EPA 530-R-94-043
NTIS PB94-122529
U.S. Environmental Protection Agency
Mine Waste Policy Dialogue Committee
Meeting Summaries and Supporting Material
March 1994
U.S. Environmental Protection Agency
Office of Solid Waste
Special Waste Branch
401 M Street, SW
Washington, DC 20460
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U.S. ENVIRONMENTAL PROTECTION AGENCY
MINE WASTE POLICY DIALOGUE COMMITTEE
MEETING SUMMARIES AND SUPPORTING MATERIAL
Contents:
I. Transmittal Memo and Charter establishing the Environmental
Protection Agency's Mine Waste Policy Dialogue Committee
II. Participant List
III. Meeting Summaries
IV. EPA Memorandum Concerning Procedural Approaches to Develop a
Template and Conduct State Reviews
V. White Paper
U s. Environmental Protection Agency
7Rf^st5JaSSad, UthF.oor
ChiS IL 60604-3590
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MEMORANDUM
SUBJECT: Possible Establishment of a Policy Dialogue Committee for the
Mining Program -- ACTION MEMORANDUM
i
FROM: J. Clarence Davies
Assistant Administrator for Policy, Planning,
and Evaluation
THROUGH: Mary Ann Beatty
EPA Committee Management Officer
TO: F. Henry Habicht II ^
Deputy Administrator
PURPOSE
The purpose of this memorandum is to request your signatures on
the attached Federal Advisory Committee Charter and transmittal letter
to GSA requesting their review of the Charter. Your signatures will
allow us to establish a Policy Dialogue Committee for the mining
program being considered under the Resource Conservation and Recovery
Act.
We have given OMB a copy of the draft charter and invited them to
attend the organizational meeting. We also notified GSA to expect our
charter submission.
BACKGROUND
EPA is required, under Section 8002 of RCRA, to perform studies
and reports to Congress regarding, among other things, management
methods and potential hazards of mining wastes and to make a regulatory
determination regarding whether Subtitle C or D (hazardous vs.
non-hazardous) controls are warranted. A report to Congress, entitled
Wastes from the Extraction and Beneficiation of Metallic Ores,
Phosphate Rock, Asbestos. Overburden from Uranium Mining, and Oil Shale
was submitted to Congress in December 1985.
On July 3, 1986 (51 FR 24496), EPA published a regulatory
determination based on the findings of the report to Congress. These
findings concluded that mining wastes should be regulated
as solid wastes under RCRA Subtitle D rather than as hazardous wastes
under RCRA Subtitle C even though some mining wastes
exhibit hazardous characteristics. In addition, the report also
indicated that: EPA is concerned about actual and potential mining
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waste problems; maximum flexibility is necessary to develop an
appropriate program for mining wastes; the program needs to take into
account the variability of risk in order to control individual
facilities on a site-specific basis; existing Subtitle C regulations do
not provide enough flexibility to address mining wastes, while existing
Subtitle D regulations do not provide enough Federal authority or
Federal enforcement; and EPA would develop a flexible, site-specific,
risk-based program.
In May 1988, the Office of Solid Waste (OSW) released a document
that outlined an approach to manage noncoal mining wastes and
materials. This document, called Strawman I, was a staff-level
approach designed to facilitate the participation of interested parties
in program development and to enhance EPA's understanding of mining
waste issues.
EPA has been working closely with the States, public interest
groups, and industry to solicit input on waste management approaches
and to gather information. The involvement of the States in the
Strawman process has been coordinated by the Mine Waste Task Force of
the Western Governors' Association (WGA) and the Interstate Mining
Compact Commission. Involvement of public interest groups has been
coordinated through Colorado Trout Unlimited, and the participation of
industry has been managed principally by the American Mining Congress.
Based on comments submitted to EPA on Strawman I and on information
given to the Agency by interested parties since 1988, EPA released
Strawman II in May 1990. Strawman II is again a staff-level approach
for protection of human health and the environment from wastes and
other materials associated with noncoal mining. Meetings were held
with public interest groups and the mining industry in September 1990
to discuss their comments on Strawman II.
As a result of the December 1990 briefing with you on mining
waste, EPA will develop a strategic plan for mining waste program
development that addresses multi-media integration, relationships with
other Federal programs, on-going implementation, and capability
building, including determining what role additional authorities should
play. We believe that the formation of a Policy Dialogue Committee
will provide a forum to refine and further develop issues raised by
Strawman II, and to facilitate the exchange of new ideas and
'information among the interested parties. It is hoped that consensus
may be possible on some issues but, at a minimum, we would like to
ensure that issues are thoroughly defined and that differing positions,
as well as the reasons for those differences are identified. The
output of the Policy Dialogue Committee would be made available to
various decision-makers in the mining waste program development
process.
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DESCRIPTION OF SIGNATURE DOCUMENTS
Federal Advisory Committee Charter
To establish a Policy Dialogue Committee that will be utilized to
provide consensus advice or recommendations, we must first charter a
Federal Advisory Committee. The charter is a document for your
signature that explains what the committee will do. After GSA and OMB
consultation, we will file the Charter with the appropriate
Congressional Committees.
Letter to GSA
Obtaining a charter requires that you send a proposed charter and
a letter to GSA justifying the need to establish the committee. GSA
generally forwards the request to OMB. We have already been in touch
with GSA and OMB and anticipate no major difficulties.
RECOMMENDATION
I request that you sign the attached FACA charter and request for
consultation letter.
Attachments (2)
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
' ADVISORY COMMITTEE CHARTER
ORGANIZATION AND FUNCTIONS COMMITTEES, BOARDS, PANELS AND COUNCILS
POLICY DIALOGUE COMMITTEE FOR EPA's MINING PROGRAM
1. PURPOSE. This charter establishes the Policy Dialogue
Committee for EPA's mining program in accordance with the
provisions of the Federal Advisory Committee Act (FACA), 5 U.S.C.
(App.I) 9(c).
2. AUTHORITY. It is determined that establishment of this
Committee is in the public interest and supports EPA in
performing its duties and responsibilities under Sections 8002 of
the Resource Conservation and Recovery Act (RCRA).
3. OBJECTIVE AND SCOPE OF ACTIVITY. The Policy Dialogue
Committee will provide a forum to refine and further develop
issues related to managing mining waste and to facilitate the
exchange of ideas and information among the interested parties.
It is hoped that consensus may be possible on some issues but, at
a minimum, EPA would like to ensure that issues are thoroughly
defined and that differing positions, as well as the reasons for
those differences, are identified. The output of the Policy
Dialogue Committee would be made available to various decision-
makers in the mining program development process.
4. FUNCTIONS. As indicated above, the Committee's function is
to assist directly in the development of EPA's mining program.
With the participation of knowledgeable, affected parties, EPA
expects to develop a more practical, protective approach at less
cost.
5. COMPOSITION. The Committee will consist of not more than
twenty-five members, appointed by the EPA Deputy Administrator,
plus a facilitator who will serve as Chair. Members will
represent the following segments of the population in appropriate
mix and balance:
Categories of Members:
public interest groups
mineral industries
States
Federal agencies
Appropriate members shall be selected and appointed for the
duration of the Policy Dialogue Committee. Most members will be
appointed as representatives of non-federal interests. A full-
time salaried official or regular employee of the Agency will
serve as the Designated Federal Official and will be present at
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all meetings. The Designated Federal Official is authorized to
adjourn any meeting whenever it is determined to be in the public
interest to do so. The Committee is authorized to form
workgroups for any purpose consistent with this Charter. Such
workgroups shall report back to the full Committee. Workgroups
have no authority to make decisions on behalf of the full
Committee nor can they report directly to the Agency.
Under the Federal Advisory Committee Act, EPA may pay travel
and per diem expenses when necessary and appropriate. The
Committee's estimated annual operating cost is approximately
$100,000, which includes 1 work-year of staff support. EPA's
Office of Policy, Planning and Evaluation will provide
administrative and process support to the Committee.
6. MEETINGS. Meetings shall be held as necessary, at the call
of the Chair, with an agenda for each meeting approved in advance
by the Designated Federal Official. Committee meetings will be
called, announced, and held in accordance with the EPA Committee
Management Manual. This manual contains the Agency's policies
and procedures for implementing FACA. Among other things, FACA
requires open meetings, and an opportunity for interested persons
to file comments before or after meetings, or to make statements
to the extent that time permits.
*
7. DURATION. The Committee will terminate by March 30, 1992,
unless the Deputy Administrator determines that the Committee
will finish its work within 30 days of the original termination
date. If the Deputy Administrator makes such a determination, he
can extend the termination date by 30 days without further
consultation with GSA. In the event more time is needed, EPA may
seek an extension under Section 14 of FACA.
Approval date Deputy Administrator
GSA Review Date
Date filed with Congress
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U.S. ENVIRONMENTAL PROTECTION AGENCY MINE WASTE
POLICY DIALOGUE COMMITITEE MEETING
PARTICIPANT LIST
Federal Government
David S. Brown
Associate Director
Information and Analysis
Bureau of Mines
Mail Stop 5200
U.S. Department of Interior
2401 E. Street NW
Washington, DC 20241
202-501-9365
Fax .202-501-9958
William L. Miller
Chief, Division of Policy Analysis
Bureau of Mines (MS-5200)
U.S. Department of Interior
2401 E. Street NW
Washington, DC 20241
202-501-9732
Fax: 202-501-9958
Susan O'Keefe
Acting Deputy Associate Counsel for RCRA
Office of Enforcement
U.S. Environmental Protection Agency
Mail Code LE-134S
401 M Street, SW
Washington, DC 20460
202-2604326
Fax: 202-260-3069
Lynn Sprague
Director of Minerals and Geology Staff
U.S. Forest Service
14th & Independence Avenue, SW
Auditor Building
Washington, DC 200904090
202-205-1224
Fax: 202-205-1243
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Matthew A. Straus
Director
Waste Management Division
Office of Solid Waste
U.S. Environmental Protection Agency
Mail Code OS-320W
401 M Street, SW
Washington, DC 20460
703-308-8414
Fax: 703-308-8604
Robert E. Walline
Mining Waste National Expert
Water Management Division
Region 8
U.S. Environmental Protection Agency
999 18th Street
Denver, CO 80202-2405
303-294-7093
Fax: 303-293- 1424
Federal Government Alternates:
Jeffrey Denit
Deputy Director
Office of Solid Waste
U.S. Environmental Protection Agency
401 M Street, SW (OS-300)
Washington, DC 20460
202-260 4627
Fax: 202-260-9355
C. Bowdoin Train
Deputy Assistant Administrator for Solid
Waste and Emergency Response
U.S. Environmental Protection Agency
Mail Code OS-100
401 M Street, SW
Washington, DC 20460
202-260 4610
Fax: 202-260 3527
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Industry
Steven G. Barringer
Precious Metals Producers
1001 Pennsylvania Avenue, NW
Suite 310
Washington, DC 20004
202-638-5500
Fax: 202-737-8998
David B. Crouch
Director
Environmental Project
Kennecott Corporation
10 E. South Temple
P.O. Box 11248
Salt Lake City, UT 84147
801-322-7280
Fax: 801-322-8398
Norman Greenwald
Norrnan Greenwald Associates
3131 North Country Club Road
Suite 206
Tucson, AZ 85716
602-795-0884
Fax: 602-795-0471
Thomas E. Janeck
Vice President, Environmental Affairs
Zinc Corporation of America
300 Frankfort Road
Monaca, PA 15061
412-772-2284
Fax: 412-773-2217
Krishna Pararneswaran
Senior Analyst, Government Relations
ASARCO, Inc.
180 Maiden Lane
New York, NY 10038
212-510-1821
Fax: 212-510-1951
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William A. Schimming
Manager, Environmental Affairs
Texas Gulf, Inc.
P.O. Box 48
Highway 306 N
Aurora, NC 27806
919-322-8239
Fax: 919-322-4444
Ivan Urnovitz
Alliance of Independent Miners
E. 5621 Woodlawn Drive
Spokane, WA 99212-0336
509-624-1158
Fax: 509-623-1241
Industry Alternates
Phil Brick
Manager
Environmental Affairs
Cleveland Cliffs
1100 Superior Avenue
Cleveland, OH 44114
216-694-5414
Fax: 216-6944880
Tom Hendricks
President
Hendricks Mining Company
P.O. Box 653
Nederland, CO 80466
3000 No. 63rd St.
Boulder, CO 80301
303443- 1502
Fax: 303443 6604
Les A. Darling
Director
Environmental Affairs
Cyprus Minerals Company
9100 East Mineral Circle
Englewood, CO 80112
303-643-5325
Fax: 303-643-5049
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David Kimball
Kimball & Curry
2600 North Central Avenue
Suite 1600
Phoenix, AZ 85004
602-222-5920 '
Fax: 602-222-5929
Pat Maley
Chief Environmental Engineer
ASARCO
P.O. Box 5747
Tucson, AZ 85703
1150 No. 7th Ave.
Tucson, AZ 85705
602-792-3010
Fax: 602-624-3369
Donald Patterson
Partner
Beveridge & Diamond
1350 I Street, NW
Suite 700
Washington, DC 20005
202-789-6032
Fax- 202-789-6190
Jack Schmedeman
Vice President
Cargill Fertilizer, Inc.
P.O. Box 937
People's Road and Hwy 630 W
Fort Meade, FL 33841
813-533-8102
Fax: 813-285-6306
Meade Stirland
Manager of Environmental Affairs
Echo Bay Mines
5401 Longely Lane Suite 5
Reno, NV 89511
702-829-1000 ext. 223
Fax 702-829-1067
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States
Tom Fronapfel
Chief
Bureau of Mining Regulation and Reclamation
Division of Environmental Protection
Department of Conservation and Natural Resources
123 West Nye Lane, Capitol Complex
Carson City, NV 89710
702-687-4670
Fax: 702-885-0868
Charles H. Gardner
Director
Division of Land Resources
North Carolina Department of Environment Health
& Natural Resources
P.O. Box 27687
Raleigh, NC 27611-7687
5i2 N. Salisbury Street
Raleigh, NC 27604
919-733-3833
Fax: 919-7334407
Charlene Herbst, CEG 1218
Supervising Engineering Geologist
Chief, Land Disposal Branch
State Water Resources Control Board
Division of Clean Water Programs
2014 T Street, Suite 130
P.O. Box 944212
Sacramento, CA 94244-2120
916-255-2490
Fax 916-255-2574
Jim Joy
Chief
Air Quality Control
Department of Health & Environmental Control
2600 Bull Street
Columbia, SC 29201
803-734-4507
Fax 803-734-4556
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Gary Lynch
Supervisor, Mined Land Reclamation Division
Oregon Department of Geology &
Mineral Industries, MLR
1536 Queen Avenue, SE
Albany, OR 97321
503-967-2039
Fax: 503-967-2075
Don A. Ostler
Director
Division of Water Quality
Department of Environmental Quality
P.O. Box 16690
288 North 1460 West
Salt Lake City, UT 84116-0690
801-538-6146
Fax: 801-538-6016
Steve Pirner
Director
Division of Environmental Regulation
Department of Environment and Natural Resources
523 East Capitol Avenue
Pierre, SD 57501-3181
605-773-3153
FAX: 605-773-6035
State Alternates:
Jim Burris
Regional Administrator
Department of Natural Resources
P.O. Box 1420
948 Lester St.
Poplar Bluff, MO 63901
314-686-9750
Fax: 314-686-9754
Gregory Conrad
Executive Director
Interstate Mining Compact Commission
459-B Carlisle Drive
Herndon, VA 22070
703-709-8654
Fax: 703-709-8655
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James Cornelius
Chief
Regulatory Programs Branch
Division of Clean Water Programs
State Water Resources Control Board
2014 T Street, Suite 130
P.O. Box 944212
Sacramento, CA 94244-2120
916-227-4351
Fax: 916-2274349
Jeremy Craft
Director
Division of Resource Management
2051 East Dir(ac Drive
Tallahassee, FL 32310-3760
904488-3177
Fax: 904488-1254
Michael B. Long
Director
Divisions of Minerals and Geology ^
Department of Natural Resources
1313 Sherman Street Room 215
Denver, CO 80203
303-866-3567
FAX: 303-832-8106
Environmental Representatives
L. Thomas Galloway
Attorney
Friends of the Earth
Galloway and Greenberg Attorneys
1835 K Street, NW
Suite 801
Washington, DC 20006
202-833-9085
Fax: 202-785-6784
Philip M. Hocker
Executive Director
Mineral Policy Center
1325 Massachusetts Avenue, NW #550
Washington, DC 20005
202-737- 1872
Fax: 2-2-737-1875
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James D. Jensen
Executive Director
Montana Environmental Information Center
P.O. Box 1184
Helena, MT 59624
107 West Lawrence, Room N-10
Helena, MT 59601
406 443-2520
Fax: 406442- 1316
David Lennett
Consultant
National Audubon Society
P.O. Box 71
555 13th Street, Suite 500E
Litchfield, ME 04350
207-582-3826
Fax: 207-582-1231
Ann S. Maest, Ph.D.
Senior Scientist
RCG/Hagler, Bailly
P.O. Drawer O
Boulder, CO 80306-1906
303-449-5515
Fax: 303443-5684
Tony Mazzochi
OCAW
P.O. Box 2812
Denver, CO 80201
255 Union Blvd
Lakewood, CO 80228
303-987-2229
Fax: 303-987-1967
Wm. Paul Robinson
Southwest Research and Information Center
P.O. Box 4524
105 Stanford SE
Albuquerque, NM 87106
505-262-1862
Fax: 505-262-1864
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Environmental Representatives Alternates:
Joel Carr
Oil, Chemical Atomic Workers Union (OCAW)
2722 Merrilee Drive
Suite 250
Fairfax, VA 22031
70,3-876-9300
Fax- 703-876-8952
David M. Chambers
Mining Analyst
Sierra Club Legal Defense Fund, Inc.
325 4th Street
Juneau, AK 99801
907-586-2751
Fax: 907-463-5891
Michael Gregory
Director
Arizona Toxics Information
P.O. Box 1896
Bisbee, AZ 85603
602-432-7340
Fax- 602-432-7340
Janna Holland
Southwest Research and Information Center
P.O. Box 4524
105 Stanford SE
Albuquerque, NM 87106
505-262-1862
Fax: 505-262-1864 -
Carolyn Johnson
Western Organization of Resource Councils
286 South Gilpin Street
Denver, CO 80209
303-777-0557
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Federal Advisory Committee
Designated Federal Representative:
Deborah Dalton
Deputy Project Director
U.S. Environmental Protection Agency
Mail Code PM-223Y
401 M Street, SW
Washington, DC 20460
202-260-5495
Fax: 202-260-5478
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U.S. ENVIRONMENTAL PROTECTION AGENCY
MINE WASTE POLICY DIALOGUE COMMITTEE
MEETING SUMMARY
Washington, B.C.
May 15-16, 1991
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WEDNESDAY - May 15. 1991
The meeting began with the committee members and facilitators
introducing themselves. Jeffrey Denit, Deputy Director of EPA's Office
of Solid Waste, provided background information on the Policy Dialogue
Committee (PDC). Mr. Denit began by acknowledging that many of those at
the table have been working on mining issues during the past three
years. He noted that he is uncertain about what to expect from the
Policy Dialogue Committee but clearly there is keen interest in working
on the issue. Denit hopes that the PDC will try to reach consensus on
mine waste issues, but minimally he hopes that the members will at
least come out of the meetings with a clearer understanding of each
others positions. He went on to note that the RCRA reauthorization
process is underway and the discussions and recommendations of the,PDC
will be input into that process. He also observed that PDC's
deliberations will be open to public review and available as a part of
the public record.
Mr. Denit then introduced C. Bowdoin Train, the recently appointed
Deputy Assistant Administrator for Solid Waste. Mr. Train stated that
the PDC process will be a useful next step to build upon the Agency's
"strawman" mine waste regulatory development process. Train noted that
as the EPA enters the Policy Dialogue Committee process the agency will
not forget what was learned through that process, but he emphasized
that the Agency is not constrained by the positions posed in Strawman.
Train then noted that the Agency views the PDC as the principal
mechanism for input to EPA on mine waste policy. In establishing this
Committee, the Agency has identified the following goals:
o Facilitate the exchange of ideas;
o Develop innovative approaches;
o Create the principal mechanism for input to EPA on mine waste
regulatory policy;
o Develop consensus to the greatest extent possible; and
o Sharpen understanding of disagreements.
Although the Committee has designated members, the public will be
involved as the effort is designed to provide adequate opportunity for
their involvement. As a part of that, EPA chose The Keystone Center to
serve as the facilitator for the Committee. In addition to providing
facilitation services, The Center will distribute materials, keep
records, and handle logistics. :
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With the conclusion of Mr. Train's comments, John Ehrmann, one of The
Keystone Center facilitators, reviewed the agenda for the two day
meeting. He noted that the first day will begin by focusing on
procedural issues and then move onto consider the list of substantive
issues submitted by the members. On the second day, the focus of the
Committee's efforts will be to explore in greater depth the substantive
issues of concern. Before concluding the meeting, dates for future
meetings will be determined. Additionally, he suggested that the
Committee evaluate its efforts on an ongoing basis.
Ehrmann went on to explain that the PDC process will be different than
a regulatory negotiation. The goal of this effort is to develop
national policy regarding mine waste regulation rather than a single
regulation.'There are no specific deadlines for this effort.
Since many members had not yet received their formal letters of
invitations signed by Deputy Administrator Henry Habicht (see attached
copy), the Federal Advisory Committee Act (FACA) Charter for the Policy
Dialogue Committee was distributed. Participants were directed to note
that the Charter states the purpose of the Policy Dialogue Committee.
Deborah Dalton, the Designated Federal Representative for the Committee
explained that once the Charter was approved by the Deputy
Administrator, it also reviewed by OMB and GAO and then filed with the
U.S. Congress.
Ms. Dalton noted that the Committee is convened under FACA which
requires that meetings be 1) open to the public, 2) noticed in the
Federal Register at least fifteen days in advance, and 3) that meeting
summaries must be made available to the public. The Charter establishes
the Committee to run through March 30, 1992. However, the tenure of the
Committee can be extended or terminated in advance of this date.
Review of Suggested Groundrules
The next topic of discussion was the proposed groundrules (see copy
attached). Tim Mealey, facilitator from The Keystone Center, reviewed
them and then asked questions and comments. Some members raised
questions about the first groundrule which outlined the objectives for
the Policy Dialogue Committee. After some discussion, it was decided to
substitute the language used in the FACA Charter for describing the
PDC's objective. This language is as follows:
"The Policy.Dialogue Committee will provide a forum to refine and
further develop issues related to managing mining waste and to
facilitate the exchange of ideas and information among the interested
parties. It is hoped that consensus may be possible on some issues but,
at a minimum, EPA would like to ensure that issues are thoroughly
defined and that-differing
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positions, as well as the reasons for those differences, are
identified. The output of the Policy Dialogue Committee would be made
available to various decision makers in the mining program development
process".
Some members stated their objection to the fact that the Charter had
been developed solely by EPA and the stated purpose of the Committee
was "to assist directly in the development of EPA's mining program."
They suggested that the Committee should have a broader focus, one that
left open questions related to where a mine waste regulatory program
might be placed. It was explained that the Federal Advisory Committee
Act requires that the Charter be established by the Federal agency that
is creating the Committee and that such committees are to be created
for the expressed purpose of providing advice to that Agency.
Regarding Committee membership, a question was raised about whether
additional alternates could be appointed and if individual Committee
members could be replaced if required. The response to both questions
was yes. Additionally, it was noted that the alternates were to be
viewed as a pool from each of the main interest groups, rather than a
one-to-one correlation with PDC members. Thus, alternates were
encouraged to attend all meetings if possible so that they be cognizant
of issues which had been discussed previously.
There will be approximately one half hour for public comment at the end
of each meeting day. The amount of time per person will depend on the
number of individuals desiring to speak. It was also noted that the
public can submit written comments at any time. These written comments
will become a part of the administrative record and will be attached to
the meeting summaries.
It was clarified that there will be meeting summaries prepared for each
meeting. They will not be transcripts, but they will be thorough. A
draft of the meeting summaries will be distributed to PDC Members for
their comments before they are finalized. The comments will be sought
through the mail or at the beginning of the next meeting depending upon
the time between meetings. The Keystone Center will be responsible for
distribution of meeting summaries and other materials to PDC members
and alternates while EPA will be responsible for other public
distribution.
It was noted that the PDC does not necessarily have to produce a final
report and that as the Committee desires they may issue documents
discussing any agreements that are reached prior to the conclusion of
the PDC. If there is a final report, it was explained that the group as
a whole will draft and approve the report and it will be completed
within the current eighteen month timeframe for the Committee. It was
clarified that the term consensus, as used in the groundrules, was
meant to imply no dissent by an member of the PDC.
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The PDC then adopted by consensus the proposed groundrules as revised
by the group's discussion.
The facilitator suggested that the PDC should not break into
subcommittees immediately. He indicated that this approach would mean
that the PDC would address issues sequentially rather than
simultaneously. However, in order to ensure adequate progress is made
between meetings, it was suggested that as tasks required it, the PDC
might want to consider the use of small work groups.
In terms of agenda setting, rather than using a steering committee, the
PDC as a whole would discuss the agenda for the next meeting at the
close of the current meeting.
Review of Substantive Issues List
The Committee discussion then turned to the issues list compiled from
lists submitted by Committee members. Mr. Ehrmann observed that there
have been numerous discussions of these issues over the past few years.
As" a result, there is a long record of publicly stated positions on
these issues. Mr. Ehrmann stated that the consensus objective of the
PDC will require that the facilitator find ways to help Committee
members move beyond stating their publicly held positions to discussion
aimed at identifying the underlying reasons why those positions are
held. In so doing, it may be possible to find consensus solutions to
certain problems. However, Mr. Ehrmann noted that achieving an overall
consensus on mine waste policy issues will not be an easy task and that
it will be dependent upon, among other things, people's perceptions
about what may or may not be achievable-in other forums such as
Congress.
Martha Tableman, facilitator from The Keystone Center, then presented
the combined issues list which was compiled from issues lists submitted
be each of the interest group sectors (see attached list).
Russell Wyer, Director of EPA's Division of Waste Management, said that
he wanted other members to understand that EPA saw the agency as an
"equal party" with the others in the PDC. He then described the scope
of the issues that should be addressed by the PDC from EPA's
.perspective. First, he noted that EPA staff saw the Dialogue
Committee's focus as being non-coal hardrock and phosphate mining not
stone, sand and gravel. Second, EPA still envisions a Subtitle D type
program for mine waste but he noted that EPA believes that it would
need additional statutory authorities beyond Subtitle D as it exists in
it current form. Third, EPA enters this effort with the following
limitations due to on-going internal processes and the staff's
preferences:
Abandoned Mines (those with no known owner) - EPA would prefer
that these be addressed through Superfund and non-point source
pollution and stormwater rules. The latter positions, as well as
the reasons for those differences, cannot be discussed with EPA
involvement because EPA is currently engaged in litigation
regarding those issues.
o Mineral Processing - This issue is currently being addressed in
through a Regulatory Determination that EPA is scheduled to release in
the very near future. Discussion of this should be deferred until after
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the release of the Determination.
o Enforcement in the Context of State and Federal Relationships - The
Agency is currently in the process of working out its internal position
on this issue and therefore requested that the discussion of this-issue
be delayed until this process was completed.
o Legislative Proposals - The Agency will not be able to endorse
specific legislative proposals unless the administration has a publicly
stated position.
Wyer noted that following the Strawman II meetings early last fall, the
EPA staff met with state representatives in November. On the
Federal/State relations issues, those present agreed that a national
program should be designed to address the diversity of environmental
conditions that exist as well as the fact that there are many
comprehensive state mine waste programs already in place. As a result,
the Agency's current position is that they would not pursue federal
minimum standards. The ability to tailor the program reflects the
states' concern that there be flexibility. Under EPA's current
thinking, states would be required to submit state plans that would
specify, among other things: 1) performance standards for all media; 2)
public participation procedures; 3) the management and organizational
dimensions of program, 4) permit procedures; and 5) enforcement
procedures.
In concluding his remarks, Wyer observed that using the issues list
that was being considered by the group, EPA's key issues are:
- Federal/State Relations, including issues related to plan
approval/partial plan approval;
- Public Participation;
- Regulated Materials; and
- Scope of the Rule.
Numerous initial response- were made to the suggestions of EPA as to
the scope of issues to be addressed by the PDC. Industry and state
participants indicated their support for most o£ EPA's current
thinking. However, state participants indicated some reservations
regarding the state plan development procedures and the nature of EPA
enforcement oversight. Industry representatives stated their position
that the PDC's discussions should be firmly rooted in the legislative
and judicial history of mine waste regulatory policy under RCRA.
Industry and state participants were
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particularly concerned that the PDC's discussions be predicated on a
Subtitle D approach to regulation. Environmental participants indicated
their concern that EPA's current thinking is to not have federal
minimum standards
The facilitator suggested that as a starting point the group consider
the scope of issues to be those that pertain to non-coal, hardrock and
phosphate mining. This was agreed to by the group.
The Committee discussed the linkage of its effort to efforts to reform
the Mining Law of 1872. Some participants suggested that the ability to
look at linkages will allow for development of efficient and creative
solutions. Thus, they argued it is important to keep linked issues on
the table. Others suggested that the PDC's discussion should focus only
on the RCRA aspects of a mine waste program.
Environmental participants suggested that pollution prevention and
waste minimization should be a part of the scope of the PDC's
deliberations. A state participant noted that the availability of
resources needs to be considered.
Given that the environmental participants have included an expert in
worker safety issues as one of their representatives, several PDC
members questioned whether worker safety issues should be part of the
PDC"s focus. These members indicated that since such issues were not
addressed in RCRA they were not relevant to the PDC's efforts. Others
noted that mine waste has environmental and health impacts which
include impacts on workers. Although this was generally acknowledged as
true, and EPA representatives indicated that they viewed worker safety
issues as important, they did not see them as part of the scope of the
PDC's deliberations. Specifically, since these issues are addressed by
other statutes such as those that govern the Occupational Safety and
Health Administration (OSHA) and the Mine Safety and Health
Administration (MSHA) they were considered outside the scope of the PDC
except for those instances where there is a clear overlap with public
health and safety issues.
EPA representatives clarified that the Agency does not believe that the
scope of the PDC's discussions should be limited to existing RCRA
statutory authority. They suggested that the PDC work to develop a mine
waste policy first, then later determine what legislative changes may
or may not be necessary to implement that policy.
After some discussion, it was decided that abandoned mines would be
discussed within the context of RCRA. EPA noted that they were
particularly interested in re-mining issues. Industry
representatives as well as others noted that as the group discusses the
issue, they should not get bogged down or distracted by the question of
who pays for the clean-up.
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It was clarified, however, that it will be important to discuss
financial and human resources questions with respect to all of the
issues to be addressed by the PDC_.
Public Comments
In concluding the first day's discussions, the facilitator provided an
opportunity for public comment. John Davis from the Bureau of Mines
spoke first. He stated that the PDC should take a broader view than
just the U.S. environmental context. Specifically, he urged the
Committee to consider the impact that mine waste regulation will have
on the U.S. mining industry in an international comparative strength
sense. He also noted that abandoned mine sites would not be a problem
if RCRA had been passed in 1872.
Rich Andrews, emphasizing that he was speaking as a taxpayer and
private citizen and not as a consultant to Western Governor's
Association Mine Waste Task Force, urged the PDC members to deal
diligently with the objective stated in the Charter to develop a
practical approach at less cost. He also encouraged the PDC to take
into account the existence of "good" state programs.
THURSDAY - May 16, 1991
Additional Procedural Matters
In initiating the second day's discussions, several PDC members
suggested that it would be appropriate to hold a number of the PDC
meetings in the western U.S. since 17 out of 33 members and alternates
live in the West. Additionally, it was suggested that mine site visits
be considered in conjunction with PDC meetings. It was decided to hold
the next meeting in Denver on June 17-18 and the subsequent session in
San Francisco on July 24-25.
It was also reiterated that those in attendance who are not members or
alternates who want to receive minutes and notice of meetings, should
contact Steve Hoffman, Division of Waste Management, EPA, to get on the
mailing list.
,
It was clarified that each interest group is limited to seven PDC
members and that the groundrules will be revised to reflect this. It is
hoped that changes in membership will be kept to a minimum, although it
was acknowledged that due to changes in the responsibilities or job
transitions of PDC members, some changes may be necessary over time. As
noted previously, alternates will be treated as a pool for each
interest group, not as a one-to-one substitution for PDC members.
Mailings will go to alternates as well as members.
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Discussions by the PDC of the Scope of
Issues to be Addressed (continued)
Based on the discussion^ on the first day, the facilitator suggested and
the group agreed that the following parameters should be used to guide
the PDC's deliberations:
o Focus on RCRA issues but recognize that the options to be considered
can go beyond existing RCRA statutory authorities;
o Focus on non-coal, hard rock and phosphate mining wastes, excluding
sand and gravel, crushed stone and quarry rock;
o Include "front end" mining activities, such as those that take place
in the gray area between exploration and mining, all the way through
and including mineral beneficiation and processing wastes not covered
under Subtitle C of RCRA.
o Address abandoned mines but within the context of RCRA.
The facilitator then introduced the following revised issues list:
1. Scope of Program
a. regulated materials b. inactive units at active sites/re-mining c.
inactive units at inactive sites/abandoned mines d. processing wastes
not covered by Subtitle C e. split ownership
2. Technical Standards
a. waste characterization
b. green field sites versus existing operations c. all media standards
d. link with state/federal relations and Public participation
3. State/Federal Relationship
a. primacy b. non-primacy/partially approved states c. EPA/State
relationship on federal lands d. resources
4. Public Participation
5. Timing and Implementation
6. Prediction, Prevention and Mitigation (Accident and Release)
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7. Financial Responsibility and Assurance
8. Waste Minimization and Pollution Prevention
9. CERCLA Liability
10. Closure" and Post-closure
In discussing this list is become clear that PDC members differed as to
how to approach the discussion of federal/state relations and technical
standards and which should be discussed first. From some participants'
perspective, federal/state relationships ~are a fundamental question and
thus should be discussed first. From others perspective, the issues
associated with technical standards should be discussed first since
their ability to know what they could agree to regarding state/federal
relations is directly related to how the technical discussion evolves.
PDC members_ from all interest groups acknowledged that no matter what
type of program is established, it is important to recognize and build
upon the regulatory successes of existing state programs.
The EPA staff then reiterated their current thinking on a mine waste
program. They began by noting that \:heir position is open for
discussion. Currently, they are thinking of developing a program under
Subtitle D of RCRA. Such a program would be a state run program, with
some level of federal oversight, along with the federal a program
designed to fill in the gaps in existing state programs. An EPA
representative went on to note that the elements of a mine waste
program, as conceived of by EPA, would attempt to meet the following
criteria:
protective of human health and environment efficient
flexible, not too complex include pollution prevention use a technology
and risk based approaches dependent on existing state efforts
He indicated that the exact nature of the state/federal relationship,
the amount of flexibility, relationship to legislative authority, how
gaps are defined and whether it would be a multimedia program are all
areas that the Agency is interested in discussing further.
The discussion then shifted to the question of the need for federal
minimum requirements. The EPA staff suggested that the establishment of
such a minimum would be difficult if flexibility is to be maintained.
Environmental representatives suggested that without such a minimum, it
would be difficult to review and evaluate programs. Specifically, they
stated that without minimum standards one could not determine what is
"adequate."
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As the discussion continued, one of the participants suggested that the
group will be more effective if it can move beyond the RCRA labels
(such as Subtitle C and Subtitle D) since this group's focus is not
just on regulations, but on a national mine waste program. He suggested
that such a shift in focus would allow people to get away from
preconceived notions.
In response, industry participants expressed strong concerns that such
a direction would ignore the regulatory history that has occurred on
this issue. As the discussion continued on this point, the group agreed
to that the purpose of the Committee was not to rewrite history,
specifically including the Bevill amendment and ERA'S 1986 regulatory
determination, however, EPA representatives reiterated their previously
stated position that even though they still viewed mine waste as being
appropriately regulated under a Subtitle D type program, they do not
believe there currently is sufficient statutory authority within RCRA
to adequately address all mine waste environmental problems.
In support of this perspective, an environmental participant noted that
the 1986 Regulatory Determination specifically acknowledged the need
for additional statutory authority.
Several participants from the different sectors agreed that states
should play the primary role in mine waste policy implementation. There
was also agreement that the goal was to achieve a program which is
protective of the environment and human health
Regulated Materials
The discussion of regulated materials began with the Western Governors'
Association (WGA) representatives explaining their definition for
regulated materials. They noted that the WGA Task Force had spent
considerable time discussing this issue. They stated that they did not
believe that the definition of waste under RCRA was sufficiently broad
to address all of the environmental problems that result from mining
activities. Therefore, they developed the concept of regulated
materials which includes any material with the potential to pollute,
including, for example, heap leach units. Materials and units that fell
outside of this definition would include, for example-, exploration
waste, mud and leach tanks.
Upon the completion of WGA's presentation, industry representatives
questioned what the perceived gap is that this concept is trying to
address? In response, a state participant indicated that the regulated
materials concept is based on the potential to release and cause harm
to the environment. It provides an ability to regulate non-waste
materials.
As a part of the discussion of regulated materials, the participants
tried to identify what gaps the approach was meant to
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cover. As the discussion continued, it was observed that it is very
difficult to define gaps when looking at all fifty state programs as a
whole. The state regulators have identified that there are some gaps
and that no state program is complete. To complicate matters further,
it was observed that the identification of gaps is a moving target
since states are continually modifying their programs. It was suggested
that an assessment of the gaps needs to be presented to the group as a
whole. It was also noted that one cannot assume that state programs
will continue to cover the areas currently covered. State regulatory
processes are dynamic. Some of the participants feel it is necessary to
have a federal program to provide certainty, to ensure protection, to
fill gaps and to make a level playing field for mine operations. WGA
representatives indicated that they had completed some studies on gaps
in existing state programs and that they would make these available to
the Committee.
The facilitator noted that there is no question that the concept of
regulated materials raises issues for some about whether the nature and
scope of the proposed program are outside of the current bounds of
RCRA. Thus, participants that advocate for the use of such an approach
need to be cognizant that such proposals raise broader concerns to some
of those around the table. In attempting to narrow the scope of this
issue, the facilitator asked industry participants whether they had any
particular concerns about the regulation of materials and units that
clearly can be addressed under the current definition of waste in RCRA.
Industry representatives responded that, as a general matter, they did
not have concerns about this issue. The facilitator suggested that the
most critical issue appears to be whether and, if so how to regulate
materials and units that would not normally be regulated under the
definition of waste under RCRA, i.e., "non-waste" materials. As a means
of addressing this issue he suggested the following:
1. Identify major-non-waste disposal mining activities and units
generally.
2. Identify those that could potentially pose environmental problems
without "adequate" regulations.
3. Identify those that do not pose significant environmental problems.
It was observed that these questions are hard to address without
consideration of the site-specific conditions.
The group then considered a list of activities which fall under the
non-waste disposal activities. Some of the items listed included: heap
leach units, dump leach units, surface impoundments, stockpile of ores
and subgrade ore, road network, vat leach, exploratory and
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other drilling activities, placer operations, and the mine itself (open
pit, underground, in situ solution mining).
In reviewing this list, the group generally acknowledged that all of
these activities have the potential to cause environmental harm. The
facilitator noted that states from their efforts on regulated
materials, clearly believe that these activities merit regulatory
attention. An industry representative stated that authority already
exists for air and surface water at the state and/or federal level. The
one gap which exists for these activities at the federal level is
groundwater protection, i.e., there is not any federal authority and
some states lack authority. He would favor allowing the states to
address that problem first rather than utilizing the regulated
materials approach. He would favor the EPA working with a state to
develop an appropriate groundwater program. If the state did not want
to, the EPA would then develop a program.
The discussion then briefly addressed the question of whether
performance standards should define the desired result or whether
specific design criteria should be used to reach the desired level of
environmental protection. Some suggested that standards should be
defined based on the impact on the resource. Others felt there are
instances where siting and design issues will have to be specified to
achieve the desired goal of protecting the resource.
It was then observed by an environmental participant that two competing
models are being proposed here. One would have a nationwide program
only where a gap exists in authority. The federal government would have
authority only to fill gaps. The second model would be to establish a
nationwide program which would define a model approach to addressing
mine waste. It would establish standards and a process by which EPA
would review state programs. It was observed that an effective program
must not only include adequate authority but adequate enforcement. If a
state program is deemed "adequate" but is not being enforced how would
that gap be addressed under the first model? From this persons
perspective, the ability to have effective federal enforcement will be
a critical part of a national program.
In summary, the facilitator noted that both EPA in Strawman II and the
states in their previous proposals have indicated that something more
is needed to protect the environment than is currently available under
RCRA. Because the "right" hooks were not available under RCRA to
accomplish the desired objective, they had suggested the concept of
regulated materials as one answer. The industry is concerned that this
approach has other negative implications. The facilitator suggested
that group attempt to identify other approaches to address this
problem.
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Next Steps
The facilitator asked PDC members to consider the agenda for the next
meeting. It was decided that the meeting will begin with a discussion
of the current status of state programs. Next, there will be a brief
presentation and discussion of the WGA's inactive mine sites and
abandoned mine study. It was suggested that the remainder of the
meeting will be divided between the discussion of other options to
address non-waste environmental problems and an initial discussion of
technical standards.
As the meeting adjourned, members were reminded that the dates and
locations for the next four meetings are as follows:
June 17-18 Denver, CO July 25-26 San Francisco, CA Sept. 4-5 Location
to be determined Oct.. 22-23 Location to be determined
Public Comments
John Cranyon from the Bureau of Land Management spoke. He noted that
the BLM has a statutory mandate under^the Federal Land Planning and
Management Act to prevent unnecessary degradation of the environment.
He felt it was important for the PDC to acknowledge this mandate in its
deliberations.
Stuart Miles from EPA spoke next. He provided an analogy of someone
leaving a cup of coffee on the roof of their car as they drive off and
it spills. They did not intend to for the coffee to become a waste,
however it clearly did become a waste. From his perspective, non-waste
disposal mining activities are similar. He observed that they present a
problem which must be addressed.
Michael Gregory from Arizona Toxics Information Project spoke next. He
began by suggesting that one might see a need for a national program if
one examines the specifics of a state program and identifies the
exemptions allowed. Since he is familiar with Arizona, h- used it as
his example and provided a list of exemptions found under Arizona law.
Additionally, he noted that even though tailings run-off is supposed to
be covered under the Clean Water Act, in reality it is not. At least
that is the case in Arizona where there are over 1,000 miles of streams
polluted by mine runoff.
He also provided some comments on the general direction for the PDC. He
feels that the general scope of a mine waste program should include
treatment, storage and disposal. He also suggested that the focus of
the program should be on prevention, but where prevention does .not
work, the program should use a multi-media approach-to regulation.
U.S ENVIRONMENTAL PROTECTION AGENCY MINE WASTE POLICY DIALOGUE
COMMITTEE MEETING SUMMARY
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June 17-18, 1991
Denver, Colorado
MONDAY. June 17. 1991
Introductions and General Discussion
The facilitator opened the meeting by welcoming the Committee members
and by explaining that there would be time at the end of each day's
session for public comment.
Materials for discussion were sent in advance of the meeting to all
Committee members including a draft agenda, charter, revised ground
rules, an EPA discussion document (see attachment A), and three
documents that had been develbped by the Western Governors Association
(WGA) and the Interstate Mining Compact Commission (IMCC).
The location and dates of the next meeting were announced. The meeting
will be at the Sir Francis Drake Hotel in San Francisco, California on
July 25-26, 1991.
The facilitator noted that the Committee had covered a number of
complex issues at the last meeting and that the agenda for this
meeting, beyond the scheduled briefings on the WGA and IMCC materials,
was still open for discussion. He explained that the agenda and
structure of each meeting will be discussed and agreed upon by the PDC.
He also suggested that since Committee members had not received a copy
of the draft meeting summary from the first meeting until recently,
that a procedure be established for obtaining comments on the summary
subsequent to the meeting rather than obtaining comments verballY at
this session.
A state representative indicated that the state participants had talked
and, as a group, they believed the PDC process was progressing at a
much slower pace than they had anticipated it would. He stated that
state representatives felt there was value in participating but they
want to make progress before Congress sets a deadline. It was suggested
that the Committee should not stay on topics where no agreement could
be reached. It was also suggested that a matrix be prepared of the
positions of each interest group on specific issues in order to focus
the Committee's attention.
The facilitator indicated that there is clearly a difference in the
amount of time state representatives have had to discuss these issues
with EPA representatives compared to industry and
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environmental representatives. He indicated that the purpose of the PDC
was to provide an opportunity for all interest groups to share concerns
and explore ideas as to how to best regulate mine wastes. This is not
to say the work that has previously been done by all parties is wasted
effort. Clearly the PDC needs to account for and build upon these
previous efforts. He indicated that the danger in launching the PDC's
efforts with a matrix of past positions is that it is likely to make it
more difficult for the participants to find alternative means by which
the concerns that underlie those positions might be satisfactorily
addressed.
An EPA representative indicated that, from his perspective, the amount
of progress that was made at the last meeting was to be expected since
that was the first meeting of the Committee.
After some additional discussion the Committee agreed that it will make
a commitment to meet in July, September and October. At that point the
Committee will explicitly evaluate the degree of progress that is being
made and whether that progress warrants additional meetings.
Review of WGA/IMCC Materials
The first-substantive, item on the Committee's agenda was to review the
WGA and IMCC materials which addressed abandoned mine sites and state
mine waste programs. After the briefing was completed, Committee
members asked a number of clarifying questions.
Regarding the survey of state programs, the WGA and IMCC
representatives indicated that they had conducted the survey one year
ago and that some changes had occurred since then. They briefly
highlighted some of these changes and noted that the states recognize
that there continue to be some gaps in state programs.
An industry participant asked whether states that have heap leaching
operations perceive that there is a gap in the regulation of these
types of units. A state participant responded that very few states that
have such facilities operating within their boundaries do not have any
regulatory program to address these operations, however, these programs
clearly differ from state to st-t~
A state participant indicated that in the case of Nevada, virtually all
significant mine waste program components have been put in place with
the exception of financial assurance. The group then discussed the
degree to which adopting financial assurance requirements poses
particular problems for states and whether such a program Component
should be considered critical in the approval of state programs (this
theme was addressed in more detail later in the meeting -- see below).
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With regard to the inactive and abandoned mine study, the WGA
representative indicated the document attempts to estimate the number
of sites and the potential cost of remediation. The report discussed
three basic policy options including compulsory remediation through
Superfund, corrective action authority, etc., the development of
incentives for encouraging but not requiring clean-up and government
initiated and funded clean-up.
An environmental representative noted that seven states have completed
inventories of inactive and abandoned mines (IAM) sites. He asked what
the experience was with respect to the accuracy of. the original
estimates of the number of IAM sites. A state participant indicated
that in the case of Colorado there may be as many as 2.5 times as many
sites as originally estimated. Several participants noted that there is
a wide diversity of environmental problems associated with these sites
and that many, if not most, pose very low levels of environmental risk.
An industry participant noted that in Nevada there are a lot more sites
than expected, but many of these sites do not have particularly
difficult environmental problems.
An environmental participant asked what was industry's perception of
the extent of the problem. One industry participant responded that it
is important to recognize that there1 is not a lot of consistency in
terms of the definitions that are used for active, inactive, abandoned
etc.; nor is there a lot of consistency regarding the assessment of the
nature of the problems at these sites. Also, industry does not have any
special knowledge about whether .sites are abandoned or not. He
indicated that to the extent that these sites pose environmental
problems, they clearly need to be addressed.
Agenda Review
The next item on the agenda that had been prepared for the meeting was
to continue the discussion of the how to regulate non-waste materials
that had begun at the last meeting. EPA representatives had prepared a
brief options paper on this topic and the facilitator suggested that
the group begin its discussion by referring to this piece. Several
industry participants indicated that they did not believe that they had
had enough time to review the document. EPA representatives indicated
that the ideas that were expressed in the paper were not particularly
new. Other industry participants indicated that they were interested in
discussing state/federal relations before the committee discussed
either the regulation of non-waste materials and/or technical
standards. State participants indicated that they shared this desire.
The facilitator noted that the agenda that had been developed for the
meeting was intended to allow the Committee to address the
interrelationship between technical standards, including the manner
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in which non-waste materials might be regulated, in the context of
state and federal relations. He reminded the Committee that, as
discussed at the first meeting, there is a bit of a "chicken and egg"
problem as to which issue to discuss first. He suggested that the
Committee review and discuss the second component of the document that
EPA had developed for the meeting which sets forth EPA's ideas about
how federal guidance on technical standards might be used to help
establish a certain type of structure and flexibility in the nature of
state/federal relations.
After some additional discussion the group agreed to this procedure
approach, i.e., to begin the discussion of state/federal issues by
focusing on the EPA document as it pertained to the use of federal
guidance.
Discussion of the Use of Federal Guidance on Technical Standards in the
Context of State/Federal Relations
An EPA representative stated that EPA had put together the discussion
piece labeled "An Example of Rule and Guidance Language for the Mining
Program" (see Attachment A) to provide an indication as to how
state/federal relations might be structured with respect the
establishment of technical standards through federal rules and guidance
documents.
Using the EPA document, the group discussed the relationship between
the use of federal guidance documents and regulations in the approval
of state plans and the establishment of enforceable environmental
standards. EPA representatives suggested an approach whereby federal
rules would set forth environmental standards in a somewhat general
manner and, in a guidance document, EPA would set forth their preferred
approach to achieving the standard. In this context, the term standards
does not necessarily refer to numerical standards but could be
technical requirements or an approach to achieving a desired outcome.
States would not have to follow the guidance but in their state plan
they would have to show how their approach is equivalent to the
"standard" set forth in the rule. Thus, EPA in their review of the
state plan would have to make'a determination regarding the equivalency
of the state plan in relation to the federal rule.
An environmental representative, using the example that EPA used in
their document regarding a set point of compliance, asked what the
corresponding federal rule would be for purposes of determining
equivalency. The group discussed various -standards" including
protection of human health and the environment or protection of the
resource or media. Environmental representatives expressed concerns
about how equivalency judgements would be made. They also stated that
even in instances where they were comfortable with how such judgements
were made, they questioned how often the implementation and adequate
enforcement of state standards will be reviewed against the federal
standards.
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State representatives asked how the federal guidance would be
developed. EPA representatives indicated that they envisioned active
state involvement in the EPA work group that would develop the
guidance.
Related to this, environmental representatives stated that the less
precise the federal rule will be that is used to judge the adequacy of
state plans, and the more reliance there is on guidance documents to
make these judgements, the more important it is for the public to play
a meaningful role in the state plan approval process.
This then led into a discussion of whether state plan approval
decisions and/or state permit decisions should be appealable. A state
representative indicated that in his state all current mine waste
permit decisions are appealable and that numerous decisions have been
made that were not appealed. An environmental representative responded
that the lack of appeals was not necessarily an indication of public
satisfaction with these decisions, but perhaps an indication of the
difficulties associated with filing appeals.
Industry representatives again expressed their view that there are not'
many gaps in existing state programs and that the design of
federal/state relations needs to account for this. Specifically, they
suggested that state programs need to be reviewed as to their adequacy
in terms of the protection of human health and the environment, rather
than in terms of their consistency with a set of federal standards that
are aimed at achieving that end.
The Committee spent some time discussing the possibility of partial
approvals and conditional approvals of state programs. During the
course of this discussion a distinction was made between mine waste
program components that were directly related to the regulation of mine
waste and those that were more general, such as water and air
regulations. As a result of this discussion, it became apparent that
EPA viewed the substantive dimensions of the state plan approval
process as including the possibility that states that have not been
delegated Clean Air or Clean Water Act authorities could continue to
rely upon the federal government in these areas. Likewise, if EPA
developed a plan for a state, EPA anticipated that it would continue to
rely on already delegated state water and air authorities. Thus, the
question of partial or conditional plan approval was largely focused on
those components that were directly related to RCRA mine waste
regulation, separate from Clean Water Act, Clean Air Act or other
relevant statues.
With regard to partial plan approval, EPA representatives expressed a
reluctance to utilize such an approach because they believed the RCRA
mine waste component would be much easier to administer if it were
approved on an all or nothing basis. Thus, they suggested an
approach-whereby EPA might issue a conditional approval of a state
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plan with a stipulated schedule for the state to come into full
compliance with the state plan approval requirements. This then led the
group into a discussion of what program components might be considered
"critical" to outright approval or, more importantly, conditional
approval (as explained below, the group ultimately decided to create an
interim wor,k group to discuss this issue further) .
The example of financial assurance came up again as an example of a
requirement that many of the states with mine waste programs either do
not currently have in place or, if they do, the state's requirements
are likely to differ from whatever federal requirements are adopted.
The question was asked whether such a situation would be critical to
plan approval, disapproval, conditional approval or partial approval.
EPA representatives responded that they had not gotten that far in
their thinking.
Environmental representatives stated that conditional approvals caused
them concerns because in similar situations their experience is that
the conditions usually never get met or are met inadequately. The
possibility of withdrawing approved programs was discussed and several
committee members stated that the experience in Subtitle C indicates
that such a step is a remote possibility. The group briefly discussed
the situation in a variety of states regarding Subtitle C program
approval, interim approval and withdrawal to clarify the current state
of affairs in this area.
State representatives argued that they did not believe the
administrative difficulties with partial plan approval were as great as
EPA suggested. Industry representative indicated that it was very
difficult for them to operate in situations were they have to answer to
"two masters." Given this, they expressed some support for the notion
of an all or nothing approach to program approval. However, they
emphasized again their view that states are, by and large, doing an
adequate job and that there needs to be some flexibility inherent in
the manner by which state plans are approved, disapproved or
conditionally approved.
An EPA representative stated that it is useful to keep the "big
picture" in mind when one is trying to grapple with any one piece of
the puzzle. Specifically, he noted that when EPA was preparing Strawman
II they attempted to insert a number of checks and balances into the
overall system of state/federal relations that not only were applied to
the state plan approval process, but to federal involvement in
permitting as well.
Preliminary Summary/Public Comment
In concluding the first day of the meeting, the facilitator verbally
summarized the group's discussions by identifying some possible
foundations for further discussions and some issues that require
further discussion. (This list was presented verbally at
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the end of the first day and in writing at the beginning of the second
day. The written version is attached hereto, as Attachment B, as it was
amended by the group's discussion of that document on the morning of
the second day.)
The facilitator asked if there were any members of the public that
wished to comment. With no members of the public indicating their
desire to do so, the first day's session of the meeting was adjourned.
TUESDAY June 18. 1991
AS note~ above, the facilitator introduced a document that attempted to
capture the essence of the previous day's discussions. This document
was broken down into two sections that included: possible foundations
for future discussions; and issues that require further discussion.
The second day's discussions began with some suggested revisions to
Section I of the document (see Attachment B which now incorporates the
revisions suggested by PDC members). The facilitator emphasized that it
was not important for the group to reach consensus on the specific
language used in the first section of the document, but rather to use
the points raised in that section as launching points for the
discussion of the issues outlined in Section-II of the document. Thus,
the language contained in the document should not be interpreted as
consensus language.
Discussion of the State Plan Approval Process
The first two issues raised in Section II of the document introduced by
the facilitator were:
A. Regarding federal approvals of state plans/programs, should this be
on an all or nothing basis or should partial approvals be permissible?
B. If partial federal approvals of state plans/programs are
permissible, should partial federal withdrawals of state programs, as
an enforcement tool, also be permissible?
In'discussing these issues, EPA representatives reiterated that they
shared the concerns of the regulated community regarding the difficulty
of "serving two masters." They also indicated that they were concerned
about duplication of efforts at the state and federal levels.
Therefore, they stated that they were not particularly interested in
partial approvals or, for that matter, partial withdrawals. Rather,
they suggested that the process allow for conditional approvals with
specified compliance schedules for obtaining full approvals. Thus, at
the time a state submits its plan for approval they saw three possible
outcomes: 1) full
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approval; 2) conditional approval with a compliance schedule; or 3)
non-approval.
EPA representatives also reiterated that in the case of nonapprovals
EPA would be relying upon states to continue to implement whatever
federal programs had already been delegated to it under the Clean Air
and Clean Water Acts. In the case of either full approvals or
conditional approvals they explained that states could rely on EPA to
continue to implement Clean Air and Clean Water Act authorities if this
was the status quo. Therefore, the evaluation of the adequacy of the
state plan would be judged primarily on how well the federal RCRA mine
waste regulatory requirements are met.
In taking the role of federal land managers into account, EPA
representatives indicated that they saw each state plan approval
process as comprising a matrix that would specify the roles and
responsibilities of the state, EPA and federal land managers for
implementing Clean Water Act, Clean Air Act, RCRA and other relevant
authorities on both private and public lands.
They elaborated by saying that if a state submits a plan that is 90%
complete in terms of the RCRA mine waste regulatory components," and
that plan covered all of the "critical" components regarding plan
approval, they would opt for conditional approval with a schedule for
complying with the remaining 10%. If a state plan is only 40% complete
in terms of the RCRA mine waste regulatory component, they would choose
non-approval.
The Committee then discussed situations in which a state submits a plan
that is only 80% complete. After some discussion the committee agreed
that a subgroup should be established to identify the complete list of
program components that need to be addressed in the state plan and the
subset of those components that should be considered "critical" in
terms of state plan approval.
The Committee discussed the difference between states that are
establishing new programs and those that are simply reporting on their-
existing programs. In the case of the former, EPA representatives
indicated that EPA may be able to provide technical assistance but, as
a general matter, they did not believe that federal funds are likely to
be available to assists states in actually running their programs.
Furthermore, they indicated that the availability of sufficient
resources within states will likely be a consideration in the review of
state programs.
Federal Oversight. Citizen Suits and Permit Shield Issues
The other issues raised in Section II of the document distributed by
the facilitator were as follows:
C. In order to balance flexibility in the nature of - state/federal
relations with mechanisms that will ensure
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effective program implementation, what additional "checks and balances"
would be helpful. For example, should:
-- the federal government be permitted to enforce permit conditions in
an "approved" state?
-- citizens be permitted to sue the state for failure to comply with an
approved state plan and/or the permittee, in certain circumstances, for
failure to comply with permit conditions?
D. If, to afford flexibility in the nature of state/federal relations,
a national mine waste program relies on a combination of "standards"
set forth in federal rules and (non-exclusive) options for how states
can meet these standards at the program approval level set forth in a
guidance document (as per EPA's discussion draft):
1) What degree of specificity will be required in the rule in order to
have the standards be:
-- subject to an "objective" analysisas to whether or not they are
being adhered to at the state plan/program approval level; and
-- enforceable at the permit issuance and compliance level by parties
other than the implementing agency (i.e., citizens at state or federal
level and EPA in the case of an approved state)?
During the discussion of these issues the group acknowledged that there
as a long history of serious disagreements among the interest groups
regarding enforcement and permits. In an effort to see more precisely
what the issues of concern are, the group identified four scenarios for
which the group wished to determine what the appropriate federal
oversight role should be or what the appropriate implication of a
presumed federal oversight role should be. These included
SCENARIOS THAT MAY REQUIRE SOME FORM
OF FEDERAL OVERSIGHT, ENFORCEMENT OR OTHER ACTION
1) A state with an approved plan is not adequately enforcing a permit.
Presumably, this situation, by definition, will mean that the state is
out of compliance with its approved plan.
2) Federal agency comments on a draft permit that is about to be issued
by an approved state indicates that the federal agency believes that
the state will be out of compliance with its approved plan if the
permit is issued as set forth in the draft.
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3) A permit has been issued by an approved state, the permit is being
adequately enforced, but conditions change or new information is
generated which indicate that there is a substantive problem with the
permit as issued.
SCENARIO FOR WHICH THE IMPLICATION OF A FEDERAL
ACTION NEEDS TO BE CLEARLY UNDERSTOOD
4) Conditional state plan approval does not result in final plan
approval or full plan approval is withdrawn -- what should be the
effect of these actions on state permits that had previously been
issued under conditional or full approval?
The Committee agreed that a second work group should be established to
explore options for each of these four scenarios.
Discussion of Industry's Draft Proposal for an Alternative Approach to .
Non-Waste Materials
Industry representatives distributed a written draft proposal for
discussion purposes that addressed an "Alternative Approach to NonWaste
Materials." They explained that this draft proposal was an attempt to
be responsive to the discussion at the last PDC meeting regarding the
concept of regulated materials. The proposal includes three basic
elements:
1) As a general requirement for approval, state plans would need to
specify how the impact of mine waste on ground water will be addressed;
2) Where the ground water protection component of a state plan cannot
be approved or is not submitted, EPA would develop a state-specific
federal plan that would:
-- if they exist, use existing"state ground water or aquifer quality
standards or procedures to develop such standards in the state-specific
federal plan; or
-- pursuant to a schedule established by the Regional Administrator,
require states to develop the ground water or aquifer quality standards
to be used in the state specific federal plans, taking into account
current and reasonably foreseeable future uses, scientific validity and
background water quality or
*
-- in the event that a state does not establish such standards, EPA
would use the National Primary Drinking Water Standards where the
current beneficial use is drinking water.
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3) EPA would have the authority to issue permits to waste management
units where a state-specific federal plan, or the ground water
permitting element thereof, is in place.
As explained by industry representatives, the last element was intended
to include EPA review of the design of mining units that at some point
in their life will become waste management units. The example that was
used in the written proposal and in the verbal description of the
proposal to clarify this concept was that of a heap leach unit. Since
heap leach piles are almost always disposed of in place, and thereby
become waste management units, industry representatives stated that the
federal government does have a legitimate role to play in reviewing the
design of such units under the traditional bounds of RCRA statutory
authority.
The group then discussed whether other mining units should or should
not be subject to the same treatment as heap leach units under this
proposal. Two examples that were posed by other Committee members
included mine pits that are likely to discharge or release waters to
ground water or surface water during post closure; and subgrade/lean
ore piles that have a potential to pollute (i.e., cause environmental
harm) during their existence due to releases and discharges to ground
water and surface water. Industry representatives responded that Clean
Water Act authorities could be used to address surface water
discharges.
The issue of how the draft proposal would address ground water releases
from mining units that may at some point in their life become waste
management units was raised, but not fully discussed. The issue of how
this proposal would address ground water releases from units that may
not become waste management units was also raised, but not fully
discussed.
The facilitator suggested that a third activity that should take place
between this meeting and the next is for each interest group to find
time to confer amongst themselves to consider this proposal further.
Thus, state government, federal government and environmental
representatives were asked to consider the proposal further and
identify any concerns that they might have, as well as suggestions for
how those concerns might be addressed. Industry representatives were
asked to consider the concerns that had already been expressed and to
explore ways in which such issues should be addressed within the spirit
of the draft proposal.
Next Steps
The facilitator summarized the agreed upon next steps which include
three interim tasks, the first two of which will require work groups
with one representative of each of the four major interest groups --
federal government, state government, industry and environmental
groups. The first work group will discuss what components in the state
plan approval process should be considered
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critical in terms of full plan approval and conditional plan approval.
The second work group will discuss how each of the four scenarios
outlined above regarding federal oversight should be addressed. The
third activity, which will not require a work group, is for each
interest group to consider the draft industry proposal for how to
address "non-waste materials."
The facilitator indicated that The Keystone Center will take the lead
in terms of coordinated the conference calls for the two work groups.
In addition, they indicated that they would set a deadline for comments
on the first meeting summary and distribute the final version of that
summary along with a draft summary of this meeting and an agenda for
the next meeting.
Public Comment
Mark Levin, a small miner from Colorado commented that he was concerned
, that the Committee not create a regulatory program that was too complex
or costly for small miners to comply with. There are many small miners
in Colorado and elsewhere who rely on their mining claims and
operations for their livelihood and if- this program is not designed
appropriately, such people will be put out of business. He cited
several examples of other federal regulatory programs that had led to
such results.
Following the public comment< the meeting was adjourned.
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Attachment A
Discussion Paper Distributed by EPA
for the July 17-18 PDC Meeting
Introduction
The purpose'of this paper is to summarize the two dptions raised at the
last meeting of the Policy Dialogue Committee (PDC) on Mining, and
introduce a new option, all of which may be used to control the
potential environmental effects caused by non-waste materials. It is
hoped that the paper will stimulate additional discussion of how to
regulate non-waste materials. Nothing in this paper represents a
federal agency position on the issue of how best to control nonwaste
materials, and the federal agencies are willing to discuss whether
different approaches may be more appropriate.
The first option is to identify those non-waste materials with a
potential to pollute and seek to regulate only these activities under
the mining program. The second option would involve the development of
a program to protect ground water from all sources; the implementation
of this option may not be limited to the mining industry. The third
option would require mine operators to prepare a facility ground water
protection plan for the entire mine site.
Whatever approach is chosen to control non-waste materials, it must be
coordinated with existing state and federal programs which may already
address the impacts of non-waste materials. Furthermore, the chosen
approach must also not interfere with the statutory authority of the
federal land managers.
Option 1
The Agency, in cooperation with the States, could evaluate the types of
non-waste materials commonly found at mine sites and identify those
that have caused environmental damages at sites. The statute would
require that a state would be required to discussion how such materials
.would be controlled in its state plan. This risk-based approach could
limit the number of regulated materials to only those which have caused
.environmental damages. Current data exists which indicate that ore
piles, rock-piles, heap leach piles, and mine waters have caused
environmental damages at mine sites listed on the National Priorities
List (NPL).
Option 2
New statutory authority to protect ground water could grant
jurisdiction over any surface or sub-surface activity which could
affect groundwater. There would be no regulatory distinction between
wastes and non-wastes. Rules would be promulgated that dictate specific
requirements that a facility operator would have
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to meet to be in compliance. Such rules could also involve minimum
monitoring and corrective action requirements.
At present, the Agency indirectly regulates groundwater either by
regulating wastes under RCRA, or controlling groundwater contamination
hydraulically linked to surface water discharges under the Clean Water
Act. This option is much broader in scope than current statutory
authorities.
Option 3
The state plan would require mine operators to develop,a facility
ground water protection plan. The state plan would discuss how the
state intends to enforce facility ground water protection plans. A
facility ground water protection plan would differentiate between
wastes and non-wastes regarding how they affect ground water.
The Agency could develop general guidance on what components it
believes should be in a facility ground water plan. The facility ground
water protection plan would, at a minimum, require ground water
monitoring and the initiation of corrective action at a site if
standards are violated. Other elements of a facility ground water
protection plan may include identifying the principal threats to ground
water, and how the plan complies with existing federal and state laws
affecting ground water. The mining program would not set minimum
federal technical requirements for the facility ground water protection
plan.
Specific requirements for a facility ground water plan would be left up
to the states. States, therefore, would be able to develop facility
ground water plan requirements more stringent than those noted in the
Agency guidance document. It would be left up to the mine operator to
demonstrate to the state that compliance with the plan would in fact
protect ground water. The Agency would not review or approve facility
ground water protection plans.
This approach could achieve two goals, protect ground water and be
preventible in nature. Since a plan would not differentiate between
wastes and non-wastes, both heap and dump leaches could be addressed as
well as other non-wastes.
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AN EXAMPLE OF RULE AND GUIDANCE LANGUAGE FOR THE MINING PROGRAM
Introduction
At the previous Policy Dialogue Committee (PDC) meeting, EPA described
its current thinking with regard to the Federal/State relationship and
the extent that EPA would develop national minimum technical standards.
In particular, it was noted that due to the differences in site
geology, climate, hydrogeology, topography, etc. that States need
maximum flexibility in developing the appropriate requirements that
should be imposed at each mine site. As a result, it was indicated that
EPA would not promulgate Federal minimum technical standards, but
rather, would'develop a rule that would require the State to develop a
State plan that would include procedures for establishing (or utilizing
existing performance and/or technology standards) and how a State would
implement/enforce such standards. To assist the State in preparing the
plan, technical guidance would be developed by EPA. This guidance would
discuss the various alternatives that could be used by the State to set
standards. The guidance issued would also include a procedural
framework on how to coordinate with1* Federal land managers regarding
program implementation on Federal lands.
The purpose of this paper is to describe this general concept and show
the relationship between the rule language and guidance language when
addressing a particular technical topic. The example will address
establishing a point of compliance for ground water monitoring. As we
indicated at the last PDC meeting, while this is EPA's current
thinking, we are willing to discuss whether a different approach may be
more appropriate.
Rule Language Applicable to Setting Point of Compliance for Groundwater
Monitoring
For example, the rule may read:
"The State plan shall address releases to ground water using
site-specific risk based and/or technology based performance standards
including establishing point of compliance for those performance
standards."
Guidance Language Applicable to Setting Point of Compliance for
Groundwater Monitoring
A guidance document would provide general information on how to
establish a point of compliance for ground water monitoring applicable
to all mines. Additionally, based upon sector and geographic specific
factors, more detailed examples would be provided.
General Guidance
For example, general guidance may read:
"Performance goal must be met at a location designated by the
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regulatory authority. That location must be in the uppermost aquifer
and within the property boundary of the facility. The location may be
either:
a. As close as technically practical to the predicted lifetime
boundaries of the mining waste management unit; or
b. An alternative location established by the regulatory authority
based on an evaluation ~f
i. Hydrogeologic characteristics of the facility and surrounding land;
ii. Volume and physical and chemical characteristics of leachate;
iii. Quantity, quality and direction of flow of groundwater;
iv. Proximity and withdrawal rates of current and potential future
users of the groundwater;
v. Availability of other sources of drinking water; vi. Public health,
safety and welfare effects.
Specific Guidance
Specific guidance applicable to a particular type mining operation or
specific climate, geology, topography, etc. may be helpful. For
example, in the case of setting a point of compliance for ground water
from a tailings pond with a very deep aquifer in an arid climate the
guidance may read as follows:
"When setting a point of compliance for ground water for a tailings
pond in an arid climate, a number of factors should be considered. The
depth of the aquifer and its predominate directional flow need to be
considered. Also, the permeability and porosity of the tailings
embankment, the acid generation potential or other applicable
characteristics of the tailings, the predominate directional flow of
liquids from the tailings ponds, the net evaporation rate, degree of
snow melt runoff and the likelihood of stormwater events resulting in
percolation should be considered." (Examples of setting the point of
compliance at a certain depth in the vadose zone and distance from tow
of tailings ponds would be given, if applicable.)
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Attachment B
DRAFT DISCUSSION POINTS
EPA MINE WASTE POLICY DIALOGUE COMMITTEE
6/18/91
I. POSSIBLE FOUNDATIONS FOR FURTHER DISCUSSION
A. A national mine waste program should acknowledge, account for, and
build upon existing state mine waste programs.
B. A national mine waste program should acknowledge, account for, and
build upon existing state and federal environmental programs, such as
Clean Air Act and Clean Water Act (NPDES) Programs and the existing
authorities of federal land managers regarding environmental
protection. However, it is acknowledged that there is currently no
groundwater protection program at the federal level.
C. Given these points, in developing a national mine waste program, it
is acknowledged that there is a need for flexibility in the nature of
state/federal relations and that this need should be balanced against
the need for mechanisms that will ensure effective program
implementation to achieve protection of human health and the
environment. It is further acknowledged that there is a need for some
form of federal oversight that, at a minimum, includes federal approval
of state programs through the submission of state plans.
D. For the same reasons (i.e., the need to balance flexibility in the
nature of state/federal relations with mechanisms to ensure effective
program content and implementation), it is acknowledged that there is a
need for meaningful public involvement at the state plan/program
development and approval level and the permit issuance level.
E_ A national mine waste program must also recognize that state mine
waste programs vary and that the purpose of a national mine program is
to raise the effectiveness of inadequate state programs rather than
decreasing the effectiveness of adequate state programs.
II. ISSUES THAT REQUIRE FURTHER DISCUSSION
A. Regarding federal approvals of state plans/programs, should this be
on an all or nothing basis or should partial approvals be permissible?
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B. If partial federal approvals of state plans/programs are
permissible, should partial federal withdrawals of state programs, as
an enforcement tool, also be permissible.
C. In order to balance flexibility in the nature of state/federal
relations with mechanisms that will ensure effective program
implementation, what additional "checks and balances" would be helpful.
For example, should:
-- the federal government be permitted to enforce permit conditions in
an "approved" state?
-- citizens b(e permitted to sue the state for failure to comply with an
approved state plan and/or the permittee, in certain circumstances, for
failure to comply with permit conditions?
D. If, to afford flexibility in the nature of state/federal relations,
a national mine waste program relies on a combination of "standards"
set forth in federal rules and (non-exclusive) options for how states
can meet these standards at the program approval level set forth in a
guidance document (as per EPA's discussion draft):
1) What degree of specificity will be required in the rule in order to
have the standards be:
-- subject to an "objective" analysis as to whether or not they are
being adhered to at the state plan/program approval level; and
-- enforceable at the permit issuance and compliance level by parties
other than the implementing agency (i.e., citizens at state or federal
level and EPA in the case of an approved state)?
2) By what procedures should the guidance documents be developed?
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Attachment C
DRAFT FOR DISCUSSION PURPOSES ONLY
ALTERNATIVE APPROACH TO
NON--WASTE MATERIALS
POSSIBLE GAPS
The concept of "regulated materials' was apparently developed to
address possible gaps in federal regulation of potential ground water
impacts of certain materials that are not solid waste, such as active
heap leach facilities. Even if existing state regulation of these
active production processes is wholly adequate to protect ground water
quality , there are two circumstances where such a regulatory gap are
possible:
o Where a state ground water program is inadequate, either through
deficiencies in its rules or their implementation; or
o Where a state has no ground water program but may have active
leaching operations.
In the first instance, EPA would be unable to require changes in state
requirements or its implementation of ground water regulation. In the
second instance, EPA would lack the authority to require a state to
develop ground water rules, or to impose a federal Mine Waste
Management Plan, that would be applicable to active production
processes.
When these circumstances are viewed in the context of the statutory
changes necessary to craft a federal Mine Waste Program, existing EPA
authorities under RCRA, and the recently released EPA Ground Water
Strategy, the true potential for regulatory gaps is actually quite
limited, and does not require the wholesale expansion of RCRA
jurisdiction contemplated by the "regulated materials" approach.
BASIS OF ALTERNATE APPROACH
o States with ground water programs can regulate waste and nonwaste
activities
o All states with active heap leaching operations already regulate
them under their water quality programs.
o Heap leach piles are usually disposed in place.
o When a heap is shut down, it becomes a waste management unit
subject to the requirements of a state or federal Mine Waste
management Plan.
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o It is EPA policy that leachate that escapes from an (active leach
facility) constitutes waste disposal and is within RCRA
jurisdiction.
o "A core premise" of EPA's final report of its Ground-Water Task
Force is "recognition of the primary State role in designing and
implementing programs to protect the resource consistent with
distinctive local needs and conditions."
ALTERNATE APPROACH
The following is provided as a general approach to the issue, not as
proposed regulatory language. This approach is designed to ensure that
existing state ground water programs are adequate to protect human
health and the environment, to allow EPA to require the development of
such a program where none exists, and to impose such a program where a
state fails to do so. It would extend existing RCRA ground water
authorities, and can substantially resolve the "regulated materials"
issue. These provisions are entirely consistent with EPA Ground Water
Strategy, and do not extend RCRA authorities beyond waste management.
1. As a general requirement for EPA approval, a State Mine Waste
Management plan would need to reference the statutory authority to
regulate the impacts of mine waste on ground water quality,
identify the agency or agencies to whom such regulatory authority
has been delegated, and describe the pertinent State regulations
controlling ground water quality at mine waste management
facilities. Regulatory approaches could take the form of ambient
numerical or narrative standards, discharge standards, minimum
technology requirements, or any other mechanism that is
enforceable and that can be used to limit ground water impacts so
as to provide for the protection of human health and the
environment .
2. Where a State plan, or the ground water protection element
thereof, can not be approved, or the State does not submit such a
plan or element for approval, EPA would develop (and implement, if
necessary) a State-specific Federal Plan.
In States which have numerical or narrative ground water or aquifer
quality standards, the federal plan would enforce such standards,
provided those standards meet EPA criteria.
In States which have no existing ground water or aquifer quality
standards, the Federal plan would enforce such standards, provided
those standards meet EPA criteria.
In States which have no existing ground water or aquifer quality
standards, but do have laws or regulation prescribing procedures to set
such standards, the State would be required to develop
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standards applicable to the waste management units in question,
pursuant to a schedule approved by the Regional Administrator.
In States which have no existing ground water or aquifer quality
standards, nor laws or regulations prescribing procedures to set such
standards, the State would be required to determine the current and
reasonably foreseeable beneficial use(s) of the aquifer downgradient of
the waste management units pursuant to a schedule approved by the
Regional Administrator. Based on the determination of beneficial use(s)
at the appropriate point of compliance. The standards would have to be
scientifically valid, and could be no more stringent than background
water quality.
In the event that a state with no ground water or aquifer quality
standards does not develop ground water quality standards, EPA would
establish the National Primary Drinking Water Standards as the aquifer
or part of the aquifer is drinking water, or where the aquifer is
designated as an underground source of drinking water as defined under
the Safe Drinking Water Act (except designated Class III aquifers).
3. EPA would have authority to issue permits to waste management units
where a State-specific Federal plan, or the ground water permitting
element thereof, where in Place.
CLOSING THE GAPS
All requirements applicable to closed leaching facilities, including
ground water quality performance standards as well as any design,
operating and closure requirements, would be subject to EPA review as
part of their approval process for State Mine waste Management Plans.
These same considerations would be addressed directly by EPA when the
Agency needed to develop and implement a State-specific Federal plan.
Whatever controls are necessary to maintain ground water quality
standards at a closed leach facility must be incorporated into the
design of the operational unit, due to the infeasibility of
retrofitting. EPA would therefore have input to the initial design of
leaching facilities as it relates to their closure. During active
operations, EPA's policy that releases constitute waste disposal would
appear to provide the Agency with "back-up" enforcement authority where
such a release actually presents a significant risk to human health and
the environment but where a State takes no action.
CONSISTENCY WITH EPA GROUND WATER STRATEGY
Considering the lack of any data indicating inadequate State regulation
of existing active leaching operations, the above approach to federal
oversight and enforcement presents the appropriate level of EPA
involvement, especially in light of the
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overall Agency policy articulated in the final report of the EPA
Ground-Water Task Force. In fact, the Report, entitled "Protecting the
Nation's Ground Water: EPA's Strategy for the 1990's" (Early Release
Copy, dated May 8, 1991) appears to be at odds with the intrusive
Federal presence contemplated by the expansion of RCRA to address
non-waste materials. Several statements made in this report are worth
considering in the context of the "regulated materials" issue:
In discussing the overall principles defining the Federal/State
relationship, the Report calls the State role "critical," and
continues:
"The Agency believes that while EPA will continue its role in
controlling major sources of contamination, the States (and Indian
Tribes) should retain the primary responsibility for the management and
protection of the ground-water resource and in addressing diffuse
sources of pollution. Such management may require decisions about
ground-water allocation.and land use which are appropriately the
province of state and local government." (Page 11)
With regard to State and Federal roles in regulating specific sources,
the Report concludes: ^
"In general, State and local governments should play the prominent
regulatory role. This is especially appropriate when the activities of
concern are...highly localized (e.g., vary in impact and number from
State to State and nationally present a low to medium risk potential."
(Page 12)
The Report's discussion of EPA review of State ground water programs .is
consistent with this alternative approach. The Report contains the
following statements:
"As States move toward designing and achieving a comprehensive approach
to protection of the resource, EPA will review and concur in State
ground-water quality protection programs submitted by the States. The
review will focus on "adequacy" instead of "consistency" -- the
threshold question will not be whether a State's program is consistent
with EPA criteria, but whether a program falls within a range deemed
"adequate" to protect a State's ground-water resource." (Page 14)
"EPA's review of State programs will be flexible and take into account
the unique characteristics of each State, as well as the different
stages of development of each State program. The process will be
interactive and iterative, with the States and EPA working together. It
will focus on assessing programs to identify gaps, and providing EPA
technical and financial assistance to States to address the gaps."
(Ibid)
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Where State ground water programs are deemed "adequate," the Report
characterizes the Federal presence as follows:
"To the extent authorized by statute and consistent with Agency program
implementation objectives, EPA will defer to State policies, priorities
and standards once a State has developed an "adequate" program. Under
this policy of deference, EPA will study and identify ways in which the
Agency can defer to State decisions in implementing Agency programs."
{Page 15)
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U.S. ENVIRONMENTAL PROTECTION AGENCY
MINE WASTE POLICY DIALOGUE COMMITTEE
' ' MEETING SUMMARY
July 25-26, 1991
San Francisco, California
Thursday, July 25, 1991
Introductions and General Discussion
The facilitator opened the meeting by welcoming the Committee members
and noting that there would be time for public comment at the end of
the day.
Next, the facilitator reviewed the suggested agenda for the meeting and
explained how it differed from the draft agenda originally sent to
Committee members. Rather than beginning with the discussion of
enforcement and the four scenarios drafted at the June meeting, it was
felt that the discussion of enforcement should be delayed until the
September meeting when EPA would be able to fully participate in the
discussion. It was noted that EPA's participation is currently
constrained because they are undergoing an internal decisionmaking
process on enforcement.
With agreement on the agenda for meeting, the facilitator then asked
and received comments on the draft meeting summary from the June
meeting in Denver. He noted that in the future, The Keystone Center
will send the draft meeting summary out to Committee members prior to
the subsequent meeting for their review. Comments will then be taken at
the beginning of the next meeting. Committee members requested that
they be given as much time as possible to review the draft meeting
summaries.
Next, the facilitator turned to C. Bowdoin Train, EPA's Deputy
Assistant Administrator for Solid Waste and Emergency Response, who
wanted to make a few opening remarks. Train began by thanking the
Committee members for their hard work. He specifically commended the
industry members for coming up with a proposal to address nonwaste
materials. He reiterated that there is interest in the PDC's efforts at
the highest levels of EPA. To illustrate his point, he noted that last
week, EPA Administrator Bill Reilly had been briefed on the PDC effort
and Deputy Administrator Hank Habicht was scheduled to be briefed the
week following the meeting. He also noted that the Agency has received
a number of inquiries from Congressional members about the possible'
structure of a mine waste program.
Train concluded his comments by stating that he was interested hearing
PDC members comments on the Program Options Paper prepared
by EPA representatives to the PDC. He also identified three areas of
particular interest to him:
1. Public participation in state plans and permits;
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2. Concern about other sources of pollution from non-waste materials
beyond heap and dump leaching; and
3. The "dual master" problem where permittees would be subject to
different regulatory interpretations from the state and the EPA.
Presentation and Discussion On EPA's Program Options Paper
An EPA representative presented the Program Options Paper (see
Attachment A). He began by noting that the document is a staff level
effort that does not represent EPA's position but is a vehicle to
facilitate discussion. The first item presented addressed reactions to
and ideas about industry's proposal on how to regulate non-waste
materials. The paper supports the industry proposal presented at the
Denver meeting which would require states to identify the regulatory
programs they utilize to control threats to ground water from mine
waste management units. The industry proposal would include giving
regulatory authorities the clear authority to review the design and
closure of heap leaching facilities. EPA's Program Options Paper
identifies concerns about other activities or operations which may also
become waste management units. To handle these units, it was suggested
that owner/operators be required to develop a facility ground water
protection plan that would specify actions to be taken to protect
ground water including monitoring and initiation of corrective action
if state standards are violated.
The second item addressed was the Enforceability of the Program. This
portion of the document addresses the question of how specific the
federal program must be to ensure adequate enforcement. The Program
Options Paper outlines three or four areas identified by the EPA
representatives where a national base for the program, a federal
minimum standard, should be established. The areas identified are
financial assurance to cover closure and corrective actions, procedures
for establishing a specific point of compliance, the establishment of
ground water standards and procedures for determining when a unit has
to begin closure, r t was noted that if this approach was pursued, the
Agency would anticipate writing regulations so that these minimum
standards would be enforceable by States, Federal Agencies, EPA and
citizens.
The third item in the Program Options Paper is EPA Involvement in
Permitting. This issue is raised due to industry's concern about the
possibility of having a "dual master" and the environment'-'
community's concern about EPA's ability to intervene at the Pe - -
issuance level. This proposal would give EPA the authority to sign-off
on all permits at high risk mining facilities. What qualifies as a high
risk facility would have to be defined.
Non-Waste Proposal
With the completion of the presentation, the facilitator suggested that
each proposal should be addressed separately. Thus, he began by asking
for questions of clarification on the options for regulating non waste
materials
?
A variety of clarification questions were raised by the Committee
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members. As a result of the questions, the following information was
provided which increased the understanding of the proposal:
The ground water plan would cover the entire facility and all potential
sources.
The state would review the plan where they have the lead: EPA would do
it for states without a state lead
EPA would need legislation in order to be able to require such a plan.
The plan would apply to units in addition to heap leach units.
The question of how to achieve groundwater protection standards would
be left to the states and the owner/operator to determine.
Plans would address closure and operation.
The plan would be a part of the permit, therefore EPA's concerns could
be raised within the permit process.
The proposal focuses on ground water because that is where a gap
currently exists.
The facilitator then asked for Committee members' reactions to the
Non-Waste Proposal. One industry representative observed that they
favored a ground water approach since it provided general protection
regardless of the source of pollution. Other industry representatives
noted that it is important to them that even when a performance
standard could be established that specific techniques for achieving
that standard not be specified. An industry representative also raised
a concern that states may not be willing to take the lead on ground
water plans due to inadequate resources, staff and money. Thus, the EPA
would end up with the lead and the dual master problem would result.
Overall, the industry representatives felt that they needed more time
to consider the proposal before making a judgement.
An environmental representative reiterated their concern about the use
of guidance with its lack of specificity. Additionally, concern was
expressed about the focus on one media, ground water, as the means to
address potential pollution problems. Another environmental
representative noted that the approach taken by EPA was creative.
Another noted that he liked the idea of a ground water plan and the
intent to look holistically at the site, however, he was unsure about
what else would be included in this approach.
Several state representatives also raised concerns about the focus on
one media. They felt that other media such as surface water and air
quality should also be considered which is why the states had developed
the regulated materials concept. It was also observed that the original
set of issues identified by the PDC are linked and that those
connections should not be lost by focusing on one media. Another state
representative raised a concern about the implications of having a
federal program that specifically addresses non-waste issues.. He noted
that many states are already regulating specific non-waste units as no
discharge units under existing laws. He felt that the expansion of
coverage to the entire site may result in less effective regulation. An
EPA representative noted that there was nothing in their proposal which
would prevent the states from being more stringent.
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This observation raised a related procedural,problem which state
representatives felt needs to be addressed by the PDC. The procedural
problem is that in many states they cannot be more stringent than the
federal government according to their respective state law or
constitutions. As a result, if EPA establishes a standard, the states
may have to relax theirs since they cannot exceed the federal standard.
A state representative noted that this problem may be a reason for
having the EPA take a broad approach to standard setting, since without
specific standards, states that are in these situations could more
easily avoid the problem. An environmental community representative
suggest that this problem could be addressed directly with language
from the federal statute. However, several state representatives noted
that such language had been used in other federal environmental
statutes and had not prevented the states from having to relax their
standards.
i
The facilitator addressed the question of not overlooking other media
and the linkages between issues by noting that the use of a single text
proposal will allow the examination of linkages. Additionally, he noted
that any decisions made by the Committee are tentative until all issues
are addressed. Thus, there is an opportunity for the interactions and
linkages to be examined
»
Enforceability of the Program
The facilitator then asked for clarifying questions on EPA's
discussion of the program. In response to questions, the EPA
representatives explained that the four areas selected within the
proposal for possible minimum federal standards were chosen because
they were not linked to geology or design and were areas which they
perceived as not needing as much flexibility. They also noted that the
areas picked had a technical focus and were presented as examples. In
discussion, they agreed that there may be other critical elements with
a procedural focus which would benefit from a federal minimum standard.
EPA representatives also agreed that a federal minimum standard could
be a procedural or substantive standard
The first set of reactions focused on the issue of determining state
plan adequacy. An environmental representative suggested that each
critical plan element should have a federal minimum standard. Without a
substantive or procedural standard, he felt that there would be nothing
to judge adequacy against.
On a slightly different tack, another environmental representative
noted that the EPA is pursuing a guidance approach, without minimum
standards, because they desire flexibility. He noted that guidance is
not the only means to get flexibility. Specifically, he stated that
rules can specify standards and/or options for achieving standards
while maintaining flexibility. His concern was that with guidance, one
is left without the procedural protection that would be afforded by the
rulemaking process under the Administrative Procedures Act. He and
other environmental representatives also expressed specific concern
about the difference in public participation requirements afforded
under a rulemaking process in comparison to those required when
developing, a guidance.
Several state representatives were concerned about their flexibility in
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interpreting the guidance. This concern focused the discussion on "What
is a guidance document? Is it a suggestion or another form of
regulation?" and "How does it relate to rulemaking?" In response to the
question of "What is a guidance document?", an EPA representative
stated that a guidance document establishes an objective and provides
technical input to the states about their different options. The states
would then be free to choose which option(s) to include in their
program or they-could chose another method which was equivalent. It was
stated that EPA sees guidance as including a range of options from
specific numbers to a general statements.
The broad spectrum of what can be considered to be guidance raised a
red flag to a^ diverse set of members on the Committee. They observed
that the question of whether a guidance is really just a suggestion or
a defacto rulemaking depends upon how it is used. As a simplification,
current case law seems to suggest that with a vague rule, the more a
guidance becomes the real basis of decision, the closer that, one comes
to having the "guidance" be interpreted
by the courts as a defacto rulemaking. With a less vague and more
specific rule, if the guidance document only has technical options and
is not used as the basis for decisionmaking, then it is not likely to
interpreted as a rulemaking.
Committee members from industry, the states and the environmental
community all agreed that understanding the potential legal
implications of relying on guidance documents as well as its
implications for the design of the program and the plan approval
process was important. They encouraged EPA to go back and think-about
their intent and goals as they consider which approach to pursue.
EPA Involvement in Permitting
This proposal was not discussed until the second day of the San
Francisco meeting when it was discussed in the context of Chart C EPA
and State Roles Permit Review and Issuance presented by the state
representatives (see below).
Discussion of Elements of A State Mining Waste Plan
The facilitator began by distributing a revised version of a document
entitled, "Elements of a State Mining Waste Plan" (see Attachment B).
This document had been developed for purposes of the state plan
approval subgroup and had been revised in response to the conference
call held by this subgroup on July 12th. Those participating in the
conference call, one from each interest group, felt the right items
were identified although they had questions about the implications,
level of detail required, etc.
The discussion began with the identification of critical elements to be
added or deleted. The attached version of the "Elements of a State
Mining Waste Plan" is the updated version which contains those changes.-
The additions are redlined and .deletions are crossed out (see
Attachment B).
At another point in the discussion, the Committee identified which
elements they felt were critical and thus had to be a part of any
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approved plan whether conditional or partial. It was suggested by some
PDC members that all of the eleven elements identified were critical
except for item ten and some specific aspects of items five, seven, and
eleven. In relation to item ten, waste .minimization, many of the group
felt that it should not be identified as a critical plan element.
However, the environmental representatives felt strongly that this
element should be considered critical in the plan approval context.
After some clarifying discussion, others in the group explained that
the reason for not identifying the element as critical was not because
the element was perceived as less important but because it was felt
that it would take additional time to determine what was meant by
waste minimization in the mining context and what could be achieved .
Also, the following areas were identified as additional issues to be
considered as the Committee discussed a national mine waste program and
the elements of state mining waste plans in particular:
The process for modifying a state plan due to changes in regulations,
the .situation, etc.
Abandoned mines and inactive sites.
Conflict of interest standard by the states.
With respect to inactive sites and abandoned mines, some in the group
disagreed whether it should be addressed in a state mining waste plan.
Conditional and Partial State Plan Approval
The discussion then shifted to clarifying and understanding the
difference between conditional and partial approval of state plans. The
following reflects the facilitator's understanding of the two concepts:
Conditional approval could occur if the state plan had the elements
identified by the EPA as critical and had a timeline for obtaining the
other elements. Without the elements defined as critical, a plan would
not be approved. Ultimately, all of the elements specified by EPA would
become a part of the plan. If the state eventually failed to add those
additional elements within the specified timeframe, the state would
lose control of the program. During the interim period, there would be
no program.
Partial approval would occur if the state plan had all of the elements
required by EPA except "X" element(s) (e.g. financial assurance). In
its guidance, EPA would identify specific elements which states could
allow EPA to have jurisdiction over. It would suggest that this would
not establish a "dual master" situation since only specific elements
would be handled in this manner and thus, would be under federal
jurisdiction while the rest of the program would be under state
jurisdiction. The state plan would have to specifically address how
coordination between the state and EPA would be handled .
The facilitator then asked the Committee members for their reactions to
these concepts. A variety of concerns were raised during the
discussion. Several state representatives were concerned about
conditional program approval because a state could have 90 percent of
the elements and still lose the program.
Environmental and industry representatives were concerned about the
discreetness of issues and thus, the ability to carve out discrete
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.elements for federal management under the partial approval approach.
For example, an environmental representative noted that while EPA
perceives financial assurance as a discrete issue, they felt it is
linked with enforcement and corrective action authority.
Concern was also expressed about how permits issued under a conditional
plan approval during the interim period would be treated.
A concern was voiced that since both approaches require a significant
role for EPA, EPA will not have sufficient resources to run the program
under a partial or conditional approach or have the capability to take
over a state program under a conditional approval if the state fails to
achieve compliance within the time specified.
As a part of the discussion, Committee members identified other
elements besides financial assurance which might be considered for
partial program approval. These included ground water, closure, post
closure, corrective action, and soils.
Much of the discussion of partial versus conditional plan approval used
financial assurance as an example. During that discussion, the
environmental representatives raised concerns about how the process
would work. They asked if the federal government was responsible for
financial assurance would they cover inadequate bonds? Another
environmental representative raised the question of who would forfeit
the bond which he characterized as the ultimate enforcement decision,
thereby noting the link between financial assurance and enforcement.
An industry representative raised concerns about whether the financial
assurance requirement would be a rigid, arbitrary sum or whether it
would reflect the potential for damage.
A state representative noted that to comply with financial assurance
requirements as a part of their plan, many states would have to seek
major statutory changes. This observation raised a concern which is the
scenario where a state has conditional approval and they make a good
faith effort to get legislation on financial assurance or some other
non-critical element. However, due to the nature of the legislative
process, they do not succeed. Do they then lose the entire program? He
concluded that this needs to be addressed by the PDC.
Another state representative noted that some states would chose to
include financial assurance in their program rather than try to
coordinate with EPA.
With a better understanding of conditional and partial approvals
It was decided that both approaches should be kept on the table for
further discussion.
Before opening the floor to public comment, the facilitator reminded
the Committee members that the eleven elements of a state mining waste
plan needed further elaboration. To achieve that, he would make
assignments the next day.
Public Comment
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Bruce Humphries, from the Colorado Department of Natural Resources
spoke. He raised some concerns about congressional staff having
discussions with EPA about the mine waste program. He feels that the
PDC should discuss how EPA would handle these discussions. He a so
noted that EPA's high risk facilities proposal had the potential to
create gaps where none now exist. It was his feeling that in Colorado,
the state might decide not to get involved at all with such sites and
let EPA handle them in order to avoid duplications of effort.
With the conclusion of the public comment, the meeting was adjourned.
FRIDAY, July 26, 1991
The second day began with a discussion of logistics for the September 4
and 5 meeting irl Charleston, South Carolina. It was decided that the
meeting would begin at 8:30 a.m. and end at 5:00 p.m. on September 4
and begin at 8:30 a.m. and end at 5:00 p.m. on September 5. The mine
tour will be held on September 6. A bus will take participants from
Charleston to Columbia visiting the mine site on the way. The tour will
end in time for individuals to catch planes out of Columbia that
afternoon.
^
It was decided to hold the October 22-23 meeting in Tucson, Arizona. A
mine tour to a copper mine will be held on October 21.
Additionally, participants were asked to hold September 24, 1991
available for a possible conference call or work group meeting.
Also, it was decided that the meeting after Tucson would be held in
Washington, B.C.
Elementsof a State Mining Waste Plan (continued)
Given the previous day's discussion, the facilitator noted that it is
important to further describe and refine the eleven elements outlined
by EPA. He suggested that the best way to get at the issues inherent in
each element and to focus discussion was to have something written on
paper for each element. The facilitator proposed the assignment of
elements to specific interest groups for a first cut. The facilitator
suggested that the ideas to be
i
developed by the lead interest group for each of the state program
elements should be creative and attempt to reflect options which are
responsive to the concerns of other interest groups rather than
reiterations of previously stated positions. It was also suggested that
the problem of linkages between elements could be addressed by listing
the assumptions made about those other elements. Although the majority
of elements would be assigned, it was anticipated that the next meeting
would only address a subset of the elements.
Presented with a list of which elements to consider, the Committee
members raised a variety of issues about which elements should be
included. After some discussion, the interest groups asked for an
opportunity to caucus to consider how to proceed.
After the caucuses, the PDC members were supportive of the concept of
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assigning a lead interest group to coordinate drafting a first cut at
the issues for each element. However, they felt that the review process
should be done in subcommittees instead of through conference calls.
Thus, it was decided that the first day of the September meeting would
be spent in subcommittee meetings. This then precipitated a discussion
of whether such meetings would be open to the public. After consulting
with Deborah Dalton, the designated Federal Representative for FACA
purposes, it was concluded that the subcommittee meetings did not have
to be open since they were not making a decision for the whole group.
Thus, the PDC had a choice if they wanted the subcommittee meetings to
be open or not. The group decided to have the meetings open for
observation by the public just as the large PDC meetings are.
It was also suggested by PDC members that after'three or four program
elements had been discussed by the entire group, a subgroup should be
formed to look at the linkages between those elements.
Since it was observed by several PDC members that each element will
require a different amount of work, the facilitator concurred that each
effort will be at a different stage of development by the September
meeting. Some will have a paper drafted while others will just have an
outline. The lead interest group for each subcommittee was encouragedm
to get as far as possible prior to the September meeting.
It was decided to concentrate on drafting issue papers for elements 3,
4, 5, 6, and 7 of Attachment B. Each interest group would be assigned
to take the lead on at least one element. They would be responsible for
initiating the development of options for that element. The interest
groups were assigned as follows:
Element 3: Implementation procedures: STATES
Element 4: Regulatory mechanisms: STATES
Element 5: Technical program requirements: INDUSTRY
Element 6: Public Participation: ENVIRONMENTAL
Element 7: Enforcement: EPA
The facilitator requested that the Committee members inform The
Keystone Center staff of who would be their lead individual on their
assigned elements and who would be their representative on the other
subcommittees.
Discussion of State Prepared Flowcharts on State Programs and
Permits
Next, the Committee reviewed two of the flowcharts prepared by the
state representatives. Since Charts A and B addressed enforcement
issues, they began with Charts D and C. (See Attachment C.) Chart D is
titled State Mine Waste Management Plan Development Process. Chart C is
titled EPA and State Roles in Permit Issuance. The charts were
explained by a state representative to provide Committee members with a
better understanding of their content and thus, a basis for future
discussions. It was also suggested that the other interest groups
should consider developing their own flow charts. Some of the issues
identified for further discussion include the opportunity for public
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participation and what the federal role will be in the permit process,
The facilitator asked if there were any members of the public that
wished to comment. No-one expressed a desire to do so, thus, the
meeting was adjourned.
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ATTACHMENT A
Program Options EPA Representative to the PDC 7/10/91
Introduction
A number of issues were discussed at that last meeting of the PDC
in June, 1991 regarding how a national mining program should operate.
The mining industry presented its Alternative Approach to Non-Waste
Materials, and there were also discussions about how the program should
be enforced and whether a permit issued under this program should be
used as a "shield".
i -
The purpose of this paper is to present our initial thoughts to those
discussions and to offer some possible alternatives in dealing with
those issues. None of the alternatives presented in this paper reflect
the final position of the Agency and have not been reviewed by the
federal land managers.
Non-Waste Materials
The mining industry presented an alternative approach to the concept of
"regulated materials" at the June, 1991 PDC meeting. This approach
would require states to identify the regulatory programs they utilize
to control threats to ground water from mine programs they utilize to
control threats to ground water from mine waste management units. If a
state did not submit a plan, EPA would develop a State-specific Federal
plan;, The industry approach acknowledged the need to control materials
which ultimately become wastes, Furthermore, the approach stated that
EPA should have input to the'initial design of leaching facilities as
it relates to their closure when EPA is implementing its State-specific
Federal plan.
We support the industry concept that regulatory authorities should have
the authority to review the design of leaching facilities. Standards
for the closed unit would be incorporated into the design of the
operational unit due to the infeasibility of retrofitting.
However, other activities or operations may also become waste
management units at the end of their useful life: our concern would be
how to control these operations. One approach to addressing these
operations would be to try to identify them as we did for leach piles.
Another approach, and one that may be more appropriate, would be to
require owner/operators to develop a facility ground water protection
plan that would specify actions to be taken to protect ground water
including monitoring and initiation of corrective action if State
standards are violated. Such a ground water protection plan would,
therefore, deal with materials not deemed likely to become wastes, but
which could have the potential to contaminate ground water.
Enforceability of the Program
Representatives of environmental groups have noted their concern that
it would be extremely difficult for the Agency to enforce requirements
66
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of a state plan if those requirements were not quite specific. The
environmental community has noted in the past that it supports the
creation of federal minimum technical standards.
While we generally believe that the use of guidance will be appropriate
in reviewing state mining waste management plans to determine their
adequacy, there may be a few areas where the use of federal minimums is
appropriate in order to minimize risk to human health and the
environment. Some possible areas where we may want to set such minimus
are: specific requirements for financial assurance to cover closure and
corrective action, procedures on establishing a specific point of
compliance, the establishment of ground water standards, and procedures
for determining when a unit has to begin- closure. Should a national
program include minimums, the Agency would write regulations so that
these minimums would be fully enforceable by States, Federal Agencies,
EPA, and citizens.
EPA Involvement in Permitting
The industry indicated that it needs to know who it must satisfy from a
regulatory standpoint when both the state and EPA have roles in
permitting. The environmental community has noted concern that the EPA
would have no means of addressing a draft permit it finds
inappropriate, other then commenting on it.
We are considering Nan alternative approach which addresses both
concerns. EPA would have the authority to approve all permits at high
risk mining facilities. We would develop regulations that define a
high risk facility. For all other permits, the Agency may review and
comment on the permit and the State must address all of the Agency's
concerns.
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ATTACHMENT B
U.S. EPA Mine Waste Policy Dialogue committee
July 25-26, 1991
, San Francisco, California
ELEMENTS OF A STATE MINING WASTE PLAN
Listed below are the program elements that the PDC work group suggests
should be addressed in a State Mining Waste Plan. This is.intended to
be a complete list, that is, both those necessary for initial plan
approval and those other elements that states must add in order to
maintain program approval. The examples provided with some of the
elements are tmeant to illustrate types of requirements, not to indicate
specific policy choices or directions. As the work group discussed
these item, it became clear that people's opinions regarding which
items should be deemed the minimum necessary for plan approval (i.e.,
"critical to plan approval) are directly related to the scope and
content of the requirements.
The State Plan Should: > .-»
1. Identify all State (including point of contact), Federal, regional,
and local agencies that are responsible for implementation of various
components of the State Plan and describe the procedures for addressing
coordination and integration of the program.
(The WGA Mine Waste Task Force endorsed the concept of a single point
of contact, to enhance coordination. The WGA did not advocate that
states should centralize authority under this concept. Instead, the
single point of contact would act as a "tour guide not a traffic cop."
At the same time, states where mine waste permitting was centralized
were no- prohibited under this concept from maintaining that
organization.)
2. Describe each agency's statutory and regulatory authority to
implement its responsibilities under the State Plan on Federal, State
and private lands within the State's borders.
3. Describe each agency's existing or planned procedures for
implementing the authorities (organizational and functional structure
and resources).
4. Address the regulatory mechanism(s) (e.g., permits, approvals,
project authorizations or other enforceable instruments) that the state
intends to use to authorize t~e operation of new units and to require
compliance and~or closure of 'existing units.
5. Describe the means by which the state will carry out the technical
program requirements and develop permit conditions (e.g.,.performance
standards, design standards, closure requirements, characterization,
ground water monitoring reporting).
6. Provide for: public participation in State Plan development and
program actions (e.g., initial approvals, significant modifications, or
where applicable renewals of permits,
application, closure, post closure and whistleblower protection) prior
. 68
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to significant modifications to or renewals of State Plans; opportunity
for citizen suits; and provision for citizen-access to information and
data
7.- Address- the activities each agency will use to achieve compliance
with the State Plan. .
»
Imposition of financial or other penalties related to financial
assurance requirements.
Reporting
8. Describe how the agencies would carry our corrective action or
remediation when violations of trigger levels have occurred.
10. Describe the manner in which waste minimization/pollution
prevention are being addressed.
11. Describe the program implementation schedule including any
modifications in statutory and regulatory requirements, and
incorporation of the non-critical elements. Also, describe what
phasing, if any, the State may undertake for low risk type of mining
operations.
211\07\06-053a.das
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ATTACHMENT C.
To: Policy Dialogue Committee Workgroup No. 2 Members
From: Richard D. Andrews, WGA Mine Waste Task Force Consultant
Date: July 18, 1991
Subj: Material for PDC Workgroup No. 2
Attached are some suggested draft materials for use in discussion of
the PDC Workgroup No. 2.
Illustrative Charts and Table
Attached are several flowcharts.which may help to illustrate the
various scenarios federal oversight and state/federal enforcement
roles.
(NOTE: CHARTS ARE NOT INCLUDED ON ELECTRONIC VERSION)
Chart A:.EPA Audits of State Programs
This chart illustrates the process of EPA audits and the
response of states in the event that program deficiencies
are found in the audits.
Chart B: EPA Enforcement of State Permits (after state issuance)
This chart presents the circumstances In which EPA could
take enforcement actions on a state permit. It also
indicates EPA enforcement of permits issued by EPA in
partial or non-primacy state.
Chart C: EPA and State Roles In Permit Issuance
This chart gives the sequence of events associated with EPA
involvement in permit applications and issuance. It should
be noted that the WGA Task Force assumes that the normal
circumstance will be that EPA is not involved in routine
permit application and issuance matters. However, in the
defined triggering events, EPA may become involved. The
final permit condition and issuance decisions still reside
with the states. In finalizing this chart, it might be
useful to insert public input blocks.
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Chart D: State Mining Waste Management Plan Development Process
This chart provides the decision, development and approval
process for a state plan to reach implementation and EPA
approval so that it can be federally enforced. It is
descriptive of the WGA Task Force recommendations as of -
April 1990.
Table of EPA and State Roles:
In support of the last question posed by the PDC and
formulated by Keystone is a suggested table. This table is included
for the use of the PDC workgroup and perhaps the full PDC. This is a
table (matrix) with EPA and state roles presented for several different
possible situations involving conditional full, conditional partial,
unapproved, nori primacy seeking, partial withdrawals and full
withdrawal of program. Given are the possible effects on state permits
and the recommended division of responsibilities of the state and EPA.
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U.S. ENVIRONMENTAL PROTECTION AGENCY
MINE WASTE POLICY DIALOGUE COMMITTEE
MEETING SUMMARY
September 5, 1991
Charleston, South Carolina
INTRODUCTIONS AND GENERAL DISCUSSION
The facilitator opened the meeting by welcoming the Committee members
and noting that there would be time for public comment at the end of
the day.
Next, the facilitator noted that work group meetings had been held the
previous day as agreed at the San Francisco meeting. He explained that
the work group meetings do not fall under the Federal Advisory
Committee Act (FACA) since decisions were not being made. However, the
PDC had decided to have them open to the public. The facilitator then
explained that the majority of this PDC plenary session would be
devoted to summary presentations of the work group discussions. Thus,
this meeting summary reflects the summary plenary discussion, not a
detailed summary of the previous day's work group discussions.
The facilitator noted that each work group summary and discussion would
be approximately 45 minutes long and should focus on key points from
the work group discussions. The facilitator asked the PDC members to
focus their questions on the issues which were discussed within the
small groups and to refrain from addressing issues which had not yet
been addressed by the work groups. To assist in developing the agenda
for the next meeting, the facilitators noted that they would be
tracking critical questions, issues and linkages which arise during the
discussions.
Before beginning the presentations, the facilitator addressed the issue
of the relationship of the Policy Dialogue Committee (PDC) to
'Congressional activities. He noted that there were several hearings on
related issues scheduled in the next week. At previous PDC meetings,
the members had agreed that members and alternates would not be
constrained i~n their activities in other fora. It was acknowledged
that PDC member's statements may be of a different character and
content on the Hill than have been made in the PDC process. However,
the facilitator cautioned thaf it would be harmful to the trust
relationships which have been established within the PDC if people
characterized views of other members as they relate to issues in front
of the PDC in a public setting. From the resulting discussion, it was
determined that it would be appropriate to quote PDC minutes, however,
members should avoid characterizing the degree of .support by the other
PDC members. The facilitator ended the discussion by asking that if PDC
members hear a statement about PDC discussions with which they are
uncomfortable, they should speak to that individual directly, or one
of the Keystone facilitators so that the situation it can be clarified.
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WORK GROUP SUMMARIES
Recrulatorv Mechanisms
The states were the lead interest group for the regulatory mechanism
work group. They prepared a discussion paper which outlined several
different regulatory mechanisms which could be used.
As a preface to their discussion, the work group felt it was important
to note that the options presented and discussed were not mutually
exclusive nor exhaustive. The different options considered were:
A: Multiple permits and agencies;
B: Single permit, one agency;
C: RCRA master referencing permit - one permit lists all RCRA aspects,
single coordination point, multiple agencies issuing permits;
Df Integrated Federal and State Permits;
E: RCRA Subtitle Basis for Regulatory Mechanisms; and
F: Umbrella permit - one permit lists all aspects related to mining
waste program (includes non-RCRA aspects), multiple agencies, single
coordination point.
In their discussions, the work group only considered options A, B, C
and F. The focus of their discussion was to identify the positive and
negative aspects of each option. To facilitate their discussions, they
made the following assumptions:
A state mine waste program exists
The state program addresses the gaps in regulatory authority and has
the required elements
To guide their evaluation of the options, the group established a set
of factors to use. They are as follows:
- Oversight
- Accountability
-Public Involvement
-Technical Expertise
-Efficiency
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-Compatibility with Established Programs
-Cost
-Clarity of Process
-Multi-media/cross media
-Agency Coordination
-Intrastate Communication (consistent policy)
i
As a mechanism to understand the distinctions between each of the
options, the work group created a chart listing each option on one axis
and the factors on the other (see chart in Appendix A). Pluses equaled
a strength, zero equaled neutral and minuses were weaknesses. The
minuses were seen as weaknesses, but did not mean an option was
unworkable. If the group had time, which they did not, they had
intended to go back and consider means to address those problems. The
chart was not a matrix to be used to select the "best" option, but was
seen as a mean's to clarify the differences between the options and to
increase understanding of them .
The work group did not select a preferred option. In closing, they
reiterated that there were other permutations to consider. They also
noted that the work group did not get a chance to discuss the RCRA
subtitle basis for addressing mining waste nor were they able to
address formats for permits or state^federal relationships which they
felt was addressed in element 1 of the State Plan Elements (see
Appendix B).
In the ensuing discussion among the PDC members, further explanation
was desired regarding option F which includes non-RCRA permits. It was
clarified that the RCRA aspects related to a national mine waste
program were included as were non-RCRA permits which were related to a
mine and its operation. Several other questions were raised which had
not been addressed yet by the work group. These included, where does
site-specific authorization become appropriate, timing of permits and
the difference between new and existing program and how the differences
would be addressed in the regulatory mechanism.
Enforcement -
The lead interest group for the enforcement work group were the federal
agencies, specifically EPA. The EPA staff prepared a discussion paper
which identified nine issues associated with enforcement. It was noted
that the discussion paper prepared was not inclusive and was a vehicle
to stimulate discussion. Although the work group's task was
enforcement, they did not specifically address the state plan approval
process or enforcement on federal lands. They felt that these issues
should be addressed by separate work groups or at subsequent sessions.
In the time available, the work group focused their discussion on four
issues:
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1. For a state mine waste plan to be eligible for Federal approval,
which elements must be included?
2. When should the federal government get involved in permit
enforcement?
3. Does State law operate in lieu of federal law in States' with only a
partially approved State Plan?
4. What is the extent to which permits issued by the States can serve
as shields, to federal enforcement?
Elements of a Mine Waste Program
For the first issue discussed, the issue paper identified the following
elements as p6tential requirements for State Mine Waste Programs:
State authority to obtain access to any site subject to mine waste
regulation.
State authority to collect information from owner/operators to
determine whether site is regulated or to evaluate compliance.
State administrative order authority to impose penalties?
Civil judicial order and penalty authority
Criminal sanctions
When faced with outstanding violations, the authority to link permit
approval and bonding requirements to correct violations.
Public participation
The work group considered these elements as well as other additional
factors. Two specific issues were discussed in greater detail: access
authority and administrative penalty authority.
The work group noted that access authority is essential to an
enforcement program. It was observed that access-is not generally a
problem. However, it was observed that with an increased enforcement
effort, access could potentially become a problem. I- access became a
problem, the use of a cessation order was suggested as a possible
solution. Others in the work group were concerned that such a proposal
would result in a stricter approach to access in the mine waste program
than is currently in RCRA Subtitle C.
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They questioned the need for a stricter approach and were concerned
about the implications for RCRA Subtitle C.
State representatives expressed concerns about including administrative
penalty authority on the list of required program elements..It was
noted that most states do not currently have authority to assess
penalties on the administrative level and are not likely to be able to
obtain such authority. To assess penalties, they must pursue the
judicial route. However, it was noted that as a practical matter, the
threat of civil penalties usually provides sufficient incentive to
force violators to enter into voluntary settlements. At the federal
level, administrative penalties can be assessed under RCRA Subtitle C.
It was also noted that Colorado, New Mexico and a few other states do
have administrative penalty authority as well as civil penalty
authority against officers and directors of companies. Some work group
members stated that administrative penalty authority should be required
as a part of the mine waste program. Others felt that such a
requirement was not needed and went beyond what is currently in RCRA
Subtitle c
In a related issue, members of the work group felt that it is important
to evaluate a state's performance regarding the use of its enforcement
authority. It was noted that having the appropriate authority is not
worth much if it is not utilized. The work group identified this issue
as an area of linkage with the federal government's role in overseeing
a mine waste pro-ram.
Federal Government Involvement in Permit Enforcement
On the second issue, "When should the federal government become
involved in enforcement once a state has an approved plan?," the issue
paper identified a set of factors that may be appropriate for
evaluating whether federal enforcement action is warranted. They are:
The facility is likely to impact a critical ecosystem or an important
natural resource.
The State has requested the federal government to take an enforcement
action.
The U.S. is already taking an enforcement action at a facility under
another statute and it is an efficient use of resources to incorporate
the violations of RCRA into the administrative or judicial action.
The facility's impact may extend across state or national boundaries.
Issues of national precedence.
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Several members of the work group indicated that this list of factors
presumed that there would be some form of federal involvement in permit
enforcement in an approved state. An EPA representative clarified that
these factors were meant to suggest certain policies that the Agency
might adopt with respect to their enforcement discretion and that there
has not been any decision made within the Agency regarding the
threshold question of whether there should be any federal involvement
in permit enforcement prior to program withdrawal.
The work group then discussed the difficulties that would be
experienced regarding the definition of some of these items (i,e., what
is a critical ecosystem, issues of national precedence).
The work group also discussed the potential triggers for federal
enforcement of state issued permits. Work group participants agreed
that there needs to be federal authority for situations where there is
imminent and substantial endangerment or where the state has requested
federal involvement. The unresolved question before the work group is
whether and,.if so, under what circumstances should there be additional
authority for federal action.
An environmental representative indicated that their preference would
be mandatory duties for federal action in certain circumstances.
However, he indicated that environmental representatives are interested
in pursuing the possible use of broad discretionary federal enforcement
authorities combined with specific mandatory .triggers. Specifically, he
presented some thoughts regarding the use of a citizen complaint
trigger which could first be made to states and if states acted that
would be the end. If states did not act, citizens could petition EPA
involvement, at which time EPA would determine if there is a "reason to
believe" the allegations and, if so, make a decision about whether to
act. Such a trigger would be separate from any citizen suit provisions
which would have a. higher substantive standard for review. A second
possibility presented by the environmental representative in the work
group was to allow for EPA to initiate an enforcement action in the
context of performing program oversight functions. In discussing this
possibility the environmental representative indicated that it would
not be acceptable to r'ely solely on a systemic breakdown and complete
program withdrawal before EPA permit level enforcement is possible.
The group discussed the possibility of narrowing either or both of the
two enforcement triggers presented above -- citizen complaint initiated
and program oversight initiated -- to a specific set of substantive
requirements rather than allowing for such triggers to be related to
any or all aspects of the program. However, it was clear that other
members of the work group were not yet ready to give a definitive
.response to these ideas.
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State Plan - In Lieu of Federal Law?
On the third issue, "Do State Plans operate in lieu of federal law?,"
the work group noted that this issue arises both where partial program
approval is permissible and where it is not permissible, but the
problem is especially acute in the former. They suggested that this
problem would arise in several different circumstances:
when there is a change in state law after program approval, or
a change in federal law or regulation after program approval, or
a permit is issued which is inconsistent with an approved state
program.
The latter circumstance is one in which the issue of permit shield
arises (see below).
It was suggested that one way to address these concerns is to require
codification as a part of the approval process. Some work group members
were concerned that codification would result in the federalization of
aspects of the state mine waste program which are state controlled such
as water rights. Others suggested that a codification could take place
only for those components which are clearly mine waste related. Others
voiced their concern that codification and the resulting federal
involvement would diminish the significance of state primacy.
State Permits as a Shield to Federal Enforcement
The issue paper identified a number of factors which might be
considered when determining the extent to which a state permit will act
as a shield to federal enforcement. They are:
Degree of EPA input into the permitting process Length of term of the
permits -
Degree of financial burden placed on the permittees
Need for flexibility to quickly incorporate new regulatory requirements
or modify permits to adjust to changing circumstances .
The work group concluded that this question has an important linkage to
the federal oversight function and thus must be considered'together. It
was also noted that there is an important link between this issue and
an idea that was raised at a past meeting where EPA had suggested the
possibility of federal involvement in the permitting of -high risk"
facilities.
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Areas of Linkage
The work group also identified areas of linkage between enforcement and
issues being considered by other work groups. They include:
specificity of technical standards regulatory mechanism for
implementing standards (what type of permit)
program approval process degree of oversight
public participation and citizen suit authority
As the work group concluded their discussions, they noted that the
manner in which each of these aspects interact with enforcement will
have to be discussed interactively. The work group did not have time to
discuss sanctions and citizen suit provisions.
In the PDC discussion of enforcement, it was suggested by an industry
representative that the administrative penalty authority may be a
non-issue. He suggested that although states have to go to court to get
penalty authority, the threat of judicial action is often used
effectively to achieve a settlement without going to court.
Additionally, it was suggested that the issue paper assumes that EPA
will have the broad authority to be involved in site specific
enforcement. He has problems with that assumption. In response, an EPA
representative reiterated that the Agency is not presupposing broad
authority, but it does assume some authority beyond imminent and
substantial endangerment.
Another PDC member raised a question about enforcement discretion. In
response, an EPA staff noted that the Agency would probably not be in
favor of options that included mandatory enforcement.
After much discussion by the PDC group as to the critical nature of
enforcement to the entire mine waste program and questioning about
whether an enforcement work group should be continued, it was decided
to have the enforcement work group meet in Tucson. In preparation for
the meeting, each interest group is to prepare a document outlining
their view of the full range of enforcement options available.
Public Participation
The lead interest group for the public participation work group was the
environmental community. They prepared an issue paper which divided
public involvement issues into three categories: program approval,
program implementation and enforcement and program oversight. The group
had time to address the program approval process and several aspects of
program implementation and enforcement. They did not begin discussion
of program oversight issues.
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The work group presented a series of flip charts outlining the proposed
processes for program approval and program implementation and
enforcement. Transcriptions of the flip charts illustrating these
processes are attached (see Appendix C). As indicated, the work group
discussed the plan approval process and was able to develop a series of
key points in the process where various types of public participation
could take place. The imp'-mentation and enforcement process discussed
also led to the development of key points in the process regarding
public participation.
At the conclusion of the work group presentation, it was noted that
completeness reviews and complaint procedures were not discussed by the
work group. It was also noted that a member of the work group was going
to redraft the discussion paper so it would more fully describe areas
that need to be addressed, how they would be addressed and when they
would be addressed. The work group felt that their session had been
productive and that they had increased each others understanding of the
issues involved.
In the PDC discussion, an expansion on the options available to EPA
upon receipt of a state plan was suggested. Three options were
presented:
Option A. Self Certification. A state program submitted to EPA would be
considered automatically approved upon submission or shortly thereafter
* unless and until EPA affirmatively disapproved all (or part if partial
program approval is available) of the program.
, Option B. Codification. EPA approval of the state program is required,
and the approval process is considered a federal rulemaking because it
results in the codification of state requirements into federal law.
Option C. Approval without Codification. The standard EPA program
approval process, with or without a statutory deadline for reaching a
final decision.
The advantages and disadvantages of these options were discussed but a
. conclusion was not reached.
Additionally, a suboption of approving state programs for limited time
period was discussed. It was suggested that this suboption would be
available for any of the three options identified above. The work group
agreed that such a concept merited further discussion.
Technical Program Requirements and Permit Conditions
The lead interest group for this work group was industry. The work
group noted that the issue paper was prepared to focus discussion
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not to present various options. The primary focus of the work group's
effort was the level of specificity which should be required for
technical criteria. The work group noted that some elements were more
amenable to specific criteria than others. The discussion paper also
presented three examples which cover the range from a non-specific
guidance to a detailed rule; As they considered the different examples,
concern was expressed that guidance could be considered to be the
functional equivalent of a rule, thus eliminating the intended
distinction.
The work group also examined an important linkage issue: the
relationship between the plan approval process (the front end of the
process) and enforcement (the back end of the process). From the
different interest group's perspectives, whether the front end is
flexible or stringent is linked to whether the back end is flexible or
stringent.
As to the specificity of standards, it was felt that performance
standards are amenable to more specific numbers. The discussion began
by examining surface water and air standards. Many work group members
felt that existing standards could be used on a facility specific or
statewide basis. The environmental community representatives did not
agree and indicated a desire for additional standards regarding design
and operating standards as a means to achieve greater environmental
control.
For groundwater, the work group also discussed the linkage between
quality and quantity, but differed as to whether quantity should be
considered .
Regarding compliance monitoring, the work group seemed to feel that
there was a need for more flexibility in the criteria due to
differences in location, design and remedies. The work group had
general agreement as to the importance of monitoring, but did not
resolve what appropriate action levels or triggers for action should
be.
In summarizing the session, it was felt that the discussions had been
productive and mutual understanding had been enhanced. Its members felt
that the group should continue to meet and discuss the issues before
them.
In the PDC discussion after the presentation,, concerns about the
ability of monitoring to assess exceedences above the standard and the
ability to prevent exceedences from occurring was raised. It was also
suggested that the standards need to be as specific and clear as
possible.
Implementation
The lead interest group for this work group was the states. They
prepared an issue paper focusing primarily on the resources
necessary for state implementation of a mine waste management plan.
Thus, most of the group's discussion focused on optional funding
mechanisms which could be used. The work group concluded that whatever
funding sources a state used, they should be stable. Thus, they
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recommended that such sources should be outside of the control of the
state legislatures. The work group also concluded that the federal
government should not require specific funding sources in its plan
approval process. The work group discussed all twenty-one sources
identified in the issue paper (see Appendix D for a complete list).
From their discussion, they identified four which they deemed the most
desirable. 'TheY are:
federal program grants and contracts fixed application fees annual
license fees general fund revenues
The work group found the other sources to be less desirable for a
variety of reasons such as reliability and Political implications.
The work group also briefly discussed some of the elements identified
for organizational procedures and structures which could be included in
a sta.te plan.
During the PDC discussion, one of the environmental community
representatives who had been a member of the Implementation work group
added that royalties and fees on locatable and leasable minerals should
be included as a source of revenues. In response, others in the work
group felt that these royalties and1 fees were not within the RCRA focus
of the PDC.
NEXT STEPS
The next meeting of the PDC is scheduled for Tucson, Arizona on October
21-23, 1991. The PDC members decided that the following work groups
will meet: Enforcement, Public Participation, Technical Standards,
Regulatory Mechanisms and Implementation Procedures and Enforcement.
The Implementation Procedures Group will now address the issues
associated with Partial/Conditional Approval. The work group meetings
will begin on the evening of October 21 from 7:00 p.m. to 9:30 p.m.
They will continue work from 8:00 a.m. until 3:00 p.m. on Tuesday,
October 22. From 3:30 p.m. until 5:30 p.m., the PDC will meet in
plenary session. On Wednesday, October 23, the PDC will begin in
plenary session at 8:00 a.m. and adjourn at noon.
To facilitate the discussions by the Enforcement Subcommittee, it was
decided that each interest group will prepare an options paper that
will identify a range of enforcement options, including options that
the interest group does not necessarily support, but provides their
view of the possible range of options. These option
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papers should also attempt to address the interplay between enforcement
and th federal role in state permit issuance and program oversight.
The PDC also decided following dates for future sessions. The
following dates were identified:
December 9-10 Washington, D.C.
January 22-24Location to be determined.
Tour on the 24th if scheduled.
PUBLIC COMMENT
The facilitators asked if there were any members of the public who
wished to comment. With no one requesting to make a statement, the
meeting was adjourned.
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U.S. ENVIRONMENTAL PROTECTION AGENCY
MINE WASTE POLICY DIALOGUE COMMITTEE
MEETING SUMMARY
DRAFT
October 21-23, 1991
Tucson, Arizona
MONDAY, October 21, 1991
The members of the Policy Dialogue Committee (PDC) met informally to
receive an update on recent Congressional activities of the House
Subcommittee on Transportation and Hazardous Materials which have
involved some PDC members and may influence the agenda of:the PDC.
Steve Barringer and Don Ostler, who are involved in the Congressional
process, briefed the PDC. They noted that the Congressional meetings
arose as a result of the hearings held on September 12, 1991 before the
Subcommittee. Those who testified were invited to attend a meeting with
Congressional staff to provide input on a mine waste provision to be
included in a proposed RCRA bill. Subcommittee Chairman Swift hopes to
introduce a complete RCRA bill by Thanksgiving, thus, the group has a
short time period to provide input. The Congressional staff
acknowledged the PDC and said they would welcome input from the PDC.
The next Congressional meeting has been scheduled for October 29 and
30.
T
After the briefing, the facilitator asked the PDC members how they
wanted to proceed given the existence of the Congressional process. In
the plenary session, members discussed the advantages and disadvantages
of linking the two processes. The meeting concluded with the various
interest groups stating they needed to caucus among themselves. The
decision of how to proceed would be made the following morning.
TUESDAY, October 22, 1991
The facilitator welcomed everyone' and thanked Norm Greenwald for making
the arrangements for the Magma Copper Mine Tour. He then noted that
based on discussions with representatives from each caucus, the PDC
would be meeting in three work groups: enforcement (including public
participation and state/federal relations), technical standards, and
scope of the program. The public was welcomed to attend the work group
meetings as observers. The facilitator also noted that an opportunity
for the public to comment on the discussions would be provided at the
end of the day and at the close of the plenary session on Wednesday.
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WEDNESDAY, October 23, 1991
The plenary session began with brief reports from each work group on
their efforts. Before the reports were given, the facilitator suggested
that Keystone Center staff begin taking draft documents prepared for
the PDC meetings and assemble them into a "white paper." The purpose of
this draft paper would be to begin the process of building a document
which could be issued by the PDC if members so desired. The creation of
such a document would address the concern expressed regarding the fact
that various versions of draft documents had been created, and might be
misinterpreted as representing PDC agreements. The draft document would
clearly state that it is a draft and does not reflect a consensus of
the PDC. The PDC agreed that Keystone Center staff should prepare a
draft document.
Technical Standards
The Technical Standards Work Group reported that they continued to
proceed through the document prepared for the Charleston meeting. The
work group identified areas of potential agreement as well as areas
that needed further discussion. The document will be revised to reflect
the work group's input and will be reviewed in greater detail at the
next meeting.
Scope of Program
The Scope of Program Work Group discussed whether the following areas
should be included within a mine waste program: active mines, inactive
units at active units, abandoned mines, remining, and federal lands. A
summary of the work group's discussions will be incorporated into the
white paper.
Enforcement
A major focus of the Enforcement Work Group's discussion was on the
federal role in enforcement and permitting. Additionally, the group
considered what the citizens' role in enforcement and permitting would
be. Each interest group identified their worst case scenario. The work
group then explored options which would satisfy these concerns. The
work group felt that their discussions were productive. Numerous issues
had been aired, however, they were not at a stage to begin putting
recommendations on paper. They felt that another meeting prior to the
December meeting would be productive.
Next Steps
The facilitators clarified that they would consult with PDC members as
they prepared the white paper as well in the preparation of the
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agenda for the December meeting. At this point in time, the intent is
to continue with the same three work groups: enforcement, technical
standards and scope of the program.
In terms of the Congressional process, it was concluded by the PDC
members that it would not be appropriate for the PDC to be drafting
position papers. It was felt ideas generated through the PDC would
inevitably enter the Congressional process through the individuals
involved in both processes, but, that it would be inappropriate for the
PDC to take any formal positions regarding the Congressional process.
~n keeping with the PDC groundrules, the facilitator cautioned the PDC
members involved in both processes to be careful not to characterize
other groups' positions
Public Comment
i
Jim Crowther from the Bureau of Indian Affairs asked if the PDC's
discussion included Indian lands and if so, asked if there should be
representatives from the Bureau and Indian tribes at the table?
Next, Moon Horn from the Bureau of Land Management (BLM) noted that he
does mine plan reviews for Indian lands. He wanted to know how the PDC
efforts would interact with the BLM's. process.
In response to these questions, it was noted that Indian lands are.
considered within the context of the PDC discussions. It was observed
that the Department of Interior which has responsibilities for Indian
lands has one representative at the table who represents all Department
of Interior interests including Indian land concerns.
Last, John Craynon from the Department of Interior Office of
Environmental Affairs spoke. He noted that it is his role to feed
information to the Forest Service and Bureau of Mines representatives
to the PDC to assist them in identifying issues for all DOI lands
including Indian lands.
With the conclusion of the public comment period, the meeting was
adj ourned.
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U.S. ENVIRONMENTAL PROTECTION AGENCY
MINE WASTE POLICY DIALOGUE COMMITTEE
MEETING SUMMARY
DRAFT
January 22, 1992
Orlando, Florida
The facilitator welcomed everyone and noted that the agenda for the
meeting would evolve throughout the day dependent upon the needs and
desires of the PDC members. He also noted that at the end of the day
there would be an opportunity for public comment.
Before turning to Matt Straus from EPA for a few opening remarks, the
facilitator explained that the December meeting had been cancelled due
to the scheduling demands of the Congressional activities on mine
waste, "the Swift Process," which has involved many of the PDC members.
He noted that the White Paper which had been mailed to PDC members and
alternates prior to the meeting had been prepared at the request of the
PDC at the Tucson meeting. The Whit^e Paper is a compilation of
materials previously prepared by PDC members at and for previous
meetings. How the document should proceed was noted as being a topic on
the agenda for this meeting.
Matt Strauss, Acting Director Waste Management Division Office of Solid
Waste, US EPA, began by thanking Jeremy Craft of Florida's Division of
Resource Management and the Florida Phosphate Council for arranging the
previous day's tour to the Central Phosphate Mining District. He felt
that it had been very informative for those who attended. Strauss then
told the PDC that the Agency feels that the Orlando meeting is a
turning point for the PDC process. He felt that there were several
items which needed to be discussed. They were:
-status of the Swift process, that relationship between the Swift
process and the PDC and the renewal of the PDC's charter;
The White Paper: is it still a desired product for the effort?: Who
should draft it?;
the federal land paper prepared by the federal land management
agencies; and a discussion of scope of a federal mine waste program.
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In closing, Straus noted that after this meeting the EPA PDC members
felt they need to go to senior management to provide them with a
statute report on PDC activities.
As noted in the earlier comments, all those present felt it was
important to update PDC members on the current status of the Swift
negotiations. Before turning the floor over to the PDC members who had
participated in the Swift process, the facilitator provided some
background on the Swift process. He began by noting that the
relationship of the Swift process to the PDC had been discussed at
Tucson. At that time, the PDC members had agreed to keep the two
processes separate. Despite that separation, he observed that there is
overlap in membership between the two groups. The Swift group consists
of four industry representatives (Steve Barringer and Dave Kimball from
the PDC), 2 state representatives (Jim Joy and Don Ostler from the
PDC), and four environmental representatives (Dave Lennett, Phil
Hocker, Tom Galloway and Paul Robinson).
The Swift group met several times .through November and December with
Congressional staff present at the session. The group attended to be
educated about the issues, thus, they asked primarily clarifying
questions. Since the December 10 meeting, the Congressional staff have
met on a one-on-one basis with each of the interest groups. At this
point, the staff have not yet made their cut on legislative language.
From their perspective, the process is still on-going.
From the facilitator's perspective, those in the Swift process had made
progress in their discussions, but hit a major hurdle when they
approached the discussion of scope of the program. He noted that
without agreement on scope, many in the Swift process were not willing
to continue to discuss other aspects of mine waste legislative package.
It appears that the Congressional staff are considering how to proceed
to try to come to some closure on the scope issue.
Members of each interest group, the environmental community, the states-
and the industry, then presented their assessment of the Swift process.
It was agreed to by all that the process has not been "swift", the
discussions have been undertaken in good faith and have been quite
helpful in increasing everyone's understanding of the issues. They
concurred that scope of the program is clearly a major issue that needs
more discussion.
Federal Lands
Next, the PDC members reviewed the Federal Lands paper which had been
prepared by the Forest Service and Department of Interior
representatives in the federal delegation. Lynn Sprague of the U.S.
Forest Service briefly summarized"the paper and distributed an
additional handout. (See Attachment A). He emphasized that the federal
lands, the public domain lands, are responsible for a significant
percentage of total mineral development in the United States. Sprague
felt that the overall question to be considered on federal land~s is
"What their relationship will be to the states and EPA?"
The paper contained a series of recommendations for the PDC to endorse.
They are as follows:
Primacy States
X
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Federal land management agencies should participate in the development
of State Mining Waste Management Programs.
* Federal land management agencies should participate with the EPA in
the approval process for State Mining Waste Management Plans that
affect their responsibilities, with concurrence authority to assure
that the State programs are sufficient to meet statutory mandates.
* The development of MOUs among the States and related Federal land
management agencies in line with existing practice should be provided
for in any Federal mine waste program.
Non-Primacy States
The EPA assumes oversight of mining waste management programs on
Federal lands.
«
* The EPA defers the mining waste programs to appropriate Federal land
management agency and incorporates the existing mine waste programs on
Federal lands into the program for nonprimacy States.
Sprague noted that for primacy states, the overall thrust of the
recommendations is to promote cooperation between EPA, the states and
the federal land management agencies in the development of state mine
waste management plans. It was clarified that this role applies
specifically to federal lands. In the ensuing discussion, PDC members
from both environmental and industry observed that the concept of
cooperation made sense but expressed concern about the possibility of
"dual masters." It was also noted by several members that the use of
MOU's already occurs. It was then suggested by some that continued use
of such a practice would not require legislative or regulatory action,
thus, does not need to be addressed by the PDC.
Additionally, concern was expressed about the proposed deferral of EPA
authority to federal land management agencies in non-primary states. It
was suggested by a PDC member that this had the
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potential to result in confusion for citizens and industry as to wno
had the lead responsibility. The discussion concluded without any
agreement as to what the PDC would endorse on the issue of mine waste
regulation on federal lands.
Scope
The next issue of discussion was the scope of the program. As noted
earlier, scope issues had not been resolved during the Swift process.
The question of scope had also been discussed previously by the PDC. At
that time, PDC members thought that it seemed prudent to revisit the
issue.
The PDC's initial discussion of the scope of the program began with the
states' proposal to have the scope of the mine waste program include
what they labelled as "regulated materials" i.e. all materials which
have a potential to pollute would be regulated. This approach is not
constrained by a traditional definition of waste. The discussion of
scope of the program at this meeting revisited the "regulated
materials" proposal. The resulting discussion focused on the
implications of various scope/regulated materials options. After a
thorough discussion of the issues, the PDC members decided to take the
State representatives who had contributed much to the discussion to
develop a paper outlining their proposed approach. They agreed to draft
such a piece for further use by the PDC.
In addition, the PDC members decided to authorize a representative
subgroup to meet, if it seemed appropriate, to further discuss the
scope of the program prior to the next PDC meeting. If the subgroup
meets, the result- o~ their efforts would be presented to the PDC at
t~e next meeting.
Charter Renewal
The last item identified by Matt Straus was the question of renewal of
the PDC's charter which expires in April 1992. The PDC members decided
that the charter should be renewed since that would provide the PDC
with maximum flexibility in terms of future direction.
Next Steps
The next PDC meeting was tentatively scheduled for April 7-8, 1992 in
Washington, D.C.
The facilitator then asked if there was any public comment. No-one
requested to speak, thus, the meeting was adjourned.
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ATTACHMENT A
INTRODUCTION TO FEDERAL LANDS
Total U.S. Iands2.3 billion acres
Lands dispersed by the U.S. since 17811.1 billion acres
Lands still owned by the U.S.0.7 billion acres
Metallic mineral production (1988)65%
MAJOR LAWS AFFECTING MINING
National Environmental Policy Act of 1969 (NEPA)
Comprehensive Environmental Response, Compensation, and Liability Act
Of 1980 (CERCLA)
Clean Water Act Amendments of 1972 (CWA)
v
Resource Conservation and Recovery Act of 1976 (RCRA)
Federal Land Policy and Management Act of 1976 (FLPMA)
National Forest Management Act of 1976 (NFMA)
FLPMA AND NFMA REQUIREMENTS
Manage BLM and NFS lands for sustained yield and multiple- use-- e.g.,
to manage mineral development considering its impacts on other
competing uses.
Manage BLM and NFS lands in coordination with public opinions and
other Federal, state and local requirements, as long as those require-
Inents are consistent with goals and objectives mandated by FLPMA or
NFMA.
AGENCY RESPONSIBILITIES
Federal land management agencies within the Departments of Agriculture,
the Interior, Defense, and Energy are trustees of the Federal lands.
They have the authority and responsibility to manage lands under their
respective jurisdiction in compliance with NEPA, RCRA, CERCLA, CWA,
etc.
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PRIMACY STATES
Federal land management agencies should participate in the
development of State Mining Waste Management Plans.
Federal land management agencies should participate with the EPA in
the approval process for State Mining Waste Management Plans that
affect their responsibilities with concurrence authority to assure
that the State programs are sufficient to meet statutory mandates.
The development of MOU's among the States and related Federal land
management agencies in line with existing practice should be provided
for in any Federal mine waste program.
NON-PRIMACY STATES
The EPA assumes oversight on mining waste management programs on
Federal lands.
'The EPA defers the mining waste programs to appropriate Federal land
management agency and incorporates the existing mine waste programs
on Federal lands into the program for non-primacy States.
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EPA MINE WASTE POLICY DIALOGUE COMMITTEE
Draft MEETING SUMMARY
February 17, 1993
Introduction
The meeting of the EPA Mine Waste Policy Dialogue Committee (PDC) began
with introductions of the PDC members. The agenda for the day was:
1) updates by each interest group on recent and current activities;
2) EPA presentation of their plans for the next 2 years; 3) review of
EPA's White Paper on PDC Activities to date; and 4) discussion of the
future of the PDC.
Before beginning the updates, the facilitator placed the current
meeting in its historical context. He noted that the PDC had not met
for over one year. Prior to the cessation of meetings in January 1992,
the PDC had met approximately every two months for a year. The focus of
those meetings had been on identifying and clarifying aspects of a
national regulatory program for mine waste. In late 1991 and early
1992, the focus of the states, environmental/citizen and industry
representatives' attention shifted to the legislative arena where
Chairman Swift of the House Subcommittee on Transportation and
Hazardous Materials asked each interest group to participate in an
effort to draft legislative language for inclusion in RCRA.
The Subcommittee staff did draft legislation which was passed by the
Subcommittee but did not the full committee.
EPA asked that the PDC be reconvened at this time to assess the status
of activities associated with mine waste, determine possible future
direction for the PDC and review the White Paper written by EPA
summarizing PDC activities.
Updates
The environmental/citizen representatives noted that much was
accomplished during the Swift discussions. They felt there was a
willingness to explore alternatives and much communication occurred.
They noted that the resulting legislative language was based primarily
on the States' position.
On other fronts, they noted that they continue to be involved in
efforts to reform the 1872 mining law. It was noted that they felt that
some major policy concerns are not addressed within the context of the
.1872 mining law.
They also mentioned that they are working with individual states (New
Mexico, Washington, Oregon, Colorado) who are currently revising their
mine waste programs. They also noted that several individual mine
sites, specifically Summitville in Colorado, have been experiencing
problems which from their perspective illustrates the need for federal
oversight and enforcement. It was also noted that the Citizen's Mining
Information Network held a meeting last summer in Missouri where lead
facilities were visited and information about mining was shared.
The states reported that they have only met once as a group since the
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completion of the Swift process. At that meeting, they reviewed the
document prepared by the State representatives to the Swift process.
The next Western Governors Association Mining Task Force meeting is
scheduled in the March/April timeframe.
In addition, the states are continuing to refine their programs as a
result of the PDC and Swift discussions. They are also continuing to
implement their programs at new and existing facilities.
The industry representatives concurred with the others that the Swift
process had been valuable. They felt that the communication which
occurred within the Swift process allowed progress to be made on some
issues while the short time frame of the Swift process hindered efforts
on other issues. Industry members also noted that both the Swift and
PDC efforts had been useful. They noted that on-the-ground efforts are
being made to* implement some of the concepts addressed by the PDC and
the Swift process.
The facilitator noted that the Swift process would not have been
possible without discussions which had preceded it. He noted that many
participants had expressed concern about the slow pace of PDC
discussions and that as one considers possible future roles of the PDC,
participants need to remember that the pace of discussions directly
reflects the external incentives surrounding the issues before the
Committee.
He stated that facilitators have no interest in convening meetings
without a clear sense of role and objective. It is up to the POC
members and EPA to decide whether there is a future role for the PDC
that merits their time and effort.
White Paper
Discussions then shifted to the White Paper prepared by EPA to
summarize PDC discussions to date. EPA noted that the White Paper will
include the appropriate caveats that the document does not reflect a
consensus of the PDC. Once the White Paper is completed, EPA stated
that they intend to issue the document as an EPA report which reflects
PDC discussions. They then asked the PDC members whether the White
Paper is accurate and how it should be changed.
In response to EPA's question, it was suggested by several participants
that written comments be submitted directly to EPA. Several
participants suggested that it would difficult to give EPA general
comments on tone and content without knowing how the White Paper is
linked with future EPA actions and PDC efforts. Rather than continuing
to discuss the White Paper, EPA was asked to give their presentation on
their future plans regarding mine waste issues and the PDC.
EPA Future Efforts on Mine Waste
The EPA staff began by identifying a number of activities which they
intend to pursue given that they do not foresee any RCRA legislative
activity occurring in the next year or so. They have identified three
primary areas of effort which assume a continued reliance on state mine
waste programs:
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1) Work with federal land managers to better coordinate programs.
2) Provide technical information to states and land managers.
3) Identify and pursue ways to work more directly with states to
improve mining programs.
/
Beyond these three primary areas, other efforts are underway involving
the EPA water program (specifically stormwater, non-point source
pollution, headwater mining initiative and federal facility Superfund
compliance), technical demonstration projects and joint permitting
efforts with states (e.g., Tri State effort - WA, OR, ID).
Increased coordination with land managers (DOI, USDA, EPA), has been
occurring at least in part due to the PDC and the agencies want to
formalize the process. A memorandum of understanding (MOU) between the
agencies is currently being drafted. It is anticipated that it will
include a lot of flexibility and will encourage the agencies to
coordinate on training, studies, and research, while providing for
flexibility in implementation. It is hoped that the MOU will be
finalized by the end of FY 1993. From EPA's perspective, they see the
coordination effort as assisting in a? continuing dialogue to improve
the existing program.
The second primary area, technical studies, continues efforts currently
underway to fund The Western Governors Association and Interstate
Mining Compact to act as a conduit of information to the states and
others. Under this category of effort, there are three sub-categories:
technical reports, technical assessments and waste
minimization/pollution prevention efforts. In the area of technical
reports, the EPA has developed a series of profiles on waste generation
in a variety of types of mines (e.g., solution mineral, gold, gold
placer, lead/zinc, copper and iron) and site reports of efforts to
minimize waste currently being undertaken at specific mines. In the
area of technical assessments, the EPA has prepared reports on topics
such as tailings ponds design, acid mine drainage and cyanide. Under
waste minimization and pollution prevention, the EPA is examining the
feasibility of such efforts in relation to mining. They are in the
process of identifying mining operations where such activities are
occurring. They are trying to document these cases to share with others
who are considering undertaking such efforts. In this area, they see
their role as one of information dissemination.
Within the third primary area of effort, working directly with the
states, the EPA is considering the establishment of a voluntary state
program review process similar to that which is conducted under the
auspices of the Interstate Oil and Gas Compact. The model calls for a
diverse team of individuals representing industry, other states,
environmental groups, etc. to visit a state and review its program
using a "template" or model state program as a basis for evaluation.
The result is a report which identifies areas of strength and weakness
and suggests changes. EPA feels that the strength of such a program
would be its involvement of diverse interests and its voluntary nature.
In response to EPA's statement of proposed efforts, the
environmental/citizen representatives noted that they agreed with a
primarily state run program. However, they stressed the importance of
having a baseline for comparison and enforceability. They feel that the
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EPA should be developing regulations as the means of establishing the
baseline. They also feel that legislation should be pursued which
would enable federal oversight and enforcement.
An industry representative supported the idea of joint training,
research and studies but noted that it is important to involve the
states in identifying areas of effort.
The state representatives then asked for the opportunity to caucus
since they had not had a chance to consider these ideas prior to the
meeting. The other interest groups concurred and a break for lunch and
caucuses was called. The meeting reconvened at 1:45 p.m.
Following the caucuses, the states spoke first. They identified five
main points: state lead program, technical assistance, guidance for
states, state program review, and EPA oversight. On the first, state
lead program as the focus of future efforts, the states concurred. They
feel it is an efficient use of resources. On the second, technical
assistance, they welcome such efforts. However, they are concerned.
about the direction of such efforts and would like to have a role in
designing such activities. Specifically, they would like to see such
efforts be field and project oriented. On the third, guidelines for
state programs, they are supportive. They would be willing to take the
concept back to the WGA Task Force and consider drafting such
guidelines. The fourth item, state program review concept, is one that
they are willing to consider. Since many of them are not familiar with
all of the details of the oil and gas process, they would like
additional information about the process. It is their contention that
the fifth item, EPA oversight, should be minimized if states have the
program lead. They noted that EPA has oversight through existing
programs related to mining under the Clean Air and Clean Water Act.
The environmental/citizen representatives stated that they believe that
the minimum federal standards for state program approval is a
reasonable approach. They suggested that the actual development of a.
minimum federal program is a constructive role for a multi-party group
such as the PDC. They would be willing to work on such an effort if it
focused on actual rules not concepts.
The industry representatives noted that they are intrigued by the state
review process and would like to hear more about it. From their
perspective, it is important that all in interests be involved in
developing a template for state programs. The industry concurred with
the states that the technical assistance efforts seemed like a positive
direction to pursue. On a slightly different.tack, they do not want any
documents generated by the Swift process attached to the EPA White
Paper.
/
EPA staff responded that they would seek and appreciate input wherever
possible on their technical assistance efforts» On the concept of
developing a "template" or model state program, they noted that they
feel that the difference In the various interests' positions is one of
specificity. They believe that everyone would agree to the components
of a state program, the disagreements would occur when one tried to
define them. They noted that EPA has limited resources and does not
want to take another year to discuss the subtleties of these
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components. They would be willing to establish a short time frame for
discussions and input but raised a question about what would provide an
incentive for the various interests to participate.
The discussion then shifted to a question of incentives whether they be
rulemaking oriented or legislative. The facilitator noted that the EPA
could create an incentive by stating that they would issue the
"template" for state programs by a certain date. The various interests
could attempt to define such a template and provide input to EPA if .
they so desired.
A PDC member suggested that based on previous PDC discussions and some
further elaboration, a template/guidance for state programs could be
developed for use by peer review groups to evaluate existing state
programs. It was suggested that this could be done in a 6 month frame.
As a result of that effort and the resulting reviews, the need for
future legislative and rulemaking efforts could be determined.
This suggestion was clarified and elaborated as consisting of three
steps:
1) Identify the broad characteristics of a template/guidance for state
programs.
2) Define a peer review process like the IOGC process. Key aspects
include its voluntaryness and use of a diverse review group.
3) Identify gaps which are not covered by the template/guidance and
possibly pursue legislative or regulatory remedies.
The facilitator then asked the PDC members if they were interested in
pursuing such an effort whether it was within the context of the PDC or
elsewhere (e.g., WGA Task Force). The PDC members responded favorably
with a few caveats. The importance of a limited time frame was
stressed as well as the need for EPA to provide assurance that they
would issue the template/guidance by .a certain time. They also noted
that it was quite likely that a consensus would not be reached on some
of the issues but it was worthwhile to continue discussions for a
limited time. The final input to EPA could include minority opinions.
The meeting concluded with the following identified as next steps to be
pursued:
EPA will draft a concept paper outlining the proposal to develop a
template and voluntary, peer review process within a week or so. The
draft concept paper will then be distributed to PDC members for
review and comment.
While comments are being sought. PDC members will seek out
information about the IOGC process and EPA will take the idea back to
its management for consideration.
EPA will put together a proposal for a procedure to develop the
template and state program review which will include a clear
statement of goal for the process, timeline, and address the issue of
resources for the meetings and subsequent peer review process.
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Based on EPA's proposal, PDC members can decide whether they want to
participate or not.
On a piece of unfinished business from earlier in the meeting, PDC
members were given until March 15 to give EPA comments on the White
Paper. EPA Stated that prior to determining next steps regarding the
White Paper, they would notify PDC members.
The facilitator asked if any of the observers wished to make a
statement. No one requested to speak. The meeting was adjourned.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, B.C. 20460
March 12, 1993
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Procedural Approaches to Develop a Template and Conduct
State Reviews
To: Representatives of the Policy Dialogue Committee on
Mining
FROM: Matthew A. Straus, Director
Waste Management Division
»
Introduction
As a result of the last meeting of the Policy Dialogue Committee on
Mining '(PDC) , held on February 17, 1993, the U.S. Environmental
Protection Agency is seeking the views of the PDC participants
development of a "template", which would identify the critical elements
of a state mining waste program. EPA is also seeking PDC input for the
development of a program to review existing state mining waste programs
by comparing those programs against the template.
The purpose of this paper is to discuss two possible procedural
approaches on how the template could be developed, as well as a
proposal for the conduct of state program reviews. (It should be noted
that while we are requesting your views, we are also seeking input from
the new Administration. If we get additional direction, we will let you
know. However, in order for us to make a decision quickly, we would
request your views by April 2, 1993. )
Template Preparation
The first approach would have a subcommittee of the PDC develop the
template. The PDC has held a number of discussions regarding critical
state program elements. A list of those elements can be found in the
meeting notes from the Tucson meeting. At that meeting the PDC broke up
into working groups to further discuss the details of each component.
Other approaches have been discussed at PDC meetings and also merit
consideration.
Thus, we believe that there is a considerable body of material the PDC
could use to develop the template.
The PDC would first need to determine how a template can be developed
which acknowledges that there are many alternative means of achieving
environmental goals. Further, the PDC should discuss how the use of the
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template in conducting state reviews should affect the nature and
make-up of the template. The goal of.the state program reviews will
also need some discussion.
Under this approach, the PDC would create a subcommittee with
representatives from each of the interested parties who will be charged
with developing the template. EPA acknowledges that the template may
include minority opinions, but every effort should be made to reach
consensus on the template. The subcommittee should meet two times and
then report back to the full PDC. The first meeting is expected to be
held in the Spring, with the second meeting being held six weeks later.
One month after the last meeting of the subcommittee, a draft of the
template would be presented to the PDC for approval. This process
should conclude by approximately September, 1993. After this action,
the PDC would cease its operations. Under this approach, if the
subcommittee or the PDC fail to develop a template, the EPA will
complete development of the template based on PDC input to date.
An alternative approach to PDC development of the template is that the
document entitled, "WGA Recommendations for a Mine Waste Regulatory
Program", be utilized as the template.1 This document was developed
and approved by the Mine Waste Taskforce of the Western Governors
Association in December, 1989. The use of the WGA document would allow
us to begin the state review process very quickly.
It is also feasible that some variation or combination of the two
approaches noted above could be used for template development. It
should be emphasized that EPA has not decided on a preferred approach.
EPA is committed to assisting in funding of template development
activities to assure active participation of all the interested
parties.
State Program Reviews
The Agency believes the most effective means of implementing the review
process is through a grant, which would fund an organization to fine
tune the review procedure, coordinate reviews, assure participation of
all parties, and prepare final reports. These reports would not be EPA
documents; rather they would reflect the positions of the review
participants. We believe that a procedural approach similar to one
underway with the Interstate Oil and Gas Compact Commission (IOGCC)
could be used to review state mining waste programs.
As noted in the last PDC meeting, EPA is currently assisting in the
development of state program reviews through a grant with the IOGCC.
IOGCC first developed a guidance document identifying the critical
elements of state oil and gas exploration and development waste
regulatory programs. This document, which is currently undergoing the
first of a regular series of reviews and revisions, is used as a
template against which an existing state program is evaluated. IOGCC
*As we discussed at the PDC meeting, the state/EPA
relationship would not be included in the template since we would
only be defining a state mining waste program template. However,
the template should address the state/federal land management
agency relationship.
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works with its member states, and a multi-interest group advisory
committee, to choose states for review, select the members of the
review committee, consider changes to the review process, and
reevaluate the adequacy of the template. The review teams also include
representatives of all major interests. In the case of mine waste state
reviews, this would also mean participation of the federal land
managers.
Prior to a review team visiting a state, the state is requested to fill
out a detailed survey about the structure and implementation of its
regulatory programs. The response to the survey, information from
in-state interviews, and other supportive materials provided by the
state, are the factual bases for the review team to use in evaluating
the state program. We anticipate that each state review will result in
the preparation of a report which will identify the strengths and
weaknesses of the state mining waste program, identify any gaps, and
provide recommendations for improvements.
Please mail or fax your comments on this approach to:
Stephen Hoffman, Chief (OS-323W)
Mining Waste Section
Office of Solid Waste
U.S. Environmental Protection Agency
401 M Street, SW
Washington, D.C. 20460
Phone 703-308-8424
Fax 703-308-8433
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State Review Process
States volunteer to be reviewed.
The IOGCC Council on Regulatory Needs (State Program Review Committee)
selects the review panel.
Review Panel is comprised of two to four representatives from
environmental/health or oil and gas agencies from other states, one
representative of industry and one representative c of an environmental
organization.
In addition to the Review Panel, there are a limited number of official
observers. This group of observers includes one local environmental
representative, one local industry representative, one EPA Regional
representative, one national DOE representative, one national DOI
representative plus or one local DOI representative, if appropriate.
-IOGCC staff and EPA HQ staff are also present at state reviews for the
principal purpose of guiding the process.
The Review Panel team leader is always one of the state agency
representatives.
The state review consists of a questionnaire filled out by the
-reviewed state followed by interviews of state personnel. Official
observers are able to actively participate in the interview process.
The on-site interviews take up to five days and may also include a
visit to one or more field offices and/or field sites.
An exit interview is completed at the conclusion of the state review.
This is expected to provide a two-way exchange of information between
the reviewed state and the Review Panel.
The Review Panel writes a report on the state program that has been
reviewed, including descriptions of strengths and weaknesses of the
program. Recommendations for ways to make improvements are provided for
all areas where a state program is found to be deficient. All Review
Panel members' views are included in the report.
The draft of the Review Panel report is circulated to the state and the
official observers for comment.
The final report of the state review is submitted by the Review Panel
through the IOGCC to the reviewed state. Because the final report is a
report by and from the Review Panel, it does not need to be approved by
the IOGCC.
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Summary of IO6CC Study of State Programs
In January 1989 EPA provided a grant to the IOGCC to 'assist EPA in
working with the states to improve some state regulatory programs where
appropriate.
This task (completed in December 1990) was to study existing
state regulatory programs and make recommendation s to
states for developing an effective state program.
At the request of EPA, the IOGCC Council on Regulatory Needs was
established as a panel composed of representatives from m the following
types of organizations:
- . state oil and gas regulatory agencies
state environmental regulatory agencies
federal government (EPA, DOE and DOI)
industry, (API, Appalachian Consortium, and Texas
Independent Producers and Royalty Owners Association), and
environmental interest groups (e.g. Alaska Citizens for the
Environment, and Mineral Policy Center (since replaced by
National Audubon Society).
The panel was divided into two committees (the Technic Committee and
the Administrative Committee) and each committee has been subdivided
into several subcommittees:
- Administrative Subcommittees
Personnel and Resources
Statutory Authority
Intrastate Organization and Coordination
State and Federal Relationships.
- Technical Subcommittees
Commercial and Centralized Disposal Facility
Pits
Land Disposal
The Council's December 1990 report includes guidelines on the above
subcommittee topics for states to use in develop improved regulatory
programs.
The guidelines do not cite specific minimum standards, generic in
nature to allow for the maximum flexibility by states in developing
their programs.
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I06CC History and Background
The Interstate Oil and Gas Compact Commission (IOGCC) organization made
up of the governors of 29 member states and six associate member
states. Member states produce over 99% of -domestic oil production.
The governors of member states are members of the IOGCC, but typically
they designate the head of their state oil and gas regulatory agency or
some other person as their official representative to the IOGCC.
The IOGCC was originally formed about 1935 to encourage the
conservation of petroleum and wise management of the resource. More
recently they have begun to take an active role in environmental
issues.
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Policy Dialogue Committee
White Paper
Introduction
In May, 1991, the EPA's Office of Solid Waste (OSW) chartered the
Policy Dialogue Committee on Mining Waste (PDC), under the Federal
Advisory Committee Act (FACA). The E DC has seven representatives each
from the States, the Mining Industry, Public Interest Groups and the
Federal government. Representatives from the Federal government include
EPA , the Department of Agriculture, and the Department of the
Interior. The PDC is providing assistance to EPA in the development of
a program to control the management of non-coal mine waste. The purpose
of this paper is to provide an overview of the PDC discussions to date.
As this is only a summary, the notes of the individual meetings can be
consulted for further detail.
The PDC has met a total of six times since it was established. The
meetings were held in Washington, D.C. on May 15-16, 1991; in Denver,
CO on June 17-18, 1991; in San Francisco, CA on July 25-26, 1991; in
Charleston, SC on September 4-5, 1991; in Tucson, AZ on October 21-23,
1991; and in Orlando, FL on January 23-24, 1992. Mine tours have been
held in conjunction with a number of the PDC meetings to provide
participants a first hand opportunity to examine industry mine waste
management practices.
The major issues that have been discussed by the PDC are the scope of a
mine waste program, technical, standards, enforcement, state plan
approval and the oversight process, public participation and the role
of the Federal land manager (FLM). The PDC formed subcommittees to
address these topics. This paper discusses each topic in turn.
Although pollution prevention/waste minimization was cited as a
priority issue throughout the PDC process, it was discussed in some
subcommittee deliberations but not synthesized by the Committee.
The PDC meetings have served to ensure that issues related to non-coal
.mining wastes have been thoroughly discuss differing positions, as well
as the reasons for these differences, have been identified. Consensus
was not outcome and the members made considerable progress in
understanding the positions presented by each party. Each of the
parties made clear that they would not be in a position to reach
consensus on components of a mine waste program, until the entire
program was described and cross-component implications were discussed
and understood.
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Scope of the Program
The PDC has focused on the management of extraction and beneficiation
wastes and has not specifically included mineral processing wastes. The
members of the PDC reached some general understanding of how a mining
program should operate; however, the group has not reached specific
agreement on what activities, operations and/or wastes should be
included within the program.
Much of the issue on scope focused.on the definition of mining waste
and the regulation of non-waste units, such as heap leach piles, ore
piles, and mine water, that have the "potential to pollute." The
concept of "regulated materials", which captured these materials, was
initially suggested in the May, 1990 Strawman document (an EPA staff
level approach for managing extraction and beneficiation waste and
materials).
Industry representatives expressed the view that they were wary of
allowing federal authority over these non-waste operations. They
maintain that the inclusion of non-waste units goes beyond the scope of
RCRA. Industry representatives indicated that if there was a regulatory
gap for mine waste, it was in the groundwater control area, and
suggested as a possible alternative, the requirement for the
preparation of a groundwater plan. They showed some flexibility in
their position, since the groundwater plan could include the regulation
of heap and leach operations. They believe that this may be appropriate
since these piles become wastes upon completion of mining and I that
control of these operations upfront is appropriate.
Other issues discussed in this area included abandoned/inactive mines,
exploration wastes, and closure and reclamation. In terms of abandoned
mines, EPA representatives indicated a preference not to include
,abandoned mine lands (AMLs) in the context of the mining PDC in order
to put some bounds on the discussions. Public Interest Group
representatives, however, felt that these sites should be addressed
because they may pose significant risks. It was agreed that abandoned
sites may come up in the course of discussion, though the issue was no
t specifically on the Committee agenda.
Industry representatives did not appear to object to these non-waste
units being regulated by the States under their own authorities.
cooperation with IMCC, which examined inactive and abandoned noncoal
mines. This report, which coincided with the PDC meetings, illustrated
the impact these mines have had i; mining districts across the country.
In September, 1991, the WGA published a final report in
cooperation with IMCC, which examined inactive and abandoned
noncoal mines. This report which coincided with the PDC
meetings, illustrated the impact these mines have had in many
mining districts across the country.
Exploration wastes were discussed in the Scope subcommittee meetings.
It was suggested that the scope of the mining waste program might
include wastes from exploration activities, to the extent that it
includes roads, pads, and drillings. However, it was not addressed
further in subsequent full PDC discussions.
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In terms of closure and reclamation, Industry representatives
questioned whether reclamation should be part of the scope of the
program. Industry representatives distinguished closure from
reclamation by stressing that although they are related, closure
ensures a chemically safe, environmentally protected site, whereas
reclamation ensures a physically safe site. Reclamation is surface
treatment, such as re-vegetation. The States felt that adequate
financial assurance provisions be included in closure plans. Many
states currently do not have adequate financial assurance provisions to
cover the cost of closure and reclamation.
Technical Standards
The discussions concerning technical standards are tied to enforcement,
and initially focused on the issue of whether"to adopt Federal minimum
technical standards or to adopt .performance based standards,
supplemented with guidance. EPA representatives suggested tailoring
regulatory programs to the unique geologic, geographic, and climatic
conditions in each state, and in an attempt not to develop a
prescriptive program, it suggested as a possible approach that
performance standards should be developed that states would then
include in their state-specific mine .waste management plans. These
standards would be supplemented with guidance.
The State and Industry representatives reacted favorably to such an
approach. The Public Interest Group representatives offered an
alternative view that in the absence of Federal minimums, it will be
difficult to review and evaluate state programs, and to enforce a
program on the Federal level when a state is not enforcing its program.
Although differences remain as to what approach to take to technical
standards, the various interests believe that some degree of
flexibility is necessary to account for variations in individual
State's regulatory programs. \
The Technical Standards subcommittee attempted to list examples on how
to achieve a sufficient degree of flexibility, while still including an
adequate level of specificity. The subcommittee pointed out the need to
balance the level of "front end" (program development) versus "back
end" (enforcement) involvement. The subcommittee addressed performance
standards for groundwater, surface water, and air quality; design and
construction requirements; requirements for unit closure;
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requirements for site and waste characterization; and requirements for
reporting.
The subcommittee discussions achieved some understanding regarding
performance standards and design and construction criteria. In terms of
setting performance standards for surface water and air, it was
generally felt that the State plan could use existing Federal standards
or Federally approved state standards; that State standards could be
more stringent than the Federal standard; and that new sites should be
treated differently from existing active facilities. It was also
pointed out that a mining program should address groundwater
protection. Regarding design and construction criteria, it was felt.
that a state plan should have certain minimum design and construction
criteria.
Questions still existed regarding waste characterization and closure
requirements. Although the group believes that closure activities
should be required, there are differing views concerning how RCRA would
define closure and how that definition would affect the Federal land
managers definition of reclamation. One standard definition is needed
to clarify what activities constitute closure. Additionally, although
there was a belief that waste characterization should be required, the
group did not come to specific agreement as to the magnitude and
frequency of such testing. ,
Oversight and Enforcement
There are two principal elements of oversight/enforcement. These
elements are Federal oversight in permitting and Federal involvement in
site-specific enforcement. The level of EPA involvement in
site-specific enforcement was subject to considerable debate in the PDC
discussions. At the beginning of the discussions, the Public Interest
Group representatives supported full Agency site-specific oversight and
enforcement while Industry and the States favored (for different
reasons), limiting Federal involvement in site-specific enforcement.
With continuing discussion, however, the respective positions have
evolved, with differences in opinion narrowing. At a minimum, the
parties seem to believe that EPA could have limited enforcement and
oversight authority triggered by certain conditions which would serve
as limits. These conditions include imminent and substantial
endangerment, a "significant" violation would have occurred, and lack
of diligent prosecution by the states. The parties also felt that EPA
should not take any action until it gave the states 60 days notice to
address the problem. Furthermore, it was generally believed that t he
level of public participation in the permit and enforcement process
should be inversely related to the level of federal involvement.
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State Plan Approval
The discussions regarding state plan approval nave revolved around two
issues. The first issue is whether the program should be
self-implementing--that is, whether the state would be considered to
have an approved program once they submit their application to EPA or
whether the Agency had to review and approve the program before it was
considered an approved program. The other issue is whether a State
should receive partial or conditional approval.
In addition to these issues, there was also discussion on the State
plan. In particular, it was suggested that the State plan could address
all media: air, water, and soils. Furthermore,the plan would discuss
how the State would develop regulations, permit sites, and enforce its
program. There was also considerable discussion regarding whether
certain elements were critical or non-critical, as they related to
having a comprehensive program.
After some discussion, there was a general understanding by the parties
that a state plan should include .a description of'the following: (1)
all State, Federal, regional, and local agencies that are responsible
for implementation of various components of the State plan; (2) the
statutory and regulatory authority each agency has to implement its
responsibilities under the State plan; (3) the existing or planned
procedures each agency has for implementing its authorities; 4) the
regulatory mechanisms that the State will use to authorize the
operation of new units and to require compliance and/or closure of
exiting units (enforcement); (5) public participation provisions in
State plan development and program compliance with the State plan; (6)
how the agencies would carry out corrective action or remediation; (7)
the financial assurance program; (8) the waste minimization/pollution
prevention program; and (9) the program implementation schedule.
In terms of the approval procedure, it was suggested that if there was
an approval process that the one already used in the Clean Air Act and
RCRA may be a good model--that is, the program would require EPA
approval of the state plan. The Public Interest Group representatives
generally agreed with this type of approval. . .
The States offered an alternative view. In particular, they suggested a
self-implementing or self-certified state program that would be
considered automatically approved by EPA upon submission, unless EPA
affirmatively disapproved all (or part if partial program approval is
available) of the program. The States presented a WGA chart entitled,
"State Mine Waste Management Plan Development Process" to the PDC for
comment.
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The State representatives also asked whether a State could seek partial
approval of a mine waste program and allow EPA to implement the rest.
EPA and the Federal land managers noted that, in such a situation,
there would be multiple masters to deal with under that circumstance.
The States pointed out that EPA already operates in this fashion in
RCRA and the Clean Water Act where the State does not have primacy. To
address this situation, the states suggested having EPA assume
responsibility for any or all of the critical elements of a plan via a
Memorandum of Understanding (MOU), if a State is unable to develop
those elements. By doing this, the States indicated that it would limit
the possibility of both EPA and the States implementing duplicative
programs.
A Public Interest Group representative proposed the SMCRA approach as
an alternative to partial program approval. Under this approach, the
federal regulatory authority would e examine each plan element,
submitting each to conditional or partial approval based on its own
merit.
Public -Participation
Public participation was listed as one of the primary issues for
discussion. Although no agreement was reached on the' extent for which
the public should be involved, there is a mutual recognition that some
level of public participation is necessary in the program approval
process, program implementation and enforcement, and program oversight.
It was also acknowledged that the level of Federal involvement in the
program may be inversely related to the degree of public participation
-- meaning that decreased Federal involvement could warrant It
increased public participation.
The debate became focused specifically on how public participation
might .offset federal involvement. The question of this balance became a
point for discussion, as the Public Interest Representatives indicated
that they might be able to support less federal involvement if
provisions were made for increased citizen involvement throughout the
plan approval, permit and enforcement processes.
The public participation debate also focused on citizen suit authority.
The Public Interest Groups have continuously stressed the need for a
strong public oversight role in permitting and enforcement, including
the ability to initiate state actions in court. The States, while they
support strong public participation, raised an issue as to whether this
would lead to an abundance of frivolous actions that would deplete
state resources and seriously delay the routine administration of the
program.
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Federal Lands
About half of the 1,500 mines in the U.S. are located on Federal lands.
These lands are overseen by land management bureaus in the U.S.
Department of Interior (USDOI) and the U.S. Department of Agriculture
(USDOA). Senior officials from these agencies are participating in the
PDC. In particular, the representatives from the Forest Service, the
Bureau of Mines, and the Bureau of Land Management.
The Federal Land Managers (FLMs) agreed to draft discussion paper
providing a background on the FLM agencies and an outline of their
position regarding the role of the FLM within a mine waste program. An
FLM representative described the FLM's management of mining waste and
noted that the FLMs do not have separate operation plans for different
media; rather they have a mining plan of operation that addresses all
aspects of managing mining waste. This plan addresses water quality,
air quality, groundwater quality, reclamation, socioeconomic, and
visual impacts as covered under NEPA. The miner is required to lay out
the plan. If the FLM is not qualified to review such a plan, they will
contract out to get thevexpertise.
The FLM representative stated that except where responsibility is
statutorily given to the States in the Clean Air and Clean Water Act,
the FLMs are essentially held accountable for all activity on their
lands. In this respect, it was suggested that the FLMs should take a
leadership role in mine waste management on Federal lands.
Additionally, it was alluded to the FLM's dependance upon MOUs with
various States, in sharing the work and regulatory activities which
take place. An Industry representative stated that industry is
currently working with the FLMs on a Technical Advisory Committee to
Identify areas that need improvement and to set up standards. He said
it is Industry's hope to avoid encountering conflicting State and'
Federal standards through the use of MOUs.
It was recognized by the various interests of the full PDC, that FLM
statutes would have to be integrated in the RCRA program to avoid
duplication. The EPA representative stated that oversight on federal
lands would need to be worked out with the FLMs (i.e., to what degree
is EPA involved in the case of a permit issued on an FLM site.) EPA
also clarified that in .1 primacy State there would be a State-lead and
not an EPA-lead.
Industry representatives noted that the relationship of the Federal
agencies should be clarified in Non-primacy states. The State
representative suggested that perhaps a HSWA/RCRA permit authority may
be a likely scenario with State and EPA authority in certain areas.
This would entail shared State und Federal responsibility on full
program approval. The.States believe that
U.S. Environmental Protection Agency
Region 5, Library (PL-12J)
77 West Jackson Boulevard, 12th Floor
Chicago. IL 60604-3590
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it makes sense to use the expertise of the FLMs, especially in _
facilitating issues of cross-state contamination. Nevertheless, the
States expressed the view that in primacy states, they would accept FLM
comments, but not FLM approval authority of State programs.
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