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 toxicity of the wastes 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 haphazard characterization of the toxicity, fate, and transport of these wastes under proposed disposal conditions. These failure lead to disposal without adequate precautions against future pollution.

These failures are the direct and predictable result, the bitter fruit, of the failure of OSM and EPA to establish a Federal “floor” of regulation of coal combustion wastes. While EPA is in the last stages of the process of assessing whether these wastes should be managed as hazardous wastes under Subtitle C of the Resource Conservation and Recovery Act, OSM has studiously avoided exercising regulatory authority to establish minimum standards for codisposal of coal combustion wastes at mine sites, choosing instead to stand idly by while the States engage in the “one-downsmanship” in standard setting that Congress sought to avoid in enacting the 1977 mining law.