion Residues Management Program that focuses on providing expert technical information on the use of CCPs in mine reclamation for the mining industry, regulatory agencies, and other stakeholders. Use of CCPS in reclamation procedures should be proposed in the mining permit application if possible, detailing the type and characteristics of the proposed CCP and the specific beneficial use for the location proposed. In 1999, U.S. Environmental Protection Agency (EPA) completed a two-phased study of CCPs for the U.S. Congress as required by the Bevill Amendment to RCRA. At the conclusion of the first phase in 1993, EPA issued a formal regulatory determination that the characteristics and management of the four large-volume fossil fuel combustion waste streams (that is, fly ash, bottom ash, boiler slag, and flue gas emission control waste) do not warrant hazardous waste regulation under RCRA and that utilization practices for CCPs appear to be safe. In addition, EPA “encourage[d] the utilization of coal combustion by-products and support[ed] state efforts to promote utilization in an environmentally beneficial manner.” In the second phase of the study, EPA focused on the by-products generated from FBC boiler units and the use of CCPs from FBC and conventional boiler units for mine reclamation, among other things. Following completion of the study, EPA issued a regulatory determination that again concluded that hazardous waste regulation of these combustion residues was not warranted. However, EPA also decided to develop national solid waste regulatory standards for CCPs, including standards for placement of CCPs in surface or underground mines, either under RCRA, SMCRA, or a combination of the two programs (65 CFR 32214, May 22, 2000).
4.3.1.2 State and Local—There is considerable variation in state-mandated permitting and other regulatory requirements for CCP utilization. Some states have specific beneficial use policies, while other states have no regulations or guidance addressing beneficial use. Although the NEPA (National Environmental Policy Act) strictly applies only to federally funded projects, many states have similar mechanisms for assessing the environmental impacts of non-Federal projects. These mechanisms may require state permits that address any or all of the following issues: wetlands/waterways, National Pollutant Discharge Elimination System (NPDES) discharge, underground injection, erosion and sediment control, air quality considerations, and storm water management.