MINEFILL
REGULATORY
CONCERNS
April
9,
2002,
Draft
I.
Ground­
water
Monitoring:
The
owner/
operator
is
to
monitor
ground
water
on­
site
to
detect
adverse
impacts
of
ash
placement
on
on­
site
ground
water
such
that
the
owner/
operator
will
have
opportunity
to
intervene
to
avoid
adverse
impacts
on
off­
site
users
and
uses
of
ground
water,
including
users
and
uses
of
surface
waters
impacted
by
ground
water.
A.
Well
Design
and
Deployment:
The
purpose
of
monitoring
wells
is
to
allow
the
acquisition
of
ground­
water
samples
from
which
adverse
impacts
on
ground
water
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
ground
water.
Location
is
critical
to
the
ability
to
detect
effects
of
ash
placement
before
the
effects
can
spread
widely,
thereby
adversely
impacting
current
or
future
uses
of
the
water
resource.
SMCRA
APPROACH:
Site­
specific
through
the
permitting
process.
Design
and
deployment
are
not
necessarily
for
detection
of
ash
placement
impacts;
rather,
focus
is
more
broadly
on
impacts
of
ANY
practices/
operations
on
the
mine
site.
Regulations
require
a
ground­
water
monitoring
plan
based
on
the
probable
hydrologic
consequences
determination/
analysis.
The
regulations
also
provide
that
a
permit
cannot
be
issued
until
all
hydrologic
and
geologic
information
is
provided
to
the
permitting
agency.
B.
Parameters:
Samples
are
to
be
analyzed
for
specific
constituents
which
will
detect
and
define
adverse
impacts
on
ground
water
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
8
metals
which
define
the
RCRA
toxicity
characteristic
(
arsenic,
barium,
cadmium,
chromium,
lead,
mercury,
selenium,
and
silver;
Part
261.24).
Additionally,
boron
is
of
concern
because
it
is
often
associated
with
ash
and
can
adversely
impact
water
use.
SMCRA
APPROACH:
Regulations
require
that
the
monitoring
parameters
be
spelled
out
in
the
site­
specific
monitoring
plan.
Regulations
specify
minimum
parameters
but
don't
identify
levels
of
concern:
total
dissolved
solids
or
specific
conductance,
pH,
total
iron,
total
manganese,
and
water
levels
and
require
the
reporting
of
data
every
3
months.
C.
Frequency:
Samples
are
to
be
acquired
and
analyzed
at
a
frequency
which
will
provide
early
warning
of
adverse
impacts
on
water
use.
Without
regulation,
samples
may
be
obtained
so
infrequently
as
to
allow
adverse
impacts
to
go
undetected,
thereby
jeopardizing
off­
site
users/
uses.
The
owner/
operator
may
use
ground­
water
flow
and
attenuation
studies
to
seek
re­
definition
of
the
sampling
frequency.
SMCRA
APPROACH:
Data
are
to
be
reported
every
3
months.
D.
Duration:
Samples
are
to
be
acquired
and
analyzed
over
the
time
period
for
which
the
effects
on
ground
water
from
ash
placement
could
be
reasonably
expected
to
be
measured
or
observed;
i.
e.,
considering
aquifer
recharge
times
and
rate
of
migration
of
ground
water
through
and
away
from
the
placed
ash.
Where
the
owner/
operator
can
demonstrate
that
there
is
no
longer
a
potential
for
adverse
impacts
from
the
placed
ash,
monitoring
may
cease.
SMCRA
APPROACH:
Regulations
provide
for
cessation
of
ground­
water
monitoring
at
bond
release,
typically
within
a
number
of
years
following
cessation
of
operations.
The
number
of
years
in
the
east
is
5
and
in
the
west
is
10.
2
II.
Performance
Standards:
Regulations
can
require
compliance
with
either
specific
operating
practices
or
performance
standards.
Where
operating
practices
(
which
include
practices
for
design
and
construction
operations,
as
well
as
practices
for
operation
of
the
facility)
are
specified,
the
owner/
operator
is
restricted
to
the
specified
practices.
Where
performance
standards
are
specified,
the
owner/
operator
has
flexibility
to
use
creative
design,
construction,
and
operational
approaches
and
need
only
be
concerned
with
compliance
with
the
performance
level
specified.
For
minefill
practices,
the
performance
standard
approach
is
preferred
in
order
to
allow
increased
flexibility.
Performance
standards
are
specified
only
for
ground­
water
impacts.
SMCRA
APPROACH:
Regulations
require
permit
to
include
a
Hydrologic
Reclamation
Plan
which
must
describe
steps
to
be
taken
prior
to
bond
release
to
"
minimize
disturbances"
to
the
hydrologic
balance
within
the
permit
area,
prevent
"
material
damage"
outside
the
permit
area,
meet
applicable
Federal
and
State
water
quality
laws
and
regulations,
and
"
protect
the
rights"
of
present
water
users.
Plan
must
specifically
"
address"
any
potential
hydrologic
adverse
consequences
and
include
preventive
and
remedial
measures.
Regulations
are
unclear
as
to
the
meaning
of
the
terms
"
minimize
disturbances,"
"
material
damage,"
"
protect
the
rights,"
and
"
address."
Should
any
monitoring
sample
indicate
violation
of
permit
conditions,
the
permittee
must
implement
the
steps
identified
in
the
Hydrologic
Reclamation
Plan.
Regulations
require
replacement
of
water
supplies
where
user
obtains
all
or
part
of
supply
for
domestic,
agricultural,
industrial
or
other
use
from
a
source
where
the
supply
has
been
adversely
impacted
by
contamination,
diminution,
or
interruption
PROXIMATELY
resulting
from
the
surface
mining
activities.
Terminology
("
contamination"
and
"
proximately
resulting
from")
requires
definition
for
complete
understanding.
A.
Maximum
Contaminant
Levels
(
MCLs):
For
the
8
RCRA
"
toxicity
characteristic"
metals
listed
in
item
I.
B.,
above,
the
MCLs
specified
under
the
Safe
Drinking
Water
Act
serve
as
the
ground­
water
performance
standard
for
mine
placement
of
ash.
The
facility
is
to
be
operated
so
that
it
does
not
cause
ground­
water
quality
to
exceed
the
MCLs.
The
point
at
which
compliance
is
demonstrated
is
to
be
on
the
facility
property
and
a
reasonable
maximum
distance
from
the
ash
placement
boundary;
i.
e.,
no
more
than
150
meters.
SMCRA
APPROACH:
Regulations
do
not
identify
the
elements
of
a
performance
standard:
parameters
to
be
assessed,
allowable
concentration
levels,
and
point
of
compliance.
Key
terms
(
contamination,
proximate
resulting
from,
material
damage,
minimize
disturbance,
etc.)
require
definition.
B.
Non­
degradation:
There
are
likely
to
be
situations
where
the
facility
owner/
operator
can
demonstrate
that
ground
water
within
150
meters
of
the
outermost
boundary
of
placed
ash
or
for
potential
placement
of
ash
exceeds
the
MCLs
solely
for
reasons
other
than
impact
of
the
ash;
i.
e.,
background
levels
attributable
to
prior
mining
activity
or
some
up­
gradient
phenomenon
unrelated
to
ash
placement.
Where
this
situation
exists,
the
measured
high
background
levels
would
be
an
affirmative
defense
for
measured
exceedences
of
the
MCL
performance
standards.
In
such
cases
the
performance
standard
would
be
no
degradation
beyond
the
measured
high
background
levels,
rather
than
no
exceedence
of
the
MCLs.
SMCRA
APPROACH:
Same
comment
as
for
MCLs
in
item
A,
above.

III.
Prohibitions:
Because
of
the
permanent,
irreversible
nature
of
mine
placement
of
ash,
and
the
more
fragile
character
of
certain
environments,
specific
prohibitions
are
appropriate
to
protect
human
health
and
the
environment.
3
A.
Aquifer
Avoidance:
Ash
is
not
to
be
placed
in
direct
contact
with
an
aquifer
unless
the
owner/
operator
can
demonstrate
in
advance
that
placement
will
have
no
adverse
impact
on
ground­
water
quality.
As
in
40
CFR
Part
258,
"
aquifer"
means
a
geological
formation,
group
of
formations,
or
portion
of
a
formation
capable
of
yielding
significant
quantities
of
ground
water
to
wells
or
springs.
SMCRA
APPROACH:
Under
SMCRA,
30
CFR
Part
700
defines
"
aquifer"
as
a
zone,
stratum,
or
group
of
strata
that
can
store
and
transmit
water
in
sufficient
quantities
for
a
specific
use.
Regulations
require
that
the
permittee
provide
a
Probable
Hydrologic
Consequences
Determination
(
PHC)
which
includes
findings
on:
(
1)
whether
adverse
impacts
may
occur
to
the
hydrologic
balance;
(
2)
whether
acid­
or
toxic­
forming
materials
are
present
that
could
contaminate
surface
or
ground
waters
supplies;
(
3)
whether
the
operation
may
proximately
contaminate,
diminish,
or
interrupt
an
underground
or
surface
source
of
water
within
or
adjacent
to
the
permit
area
which
is
used
for
domestic,
agricultural,
industrial
or
other
legitimate
purpose;
and
(
4)
what
impact
the
operation
will
have
on
sediment
yields
and
various
water
quality
parameters
of
local
impact,
flooding
or
streamflow
alteration,
ground­
water
and
surface
water
availability,
and
other
characteristics
as
required
by
the
regulatory
authority.
B.
Unacceptable
Ash
Characteristics:
Ash
characteristics
vary
as
a
result
of
coal
composition
and
combustion
practices.
Ash
may
demonstrate
characteristics
which
indicate
that
they
are
not
compatible
with
mine
placement.
When
characterized
by
the
method
described
below,
ash
which
produces
a
leachate
quality
exceeding
the
MCLs
identified
in
item
I.
B.,
above,
is
not
to
be
placed
in
mines.
1.
Method:
To
test
ash
for
unacceptable
characteristics,
the
ash
is
to
be
subjected
to
a
30­
day
leaching
by
water
representative
of
the
ground
water
to
which
the
ash
would
be
exposed
at
the
mine.
2.
Frequency:
Ash
received
for
mine
placement
shall
be
tested
for
unacceptable
characteristics
every
6
months
and
when
the
source
of
coal
or
combustor
changes.
SMCRA
APPROACH:
Regulations
include
special
restrictions
on
handling
of
toxic­
forming
and
acidforming
materials
at
mines;
however,
definitions
of
these
terms
are
not
specific,
and
no
testing
or
characterization
of
material
is
required.
Toxic­
forming
materials
means
"...
earth
materials
or
wastes
which,
if
acted
upon
by
air,
water,
weathering,
or
microbiological
processes,
are
likely
to
produce...
conditions
in
soils
or
water...
detrimental
to
biota
or
uses
of
water."
C.
Location
Restrictions:
Due
to
their
particular
sensitivities,
sites
of
specific
characteristics
are
not
amenable
to
the
permanent
and
irreversible
nature
of
ash
placement
and
cannot
be
used
for
ash
placement.
1.
Flood
plain:
Because
they
are
more
prone
to
washout,
areas
within
the
100­
year
flood
plain
are
not
appropriate
for
ash
placement.
Furthermore,
placement
in
the
100­
year
flood
plain
could
dangerously
restrict
the
flow
of
waters
at
the
100­
year
or
more
frequent
design
level
and/
or
reduce
the
storage
capacity
of
the
flood
plain
so
as
to
pose
a
hazard
to
human
health
or
the
environment.
2.
Wetlands:
Wetlands
are
sensitive
areas
of
surface
water
which
often
serve
as
habitats
of
protected
species.
At
mine
sites
ash
is
not
to
be
placed
in
surface
water
or
wetland
in
violation
of
State
or
federal
law
or
in
a
manner
that
would
jeopardize
an
endangered
or
threatened
species
or
critical
habitats
or
in
a
manner
that
would
degrade
wetlands.
3.
Fault
Areas:
It
is
not
possible
to
project
how
ash
placed
in
a
mine
site
4
would
react
when
subjected
to
major
ground
disturbances
characterized
by
faults.
Because
of
the
potential
for
fault
movements
to
expose
ash
to
unanticipated
forces
(
e.
g.,
surface
water
flows
and
washout)
and
subsequently
jeopardize
human
health
or
the
environment,
ash
is
not
to
be
placed
within
60
meters
of
faults
that
have
experienced
displacement
during
the
Holocene
Epoch.
4.
Seismic
Impact
Zones:
Seismic
movements
can
cause
ash
to
unexpectedly
contact
surface
or
ground
waters,
with
subsequent
harm
to
human
health
or
the
environment.
To
help
avoid
this,
ash
is
not
to
be
placed
in
seismic
impact
zones.
These
are
areas
having
a
10
percent
or
greater
probability
that
the
maximum
expected
horizontal
acceleration
in
hard
rock,
expressed
as
a
percentage
of
the
earth's
gravitation
pull
(
g),
will
exceed
0.10g
in
250
years.
5.
Unstable
Areas:
Placement
of
ash
in
unstable
areas
can
cause
unexpected
exposure
of
ash
to
ground
or
surface
waters,
with
subsequent
harm
to
human
health
or
the
environment.
To
help
avoid
this,
ash
is
not
to
be
placed
in
unstable
areas.
Unstable
areas
are
locations
susceptible
to
natural
or
human­
induced
events
or
forces
capable
of
impairing
the
integrity
of
some
or
all
of
the
natural
or
artificial
components
responsible
for
preventing
releases
from
the
ash
placement.
Unstable
areas
can
include
poor
foundation
conditions,
locations
near
blasting
events,
areas
susceptible
to
mass
movements,
and
Karst
terrains.
6.
Proximity
to
Critical
Receptors:
Nearby
users
of
surface
and
ground
waters
which
could
be
adversely
impacted
by
ash
placement
are
of
particular
concern.
In
this
context,
the
definition
of
the
term
"
nearby"
is
variable
and
depends
on
hydrologic
characteristics
of
the
area
and
the
dynamics
of
possibly
multiple,
human­
induced
pumping
cones.
Owners/
operators
of
ash
mine
placement
facilities
are
to
conduct
site­
specific
hydrologic
studies
to
demonstrate
how
the
practice
will
avoid
placing
nearby
users
in
jeopardy.
SMCRA
APPROACH:
Of
these
sensitive
locations,
regulations
address
proximity
to
occupied
dwellings
and
public
buildings
and
impacts
on
fish
and
wildlife,
including
endangered
and
threatened
species.
Regulations
require
that
the
PHC
assess
impact
of
operations
on
flooding
or
streamflow
alteration.
PHC
must
also
address
whether
acid­
or
toxic­
forming
materials
are
present
that
could
contaminate
surface
or
ground
waters
supplies
and
whether
the
operation
may
proximately
contaminate,
diminish,
or
interrupt
an
underground
or
surface
source
of
water
within
or
adjacent
to
the
permit
area
which
is
used
for
domestic,
agricultural,
industrial
or
other
legitimate
purpose.

IV.
Planning/
Permitting:
Institutionalized
processes
need
to
be
in
place
to
provide
protection
of
human
health
and
the
environment.
A.
Acid­
Base
Balance:
Where
ash
is
placed
for
the
purpose
of
providing
a
source
of
alkalinity
to
counteract
a
known
acidic
water
environment,
the
owner/
operator
is
to
calculate
an
acid­
base
balance
to
demonstrate
that,
for
the
design
life,
the
ash
will
provide
adequate
alkalinity
to
irreversibly
achieve
the
intended
acid
mitigation.
SMCRA
APPROACH:
Regulations
do
not
require
testing
or
characterization
of
ash.
B.
Deed
Recordation:
The
owner/
operator
is
to
ensure
that
official
land
records
note
the
locations
and
dates
for
all
ash
placement
on
all
portions
of
the
property,
particularly
where
the
property
may
be
subdivided
for
future
use.
SMCRA
Approach:
5
No
requirement
for
recordation.
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.
C.
Baseline
Monitoring:
Prior
to
placing
ash
at
a
mine
site,
ground­
water
monitoring
is
to
be
conducted
to
establish
"
baseline"
conditions
for
comparison
with
future
monitoring
data.
This
will
aid
in
detection
of
any
adverse
impacts.
SMCRA
APPROACH:
Regulations
prohibit
issuance
of
permit
until
baseline
information
is
provided
to
characterize
surface
and
ground
water
quality
and
flows
and
assesses
likelihood
of
adverse
impacts.
Modeling
may
be
included,
but
actual
surface­
and
ground­
water
information
may
be
required
even
where
modeling
is
used.

V.
Operational
Requirements:
With
a
preference
for
the
flexibility
afforded
by
performance
standards,
the
only
area
of
concern
for
operational
requirements
is
fugitive
dust
controls.
Operational
requirements
are
used
for
this
area
because
monitoring
to
confirm
compliance
with
a
performance
standard
is
not
feasible.
A.
Fugitive
Dust
Controls:
Prior
to
discharge
at
a
mine
site,
ash
is
to
be
conditioned
by
mixing
with
water
to
a
moisture
content
of
at
least
5%
by
weight,
but
not
to
exceed
20%
by
weight.
The
purpose
of
conditioning
is
to
reduce
the
likelihood
that
dust
will
become
airborne
during
placement.
SMCRA
APPROACH:
Regulations
require
protection
and
stabilization
of
all
exposed
surface
areas
to
control
air
pollution
attendant
to
erosion.
A
plan
for
fugitive
dust
control
practices
to
achieve
this
is
required,
and
the
regulatory
authority
may
require
a
monitoring
program
to
assess
the
effectiveness
of
the
practices
to
comply
with
applicable
federal
and
State
air
quality
standards.

VI.
Risk
Assessments:
Owners/
operators
are
to
conduct
risk
assessments
to
inform
themselves,
regulators,
and
the
public,
of
the
likelihood
that
the
placement
of
ash
at
the
mine
site
will
adversely
impact
critical
receptors.
A.
Impact
on
humans
and
other
animals
via
air
and
surface
water
pathways,
including
potential
intermingling
of
ground
water
and
surface
water.
B.
Impact
on
plants
via
air
and
surface
water
pathways,
including
potential
intermingling
of
ground
water
and
surface
water.
C.
Impact
on
air
quality.
D.
Impact
on
water
quality,
including
potential
intermingling
of
ground
water
and
surface
water.
E.
Impact
on
fish,
including
potential
intermingling
of
ground
water
and
surface
water
and
potential
air
transport
of
contaminants
to
surface
water.
SMCRA
APPROACH:
Regulations
require
that
the
permittee
provide
a
Probable
Hydrologic
Consequences
Determination
(
PHC)
which
includes
findings
on:
(
1)
whether
adverse
impacts
may
occur
to
the
hydrologic
balance;
(
2)
whether
acid­
or
toxic­
forming
materials
are
present
that
could
contaminate
surface
or
ground
waters
supplies;
(
3)
whether
the
operation
may
proximately
contaminate,
diminish,
or
interrupt
an
underground
or
surface
source
of
water
within
or
adjacent
to
the
permit
area
which
is
used
for
domestic,
agricultural,
industrial
or
other
legitimate
purpose;
and
(
4)
what
impact
the
operation
will
have
on
sediment
yields
and
various
water
quality
parameters
of
local
impact,
flooding
or
streamflow
alteration,
ground­
water
and
surface
water
availability,
and
other
characteristics
as
required
by
the
regulatory
authority.
Permit
application
must
include
description
of
how,
to
the
extent
possible
using
the
best
technology
available,
operator
will
minimize
disturbances
and
adverse
impacts
on
fish
and
wildlife
and
related
environmental
values,
including
compliance
with
Endangered
Species
Act,
and
how
6
operations
will
enhance
these
resources
where
practicable.

VII.
Public
Participation:
To
be
comfortable
with
allowing
the
placement
of
ash
at
mine
sites,
the
public
needs
information,
opportunity
to
raise
concerns,
and
assurance
that
those
concerns
will
be
addressed.
A.
Planning
and
Permitting:
Prior
to
placing
ash,
the
owner/
operator
is
to
inform
the
public
of
the
planned
operation,
make
public
all
risk
assessment
(
item
VI,
above)
and
baseline
monitoring
(
item
IV,
above)
information,
and
provide
for
interactive
public
discussion
before
the
permitting
authority.
SMCRA
APPROACH:
Applicants
must
publish
newspaper
notice
of
availability
of
application
and
make
application
available
for
review
at
courthouse.
Regulatory
authority
must
notify
federal,
State,
and
local
agencies
of
the
application.
Public
is
allowed
to
submit
comments
and
objections
to
regulatory
authority
and
request
informal
conference,
and
regulatory
authority
must
honor
request.
Public
has
right
to
subsequent
administrative
review,
including
administrative
hearing;
as
well
as
to
judicial
appeal
of
administrative
review.
B.
Monitoring
Information:
The
owner/
operator
is
to
make
public
all
monitoring
data,
reports,
and
other
forms
of
information.
Access
to
all
information
is
to
be
readily
available
to
the
public
at
an
accessible
location
such
as
a
government
library.
SMCRA
APPROACH:
See
item
A,
above.
C.
Citizen
Suits:
The
public
is
to
have
the
opportunity
to
file
suit
in
appropriate
courts
to
ensure
compliance
by
the
owner/
operator.
SMCRA
APPROACH:
Public
has
right
to
accompany
inspections
and
to
review
monitoring
results.
SMCRA
includes
"
citizen
suit"
provision
comparable
to
RCRA
Section
7002.
