Wednesday
October 22, 1997
Part HI
Environmental
Protection Agency
Proposed Modification of National
Pollutant Discharge Elimination System
(NPDES) Storm Water Multi-Sector
General Permit for Industrial Activities;
Notice
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Federal Register / Vol. 62, No. 204 / Wednesday, October 22. 1997 / Notices
ENVIRONMENTAL PROTECTION
AGENCY
[WH-FRL-5912-3]
Proposed Modification of National
Pollutant Discharge Elimination
System (NPDES) Storm Water Multi-
Sector General Permit for Industrial
Activities
AGENCY: Environmental Protection
Agency.
ACTION: Notice of proposed modification
of NPDES general permits; notice of
Interpretation.
SUMMARY: Today's action proposes
clarification of an interpretation of the
technology-based effluent limitations
applicable to point sources of "mine
drainage" at ore mining and dressing
operations, which was contained in a
recently-issued NPDES general permit
for storm water associated with
Industrial activity. With this notice,
EPA Intends to provide a more
definitive interpretation of the
applicability of those recently-issued
general permits, specifically, as they
apply to certain storm water discharges
at ore mining and dressing operations.
To incorporate today's proposed
interpretation, EPA only proposes to
modify the NPDES general permits
issued by EPA Regions 1, 6. 9 and 10
because the Agency does not anticipate
that the mining-related storm water
discharges at issue occur in the other
States where EPA is the NPDES permit
issuance authority. The Agency,
however, would take final action to
modify the general permits applicable in
the other States where EPA issues
permits if public comments demonstrate
the need to do so.
DATES: Comments on today's proposed
interpretation and proposed
modification must be received or post-
marked by midnight no later than
December 8,1997.
ADDRESSES: Send written comments to:
W-97-13. Comment Clerk, Water
Docket (MC-4101). U.S. EPA, 401 M
Street, SW, Washington, DC 20460.
Please submit the original and three
copies of your comments and enclosures
(including references).
Commenters who want EPA to
acknowledge receipt of their comments
should enclose a self-addressed stamped
envelope. No facsimiles (faxes) will be
accepted. Comments may also be
submitted electronically to: ow-
docket@epamail.epa.gov. Electronic
comments must be submitted as an
ASCII file avoiding the use of special
characters and forms of encryption.
Electronic comments must be identified
by the docket number W-97-13.
Comments and data will also be
accepted on disks in WordPerfect 5.1
format or ASCII file format. Electronic
comments on tills notice may be filed
online at many Federal Depository
Libraries.
The record for this action has been
established under docket number W-
97-13, and includes supporting
documentation as well as printed paper
versions of elctronic comments. The
record is available for inspection from 9
a.m. to 4 p.m., Monday through Friday,
excluding legal holidays at the Water
Docket, Room M2616, U.S. EPA, 401 M
Street SW, Washington, DC 20460. For
access to docket materials, please call
202-260-3027 to schedule an
appointment. A reasonable fee may be
charged for copying.
FOR FURTHER INFORMATION CONTACT: For
further information, contact Gary
Hudiburgh, Office of Wastewater
Management, Office of Water at (202)
260-4926 or the appropriate EPA
Regional Office. For EPA Region 1,
covering discharges in the State of
Maine and Federal Indian reservations
in Maine, in the Commonwealth of
Massachusetts and Federal Indian
reservations in Massachusetts, in the
State of New Hampshire and Federal
Indian reservations in New Hampshire,
as well as Federal Indian reservations in
the States of Vermont, Connecticut, and
Rhode Island, and Federal facilities in
Vermont, contact Thelma Hamilton at
(617) 565-3569. For EPA Region 6,
covering discharges in the State of Texas
and Federal Indian reservations in
Texas, in the State of New Mexico and
Federal Indian reservations in New
Mexico (except Navajo Reservation
lands, which are covered by EPA Region
9 and Ute Reservation lands, which are
covered by EPA Region 8 and were not
covered by the Multi-Sector General
Permit), as well as Federal Indian
reservations in Oklahoma and
Louisiana, contact Fred Humke at (214)
665-7503. For EPA Region 9, covering
die State of Arizona and Federal Indian
reservations in Arizona, and Federal
Indian reservations in California and
Nevada, as well as the Duck Valley, Fort
McDermitt, Goshute Reservations and
Navajo Reservations, each of which
cross State boundaries, contact Eugene
Bromley at (415) 744-1906. For EPA
Region 10, covering the State of Alaska
and Federal Indian reservations in
Alaska, the State of Idaho and Federal
Indian reservations in Idaho (except the
Duck Valley Reservation, which is
covered by EPA Region 9), Federal
Indian reservations in Washington and
Oregon (except the Fort McDermitt
Reservation, which is covered by EPA
Region 9), as well as Federal facilities in
Washington, contact Steven Bubnick at
(206) 553-5171.
SUPPLEMENTARY INFORMATION:
Authority
EPA issues NPDES permits under the
authority of CWA section 402, 33 U.S.C.
section 1342. Today's proposed
modification would be based on an
interpretation of rules published under
the authority of CWA sections 301, 304,
and 501 (a), 33 U.S.C. sections 1311,
1314, and 1361 (a). Today's action would
modify a table that was initially
published in conjunction with NPDES
permits for storm water associated with
industrial activity issued pursuant to
CWA section 402, 33 U.S.C. section
1342.
In today's notice, EPA announces and
invites public comment on its
interpretation of the technology-based
effluent limitations applicable to point
sources of "mine drainage" at ore
mining and dressing operations under
the Clean Water Act ("CWA"). 33 U.S.C.
1251 etseq. This interpretation updates
and replaces an earlier interpretation
published in the fact sheet for the final
National Pollutant Discharge
Elimination System ("NPDES") Storm
Water Multi-Sector General Permit for
Industrial Activities at 60 FR 50804
(Sept. 29, 1995)("Multi-Sector Permit").
The interpretation in today's notice
supplements EPA's interpretation in
Table G-4 of the Multi-Sector Permit
regarding die applicability of the "mine
drainage" provisions of regulations
found at 40 CFR part 440. 60 FR at
50897.
EPA has reviewed the administrative
record supporting the Part 440
regulations, as well as Agency
statements made during the course of
litigation over those regulations, and is
revising Table G-4 accordingly. In
litigation challenging the Multi-Sector
Permit, National Mining Association v.
EPA, No. 95-3519 (8th Cir.), the
National Mining Association (NMA) has
argued that the regulatory interpretation
contained in Table G-4 was overly
expansive and not supported by
appropriate economic and technological
evaluation. To support its argument,
NMA cited Agency statements made
during the course of litigation
approximately twenty years earlier.
These statements were not raised and
presented to the Agency during die
public comment period of the permit. In
response to NMA's arguments in the
current litigation, EPA has re-evaluated
the underlying record supporting die
Part 440 regulations and is
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54951
supplementing its interpretation of the
"mine drainage" provisions contained
in Table G-4. Today's action supersedes
the Agency interpretation contained in
the Fact Sheet to the Multi-Sector
Permit, as original issued.
Upon review of those documents, the
Agency believes the documents
(including judicial caselaw) speak for
themselves. Therefore, the Agency is
proposing to withdraw portions of the
Table that discuss applicability of the
part 440 regulations—i.e., those portions
of the Table that do not specify
applicability of the Multi-Sector permit.
By today's action, EPA also proposes a
slight expansion of the applicability of
the Multi-Sector permit (consistent with
the interpretation in today's notice) and,
therefore, invites public comment.
The interpretation in today's notice
provides clarification regarding the
scope of the effluent guidelines initially
promulgated in 1978. As explained
more fully below, however, the
Agency's communication of its 1978
intention was not fully clarified through
publication in the Federal Register or
other readily available documents. In
addition to 1978 preamble statements in
the Federal Register explaining the
scope of the effluent guidelines, the
Agency prepared other documents
explaining die guideline's scope that
were not published in the Federal
Register. These other documents
(including parts of the administrative
record, the denial of an administrative
petition for reconsideration, the
Agency's litigation brief, and a guidance
document for permit writers) contain
statements about the applicability of the
guidelines that NMA argued were
inconsistent with Table G-4. Today's
notice proposes to modify Table G-4
consistent with those statements and
now would only address applicability of
the Multi-Sector Permits.
I. Effluent Guidelines for Ore Dressing
and Mining Point Source Category
A. Background
Congress enacted the Clean Water Act
to establish a comprehensive program to
"restore and maintain die chemical,
physical and biological integrity of the
Nation's waters" dirough die reduction,
and eventual elimination, of the
discharge of pollutants into those
waters. CWA Section 101 (a); 33 U.S.C.
1251 (a). To achieve its objective, the
CWA provides for a permit program to
control "point source" pollution. The
CWA point source permitting program
is known as the National Pollutant
Discharge Elimination System
("NPDES"), under which EPA or
authorized States issue permits for point
source discharges. Except in accordance
with an NPDES permit, a point source
discharge of a pollutant is unlawful.
CWA Section 301(a); 33 U.S.C. 1311 (a).
All NPDES permits must, at a minimum,
contain technology-based effluent
limitations established in effluent
guidelines or standards or, if no such
guidelines have been established,
limitations derived on the basis of best
professional judgment.
Individual NPDES permits contain
substantive restrictions, called "effluent
limitations," which are aimed at
controlling the level of pollutants in
point source discharges. CWA 402(a); 33
U.S.C. 1342(a). Effluent limitations may
be "technology-based" or "water
quality-based." ' For some industrial
point source categories, EPA has
published technology-based effluent
limitations that apply on a nationwide
basis, pursuant to CWA Sections 304(b)
and 306(b)(l)(B); 33 U.S.C. 1314(b) and
1316(b)(l)(B).2 These limitations are
called national effluent limitations
guidelines or standards. EPA has
published best practicable control
technology currently available ("BPT"),
best conventional pollutant control
technology ("BCT"), best available
technology economically achievable
("BAT") effluent guidelines, and new
.source performance standards ("NSPS")
for point sources in over fifty different
industrial categories. Among the
effluent guidelines and standards which
EPA has established are those
applicable to the ore mining and
dressing industry. These guidelines are
known as the "Effluent Guidelines for
the Ore Mining and Dressing Point
Source Category" (hereinafter referred to
as die "Guidelines"). The Guidelines are
published at 40 CFR part 440.
EPA first published the Guidelines on
an interim final basis on November 6,
1975. 40 FR 51722. On July 11, 1978,
after substantially expanding the data
base supporting the Guidelines, and
after considering comments submitted
since initial promulgation, EPA
republished the Guidelines in modified
form. 43 FR 29771 (July 11, 1978). Both
the initial and republished Guidelines
established BPT effluent limitations for
discharges for ore mining and dressing
operations.
B. Storm Water Regulation Under the
Guidelines3
The Guidelines establish industry-
wide effluent limitations for two types
of mine discharges: (1) Mill discharges
and (2) mine drainage. "Mine drainage"
means "any water drained, pumped, or
siphoned from a mine." 40 CFR
440.132(h). A "mine," in turn, is
defined as:
an active mining area, including all land and
property placed under, or above the surface
of such land, used in or resulting from the
work of extracting metal ore or minerals from
their natural deposits by any means or
method, including secondary recovery of
metal ore from refuse or other storage piles,
wastes, or rock dumps and mine tailings
derived from the mining, cleaning, or
concentration of metal ores.
40 CFR 440.132(g) (emphasis added).
An "active mining area," in turn, is
defined as:
a place where work or other activity related
to the extraction, removal, or recovery of
metal ore is being conducted, except, with
respect to surface mines, any area of land on
or in which grading has been completed to
return the earth to desired contour and
reclamation work has begun.
40CFR440.132(a).
In statements in the administrative
record supporting the Guidelines, EPA
indicated an intent to include a broad
range of discharges within die scope of
the Guidelines. The 1975 Preamble to
the Interim Final Guidelines expressly
indicated diat die Guidelines definition
of the term "mine" was intended to be
sufficiently broad "to cover all point
source pollution resulting from all die
activities related to the operation of the
mine including drainage tunnels, haul
roads, storage piles, etc." 40 FR 51727.
Consistent with diis, in the 1978
.Development Document (prepared by
EPA before the Guidelines were
republished in 1978), EPA stated that:
A mine is an area of land upon which or
under which minerals or metal ores are
extracted from natural deposits in the earth
by any means or methods. A mine includes
the total area upon which such activities
occur or where such activities disturb the
natural land surface. A mine shall also
include land affected by such ancillary
operations which disturb the natural land
surface, and any adjacent land the use of
which is incidental to such activities; all
lands affected by the construction of new
roads or the improvements or use of existing
roads to gain access to the site of such
1 Water quality based effluent limitations are
included in permits when necessary to assure
compliance with water quality standards.
2 If no such guidelines have been established,
technology-based limits are developed on" a case-by-
case basis based on the best professional judgment
of the permit writer.
3 The definitions of and discussion of these terms
in this notice are within the use of these terms
under the NPDES program and the Clean Water Act.
These definitions are not specifically applicable to
the use of these terms under other federal
environmental laws, including under the Resources
Conservation and Recovery Act, 42 U.S.C. 6901, et
seq. (RCRA) and its implementing regulations.
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activities and for haulage and excavations,
workings. Impoundments, dams, ventilation
shafts, drainage tunnels, entryways, refuse
banks, dumps, stockpiles, overburden piles,
spoil banks, culmbanks. tailings, holes or
depressions, repair areas, storage areas and
other areas upon which are site structures,
facilities, or other property or materials
resulting from or incident to such activities.
1978 Development Document at 146.
1. Petition for Reconsideration
After EPA promulgated the
Guidelines on July 11, 1978, a number
of mining companies filed petitions for
judicial review challenging the
Guidelines. (The judicial challenges are
discussed below.) During the pendency
of its judicial challenge, one of those
companies, Kennecott Copper
Corporation ("Kennecott") filed an
administrative petition with EPA (dated
September 26, 1978) requesting that the
Agency reconsider and clarify the
Guidelines. Kennecott amended its
petition on November 9,1978.
Kennecott identified five areas of
alleged deficiencies and concerns with
the Guidelines. One of these issues
related to the storm water runoff
provisions of the Guidelines.
Kennecott objected to the storm water
runoff provisions, which it argued were
overly vague and capable of being
interpreted in a manner that would
violate applicable law. Among other
tilings, Kennecott was particularly
concerned about applicability of the
Guidelines to what it referred to as
"non-process" areas at mining
Operations. Kennecott further argued
that the Guidelines, if applied in the
manner suggested by Kennecott, would
entail exorbitant costs not considered
during the rulemaking. Kennecott
presented EPA with cost estimates that
Kennecott believed it would have to
incur to comply with the Guidelines.
Kennecott estimated costs to control
storm water drainage flows from what
Kennecott referred to as the "process"
and "non-process" areas at two
Kennecott mining operations, the Ray
Mine and the Chino Mine. As discussed
more fully below, the Agency's decision
on Kennecott's petition is at the core of
the NMA litigation over the Multi-
Sector Permit.
In partial response to the Kennecott
petition, EPA published a notice in the
Federal Register that clarified the scope
of the Guidelines' applicability to storm
water runoff. 44 FR 7953-7954 (Feb. 8,
1979), That notice of clarification
explained that the Guidelines applied
only to point sources in the active
mining area. The Notice clarified EPA's
interpretation that the "mine drainage"
provisions applied to "water which
contacts an active mining area and flows
into a point source." Id. EPA further
explained that mining operations are
not required to "collect and contain
diffuse storm [water] runoff which
would not otherwise be collected in or
does not otherwise drain into a point
source." Id. at 7954. In other words,
diffuse storm water (from an active
mining area) that was collected or
contained in, or that naturally flowed
into, a point source was subject to the
Guidelines. Other storm water drainage
flows were not subject to the
Guidelines.
EPA denied Kennecott's petition on
February 21, 1979. In doing so, EPA
relied in part on the notice of
clarification. The decision on the
reconsideration petition discussed the
applicability of the Guidelines to
Kennecott's Ray Mine. For storm water
drainage flows from what Kennecott
called "non-process" areas at the Ray
Mine, EPA concluded that Kennecott
would incur no additional costs.
Kennecott had, for the purposes of its
petition, defined "non-process" area to
mean "overburden dumps, material too
low in mineral content even to leach,
and exposed benches at the mine."
Citing to the notice of clarification, EPA
concluded that the definition of "mine
drainage" did not include diffuse storm
water runoff from overburden dumps
and material too low in mineral content
to leach. As that notice of clarification
explained, "[a]ll water which contacts
an 'active mining area * * *' and either
does not flow, or is not channeled by
the operator, to a point source, is
considered runoff, and it is not the
regulations' intent to require the mine
operator to collect and treat such
runoff." 44 FR at 7954. On the matter of
storm water contacting the exposed
benches, EPA could not determine
whether such discharges would
constitute point source discharges and
thus, concluded that the issue would
best be addressed by the permitting
authority in the context of a permit
proceeding.
After comprehensive review of these
documents, there are several matters
that are clear. EPA did not grant any
portion of Kennecott's petition for
reconsideration. In fact, EPA denied the
petition and in so doing the Agency
rejected Kennecott's cost estimates for
what Kennecott called "non-process"
areas because, based on the Ray Mine
data submitted by Kennecott, EPA
found that the Ray Mine would incur no
costs with respect to runoff from those
areas. Therefore, the Agency did not
adopt or incorporate Kennecott's
proposed distinction between "process"
and "non-process" areas at mine sites.
This conclusion alone, however, does
not fully resolve all possible questions
about applicability of the guidelines.
In responding to the portions of
Kennecott's petition related to the Ray
Mine, the Agency did not explain why
the diffuse storm water runoff from
"overburden dumps and material which
is too low [] to leach and other areas of
the Ray Mine property where work or
other activity related to the the [sic]
extraction, removal or recovery of of
[sic] metal ore is not being conducted"
was not subject to the Guidelines. These
Agency statements merely repeated
phraseology used in Kennecott's
petition. Upon review of these
statements, as well as re-review of
Kennecott's original administrative
petition, the Agency cannot determine
with certainty, for example, whether the
statement means that runoff was not
subject to the Guidelines (1) because it
was "diffuse" (i.e., nonpoint source), (2)
because the drainage was already being
contained at Ray Mine, (3) because the
overburden at Ray Mine was outside of
Ray Mine's active mining area, (4)
because no activity related to the
extraction, removal or recovery of metal
ore was currently (or recentiy) being
conducted at the Ray Mine site at that
time as identified by Kennecott in its
petition for reconsideration. The
statements certainly, however, do not
indicate that water which contacts
overburden dumps in active mining
areas is not subject to the Guidelines nor
does any other subsequent Agency
statement vacillate on this question.
Runoff from overburden dumps within
the active mining area is mine drainage
subject to Guidelines.
2. Judicial Challenge
The Guidelines rule was ultimately
upheld by the U.S. Court of Appeals for
the Tenth Circuit. Kennecott Copper
Corp. v. EPA, 612 F.2d 1232 (10th Cir.
1979). In affirming the Guidelines, the
Tenth Circuit relied on the language of
the Notice of Clarification and
considered moot the Petitioner's
challenges to storm water runoff
provisions, which were based on the
argument that the Guidelines were
overbroad and included "nonpoint" as
well as "point sources." Kennecott
Copper Corp., 612 F.2d at 1242. The
court further found that "* * * EPA is
entirely within its authority in
regulating [discharges of] storm runoff
that falls within [the definition of] a
'point source.' " id. at 1243.
Additionally, the court reasoned that
the determination of whether a
particular discharge constitutes a point
source is best made in the context of
permit proceedings, guided by the broad
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54953
definition of "point source" provided in
the CWA.4 The Court recognized that it
is "unrealistic, if not altogether
impossible" to provide an "absolute and
unequivocal" definition of "point
source" and rule of applicability, further
supporting case-by-case or site-specific
determinations on applicability of the
Guidelines.
Congress has purposefully phrased this
definition broadly. This is as it should be
given its contemplated applicability to
literally thousands of pollution sources. To
cast such definitions in absolute,
unequivocal terms would be unrealistic, if
not altogether impossible. As we observed in
American Petroleum Institute, 540 F.2d at
1032: "On the road to attainment of the no
discharge objective some flexibility is
needed."
612F.2datl243.
The court did not say anything further
in response to Kennecott's arguments
complaining that the Guidelines would
improperly regulate nonpoint source
discharges at mine sites. The court did
not rely on or cite to any other
references in the administrative record
before it. In response to any remaining
arguments before it, the court simply
noted that "careful examination of
petitioner's remaining arguments has
persuaded us that they are without
merit." Id. at 1243. Thus, the court
either summarily rejected Kennecott's
arguments that the guidelines were
vague and overbroad, or affirmatively
upheld the regulations against
Kennecott's challenges based on reasons
explained in the decision.5
While, over the course of the
intervening years, the federal courts
have refined their interpretations of
"point source," EPA's conclusions
about point sources at mining
operations has remained constant. In
upholding the Guidelines in Kennecott
Copper Corp., the Tenth Circuit
specifically cited to one of the seminal
cases upon which courts rely for the
proposition that the term "point source"
should be interpreted broadly, United
States v. Earth Sciences, Inc., 599 F.2d
368 (10th Cir. 1979). 612 F.2d at 1241,
1243. In the Earth Sciences case, the
4 "Point source" is defined at Clean Water Act
§ 502(14) to mean "any discernible, confined, and
discrete conveyance, including but not limited to
any pipe, ditch, channel, tunnel, conduit, well,
discrete fissure, container, rolling stock,
concentrated animal feeding operation, or vessel or
other floating craft, from which pollutants are or
may be discharged. See also 40 CFR 122.2.
5 In litigation over the Multi-Sector Permit, NMA
now suggests that the 10th Circuit relied on the
Agency statements concerning the status of storm
water drainage flows at the Ray Mine to uphold the
Guidelines and that the Agency cannot now
conclude that the court independently found the
storm water runoff provisions of the Guidelines
acceptable. EPA disagrees. The court's decision
never cites or discusses any of these statements.
Tenth Circuit concluded that
uncollected surface runoff was a point
source, specifically, groundwater seeps
from under a combination of sumps,
ditches, hoses, and pumps in a closed
"heap leach" gold mining operation.
Earth Sciences, 599 F.2d at 374.
Therefore, the court recognized that
even seemingly "uncollected runoff"
from point sources were and could be
regulated under the CWA and subject to
the Guidelines limitations.
3. Subsequent Agency Action
Apart from the Agency statements
made during the course of the Kennecott
Copper Corp. litigation, EPA staff has
not been able to locate evidence of
subsequent Agency action referring to
those statements. In an undated
guidance package (circa early 1980's)
prepared by EPA Headquarters for EPA
and State NPDES permit writers, the
Agency interpreted the term "active
mining area" broadly to exclude only
areas unaffected by mining or milling.
The document also identified parts of
the "active mining area" to include the
excavations of deep mines and surface
mines; leach areas; refuse, middling,
and tailings areas; tailings ponds,
holding and settling basins; and other
ancillary areas to a mine or mill.
Additionally, that document also
explains that an "active mining area"
can include mine areas where there is
actually no extraction, removal, or
recovery of metal ore, including where
mine drainage is removed from a deep
mine to protect present and future
working areas, pumping out and
rehabilitation of a closed mine prior to
reentry, and pumping of an adjacent
mine to protect present and future
workings in an active mining area. This
document suggests that
contemporaneous Agency intent was to
include certain areas, such as waste rock
piles, within the scope of the active
mining area.
Since that time, EPA and authorized
NPDES States have issued permits to a
significant number of ore mining and
dressing operations. No party has ever
identified or presented any of the
Agency litigation statements from the
Kennecott Copper Corp. case as
evidence that the Agency does not
interpret the term "mine drainage" very
broadly.
A subsequent judicial case, which
EPA cited in the 1990 storm water
regulations, further clarifies that storm
water associated with industrial activity
at mining sites may result in point
source discharges. See Sierra Club v.
Abston Construction Co., Inc., 620 F.2d
41 (5th Cir. 1980); 55 FR at 47997. In
that case, the court determined that
whether a point source discharge was
present due to rainfall causing sediment
basin overflow and erosion of piles of
discarded material, even without direct
action by coal miners, was a question of
fact. 620 F.2d at 45. The ultimate
question was whether the discharge is
from a "discernible, confined, discrete
conveyance," whether by gravitational
or non-gravitational means. Id. It was
irrelevant that operators did not
construct the conveyances, so long as
those conveyances were reasonably
likely to be the means by which
pollutants were ultimately deposited
into a navigable body of water. Id.
Conveyances of pollution formed either
as a result of natural erosion or by
material means may fit the statutory
definition of point source. Id.
II. NPDES Storm Water General Multi-
Sector Permit for Industrial Activities
A. Background
In 1987, Congress amended the CWA
by adding, among other things, several
provisions concerning the control of
point source discharges composed
entirely of storm water. In the 1987
amendments, Congress directed EPA to
publish permit application regulations
for "discharges of storm water
associated with industrial activity."
CWA section 402(p)(4)(A), 33 U.S.C.
1342(p)(4)(A). On November 16, 1990,
EPA published those regulations. In
doing so, EPA defined "storm water" as
storm water runoff, snow melt runoff,
and surface runoff and drainage. It also
defined "[s]torm water discharge
associated with industrial activity" to
mean the discharge of pollutants from
any conveyance which is used for
collecting and conveying storm water
and which is directly related to
manufacturing, processing, or raw
materials storage areas at an industrial
plant. See 40 CFR 122.26(b)(14).
Included among these discharges were
discharges from conveyances at mining
facilities. 40 CFR 122.26(b)(14)(iii).
Upon challenge, this part of the
regulations was upheld by the U.S.
Court of Appeals for the Ninth Circuit.
American Mining Congress v. EPA, 965
F.2d 759 (9th Cir. 1992) (regulations
upheld against industry challenge that
the rules, among other things, imposed
retroactive liability for storm water
discharges from existing mine sites).
The issues in that case are related to, but
different from, the issues addressed in
today's action. That case involved
inactive mines; today's action involves
active mining operations.
The NPDES regulations for storm
water describe three mechanisms by
which dischargers of storm water
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scope of the active mining area. Many
areas that some might consider to be
"nonprocess" areas do constitute part of
the active mining area provided that
work or other activity related to
extraction, removal, or recovery of metal
ore Is being conducted (until the mining
operation finishes recontouring and
begins reclamation).
Today's proposed interpretation and
guidance describe a distinct class of
discharges that was not distinct from the
face of Table G-4 when the Agency
published the Multi-Sector Permit.
Specifically, today's proposed
Interpretation identifies some
discharges that could have been
interpreted to be "mine drainage" under
the plain language of the Guidelines
and, therefore, within die applicability
of the Guidelines and ineligible for
coverage under the ore mining and
dressing portion of the Multi-Sector
General Permit (and under Table G-4)
even though the Agency did not
evaluate the technological feasibility
and cost impacts of diverting drainage
from those sources into the active
mining area when it developed the Ore
Mining and Dressing Guidelines. Based
on today's proposed clarification, such
an interpretation would be inaccurate
because EPA did not require diversion
of flows from outside the active mining
area into the active mining area for
treatment. For this distinct and limited
class of discharges described by today's
notice, i.e., those overburden/waste rock
sources outside the active mining area,
authorization under an EPA general
permit for storm water may be available.
Note that the permit applicant bears
the initial responsibility to determine
whether its discharges are eligible for
coverage under an EPA-issued general
permit. Discharges of "mine drainage"
from the "active mining area" are not
eligible for authorization under either
the NPDES Baseline General permit or
the Multi-Sector Permit because such
discharges are subject to the Guidelines.
For this reason, EPA encourages permit
applicants to contact the NPDES permit
issuance authority if there is any doubt
regarding the nature and scope of the
"active mining area" at the site of their
operations. In many cases,
modifications to individual permits may
be more appropriate for longer-term
authorization of the storm discharges in
question. Of course, as indicated in the
Table, there may be other such point
sources of drainage from within the
active mining area that would not be
"mine drainage." Such discharges may
be appropriately regulated under EPA
general permits for storm water.
EPA also recommends that permit
applicants contact the relevant NPDES
authority for assistance in determining
the appropriate permitting vehicle to
address the class of discharges
described in today's notice. Individual
permits provide the opportunity to
tailor controls appropriate for the
discharge, for example, through the use
of best professional judgment (BPJ)
according to 40 CFR 125.3(d) or
analogous State law, and where
necessary to assure compliance with
water quality standards. If the NPDES
permitting authority has data, for
example, which indicate that discharges
outside the active mining area only
present pollution concerns associated
with solids (e.g., settleable solids or
total suspended solids), the permit
requirements for those discharges may
be limited to controlling those solids.
However, if discharges contain heavy
metals, the permitting authority, using
BPJ, should establish appropriate
technology-based metals effluent
limitations. Further, if the permitting
authority has data to indicate a
reasonable potential to cause or
contribute to an excursion of water
quality standards for other pollutants,
including pH and/or heavy metals, then
the permit must include those more
stringent requirements to assure
compliance with water quality
standards. EPA recommends ongoing
monitoring for both pH and metals
because the complex geochemistry at
many mine sites presents difficulty in
predicting the quality of storm water
into the future.
In cases where there is a dry weather
discharge outside the scope of the
Guidelines, EPA strongly recommends
that the permitting authority issue an
individual NPDES permit using BPJ to
establish appropriate technology-based
limits or more stringent limitations
necessary to assure compliance with
water quality standards. The permitting
authority should consider the degree of
pollutant discharges (especially,
whether the discharge contains heavy
metal pollutants) and must consider the
impact on the receiving water when
establishing appropriate water quality-
based controls on the discharge.
Finally, the Agency cautions that
today's interpretation should not be
read as a license for mine operators to
convert point source discharges into
"nonpoint" sources in order to avoid
regulation under the NPDES permit
program. If a mining operation has a
discernable, confined, discrete
conveyance, any attempt to avoid
regulation by intentional "diffusion" of
that waste water stream, for example by
spraying it over a hill side or inserting
diffusing devices at the ends of drainage
culverts, would still constitute a point
source discharge if the waste water
ultimately enters waters of the United
States (as opposed to appropriate land
application of such waste waters). While
such diffusion may beneficially reduce
the potential for erosion and instream
sedimentation, it would not eliminate
the need for treatment where necessary,
for example, where the discharge
contains metals contributing to a
violation of State water quality
standards.
VI. Regulation Assessment
Requirements
A. Executive Order 12866
Under Executive Order 12866 (58 FR
51735; October 4, 1993), the Agency
must determine whether the regulatory
action is "significant" and therefore
subject to OMB review and the
requirements of the Executive Order.
The Order defines "significant
regulatory action" as one that is likely
to result in a rule that may:
(1) Have an annual effect on the
economy of $100 million or more, or
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or
otherwise interfere with an action taken
or planned by another agency;
(3) Materially alter the budgetary
impact of entitlements, grants, user fees,
or loan programs or the rights and
obligations of recipients thereof; or
(4) Raise novel legal or policy issues
arising out of legal mandates, the
President's priorities, or the principles
set forth in the Executive Order.
Because the Agency takes the position
that NPDES general permits are not
"rules" or "regulations" subject to the
rulemaking requirements of
Administrative Procedure Act section
553, it has been determined that this
rule is not a "significant regulatory
action" under the terms of Executive
Order 12866 and is therefore not subject
to OMB review.
B. Regulatory Flexibility Act
The Agency has determined that the
permit modification being published
today is not subject to die Regulatory
Flexibility Act ("RFA"), which
generally requires an agency to conduct
a regulatory flexibility analysis of any
significant impact the rule will have on
a substantial number of small entities.
By its terms, the RFA only applies to
rules subject to notice-and-comment
rulemaking requirements under the
Administrative Procedure Act ("APA")
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54957
or any other statute. Today's permit
modification is not subject to notice and
comment requirements under the APA
or any other statute because the APA
defines "rules" in a manner that
excludes permits. See APA section 551
(4), (6), and (8).
APA section 553 does not require
public notice and opportunity for
comment for interpretative rules or
general statements of policy. In addition
to proposing modification of the general
permit, today's action repeats an
interpretation of existing regulations
promulgated almost twenty years ago.
The action would impose no new or
additional requirements.
C. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA), P.L. 104-
4, establishes requirements for Federal
agencies to assess the effects of their
regulatory actions on State, local, and
tribal governments and the private
sector. Under section 202 of the UMRA,
EPA generally must prepare a written
statement, including a cost-benefit
analysis, for proposed and final rules
with "Federal mandates" that may
result in expenditures to State, local,
and tribal governments, in the aggregate,
or to the private sector, of $100 million
or more in any one year.
For reasons explained in the
discussion regarding the Regulatory
Flexibility Act, the UMRA only applies
to rules subject to notice-and-comment
rulemaking requirements under the
APA or any other statute. Today's
permit modification is not subject to
notice and comment requirements
under the APA or any other statute
because the APA defines "rules" in a
manner that excludes permits. See APA
section 551 (4), (6), and (8).
Today's proposed permit modification
contains no Federal mandates (under
the regulatory provisions of Title II of
the UMRA) for State, local, or tribal
governments or the private sector.
Today's proposed modification merely
announces an Agency interpretation of
existing regulations. EPA has
determined that this permit
modification does not contain any
Federal mandate that may result in
expenditures of $100 million or more
for State, local, and tribal governments,
in the aggregate, or the private sector in
any one year. Therefore, today's
proposed permit modification is not
subject to the requirements of section
202 of the UMRA.
Before EPA establishes any regulatory
requirements that may significantly or
uniquely affect small governments,
including tribal governments, it must
have developed under section 203 of the
UMRA a small government agency plan.
The plan must provide for notifying
potentially affected small governments,
enabling officials of affected small
governments to have meaningful and
timely input in the development of EPA
regulatory proposals with significant
Federal intergovernmental mandates,
and informing, educating, and advising
small governments on compliance with
the regulatory requirements. Because
today's proposed modification is based
on an interpretation of existing
regulations and because EPA anticipates
that extremely few, if any, small
governments operate mining operations,
EPA has determined that this action
contains no regulatory requirements that
might significantly or uniquely affect
small governments.
D. Paperwork Reduction Act
The proposed permit modification
contains no requests for information and
consequently is not subject to the
Paperwork Reduction Act, 44 U.S.C.
3501 etseq.
Signed this 26th day of September, 1997.
Patricia L. Meany,
Acting Regional Administrator, Region 1.
. Signed this 26th day of September, 1997.
Jerry Clifford,
Acting Regional Administrator, Region 6.
Signed this 25th day of September, 1997.
Deborah Jordan,
Acting Regional Administrator, Region 9.
Signed this 25th day of September, 1997.
Philip S. Millam,
Acting Regional Administrator, Region 10.
1. For the reasons set forth in this
preamble, the table published on
September 29, 1995, at 60 FR 50897
would be modified to read as follows:
TABLE G-4.—APPLICABILITY OF THE MULTI-SECTOR GENERAL PERMIT TO STORM WATER RUNOFF FROM ACTIVE ORE
(METAL) MINING AND DRESSING SITES
Discharge/source of discharge
Note/comment
Piles (seepage and/or runoff):
Waste rock/overburden ...
Topsoil
Roads constructed of waste rock or spent ore:
Onsite haul roads
Offsite haul/access roads
Roads not constructed of waste rock or spent ore:
Onsite haul roads
Offsite haul/access roads
Milling/concentrating:
Runoff from tailings dams/dikes when constructed of waste rock/
tailings.
Runoff from tailings dams/dikes when not constructed of waste
rock/tailings.
Concentration building
Mill site
Ancillary areas:
Office/administrative building and housing
Chemical storage area
Docking facility
Explosive storage
Fuel storage (oil tanks/coal piles)
Vehicle/equipment maintenance area/building
Parking areas
If not in active mining area and composed entirely of storm water. See
Note below.
If not in active mining area and composed entirely of storm water. See
Note below.
If outside of the active mining area.
Except if "mine drainage" is used for dust control.
Except if process fluids are present and only if not in active mining
area and composed entirely of storm water. See Note below.
Except if process fluids are present.
If storm water only and no contact with piles.
If storm water only and no contact with piles.
If mixed with storm water from the industrial area.
Except if excessive contact with waste product that would otherwise
constitute "mine drainage."
But coverage unnecessary if only employee and visitor-type parking.
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TABLE G-4.—APPLICABILITY OF THE MULTI-SECTOR GENERAL PERMIT TO STORM WATER RUNOFF FROM ACTIVE ORE
(METAL) MINING AND DRESSING SITES—Continued
Discharge/source of discharge
Note/comment
Power plant
Truck wash area
Reclamation-related areas:
Any disturbed area (unreclaimed)
Reclaimed areas released from reclamation bonds prior to Dec.
17,1990
Partially/inadequately reclaimed areas or areas not released from
reclamation bond
Except when excessive contact with waste product that would other-
wise constitute "mine drainage."
Only if not in active mining area.
Storm water runoff from these sources are subject to the NPDES program for storm water unless mixed with discharges subject to the 440
CFR Part 440 that are not regulated by another permit prior to mixing. Non-storm water discharges from these sources are subject to NPDES
permitting and may be subject to the effluent limitation guidelines under 40 CFR Part 440.
Note: Discharges from overburden/waste rock and overburden/waste rock-related areas are subject to 40 CFR part 440 if the source of the
drainage flows is within the "active mining area" and the resulting storm water flows drain to a point source. For such sources outside the active
mining area, coverage under this permit would be available if the discharge is composed entirely of storm water and not subject to 40 CFR Part
440, as well as meeting other eligibility criteria contained in Part l.B. of the permit. Permit applicants bear the initial responsibility for determining
the applicable technology-based standard for such discharges. EPA recommends that permit applicants contact the relevant NPDES permit issu-
ance authority for assistance to determine the nature and scope of the "active mining area" on a mine-by-mine basis, as well as to determine the
appropriate permitting mechanism for authorizing such discharges.
2. The third sentence in the first
paragraph in permit eligibility provision
for Storm Water Discharges Associated
with Industrial Activity from Metal
Mining (Ore Mining and Dressing),
Section XI.G.l. (introductory language),
previously published on September 29,
1995. at 60 FR 51155, would be
modified and a fourth and fifth sentence
would be added to read as follows:
1. Discharges Covered Under This
Section
* * * All storm water discharges
from inactive metal mining facilities
and storm water discharges from the
following areas of active, and
temporarily inactive, metal mining
facilities are the only discharges covered
by tills permit: waste rock/overburden
piles outside the active mining area;
topsoil piles; offsite haul/access roads if
outside of the active mining area; haul/
access roads constructed of waste rock/
overburden if outside of the active
mining area; onsite haul/access roads
not constructed of waste rock/
overburden/ spent ore except if mine
water is used for dust control; runoff
from tailings darns/dikes when not
constructed of waste rock/tailings and
no process fluids are present; runoff
from tailings dams/dikes when
constructed of waste rock/tailings and
no process fluids are present if outside
the active mining area; concentration
building if no contact with material
piles; mill site if no contact with
material piles; office/administrative
building and housing if mixed "with
storm water from industrial area;
chemical storage area; docking facility
except if excessive contact with waste
product; explosive storage; fuel storage;
vehicle/equipment maintenance area/
building; parking areas (if necessary);
power plant; truck wash areas except
when excessive contact with waste
product; unreclaimed, disturbed areas
outside of active mining area; reclaimed
areas released from reclamation bonds
prior to December 17, 1990; and
partially/inadequately reclaimed areas
or areas not released from reclamation
bond. Note: Discharges from
overburden/waste rock and overburden/
waste rock-related areas are subject to
40 CFR part 440 if the source of the
drainage flows is within the "active
mining area" and the resulting storm
water flows drain to a point source. For
such sources outside the active mining
area, coverage under this permit would
be available if the discharge is
composed entirely of storm water and
not subject to 40 CFR part 440, as well
as meeting other eligibility criteria
contained in Part I.E. of the permit.
[FR Doc. 97-27854 Filed 10-21-97; 8:45 am]
BILLING CODE 65SO-50-P
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