UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF SOLID WASTE
STRAWMAN II
RECOMMENDATIONS FOR A REGULATORY PROGRAM
FOR MINING WASTE AND MATERIALS UNDER SUBTITLE D OF THE
RESOURCE CONSERVATION AND RECOVERY ACT
May 21, 1990
ABSTRACT. This package, referred to as "Strawman II", is a working document
that represents EPA's latest staff position on an effective program to
regulate wastes and other materials uniquely associated with noncoal mining.
Strawman II does not represent a proposed rule. The package consists of two
parts: 1) the Foreword, which describes the pre-rulemaking Strawman process,
a background and overview of the mining waste program as envisioned in this
package, and discussions of major issues concerning the program and its scope;
and 2) the Regulatory Approach, presented as "40 CFR XXX, XXY, and XXZ" to
reflect how the program might.appear in regulatory language. Discussions and
amplifications of specific points are also interspersed throughout the
Regulatory Approach. EPA encourages all interested parties to convey their
views on any and all aspects of this program concept.
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STRAWMAN II FOREWORD
TABLE OF CONTENTS
Page
I. STRAWMAN APPROACH 1
A. The Strawman Process 1
B. Chronology of Major Steps in the Strawman
Process 3
C. Overview of the Strawman Approach 4
II. BACKGROUND 7
A. Legislative and Regulatory History on
Mining Wastes 7
B. The Nature of Mining Waste and Extent of
the Problem 9
III. DISCUSSION OF MAJOR ISSUES 12
A. EPA and State Roles in Primacy States/
State Program Review and Codification 13
1. State Program Requirements 13
2. EPA Review and Codification of State
Mining Waste and Materials Management
Plans 15
3. Effective Date of State Plans 19
4. EPA Role in Codified States 20
B. EPA's Implementation Role in Non-Primacy
States 23
C. Scope--Inactive and Abandoned Units 25
D. Scope--Mineral Processing Wastes 28
E. Scope--Regulated Materials 30
1. Heap and Dump Leaching and Production
Units 30
2. Water with the Potential for Release 32
3. Mine Tailings Used in a Manner
Constituting Disposal or Reuse 33
4. Stockpiled Ores and Subgrade Ores 33
5. Other Recommended Approaches 34
F. Multimedia Protection Standards 35
1. Multimedia Regulation 35
2. Development of Multimedia Performance
Standards 37
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IV. OTHER ISSUES 37
A. Characterization of the Regulated Materials
and Site Conditions 38
B. Additional Scope Issues 39
C. Closure and Post-Closure Care Criteria 40
1. Integration of Reclamation and Closure
Requirements 40
2. Remining of Closed Regulated Units 40
D. Financial Responsibility Criteria 41
1. Scope of Required Coverage 41
2. Allowable Mechanisms 42
E. Pollution Prevention 42
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FOREWORD
I. STRAWMAN APPROACH
Strawman II presents the EPA's current staff-level approach toward a program
to protect human health and the environment from the problems that may be
associated with noncoal mining wastes and other materials. This portion of
the Strawman II package, the "Foreword," describes the Strawman process,
presents the background to the mining waste issues leading to the development
of Strawman II, presents an overview of the regulatory approach in Strawman
II, and provides more detailed discussions of the Strawman's approach to a
number of major issues concerning the program and its scope. EPA would like
to emphasize that this Foreword, as well as the entire Strawman II package,
represents staff-level discussions and descriptions. It should also be noted
that EPA staff are aware that many of the provisions in the Strawman go beyond
existing RCRA authorities under Subtitle 0. As noted throughout the Strawman
II package, EPA is soliciting input and recommendations from interested
parties on all aspects of the approach presented in Strawman II.
A. The Strawman Process
Strawman II represents the culmination of a process by which EPA has sought to
involve interested parties in preliminary activities prior to the development
and promulgation of a regulatory program for mining wastes and materials. The
goal of this process is to develop a flexible, site-specific, risk-based
program under Subtitle D of the Resource Conservation and Recovery Act (RCRA)
that could effectively regulate the diverse universe of noncoal mining wastes
and materials. By providing for early and ongoing involvement with the public,
EPA has intended to facilitate communication among all interested parties, to
enhance the Agency's understanding and knowledge of the relevant issues, and
to build consensus, to the extent possible, prior to entering into formal
rulemaking.
'This Strawman process is a nontraditional approach, initially fostered by the
language in section 8002(p) of RCRA, which provides for participation by
interested parties in the development of Report(s) to Congress on mining
wastes. As stated in the July 1986 "Regulatory Determination for Wastes from
the Extraction and Beneficiation of Ores and Minerals" (54 FR 24496), EPA
recognizes that States should be primarily responsible for program
implementation, in part because of the wide array of existing programs that
address mining wastes. This consideration also was a factor in the decision
to encourage wide involvement of the States and other groups prior to actual
regulatory development. The actual steps that came to be included, as the
Strawman process evolved, are described below and in the brief chronology that
follows.
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In a number of meetings between EPA, other Federal agencies, States, industry,
and public interest groups in 1987 and 1988, gener i philosophical issues
associated with the regulation of mining wastes were discussed. It became
clear that it would be most productive to develop a specific approach to
issues in a working document to which the interested parties could react.
This was accomplished by the development in 1988 of Strawman I, a package that
included issue discussions as well as language designed to resemble regulatory
language. Strawman I does not represent EPA decisions but rather, presents a
possible regulatory approach. Subsequent involvement of all interested
parties, including both written and oral reviews of this Strawman, was very
helpful to EPA in identifying major and minor issues of concern and in ,
understanding the positions of interested parties.
The development of Strawman II was undertaken for similar reasons: to provide
a concrete approach that would provoke further discussion and would solicit
recommendations and supporting information. The Strawman process has indeed
allowed EPA to consider a number of alternative approaches suggested or
recommended by interested parties, and to better understand the reasons behind
such alternatives. As such, Strawman II reflects a refinement of Strawman I,
but again does not represent a proposed rule. Senior EPA managers have
reviewed the approaches to a number of major issues and allowed these
approaches to be presented in Strawman II. (These major issues are discussed
in Section III of this Foreword.) This should not be taken as formal Agency
concurrence with the Strawman II approaches to these issues, however, since
these and all other issues will be reviewed and resolved as formal rulemaking
proceeds.
EPA intends that the release of Strawman II, and the subsequent receipt and
consideration of critical reviews, will conclude the process that began with
establishment of the External Communications Committee in 1987 (see the
chronology below). Traditional rulemaking activities will begin after
Strawman II has been distributed and the views of interested parties are
rece ived and cons idered.
The current schedule calls for proposal of the Subtitle D regulatory program
in the fall of 1991', with promulgation of the final rule projected to occur in
early 1993. These tentative schedules are subject to change, of course,
depending on the course of technical studies that will be undertaken to
support the program and on other factors.
To facilitate public participation, to enhance EPA's understanding of the
positions.-of various parties, and to provide additional opportunities for the
submission of relevant information by interested parties, EPA will hold
meetings at which interested parties may present recommendations and
information during the summer and fall of 1990. Interested parties will be
notified of the time and location of such meeting(s) as soon as these have
been determined. In addition, writf-i responses, recommendations, opinions,
or other input may be addressed to" S ^en Hoffman, U.S, Environmental
Protection Agency, Office of Solid We. .- (OS-323), 401 M Street S.W.,
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Washington, D.C. 20460 (telephone 202-475-7242). Written material should be
submitted by August 31, 1990 to ensure its consideration as formal rulemaking
begins.
EPA is actively soliciting recommendations on all aspects of the Strawman, not
only those for which input is explicitly requested in this Strawman package.
EPA also encourages interested parties to make their recommendations as
specific as possible and to provide information that supports the alternatives
they suggest.
B.
Chronology of Mai or Steos in the Strawman Process
1987
July 1986 EPA published a "Regulatory Determination for Wastes for
Extraction and Beneficiation Wastes from the Mining of Ores
and Minerals" (51 Fjl 24496), which concluded that these
wastes should not be regulated as hazardous under Subtitle
C of RCRA. EPA stated its intent to develop a tailored
approach to mining waste management under Subtitle D.
Subsequently, the Office of Solid Waste established a
Mining Waste Regulatory Development Workgroup with members
representing various EPA offices and other Federal
agencies. Workgroup meetings have been held periodically
to advise Workgroup members of significant developments and
to receive suggestions.
EPA established an External Communications Committee (ECC)
consisting of representatives from EPA and other Federal
agencies. The ECC was formed in order to foster
communications among all interested parties, including
States, industry, and public interest groups, and to keep
them advised of ongoing and anticipated activities in the
development of a Subtitle D program for mining wastes.
A meeting of the ECC was held in Denver, Colorado, at which
representatives of various interested parties advised the
ECC of their respective positions on various issues and
recommended specific approaches to the mining waste
program.
March 1988 The American Mining Congress released a preliminary draft
of a Subtitle D mining waste program.
May 1988 EPA released "Strawman I," developed jointly by staff in
the Office of Solid Waste and Region VIII. Strawman I
represented a preliminary staff-level approach to the
Subtitle D mining waste program. It was designed to
generate discussion between interested parties and propose
constructive regulatory alternatives. Issues and
approaches in this Strawman had not been reviewed in detail
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August 1987
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or approved by EPA management prior to release. (Although
OSU management approved release of Strawman I, there was no
explicit or implicit approval of the overall approach, or
of specific provisions.) A meeting was subsequently held,
in June 1988, at which EPA staff presented a detailed
overview of Strawman I provisions to interested parties
(including representatives of each of the major
constituencies). These representatives relayed to EPA
their detailed opinions and recommendations on various
issues. Subsequently, over 40 written responses were
received from these and other interested parties.
1988 to Through the Western Governors' Association (WGA), EPA
present funded the participation of 21 States in the Strawman
process. VGA Task Force has established a Mine Waste Task
Force consisting of health, environmental, and natural
resources representatives from the States.
December The WGA Task Force completed a draft Recommendations for a
1989 Mine Waste Regulatory Program Under Subtitle D of RCRA.
This approach includes both recommended regulatory language
and supporting discussions and rationale.
Hay 1990 The present "Strawman II" approach is being released to
interested parties for review. This Strawman, like
Strawman I, represents a staff-level approach. Again,
senior management's approval of the release of Strawman II
should not be construed as representing final Agency
positions or proposals. In releasing this Strawman, the
Agency is seeking recommendations that propose specific
alternatives that would be more effective and/or efficient
in responding to any given issue.
Although EPA has worked with the Mine Waste Task Force of
•the Western Governors' Association over the past two. years,
this EPA document has not been reviewed or endorsed by the
Task Force States or by WGA.
C.
Overview of the Strawman Approach
In the July, 1986, Regulatory Determination, EPA stated that it was not
appropriate to regulate the extraction and beneficiation wastes covered in the
1985 Report to Congress (Wastes from the Extraction and Beneficiation of
Metallic Ores. Phosphate Rock. Asbestos. Overburden from Uranium Mining, and
Oil Shale) as hazardous wastes under Subtitle C of RCRA. In making the
determination, EPA made the following points:
1. Mining waste is generated in much larger volumes than industrial
hazardous (Subtitle C) wastes. The average mining waste facility
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manages about three million metric tons of waste annually; while
the typical hazardous waste facility subject to Subtitle C manages
about 50 thousand metric tons of waste annually.
2. Although there is a wide range in size (from 1 acre to 10,000
acres) of mining waste sites, these facilities are generally much
larger than industrial hazardous waste facilities. Mining waste
piles average 126 acres and tailings ponds average 494 acres, as
compared to 6 to 10 acres for average hazardous waste impoundments
or landfills.
3. Nearly all mining waste is land-disposed onsite.
4. Some mining waste sites may pose significant health and
environmental risks. However, most mining waste streams are
believed to have lower exposure and risk potential than hazardous
wastes because mines are generally in drier climates, thereby
reducing leaching potential; mines have lower annual net recharge;
depth to ground water is generally greater at mine sites;
population density is typically lower; and mines tend to be
further from drinking water receptors. There are, however,
exceptions to all of these general characteristics.
Consequently. EPA concluded in the 1986 Regulatory Determination that
hazardous waste (Subtitle C) controls may be technically infeasible,
economically impractical, and in some cases, unnecessary to protect human
health and the environment. At the same time, EPA determined that current
Subtitle D criteria and authorities are not adequate to fully address mining
waste concerns. EPA recommended the development of a primarily State-
implemented, site-specific and risk-based approach under Subtitle D that
addresses the diversity and unique characteristics of mining waste problems.
EPA also indicated that additional Federal oversight and enforcement
authorities may be necessary to ensure the program was protective of human
health and the environment.
Current RCRA Subtitle D authorities allow EPA to develop technical criteria
for the management of solid wastes. The program presented in Strawman II
would cover the wastes and industrial sectors addressed in the December 1985
Report to Congress. In addition to the extraction and beneficiation wastes in
the industry sectors covered in the Report to Congress, the Strawman approach
would regulate mineral processing wastes that:
1) remain within the Bevill exclusion; or
2) are non-Bevill, non-Subtitle C wastes that are co-located and co-
mingled with regulated materials generated by extraction and
beneficiation.
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The Strawman would not regulate wastes generated from mining exploration.
(See the more detailed issue discussion on Bevill processing wastes and the
scope of the program in Section 111 below.)
In developing the Strawman program, EPA identified a broader range of mining-
related materials than the solid wastes identified above, that: 1) may pose a
potential threat to human health and the environment, and 2) could be
appropriately regulated under the Strawman program, given expanded Subtitle D
authorities. Strawman II has been structured to address this broader range of
materials through the concepts of "regulated materials" and "regulated units".
The materials other than solid wastes from extraction, beneficiation, and
processing activities that the Strawman would regulate include: materials
being leached in active heap and dump leaching operations and associated
pregnant and barren leaching solutions; water or other liquid that has the
potential to accumulate hazardous constituents, and which accumulates or is
expected to accumulate in open pits, mine shafts, tunnels or other structures,
and which has the potential for release to the environment during or after the
active life of these structures; mill tailings (including land-applied
tailings); stockpiled ores and subgrade ores; and any other material uniquely
associated with mining that the regulatory authority determines has the
potential to pose a threat to human health and the environment. (See the more
detailed discussion on Scope in the Major Issues discussion in Section III
below.)
Strawman would give EPA and the States a tailored, risk-based strategy that
would allow them to respond to site-specific conditions. The minimum Federal
standards that would be set forth in the program are believed to be complete
enough to address high risk sites; however, flexibility is reserved for non-
problematic sites.
Upon codification by EPA of a State program, .States would have the lead role
in implementing and enforcing a State Mining Waste and Materials Management
Plan. The States are expected to identify a State agency to serve as a
liaison with EPA; incorporate a multimedia approach that addresses air,
surface water, ground water, and soil contamination; and incorporate site-
specific multi-media requirements into one or more permits. To be codified by
EPA. the State Plan would need to describe a State program that is adequate to
meet State-established performance standards that EPA determines are as
protective as the minimum Federal standards.
EPA would retain limited oversight and enforcement authorities in codified
States; and EPA may issue and enforce permits in non-codified States. In
reviewing State Plans and in developing a Federal program for non-primacy
States, EPA would have the authority to recognize effective State and Federal
programs that are already in place and may confine itself to filling in
regulatory gaps as necessary. Thus, efficiency in utilizing State and EPA
resources would be maximized.
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Section II of this Foreword provides a more detailed background on the
legislative and regulatory history of the Subtitle D mining waste program and
information on the nature of the waste and industry sectors that the Strawman
program would cover. There are several major issues that affect the scope and
structure of the program presented in Strawman II. These are discussed in
Section III of the Foreword, followed by a discussion of other aspects of the
program in Section IV of the Foreword.
II. BACKGROUND
A. Leeislative and Reeulatorv History on Mining Wastes
Dec. 18, 1978
Oct. 12, 1980
Nov. 19, 1980
1984
Oct. 2, 1985
Initial regulations proposed for hazardous waste
management under Subtitle C of RCRA identified a
universe of special wastes that were large
volume, low hazard, and less amenable to RCRA
control techniques. EPA identified waste
materials from the "extraction, beneficiation,
and processing of ores and minerals", i.e. mining
waste, as one category of such special wastes.
The Bevill Amendment to Section 3001 of RCRA
excluded solid waste from the extraction,
beneficiation, and processing of ores and
minerals from Subtitle C regulation pending
completion of a Report to Congress and a
Regulatory Determination regarding the Subtitle C
status of these wastes.
EPA published an interim final amendment to the
hazardous waste regulations to reflect the mining
waste exclusion. EPA explained that it
interpreted the Bevill exclusion to include
•solid waste from the exploration, mining,
milling, smelting, and refining of ores and
minerals" (45 £E 76619). EPA also indicated that
it would reconsider its interpretation of the
exclusion in the future, particularly as it
applied to smelting and refining wastes.
Concerned Citizens of Adamstown v. EPA. District
Court ordered EPA to complete the mining waste
studies and take action on a planned proposed
rulemaking re-interpreting the scope of the
exclusion.
EPA proposed to narrow the scope of the mining
waste exclusion (50 FR 40292). EPA adopted the
1978 high-volume, low-hazard concept. The effect
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Dec., 1985
on processing wastes was generally to remove most
refining and smelting wastes from the Bevill
exclu£ ->n.
EPA submitted a Report to Congress entitled
Wastes from the Extraction and Beneficiation of
Metallic Ores. Phosphate Rock. Asbestos.
Overburden from Uranium Minine and Oil Shale.
July, 1986
Oct. 9, 1986
June, 1988
July, 1988
Sept. 1, 1989
EPA published a Regulatory Determination finding
that Subtitle C regulation of extraction and
beneficiation wastes was not appropriate and
announcing its intent to develop a Subtitle D
mining waste program (51 £E 24496). No
determination was made for processing wastes (see
below).
EPA withdrew its proposed Oct. 2, 1985
reinterpretation (51 FJ. 40292). As a result,
smelting and refining wastes remained within the
Bevill exclusion and continued to be
conditionally excluded from Subtitle C
regulation.
EPA released the Strawman 1 package, a regulatory
approach to the extraction and beneficiation
wastes covered in the 1985 Report to Congress, to
States, industry representatives, environmental
organizations, and others.
U.S. Court of Appeals, D.C. Circuit, in EOF v
EPA, upheld EPA's decision to regulate extraction
and beneficiation wastes under Subtitle D. At
the same time, the court ruled that EPA's
decision to withdraw its re-interpretation and
thus include all smelting and refining wastes in
the Bevill exclusion was overly broad. The Court
decided the Bevill exclusion for mineral
processing wastes should be based on the high
volume, low hazard criteria and placed EPA on a
schedule to identify the specific processing
wastes that meet the criteria. (EPA was also
ordered to list, and regulate as hazardous,
several specific processing wastes that had been
listed and/or proposed to be listed at various
times.)
EPA promulgated a final rule defining "high
volume" and "low hazard" criteria to be used in
determining which mineral processing wastes were
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exempt under the Bevill exclusion, and applied
these criteria to wastes for which the Agency had
adequate data. Five processing wastes were
retained, and 20 others were determined
conditionally exempt pending evaluation of hazard
data (54 H 36592). All other processing wastes
became subject to Subtitle C if they demonstrate
one or more hazardous characteristics.
Sept. 25, 1989 Seven of the 20 conditionally exempt wastes were
proposed to be removed from the Bevill exemption
(and thus to be subject to Subtitle C if
"hazardous"). The remaining 13 wastes, along
with the five identified earlier, were proposed
to be studied in a new Report to Congress (54 FR
39298).
January 23, 1990 EPA promulgated a final rule on the conditionally
retained processing wastes (55 FR 2322). Fifteen
of the 20 processing wastes were retained within
the exclusion, meaning that a total of 20 mineral
processing wastes will be addressed in the
required Report to Congress and subsequent
Regulatory Determination. The Report to
Congress will be completed by July 15, 1990 and a
final Regulatory Determination will be made by
Jan. 31, 1991.
Today EPA is releasing Strawman II, a refinement of
Strawman I that covers extraction, beneficiation,
and certain mineral processing wastes, along with
other materials uniquely associated with mining.
B. The Nature of Mining Waste and Extent of the Problem
The following summarizes the major points discussed in the 1985 Report to
Congress on Wastes from the Extraction and Beneficiation of Metallic Ores.
Phosphate Rock. Asbestos. Overburden from Uj'?Tl7u|B Mining and Oil Shale, and
Bevill Regulatory Determinations-54 ££ 36592, September 1, 1989, 54 fjl 39298,
September 23, 1989 and 55 Fjl 2322, January 23, 1990. As there has been an
increase in precious metals production over the past few years, current
quantities of waste generated would be accordingly higher than those cited in
the Report to Congress. EPA is currently initiating studies to update
information on mining production, number of active sites, volumes of waste
generated, etc.
EPA's 1985 Report to Congress on extraction and beneficiation wastes focused
on nonfuel mining sectors producing and concentrating metallic ores, phosphate
rock, and asbestos; it also covered uranium overburden and oil shale. In
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1985, there were fewer than 500 active nine sites in the U.S. These sites,
which are predominantly located in sparsely populated areas west of the
Mississippi River, vary widely in terms of size, product value, and volumes of
material handled. Several sectors are concentrated primarily in one or two
States: the iron segment is mainly concentrated in Minnesota, lead in
Missouri, copper in Arizona, asbestos in California, uranium in New Mexico and
Wyoming, and phosphate in Florida. Most nonfuel ores are mined on the
surface; only antimony, lead, and zinc are solely underground operations. In
addition, there were over 400 mineral processing sites, located in all 50
States.
The December 1985 Report to Congress estimated that 2 and 1.3 billion metric
tons per year of nonfuel extraction and beneficiation wastes were generated in
1980 and 1982, respectively. The vast majority of mining wastes generated in
1980 and 1982 came from the copper, iron, uranium, and phosphate rock mining
segments. The accumulated waste volume since 1910 from nonfuel mining is
estimated to be approximately 50 billion metric tons. In addition, the
approximately 400 mineral processing sites generated over 500 million tons of
waste annually. The large volume nonfuel mining waste results from the high
waste-to-product ratios associated with mining. The fact that most of the
materials'handled in mining are wastes and are not marketable products
distinguishes mining from many other process industries where waste materials
make up a relatively small portion of the materials used to produce a final
product. Consequently, some of the larger mining operations handle more
material and generate more waste than many entire industries.
Wastes of concern noted in the 1985 Report to Congress include waste rock
tailings, mine water, and overburden. Waste rock is the soil and rock that
mining operations move during the process of gaining access to an ore, or
mineral body; it also includes rock removed while sinking shafts, accessing or
exploiting the ore body, and rock interbedded with the ore or mineral body.
The size of mine wastes ranges from small clay particles to boulders. Most
mine waste is disposed in piles near the mine site. Approximately 9 percent
of mine waste is backfilled in previously excavated areas, and approximately 4
percent is used offsite for construction.
After the ore is extracted, the first step in beneficiation is generally
crushing and grinding. The crushed ores are then concentrated to free the
valuable mineral and metal particles from the less valuable rock.
Beneficiation processes include physical/chemical separation techniques such
as gravity concentration, magnetic separation, electrostatic separation,
flotation, solvent extraction, electrowinning, leaching, precipitation, and
amalgamation. Most beneficiation processes generate tailings, which generally
leave the mill as a slurry consisting of 40 to 70 percent liquid mill effluent
and 30 to 60 percent solids. In some flowsheets, tailings are wet stacked.
Most mine tailings are disposed of in onsite impoundments. Use of tailings
ponds is the primary method by which wastewater is treated in the metals ore
mining sectors.
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Dump and heap leaching are other beneficiation processes used to extract
metals including gold and silver (via cyanide leach), copper (via sulfuric
acid), and uranium (via alkaline leaching in situ). In dump leaching, the
material to he leached is placed (or is already located) directly on the
ground and an acidic solution is applied. As the liquid percolates through
the ore, it leaches out metals, a process that may take years or decades.
Dump leach piles often cover hundreds of acres. Heap leaching operations are
generally used for higher grade ores and are smaller than dump leach
operations. They usually utilize an impermeable pad under the leach material
to maximize recovery of the leachate. Heap leaching usually takes place over
months rather than years. In heap leaching gold ore, cyanide solution is used
rather than acid. Another technology currently under development recovers
gold from sulfide ore by sequential leaching with micro-organisms in an acid
pH environment followed by cyanide leaching in a basic pH environment. When
leaching no longer produces economically attractive quantities of valuable
metals, the spent ore is often left in place (or nearby), in some cases
without further treatment. During leaching operations the leaching solutions,
laden with valuable metals, are conveyed, in lined or unlined ditches, from
the base of the heaps or dumps to lined ponds. After metals are extracted
from the leaching solutions, the solutions are often re-applied to the heap or
dump.
Mine water is water that infiltrates a mine (either underground or surface)
and is typically removed with pumps to facilitate mining. Mine water is often
collected in impoundments or treated and discharged directly to surface water;
alternatively, it is used in mill operations, onsite dust control, cooling, or
as a drilling fluid. Once mining operations end, the removal and management
of mine water often ends, enabling its possible accumulation in rock
fractures, shafts, tunnels, and open pits and resulting in uncontrolled
releases to the environment.
Mineral processing operations generally follow beneficiation and include
techniques that often change the chemical makeup of the ore or mineral, such
as chemical attack or digestion, electrolytic refining, and
pyrometallurgical/thermal processes (e.g. roasting, smelting). In contrast to
extraction and beneficiation wastes, processing operations generate waste
streams that generally bear little or no resemblance to materials that entered
the operation.
When mineral processing operations are co-located with extraction and
beneficiation operations, commingling of extraction and/or beneficiation and
mineral processing wastes (both Bevill and non-Bevill) may occur. In most
instances, the contribution made by the processing waste to the total waste
quantity managed onsite is very small (e.g., codisposing a few thousand tons
per year of wastewater treatment sludge with millions of tons of mill
tailings). In these cases, management of the mixed waste streams usually
occurs in a land disposal unit, such as a tailings pond or other surface
impoundment, or, in some industry sectors, a gypsum stack.
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Of the 1.3 billion metric tons of nonfuel mining waste generated in 1982 by
extraction and beneficiation, as reported in the 1985 Report to Congress,
about 61 million metric tons (5 percent) were estimated to exhibit the
characteristics of corrosivity and/or EP (Extraction Procedure) toxicity, as
defined by 40 CFR 261.22 and 261.24 respectively. Fifty million tons of these
corrosive "wastes" were actually heap and dump leach materials used in
production units. Another 23 million metric tons (2 percent) were
contaminated with cyanide (greater than 10 mg/1). Further, there were 182
million metric tons (14 percent) of copper leach dump material and 95 million
metric tons (seven percent) of copper mill tailings with the potential for
release of acidic and toxic liquid (i.e., acid generation potential). There
were 443 million metric tons (34 percent) of waste from the phosphate and
uranium segments with radioactivity content greater than 5 picocuries per
gram; a total of 93 million metric tons (7 percent) had radioactivity content
greater than 20 picocuries per gram. Finally, asbestos mines generated about
5 million metric tons (less than 1 percent) of waste with a chrysotile content
greater than 5 percent.
To determine what damage might be caused by mining waste for the 1985 Report
to Congress, EPA conducted ground-water monitoring and examined documented
damage cases. During short-term monitoring studies at eight sites, EPA
detected seepage from tailings impoundments, a copper leach dump, and a
uranium mine water pond. The EP toxic metals of concern, however, did not
appear to have migrated during the 6- to 9-month monitoring period. Other
ground-water monitoring studies, however, detected sulfates, cyanides, and
other contaminants from mine runoff, tailings, pond seepage, and leaching
operations. The actual human health and environmental threats posed by these
releases are largely-dependent upon site-specific factors, including a site's
proximity to human populations or sensitive ecosystems and its water balance.
Incidents of damage (e.g., contamination of drinking water, degradation of
aquatic ecosystems, fish kills, and related degradation of environmental
quality) have also been documented in the phosphate, gold, silver, copper,
lead, asbestos, and uranium mining sectors. EPA is in the process of
reviewing current CERCLA (Superfund) and other data on mining sites.
III. DISCUSSION OF MAJOR ISSUES
This section contains a general discussion of the broad issues concerning the
scope and implementation of the program. Discussions and notations on
specific points are interspersed throughout the text in the regulatory
approach presented as 40 CFR XXX, XXY, and XXZ in this package. Interested
parties should not confine themselves to issues and areas where EPA has
explicitly requested suggestions and information. Because the Strawman does
not reflect final Agency positions, all issues and provisions of the program
should be considered subject to critical review.
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A- EPA and State Roles in Primaev States/State Program Review and
Codification
1. State Program Requirements
The Strawman approach to the management of mining waste and other regulated
materials would have EPA set out a minimum level of protection that a State
wishing to implement its own mining waste management program would have to
meet in order to receive primacy. Strawman allows for Federal codification of
an entire Mining Waste and Materials Management Plan or individual Plan
elements. If EPA does not codify a Plan or Plan element, the State may revise
and resubmit that portion. (It should be noted that a State always retains
the opportunity to initiate Plan development and seek codification, whether or
not EPA is in the process of developing a Federal program in that State.) In
presenting this approach, EPA recognizes that many State and Federal
regulatory programs are in place that address various aspects of mining
operations within a given State. Additionally, EPA is aware that most of the
regulated units operate on a local level where the State is better equipped to
respond. EPA believes that a State is in the best position to identify State
laws that give the State authority to regulate mining operations, and thus can
more easily identify gaps in the existing statutory framework and ensure that
unnecessary revisions or duplication of State law or agency authority are not
pursued.
Part XXX of the Strawman sets out the programmatic elements necessary for a
State Mining Waste and Materials Management Flan to be codified by EPA. EPA
is seeking input on how to incorporate the maximum amount of flexibility into
plan development and codification. A State would have to show how all of the
State and Federal agencies having authority over the regulated materials would
be coordinated and how interagency conflicts would be resolved; which agency
has the authority to implement and enforce which part of the program; and
that, taken together, all of the agency authorities constitute appropriate and
complete authority to implement and enforce the State Mining Waste and
Materials Management Plan. The State would also have to demonstrate that it
has authorities and procedures to implement the Plan on all regulated units
located on Federal, State and private lands within its borders. EPA also
recognizes that mining operations subject to the Strawman are also located on
Indian lands. EPA is considering how mining operations on Indian lands should
be regulated within the framework of the Strawman. EPA is soliciting
information and recommendations on this issue.
The Strawman would provide that the State identify one agency to coordinate
State and Federal agencies and serve as a liaison for communications between
the State and EPA. While the State may elect to assign additional
responsibilities to this agency, the Strawman would only require that it serve
to coordinate communication. For example, the liaison agency may be
responsible for coordinating Memoranda of Agreements among State and Federal
agencies in order to clarify the roles of various agencies. The precise roles
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and authorities, if any, a State provides its liaison agency would be left to
the States by Strawman. However, a Plan would have to describe how potential
conflicts among the various implementing agencies would be resolved.
Part XXX would also require that a State demonstrate it has one or more
instruments in place to ensure regulated unit compliance with the applicable
substantive and procedural requirements. The Strawman would not require a
"master permit" that contains all standards and conditions or that coordinates
existing permits. Instead, the issue of how to ensure compliance with all
applicable standards would be left to the States. A State would have the
option of issuing a "Subtitle D" permit that incorporates all existing permits
and addresses all applicable requirements; issuing a "Subtitle D" permit that
would fill the gaps of existing permits; or using the existing State
permitting structure. Environmental groups have expressed concern that using
multiple permits or other mechanisms to ensure compliance with Part XXY may
make the tracking and review process, as well as Federal oversight, more
difficult. EPA recognizes this concern and believes that it may indeed be
easier for a State to administer and enforce a Plan for a regulated unit if
all of the requirements applicable to that unit appear in one document. This
approach would put both the regulator and regulated on notice concerning the
responsibilities and conditions under which the regulated activity is
permitted. It would also ensure that regulatory activities are coordinated so
that the review process need not be conducted in a piece-meal manner. Neither
the mining industry nor the VGA Task Force States favor the use of "umbrella"
permits. In the desire to allow States flexibility and to avoid undue
duplication of existing State programs and authorities, Strawman would not
require a "master" or "umbrella" permit. EPA is soliciting suggestions on
whether such a master permit should be required and how a program that does
not require a master permit could be made as efficient as. possible.
Whatever method a State chooses to ensure compliance with applicable
standards, the State would have to demonstrate how the permits or other
instruments would contain enforceable standards and conditions that are no
less protective of human health and the environment than the Technical
Criteria set out in Part XXY. For the sake of conciseness in the remainder of
this Foreword and in the regulatory approach section of the Strawman II
package, the term "permit* is used to refer to an individual or collective set
of instruments used to achieve full compliance with the codified State Plan or
Plan element (See Part XXY: Technical Criteria; Appendix: Definitions).
Furthermore, a State Plan would have to contain a description of the
procedures in place for the approval, renewal, modification, or revocation of
a permit that is held by an owner/operator of a regulated unit. At a minimum,
States would renew, modify, or revoke each permit every 5 years. The aim of
this procedure is twofold; first, it is the-State's responsibility as the
regulatory authority to ensure that the regulated unit is meeting its permit
conditions and, second, that those conditions are sufficient to ensure
protection of public health and the environment. The review would be
applicable to every site through post-closure.
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States seeking program codification also would have to demonstrate that they
have effective procedures in place to ensure adequate permitting and
enforcement of the mining waste management program. These procedural
requirements include State procedures for permitting (as discussed above),
monitoring, inspection, and enforcement. The State would have to show that
each agency responsible for implementing and enforcing one or more components
of the program has procedures for inspection of every permitted unit and
activity at least annually; that each agency has the necessary legal authority
to enter onto property for purposes of inspection and monitoring; and that
each agency's enforcement authority includes the ability to suspend, modify,
or revoke permits, seek temporary or permanent injunction to protect against
threatened harm to human health or the environment, and to issue
administrative penalties or seek civil and/or criminal penalties for
noncompliance; and to require forfeiture of financial surety. The State would
have to show that it has the financial resources and manpower to accomplish
these activities. EPA is aware that some States may not have the necessary
legislation in place to meet these requirements; those States would have to
submit a schedule for these changes during Plan development.
The State should provide an opportunity for effective public input prior to
Plan submission to EPA. Further, EPA encourages State participation in
Federally-held hearings on program codification, as the State would have the
day-to-day responsibilities of carrying out the program as codified.
A State desiring program primacy would also have to demonstrate in its Plan
that it provides for effective public participation prior to approvals,
significant modifications to, or renewals of permits, and prior to significant
modifications to or renewals of State Plans. "Effective public participation"
procedures are not defined, and Strawman does not specify the level of public
participation that would be effective. As discussed in more detail in Part
XXX of the regulatory approach, EPA seeks advice on whether there should be a
Federal minimum description of what constitutes effective public
participation. Suggestions are also requested on what constitutes significant
modifications to permits and State Plans (See Part XXX: Guidelines for State
Mining Waste and Materials Management Plan Development, Codification,
Oversight, and Enforcement; Subparts A-G).
2. EPA Review and Codification of State Mining Waste and Materials
Management Plans
In the Strawman approach, EPA would work cooperatively with the State during
Plan development, and review the Plan submission to determine whether or not
the State's criteria and procedures are equally as protective of human health
and the environment as are the Technical Criteria in Part XXY. The Strawman
would allow for Federal codification of an entire State Plan or individual
elements of a Plan. If EPA did not codify a Plan or Plan element, the State
could revise and resubmit that portion. EPA would then codify the revised
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Plan or Plan element. In cases where EPA codified only selected elements of a
State-submitted Plan, Part XXZ provides for EPA development and implementation
of those elements not codified from the State Plan.
There are a number of possible approaches to defining the specific Plan
elements that may be codified. Each approach has important implications for
the ultimate success of the mining program. Potential approaches include
media-specific elements, industry-specific elements, or regulatory subparts
(e.g., performance standards, closure, financial responsibility, corrective
action); media-specific and regulatory subpart elements could also be codified
for a specific industry sector. For example, elements could be defined to
address specific media, such as ground water. In this example, the Plan
element for ground water should cover most or all aspects of the Technical
Criteria (design and operating standards, performance standard-setting,
monitoring, corrective action, closure/post-closure, and financial assurance)
applicable to ground water, as all of these components are critical to
ensuring that performance standards for ground water are met. EPA is seeking
information and recommendations on options for minimum program elements and
appropriate element boundaries and on the means by which State- and EPA-
implemented elements could best be integrated. A number of considerations
related to each approach must be resolved. For example, an issue associated
with the ground-water example above is how to maintain cross-media regulation
in a media-specific program, particularly when corrective action is triggered
for one or more media. Also, the responsibilities of each participating party
in a situation of partial State implementation must be clearly delineated.
The Strawman approach is intended to address all media affected by regulated
units, and the Technical Criteria in Part XXY provide a model for a State
program to protect each medium. However, EPA does not anticipate requiring
that a State Plan contain any or all of the specific provisions or procedures
outlined in the Technical Criteria in Part XXY. Part XXY would require that a
site-specific characterization of the regulated materials be conducted to
determine the release potential for specific parameters (contaminants) of
concern. The Technical Criteria for performance standards, monitoring, and
corrective action would apply to these parameters of concern. EPA is
considering suggesting that States identify parameters of concern based on the
specific industry sectors located in that State. (See the more detailed
discussion on this point in Subpart C of Part XXY of the regulatory approach.)
The media addressed in the Technical Criteria are ground water, surface water,
air, and soil. The requirements for each medium are discussed below.
a. Ground water
The Strawman approach would provide that each State establish numeric
performance standards for the parameters of concern in ground water.
Standards could apply throughout the State or be site-specific. EPA
recognizes that States have individual ground-water classification systems
that are used to set State-specific or site-specific ground-water quality
standards. A Plan that contained such a system could be codified if EPA
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determines that the State standards or standard-setting procedures are as
equally protective of human health and the environment as the Technical
Criteria.
For ground water that is used for drinking water, Strawman would use the
maximum contaminant levels (MCLs) established under the Safe Drinking Water
Act as the first alternative to State standards. EPA is seeking input on
Federal minimums to be used for non-drinking water sources. For ground water
that is hydrologically connected to surface water, the surface water standards
applicable to the site may apply.
The Strawman also would contain a default procedure for developing a
risk-based standard if the State has no existing ground-water performance
standard of its own and no Federal MCL for that particular parameter exists.
In this situation, the State would conduct a risk analysis for the particular
parameter and would set a numeric standard based on risk factors.
Finally, if there is no State standard and the background level (as defined by
the State) of any parameter exceeds the MCL or risk-based standard, then the
State may use the background level as its performance standard as long as it
is protective of human health and the environment.
The review of State ground-water monitoring and corrective action procedures
would be similar. These procedures would not have to follow or otherwise
resemble the Technical Criteria. However, State programs would have to be
determined to be as stringent as the Federal Criteria. The minimum
requirements in the Strawman Technical Criteria would be benchmarks in
evaluating State ground-water programs. Among others, these include
monitoring frequency, well location and design criteria, points of compliance,
and methods for identifying exceedances.
b. Surface water
The Strawman provides for a system in which individual State surface water
quality standards, adopted pursuant to the Clean Water Act, would become the
minimum performance standards. In the absence of such standards, States would
use MCLs; if no MCL existed, a risk analysis would be used to derive numerical
criteria from narrative State water quality criteria. One approach to
developing risk-based standards would be to use EPA's 1986 Criteria for Water
Quality. Again, if there were no State standard and the background level for
any particular parameter exceeded any MCL or risk-based performance standard,
the State could use the background level as its standard if it were
protective. As with ground water, State surface water monitoring and
corrective action procedures would be evaluated not on the basis of their
similarity to the Federal Criteria but whether they were equally as
protective.
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EPA is aware that there are many surface waters for which there are no
numerical standards, --ut is concerned that non-numerical standards would not
allow either EPA or State to evaluate compliance. Opinions and
recommendations on t.._s issue are requested.
c. Air and Soil
In the case of performance standards for air and soils, it is not EPA's intent
to drive unnecessary standard-setting by the regulatory authority where
standards do not exist for parameters of concern at the State or Federal
level. Therefore, based on the results of the characterization of the
regulated materials on the site, on the management practices used at the site
to prevent fugitive dust or soils contamination, and on site-specific factors,
the regulatory authority would make an initial determination, for each
parameter, whether the potential risks posed warrant performance standard
development. In other words, the Strawman would provide for management
practices to serve as alternatives to numerical performance standards for air
and soils. However, EPA is seeking opinions on whether numeric air and/or
soil performance standards should in fact be set, and if so, on what Federal
criteria they should be based. Options for air include standards established
under the Clean Air Act, the Mine Safety and Health Administration, or
National Emission Standards for Hazardous Air Pollutants, including those
recently promulgated for radionuclides (54 FR 51654). The Superfund approach
could be appropriate for soils. In reviewing a State Plan, EPA would
determine whether a State has adequate modelling procedures and other tools
necessary for making site-specific determinations regarding the adequacy of
numeric standards or management practices to'comply with the Technical
Criteria.
d. Other Requirements
In addition to the performance standards described above, a State Plan would
have to include procedures and schedules for characterizing regulated
materials and the sites where the regulated materials are managed; and
complying with design and operating criteria, monitoring and verification
criteria, corrective action criteria, closure and post closure criteria, and
financial responsibility criteria. EPA would provide guidance on State Plan
development and review proposed State .procedures and schedules to ensure that
they are as protective of human health and the environment as the Technical
Criteria in Part XXY.
EPA emphasizes that nothing in the regulatory approach is intended to prevent
States.from establishing criteria that are more stringent than-the minimum
Federal Criteria. EPA recognizes that States could use best available
technology criteria developed for mine units, design criteria, performance
criteria, management practices, or any combination of these as appropriate to
meet minimum Federal requirements.
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EPA would assess State programs and procedures to determine whether or not the
performance standards and other requirements would result in permit conditions
that are as stringent as the minimum Federal criteria. For example, if an
aquifer used for drinking water underlies a regulated unit, EPA would not
anticipate that any standard less stringent than an MCL would be appropriate
to protect that aquifer; in such a case, a State ground-water classification
system would have to have designated the aquifer as a drinking water or
potential drinking water aquifer to meet the minimum criteria. It should be
noted that the intent of the Strawman approach is to avoid interference or
duplication of existing Agency efforts related to ground water. For example,
it is anticipated that ground-water classification systems established
pursuant to the Underground Injection Control program would be used where
applicable.
EPA is aware that the Strawman approach for evaluating State Plans would place
a burden on EPA reviewers. This burden will be reduced by EPA cooperatively
working with States during Plan development. EPA would, in many cases, have
to review the authorities available to several State agencies, numerical
standards and standard-setting procedures for several media, permitting and
enforcement procedures of several agencies, and a wide variety of other
programmatic materials. Then, EPA would have to determine whether the
procedures and conditions available satisfy a criterion of "at least as
stringent as Part XXY." In determining whether the State program is "as
stringent as" the Federal program, EPA would focus its efforts on the ability
of the State technical standards to meet the substantive baseline
environmental standards established in Part XXY. The specific procedural and
administrative requirements, while important to the overall implementation of
the program, would not be evaluated for the "as stringent as" standard, since
States may use different decisionmaking frameworks. This approach would
require care on the part of EPA reviewers. EPA is requesting opinions and
recommendations on this approach and on alternative approaches for evaluating
State Plans.
3. Effective Date of State Plans
Until a Plan is reviewed and codified, all existing State or Federal programs
that address mining would remain in effect. The regulatory authority would
have to specify compliance deadlines for all new or existing regulated units,
but they may not exceed five years after State Plan codification. EPA
recognizes that there would potentially be a five year period in which
existing units could continue to operate, or could close, without the minimum
protection afforded by this program. However, existing State and Federal
program requirements would provide some degree of protection from potential
releases, and RCRA authorities under section 7003 and CERCLA sections 104 and
106 would be available to protect against substantial threats and imminent
hazards in the interim. (See the more detailed discussion on this issue in the
Effective Date section of Subpart B of Part XXY.) Suggestions on the best
approach for establishing an effective date are welcome.
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4. EPA Role in Codified States
The Strawmsn would give program implementation authority to a primacy State
but would allow EPA to retain oversight and limited enforcement authority.
EPA's authorities are described separately below.
a. Oversight
EPA would oversee State implementation of a codified program primarily through
three mechanisms: review of biannual reports submitted by States, limited
involvement in permit issuance, and a formal program review conducted at least
once every five years, which may include site-specific inspections and review.
The biannual reports submitted by a primacy State would identify any upcoming
permit actions, permit status, compliance status, and identify any enforcement
actions taken against regulated units subject to the State program. The
biannual reports would also list site inspections conducted and planned by the
State, and identify problems and concerns with program implementation.
Biannual reports would identify and describe any changes to the State program,
including any statutory or regulatory changes that may affect program
implementation and enforcement. EPA is seeking advice on how to keep these
reports effective but limited in scope so as not to place an undue burden on
the States.
Direct site-specific EPA involvement in the permit issuance process could be
triggered by the following:
1. State request;
2. Failure of the State to follow the codified Plan;
3. Imminent and substantial endangerment to human health and the
environment, or the threat thereof;
A. Interstate or international issues are involved; or,
5. Other triggers developed as part of the State Plan.
If EPA and the State could not reach agreement on resolution of the issues on
a permit for which EPA involvement was triggered, this would initiate a
conflict resolution process. The CERCLA model could be used to develop these
procedures. The CERCLA model for conflict resolution involves the use of
third-party neutrals to aid in the resolution of disputes through arbitration,
mediation, mini-trials, and fact-finding procedures. Although the Strawman
provides a mechanism whereby EPA concerns on individual permits may be raised
in a timely manner, States would retain ultimate decision-making authority on
permitting issues. EPA's only recourse after conflict resolution would be to
require Plan revisions or to revoke the Plan or Plan element.
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As this indicates, the Strawman approach would allow EPA to be involved in
oversight activities at the site-specific level as well as the program level.
During the development of Strawman, the mining industry has commented that EPA
should have the opportunity to review permits only for purposes of program
review, not for site-specific permitting and enforcement. The Strawman,
however, recognizes the need for EPA permit oversight on a site-specific level
in certain cases. For example, some sites may present permitting problems
that EPA can assist in resolving. Also, there may be Federal concern across a
particular sector that a State may not address. If EPA had review authority
at the program level only, in order to address a permit, EPA would have to
withdraw the entire program. Realistically, EPA would only devote its limited
resources to review individual permits of regulated units with the potential
for environmental or health impacts, or where previous State implementation
has not resulted in satisfactory permit conditions. EPA requests input on
this issue, particularly on the "triggers" for permit involvement. In
addition, EPA is seeking suggestions on other situations where EPA involvement
in permitting could be appropriate.
The Strawman provides that EPA would evaluate a codified program at least
every five years to determine whether State program implementation meets the
requirements of the Plan and is protective of human health and the
environment. This evaluation would consist of a formal program review of
State agency records and authorities, and could include joint EPA-State site
inspections. When conducting site-specific inspections as part of the five-
year program review, EPA would notify the State at least 30 days in advance.
(EPA would have the authority to conduct site-specific inspections at any
time; however, EPA would make every effort to notify the State of its
intention to conduct any such inspection and to conduct joint inspections
where practicable.) Under the Strawman, EPA could review performance
standard-setting or any other element of a permit during program evaluations.
EPA envisions that it would determine which permits to address through its
review of the biannual reports submitted by the State. It would also take
into account the results of other onsite inspections and compliance data. As
a result of this program review, EPA would make a tentative determination
whether to require Plan modification. The Strawman also would furnish the
schedule and procedures by which EPA would provide for public comment in
making a final determination regarding program modification or withdrawal of
primacy.
b. Enforcement
In addition to site-specific oversight of Plan implementation, the Strawman
would allow EPA to take independent enforcement actions in limited site-
specific situations. State-specific and site-specific criteria developed
pursuant to Federal regulations and codified by EPA in the State Plan would be
Federally enforceable. EPA enforcement could be triggered by the following:
1. State request;
2. Failure of the State to follow the codified Plan;
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3. Imminent and substantial endangerment of human health and the
environment or the threat thereof;
4. Interstate or international issues are involved; or,
5. Other triggers developed as part of the State Plan.
This enforcement authority would give EPA the right to enforce Plan
requirements in the case of permits that do not have all the necessary
conditions to meet Plan requirements. However, this presents a number of
legal and programmatic issues that would require resolution. One such issue
relates to whether conditions in a State-issued permit should be the only
enforceable conditions. In this case, the permit would act as a shield for
the owner/operator against further action by EPA. If a State Plan, as well as
the permit, were enforceable, there would be some degree of self-
implementation (i.e., owners/operators would have to comply with provisions in
the codified Plan, and not just in permits issued under the Plan). In
developing this approach, EPA is concerned that the triggers not be so
restrictive as to preclude appropriate enforcement. In particular, EPA is
requesting recommendations on the appropriate definition of "failure of the
State to follow the codified Plan" as a trigger for Federal enforcement
action. EPA does not want this trigger (or any other) to become a
jurisdictional issue; rather, it is EPA's position that there should be
sufficient flexibility to allow action where necessary to protect human health
and the environment. It is likely that some form of guidance would be
developed that would clarify EPA's role in enforcement, which would generally
be confined to circumstances where there are significant deviations from Plan
requirements. Interested parties are encouraged to suggest approaches to
clarify this issue.
Industry has expressed its strong opinion that concurrent enforcement
authority should not vest in EPA, except in imminent hazard situations.
Environmental groups want EPA to have broad unrestricted enforcement authority
in codified States. The VGA Task Force States favor restrictions on EPA's
enforcement authorities, but would allow broader Federal involvement than that
suggested by industry. However, if such power does exist, the VGA Task Force
States and industry recommend that procedural guidelines should be established
that EPA would have to follow in such cases. EPA is seeking suggestions on
whether it should be required to follow certain procedures before it
undertakes enforcement action (as under Subtitle C), and if so, what
procedures would be appropriate.
c. Petitions From Interested Parties
EPA may initiate an evaluation of State implementation of a codified State
Plan or Plan element in response to a petition from an interested party
alleging failure of the State to comply with the requirements of a codified
State Plan or element. Upon receipt of such a petition. EPA will work
cooperatively with the State and the petitioner to determine the merits of the
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petition. EPA's options regarding a petition include: denial of the petition
if it is determined to be invalid; request to a State to revise a Plan or Plan
element; and revocation of a Plan or Plan element. Procedures for Plan
revision and revocation are the same as those noted in Subparts G and K of 40
CFR Part XXX.
Subpart J of Part XXX also allows for interested parties to petition EPA
alleging failure of a State to adequately permit a specific site or to
adequately enforce permit conditions at a specific site, as required by the
codified State Plan or Plan element. Upon receipt of such a petition, EPA
will work cooperatively with the State and the petitioner to determine the
merits of the petition. If a petition is determined to be valid, EPA may
become involved in the issuance of a site-specific permit, or EPA may become
involved in a site-specific enforcement action by pulling triggers noted
previously.
B. EPA's Implementation Role in Non-Primacy States
While the Strawman program is intended to be primarily a State-implemented
program, it could be necessary for EPA to administer the program or certain
elements of the program in some States. The Strawman would provide EPA with
the authority to develop a Mining Waste and Materials Management Plan under
the following circumstances:
• A State chooses not to submit a State Mining Waste and Materials
Management Flan or submits only some elements of a Plan;
• A State Plan, or elements of a State Plan, are not codified by
EPA; or
• Codification is withdrawn for all or some elements of a codified
Plan.
EPA requests recommendations on the most efficient and effective way to .
develop and implement Plans in non-primacy States or States with only partial
codification. EPA welcomes suggestions on the approach it should take for
Plan development. There are a number of options for EPA development and/or
implementation of Mining Waste and Materials Management Plans or Plan
elements. These options could include:
Developing Plans tailored to each non-codified State, which could
include specific existing State requirements;
Developing a "generic" Plan/program that would be self-
implementing by owners/operators in non-codified or partially
codified States (such a Plan would be composed of discrete
elements, each of which could be applied separately); or
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Developing a "generic" Plan (again with discrete elements) to be
implemented bv EPA in non-codified or partially codified States.
Each option would require compliance with all applicable Technical Criteria of
Part XXY. This assumes that all the Technical Criteria would have to be
addressed in either a codified State Plan or the Federally implemented
mechanisms used in non-codified States or States with partial codification.
There are positive and negative aspects of each option. EPA development of
State-specific Plans or Plan elements, which could incorporate some specific
State requirements where they meet the Technical Criteria of Part XXY, and
unique Federally developed requirements in other areas, would allow for
maximum flexibility in tailoring requirements to site-specific and State-
specific factors. EPA staff believes this approach is most attractive.
However, this approach would be most resource-intensive. The WGA Task Force
States have indicated that they want EPA to incorporate existing State
standards whenever possible.
Developing a self-implementing program to be used in lieu of a State Plan
(when the State Plan or portions of the Plan are not codified) would present a
straightforward approach that would save EPA time and resources, and ensure
consistency across State boundaries. Under this approach, owners/operators
would be responsible for compliance with the applicable requirements of the
"generic" Plan, but EPA would not issue permits or otherwise develop site-
specific requirements. This approach may lack flexibility in adapting to the
unique characteristics of a State's mining industry, and could subject the
industry to repetitive requirements (e.g., they may be regulated by non-
codified State programs). This approach would also be limited in its ability
to account for site-specific factors that affect potential risk. EPA welcomes
suggestions on ways to implement such a program while avoiding the potential
negative aspects.
EPA implementation of a generic Plan in non-codified States would provide for
a more tailored approach, in that site-specific factors could be considered by
EPA in drafting and issuing permits. It could also be more effective in
placing owners/operators on notice of the requirements with which they must
comply. It would be more resource-intensive than a self-implementing Plan or
Plan element, since EPA would be involved in permitting. In addition, there
still would be the potential for repetitive requirements.
It would also be possible to use some combination of these optional
approaches. For example, EPA could develop a "generic" State Plan, with
minimum Federal requirements and standards, in the absence of a codified State
Plan (or element) or State-specific EPA-developed Plan (or element). Such a
generic Plan could be applicable in all non-primacy states. EPA could then
issue permits under the generic Plan, or develop a State-specific Plan (or
element), in only certain States. Similarly, EPA could require self-
implementation in certain mining sectors and develop site-specific
requirements for other mining sectors with the greatest potential to present
risks to human health or the environment. Again, recommendations are
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requested on these or other optional approaches. (It should be noted that a
State always retains the opportunity to initiate Plan development and seek
codification, whether or not EPA is in the process of developing a Federal
program in that State.)
Some representatives of the mining industry and the WGA Task Force States have
recommended that EPA adopt existing State regulations to the maximum extent
possible in order to minimize the disruption caused to the regulated community
through implementation of a completely new EPA implemented program. EPA
considered the recommendations, but, for reasons similar to those discussed
above, believes that in some cases, protection of human health and the
environment may be best achieved through implementation of a comprehensive
Federal program. In addition, the Agency believes that the approach presented
in Strawman would allow it to consider cases where implementation of standards
other than those already existing in a State would impose an undue burden on
the mining industry. In such cases, EPA would be able to adopt the State
requirements if they provide adequate protection.
Environmental groups have requested that EPA adopt a policy of implementing
either the Federal or existing State requirements, whichever are more
stringent. EPA considered this approach but decided against incorporating it
into the Strawman. EPA believes that the Strawman approach would accomplish
the goals of protecting human health and the environment by giving EPA
authority to adopt State requirements where they are as protective as the
Federal criteria. In this case, EPA does not envision interferring with
existing State implemented programs when they are not codified. However, EPA
does not believe that a policy of consistently adopting requirements that are
more stringent than the Federal minimum criteria is necessary to provide
adequate protection of human health and the environment. The Strawman
approach would allow EPA to implement standards that are protective, while at
the same time allowing it to balance considerations of regulatory and
implementation burden.
C. Scope--Inactive and Abandoned Units
The Strawman program would apply strictly to active units (both new and
existing). Units in which regulated materials are not placed after the
compliance date of a State Mining Waste and Materials Management Plan or of a
Federally-implemented Plan would not be subject to the Strawman program. EPA
is seeking recommendations on this approach and is considering including
provisions for regulating inactive units at active facilities as an
alternative. Currently, the program would neither distinguish among nor
address closed, inactive, or abandoned units unless they are reactivated after
the compliance date of the program, or unless a State elects to include them
in its program. Nothing in the Strawman is intended to preclude a State from
regulating inactive or abandoned units. (Although certain regulated materials
(e.g., mine water) may continue to accumulate after mining and other
operations cease at a unit, these units in which accumulation occurs would not
be subject to the Strawman if the unit itself has ceased active extraction,
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belieficiation, and processing operations prior to the compliance date. The
ST ific means by which such distinctions would be made have not been fully
di _oped; suggestions on the issue are encouraged.) In addition, EPA
acknowledges that it may be difficult to distinguish between some "existing"
units and inactive or abandoned units, particularly in areas where mining
and/or waste disposal has occurred in the past. This may be particularly
difficult in determining the need for, and the extent of, corrective action.
The advice'and input of interested parties are welcome on this issue.
One particular category of concern includes sites that close or begin to close
between the time of State program codification and the effective date. As
noted above, the compliance (effective) date could be up to five years after
the codification of a State Plan by EPA or the implementation of a Federal
Plan. EPA is concerned that the potential five-year delay could result in a
number of units that could have been regulated under this program, but
instead, are closed in a. less protective manner before the delayed effective
date to avoid the costs of complying with the Technical Criteria. The result
could be many more inactive units that would not be regulated under this
program. As currently drafted, the Strawman program would not apply to these
sites or units and would not provide for any sort of "interim status"
requirements for these or other categories of sites. In part, this is due to
the concern that resources needed for addressing active sites would be ,
diverted. However, EPA is concerned about potential environmental damage from
these units, especially if the State requirements under which they close are
not adequate. For that reason, EPA is interested in receiving suggestions
from interested parties on how best to address this issue.
EPA recognizes that inactive or abandoned mining waste units, many of which
are decades old, may constitute human health, safety, and/or environmental
problems. Inactive and abandoned units generally are not subject to any
Federal regulatory program, although they may be eligible for funds for
reclamation (either under the Abandoned Mine Lands Fund established under the
Surface Mining Reclamation and Control Act or other State reclamation
programs). In some cases, where significant threat to human health and the
environment is present, RCRA §7003 authority (imminent hazard) may apply, and
all these units are potentially subject to CERCLA (Superfund) authorities.
However,' RCRA currently provides neither the statutory authority nor an
identified funding mechanism to adequately and consistently address the
problems posed by these units. EPA is also faced with the problem of
identifying the universe of currently inactive or abandoned units. Except for
a limited amount of CERCLA data available to EPA, relatively little data on
the numbers, locations, characterizations, and potential risks of these units
exist. Therefore, implementation and enforcement of the Technical Criteria
would pose a significant burden for EPA and State agencies if the program
criteria were to apply to a large and relatively unknown universe of inactive
and abandoned units. EPA does, however, plan to develop a policy statement on
how it intends to deal with this concern. EPA is fostering Federal and State
interagency cooperative efforts to investigate the nature of the problems
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posed by abandoned and inactive mine sites and to investigate alternatives for
mitigating these problems. In addition, as noted above, EPA is considering
addressing at least one subset of inactive units, those on active sites.
In some cases, the metal content in the mining "wastes" at these inactive or
abandoned sites exceeds the value of currently mined ores. EPA believes that
many of these sites could be effectively and economically closed or otherwise
controlled in connection with remitting operations and the Agency encourages
the retaining of currently abandoned or inactive sites. However, in some
cases, potential CERCLA liability may discourage remining or other activities
that could lead to significant environmental improvement at inactive and
abandoned mine sites.
EPA is seeking public input on the most appropriate means to accommodate and
encourage remining and mine waste reprocessing operations at inactive and
abandoned as well as active units. EPA is also currently investigating
regulatory options (outside the Strawman development effort) for encouraging
the remining of inactive and abandoned mine waste units. These options
include modifications to the existing CERCLA program to promote voluntary
remining or closure of these sites. EPA is investigating such incentives as:
Expanding the CERCLA NPL listing deferral policy so that the
policy covers some mining waste management units;
• Modifying CERCLA NPL "delisting" procedures so that mining waste
management units currently on the NPL can be delisted by virtue of
coming under the Strawman program as regulated units or by
yielding lower Hazard Ranking Scores as a result of meeting
Strawman design and operating and corrective action requirements;
and
• Negotiating limitations on CERCLA liability for past contamination
for third parties who wish to remine inactive or abandoned units.
EPA is also assessing whether contractors who remine at CERCLA sites can be
granted indemnification similar to that now given to clean-up contractors.
EPA believes that, for a remining program to be successful, there should be a
net environmental gain at the remined site and there should be adequate
economic incentives for a company to remine a site. As discussed above, EPA
is considering how CERCLA liability and other economic disincentives to
remining can be mitigated in cases that would result in net environmental
improvement. EPA is requesting suggestions on this issue.
In providing input during the development of Strawman, the Task Force States,
through the Western Governors' Association, have favored the inclusion of only
new and existing units. There is clear State concern about inactive and
abandoned units, but the reasons behind WGA Task Force's recommendation to
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exclude them from the program were similar to those described above for EPA.
The VGA Task Force recommends that a separate inactive/abandoned unit closure
and reclamation program be developed in cooperation with the States.
The opinion expressed by the mining industry during Strawman development is
that any mining waste program should cover only active units on active
facilities. They favor leaving inactive and abandoned units to the States'
discretion and to other programs, including Superfund.
Environmental groups have urged the inclusion of all active and inactive units
under EPA's mining waste program. They also recommend that abandoned units
(i.e., no identifiable responsible party) be addressed, either under the same
program or a similar type of program.
D. Scope--Mineral Processing Wastes
As noted above, the 1985 Report to Congress and the 1986 Regulatory
Determination addressed only extraction and beneficiation wastes for certain
industry sectors. Mineral processing wastes have been the subject of
separate, ongoing regulatory activities. (See the legislative and regulatory
history in the Background section above.) On September 1, 1989 and January
23, 1990, EPA issued final rules (54 £E 36592 and 55 £R. 2298) that: (1)
established the criteria used to identify "high volume, low hazard" mineral
processing wastes; (2) promulgated the definition of "mineral processing
wastes;" (3) and continued the Bevill exemption from RCRA Subtitle C
requirements for 20 mineral processing wastes pending preparation of a Report
to Congress and a Regulatory Determination.
Wastes for which the Bevill exemption was removed and that exhibit a
characteristic of hazardous waste or are listed as hazardous will be subject
to Subtitle C regulatory requirements, while wastes that do not exhibit a
characteristic of hazardous waste and are not listed as hazardous will be
subject to Subtitle D controls. Wastes for which the temporary exemption is
retained will be the subject of a Report to Congress and a subsequent EPA
Regulatory Determination on whether Subtitle C controls are necessary to
ensure protection of human health and the environment.
Some mineral processing facilities are co-located with extraction and
beneficiation operations. Both exempt and non-exempt mineral processing
wastes generated at these facilities are often commingled with regulated
materials from extraction and beneficiation operations. As a result, the
Strawman's regulation of wastes and regulated materials at extraction and
beneficiation facilities would also regulate the management of many mineral
processing wastes as well, unless management practices were modified.
To facilitate program development and implementation, and to minimize
potential duplication and overlap of regulatory programs, EPA has included
within the scope of Strawman mineral processing wastes that:
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(1) remain within the Bevill exclusion; or.
(2) are non-Bevill, non-Subtitle C wastes that are co-located and
commingled with regulated materials generated by extraction and
beneficiation. (Non-Subtitle C means that the mineral processing
waste neither exhibits a characteristic of hazardous waste nor is
listed as a hazardous waste under Subtitle C of RCRA.)
As an alternative to the Strawman's scope, there are several other approaches
that could be used to determine which, if any, mineral processing wastes would
be regulated under the Subtitle D program. These approaches are described
below:
• Include all mineral processing wastes that are not regulated under
Subtitle C. Under this approach, the Strawman would also address
mineral processing wastes that do not meet the high volume and low
hazard criteria regardless of where they are managed;
• Include all nonhazardous mineral processing wastes that are
typically (or "most often" or "sometimes") co-managed with mining
wastes (even when generated at facilities where they are not co-
managed) . Under this approach, specific types of mineral
processing wastes would be regulated, regardless of how they are
managed;
• Include all exempt (i.e., Bevill) mineral processing wastes that
are typically (or "most often" or "sometimes") co-managed with
mining wastes (even when generated at facilities where they are
not co-managed) and that EPA decides do not require regulation
under Subtitle C; or
• Do not include any mineral processing wastes.
EPA believes that these alternative approaches are less desirable for a
variety of reasons. First, available information indicates that waste
management practices (e.g., design, operation) used to co-manage extraction
and beneficiation wastes and mineral processing wastes that are not regulated
under Subtitle C are, and should be, determined by the extraction and
beneficiation wastes and not by the mineral processing wastes contained in the
mixture. Second, it is not clear that any benefits would accrue from a
regulatory framework that encourages or forces facilities to discontinue co-
management of extraction and beneficiation wastes with mineral processing
wastes that are not regulated under Subtitle C. Third, some mineral
processing facilities, especially facilities that are not co-located with
extraction and/or beneficiation operations, are located in industrialized
urban areas and, as a result, the scale of onsite waste management operations
and the potential for exposure are often much different than for most
extraction and beneficiation operations. Finally, the program developed under
Subtitle D would likely be implemented in some States by agencies that
regulate mining activities and not by the State "solid waste agency"; thus,
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exclusion of mineral processing wastes from the scope of the program (even
processing operations that are co-located with extraction and beneficiation
operations) could complicate implementation by requiring the involvement of
additional State agencies.
E. Scope--Regulated Materials
The Strawman approach is not confined to the regulation of mining wastes and
mining waste units1; rather, it addresses a broader range of regulated
materials that have the potential for releases that pose a threat to human
health or the environment. In addition to wastes from extraction and
beneficiation in the industry sectors covered in the 1985 Report to Congress,
and wastes from certain mineral processing activities, the Strawman provides
for the potential regulation of the environmental impacts of ores and leaching
solutions used at active heap and dump leaching operations, mine tailings used
in a manner constituting disposal, subgrade and other stockpiled ores, and
mine water that may accumulate in mine workings or pits after closure. States
also may identify other materials for regulation. By defining a regulated
unit as an area in which any of these materials are or are expected to be
placed or located, the Strawman would give States the authority to address
many more risks to human health and the environment than could be accomplished
by regulating only "wastes."
EPA is aware that existing statutory authorities, under Subtitle D
specifically and RCRA in general, do not extend to the regulation of many of
the materials and "units" identified as regulated materials and units in the
Strawman package. Generally. RCRA is potentially applicable to manufacturing
and production units only if materials are released to the environment. The
unique nature of the mining industry, and of the wastes and materials it
generates and handles, justify the development of a regulatory program
specifically tailored to the industry. The additional materials the Strawman
would address are discussed in some detail below. For each, the need for
additional statutory authority is also discussed as appropriate. It should be
noted that it is not EPA's intent to regulate the production process, but
rather the potential for release associated with the materials from such
processes.
1. Heap and Dump Leaching and Production Units
Heap leach operations use piles of material constructed intentionally for
leaching purposes, generally for the extraction of precious metals (gold and
silver). These operations typically incorporate the use of impervious liners
to prevent the release of "pregnant" leach solution (i.e., a value-bearing
solution), and use a cyanide solution as the leaching agent. These operations
1It should be noted that overburden is currently defined as solid waste
(40 CFR 261.4 (b)(3)) and is subject to Subtitle D (and thus Strawman).
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may actually involve the use of a reusable pad on which ore is leached and
then removed for disposal. Ditches in which leach solutions are collected and
conveyed are usually lined, as are ponds in which pregnant solution is
collected.
Dump leach "units" are piles of ore rock that in most cases were originally
created for disposal purposes and are then leached at a later time with acidic
solutions or water in order to remove copper and other acid-mobile metals.
These "units" typically rely on natural drainage for leachate collection, and
conveyance drainageways may be unlined. Dump leach "units" are usually
considerably larger in volume than heap leach operations. Moreover, once a
leach pile is acidified, the natural generation of acidic leachate by sulfide
oxidation often continues in perpetuity whether or not additional acid
leaching solution is actually applied.
Materials undergoing heap and dump leaching and in situ leaching have been
defined through various rulemakings, including recent Bevill rulemakings, as
beneficiation operations rather than wastes. In the initial decision to
develop a regulatory program under Subtitle D, the "Regulatory Determination
for Wastes from the Extraction and Beneficiation of Ores and Minerals" (51 FR
24496), EPA recognized that dump and heap leach piles and associated leach
solutions are not wastes, but rather are raw materials used in the production
process and intermediate products, respectively. Only at the time active
leaching is concluded are the materials considered wastes.
Confining the Strawman program to "wastes" would be counterproductive,
however. In such a case, heap and dump leaching units, and associated
leaching solutions, would be subject to regulation only at closure. For
example, the regulatory authority would not be able to require an owner or
operator of an active leaching operation to monitor ground water in order to
verify that no leachate had escaped; thus, it could not be determined if a
performance standard had been exceeded. Similarly, the regulatory authority
could not ensure that operations were designed and operated so as to minimize
or prevent releases during and after the active life and designed compatibly
with closure requirements; only at the time of closure could the regulatory
authority impose design and operating requirements on the "waste unit."
The Strawman approach would include active heap and dump leaching operations
and associated pregnant and barren leaching solutions as regulated materials
in the program. The rationale for regulating heap and.dump leaching
operations prior to closure is to ensure that design and operating
requirements prevent releases from leaching units while those units are
operational, and to detect and remedy any releases that do occur. The intent
is not to regulate process procedures such as chemical dosage or process
metallurgy standards, but to establish operational standards that would
protect against environmental releases from heap and dump units during and
after leaching operations.
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In situ leaching involves the application of the leaching solution to ores in
their natural formations or deposits. These processes were not discussed in
the 1985 Report to Congress. EPA is seeking views on whether surface
operations supporting in situ leaching should be included in the program as
well. Surface activities associated with in situ operations (e.g., storage
ponds) have a clear potential for releases. The Underground Injection Control
program currently has provisions applicable to underground in situ activities.
The extent to which the RCRA Subtitle D program could complement the UIC
program and enhance the protection of human health and the environment is
currently being examined, particularly for copper and uranium in situ
operations.
The approach taken in the Strawman to regulate active heap and dump leaching
operations would require a statutory change to RCRA. EPA staff believes that
such changes are justified, given the unique nature of leaching operations
(i.e., exceptionally large volumes of material that are left in place as
wastes and are not moved for ultimate disposal, process units that ultimately
evolve to become waste management units, and exceptionally toxic liquids that
are typically conveyed and stored on the surface of the earth) and the
potential risks they pose to human health and the environment.
Should the statutory authority to regulate such operations be forthcoming, it
would not necessarily set a precedent for the regulation of production units
in other RCRA programs, since there may be no other industrial operations
analogous to mining that should be regulated under Subtitles C or D. EPA is
therefore seeking the views of interested parties on the issue of including
active heap and dump leaching operations in the scope of the Strawman's
regulated universe.
2. Vater with the Potential for Release
Strawman also would regulate water or other liquid that accumulates or is
expected to accumulate in open pit's, shafts, tunnels, or other structures, if
the water or liquid has the potential to release constituents of concern to
the environment after the active life of these structures or "units." EPA
recognizes that the creation of an open pit, tunnel, or mine shaft is the
result of an extraction process. However, water that accumulates in closed
pits, tunnels, and mine shafts often has elevated levels of acidic and/or
toxic constituents due to contact with the surrounding ore, and may pose a
potential threat to surface and ground waters.
Potentially toxic mine water in inactive shafts and tunnels is often regulated
by mining reclamation laws in States with such laws. However, even mining
reclamation laws do not always address water accumulating in open pits. In
the development of the Strawman, EPA considered addressing pits only at the
point of acid or toxic generation, runoff, or release to ground water by
intersection with an aquifer. It is possible that once a release was
detected, the owner or operator could be made subject to the relevant
performance standards as well as the corrective action and financial
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responsibility requirements outlined in the Strawman. However, this approach
would not require release prevention through appropriate design, construction
and operating standards such as pit drainage and appropriate slope design for
shafts and tunnels. Early response would also be limited due to a lack of
monitoring, inspection, and leak detection. The approach in the Strawman
would allow States to take such a preventive approach. It may be that only
certain requirements of the Strawman should apply to such nontraditional
"waste management units;" alternatively, the timing of certain requirements
may require adjustment. For example, it may not be appropriate to require
ground-water monitoring as long as the mine was active and mine water was
continuously removed from the workings. In this case, it could be more
appropriate to defer ground-water monitoring requirements until closure.
Other special requirements and considerations may also be appropriate. EPA
requests recommendations on the nature of any such considerations, as well as
on the Strawman's inclusion of such materials and "units" within the program
scope.
3. Mine Tailings Used in a Manner Constituting Disposal or Reuse
Mine tailings may be used in a manner constituting disposal, and may pose a
threat to human health or the environment, if they are used in construction
projects such as ponds or surface impoundments where they are unstable, or
where they may leach toxic constituents into surface water or ground water.
Tailings or other extraction/beneficiation wastes may also be used to improve
soils for agricultural purposes. Such agricultural uses may cause
environmental damages if such materials leach toxic constituents to ground
water, if toxic constituents enter food chains, or if they exhibit
unacceptable levels of radioactivity. Likewise, their long-term storage prior
to such usage may generate acidic or toxic runoff or leachate. For these
reasons, the Strawman includes these materials as regulated materials. It is
acknowledged that in many cases, such use of tailings would present no threat
to human health or the environment. However, the Strawman contains sufficient
flexibility to allow a regulatory authority to address these and other
materials to the extent they are determined or expected to present risks.
4. Stockpiled Ores and Subgrade Ores
Finally, EPA is concerned about releases from ores, including lean or subgrade
ores, that are stockpiled for possible beneficiation and/or processing at a
future date. Such materials may be stockpiled for years before the owner
determines that use of this material is economically feasible; alternatively,
they may undergo periodic turnover as commodity prices fluctuate. Because of
the potential for releases, the Strawman provides that stockpiled ores be
included within the definition of regulated materials.
In developing the Strawman, a number of options other than the "regulated
materials" approach were considered for addressing the storage of mine
tailings (prior to use or reuse) and of ores (prior to beneficiation) . For
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example, the Subtitle C concept of speculative accumulation was considered as
an option. Under such an approach, EPA could define a maximum period of time
during which temporary storage of subore or other materials would not be
subject to the program. Materials stored for a longer period of time would be
classified as "wastes." Alternatively. EPA could allow storage or stockpiling
of subore and other materials for an indefinite period, without being subject
to the Technical Criteria, if the owner or operator informed the State that
such materials would be used in the future; the entire issue of defining
speculative accumulation also could be left to the discretion of individual
State programs.
The Strawman does not follow the precedent established by Subtitle C with
regard to wastes, storage, and speculative accumulation. Instead, the
Strawman addresses certain materials regardless of their "waste" or "storage"
status. As noted, the unique nature of the mining industry and its materials
generation and handling are believed to justify such an approach.
5. Other Recommended Approaches
WGA's Mine Waste Task Force strongly supports the regulation of active heap
and dump leaching operations in the Subtitle D program. The Task Force
indicated that such operations may present risks to human health and the
environment. A number of States have developed programs to regulate heap and
dump leaching activities. In general, the Strawman would not disturb or
otherwise interfere with State programs if they are equally or more protective
of human health and the environment than the provisions of the Technical
Criteria in Part XXY. The Task Force also has specifically supported the
regulation of stockpiled ores, but neither the Task Force nor other interested
parties have yet had an opportunity to formulate a recommended approach
concerning the other regulated materials, such as mine water from mine
workings and pits, that are included within the scope of the Strawman
approach.
Industry favors the inclusion of mining wastes in the Subtitle D regulatory
program. They do not support the regulation of leaching operations until
closure. They rely on (and support, for the purposes of this regulatory
program) the traditional RCRA distinction between waste units and production
units, and on previous EPA policy concerning heap and dump leaching.
Environmental groups, like the State Task Force, support regulation of active
leaching operations. They have stressed that EPA needs to develop a program
that is preventive rather than reactive; the program should prevent releases
rather than simply establish cleanup standards.
EPA requests remarks on the entire range of issues related to scope and the
materials that should, or should not, be regulated under this program.
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F. Multimedia Protection Standards
During the development of the Strawman, EPA has considered whether the RCRA
Subtitle D mining program should be multimedia in scope or only address ground
water and rely on existing programs under other statutes to address releases
to surface water, air, and soils. A second related issue is the development
of performance standards, including how to effectively use standards under
existing programs while ensuring a minimum level of protection at all sites.
1. Multimedia Regulation
Existing regulatory programs do not uniformly address the multimedia risks
associated with releases from mining materials. Some of the regulatory gaps
for each medium are described below.
a. Ground water
Mining wastes and materials may pose a threat to drinking water sources
through contamination of underlying aquifers. For example, while some product
is collected from leaching operations, significant volumes of leachate, which
may contain high concentrations of metals and cyanides, and/or exhibit
corrosivity, may migrate to ground water. No comprehensive Federal program
exists to regulate discharges to ground water, although several EPA programs
address specific types of releases (i.e. the Wellhead Protection and the
Underground Injection Control Programs). In addition, many States either do
not have ground-water protection programs or their ground-water protection
programs are not well-developed. State ground-water protection programs
typically do not extend through closure and post-closure.
b. Surface Water
Point source discharges from mining units are regulated under Clean Water Act
(CWA) programs. Point source discharges are permitted through the NPDES
program, and RCRA specifically exempts these discharges from Subtitle D
regulation. Non-point source discharges may be addressed under various other
CWA programs (e.g., Sections 319, 403, and 404). In many States, however,
non-point source programs have not been developed or implemented. Where non-
point source programs have been developed and implemented, they do not
consistently provide full protection of human health and the environment. For
example, run-on/run-off control has been identified as a major problem that is
not currently being addressed in some existing State programs at mining sites.
Ongoing rulemaking under the Clean Water Act will establish programs to
control at least some stormwater discharges through an NPDES permit. The
Strawman would not duplicate this rulemaking, but would ensure that any
remaining gaps are filled.
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c. Air
Releases to air from mining wastes, primarily fugitive dust, may pose
potential hazards to human health and the environment. Without source
controls (primarily management practices), some mining sites may release
fugitive dust that contains toxic metals. State Implementation Plans
developed under the Clean Air Act (CAA) may address fugitive dust, but
typically do not address toxic pollutants in dust at mining sites.
d. Soils
No Federal programs and few States consider releases to soils. States have
specifically commented that existing regulatory authority is not sufficient to
consider land application of spent leaching solutions, which can pose
significant risks to human health and the environment through soils
contamination. In addition, soils may be contaminated through the onsite or
offsite settling of fugitive dust that contains toxic pollutants. The risks
posed by contaminated soils are particularly important to consider during the
development of closure requirements.
e. Gaps Filled by Strawman
RCRA mandates that the Agency develop regulatory programs to afford protection
of human health and the environment. The specific regulatory gaps at each
mine site and the relative risks they pose are variable. At some mine sites,
unregulated releases to ground water pose significant risks, while at other
sites, releases to surface water are the primary concern. Therefore, because
releases from mining sites can pose risks to all media that are not
consistently being addressed by existing programs, the Strawman would apply
the RCRA mandate and establish a multimedia mining program. This approach
would allow regulatory authorities to fill the specific gaps that exist at
each site without disturbing effective programs that may be in place. A
multimedia approach also would integrate all regulatory activities at mining
sites and allow regulatory authorities to effectively address crossmedia
concerns.
In providing input during Strawman development, the VGA Task Force States and
environmental groups have indicated that a multimedia approach for the
regulation of mining wastes and materials is appropriate. EPA staff concludes
that there are risks to each media that are not consistently being addressed
through existing programs. Further, EPA staff believes that existing programs
for ground water, surface water, air, and soils frequently do not provide the
requisite authority to address the specific risks associated with mining
wastes and materials and that a multimedia Federal program would provide this
authority.
In contrast, mining industry groups have stated that the program should only
consider releases to ground water. The mining industry's position is that
multimedia regulation is beyond the scope of RCRA and releases to other media
are already adequately addressed under other Federal and State regulatory
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programs. However, as discussed above, releases to all media are not
adequately regulated. Therefore, the multimedia Strawman approach is
consistent with RCRA's mandate to ensure full protection of human health and
the environment.
2. Development of Multimedia Performance Standards
In developing Strawman, EPA has considered how to incorporate existing Federal
and State programs to address the highly variable risks associated with
potential releases to all media from mining sites. The level of risk depends
on site and mining material characteristics, proximity to environmental
receptors, and other factors. The Strawman approach would allow regulatory
authorities to use existing programs where they are effective, while also
requiring a minimum level of protection. The Strawman would provide each
regulatory authority with the flexibility to use State standards as long as
these standards meet or exceed the level of protection provided by the
requirements of the Technical Criteria in Part XXY. Where existing standards
do not meet these criteria or are unavailable, the regulatory authority would
be required to implement the minimum Federal standards. If no State or
Federal standards are available, site-specific standards would be developed
based on a risk-based approach. (See the more detailed discussion of
standards-setting for each medium in Section III.A.2 above.) This approach is
consistent with the intent of the Strawman not to duplicate or supersede
existing programs where they provide an adequate level of protection.
The VGA Task Force States and the mining industry have indicated that the
Strawman approach should allow regulatory authorities to use existing programs
and standards. They both strongly oppose the concept of Federal numeric
standards that must be unilaterally applied at all sites, citing that the
risks associated with mining wastes are site-specific. Environmental groups
have indicated that Strawman should include uniform numeric performance
standards for all media that are applicable to all sites. EPA believes that
uniform Federal performance standards are not appropriate because the risks
posed and degree of regulation required at each site vary significantly.. EPA
believes that the regulatory authority should have the flexibility to consider
site-specific factors in establishing performance standards for all media, and
that the standards applied to any site be protective of human health and the
environment.
IV. OTHER ISSUES
There are a great many other issues regarding the Strawman's approach and
scope. Several of the more important are discussed below. As with all other
issues, EPA welcomes suggestions and recommendations, and encourages
interested parties to be as specific as possible in offering constructive
alternatives.
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A. Characterization of the Regulated Materials and Site
Part XXY of the regulatory approach uses a characterization of the regulated
materials and site factors as the initial analytical step in developing site-
specific standards and criteria to be incorporated as permit conditions. EPA
believes that, by requiring the owner/operator to characterize the regulated
materials placed or to be placed in a regulated unit, the regulatory authority
could identify the parameters of concern at the site and develop performance
standards and monitoring requirements that are tailored to the risks posed at
each specific site. Thus, the characterization requirements would allow a
tailored approach to the broad range of risks posed by units that would be
regulated under Strawman.
The Strawman identifies a minimum set of parameters that the characterization
must address: arsenic, barium, cadmium, chromium, lead, mercury, selenium, and
silver (i.e., the metals for which maximum contaminant levels (MCLs) have been
established) and acid generating potential. EPA is considering requiring that
the characterization include analyses for additional parameters. This could
include parameters for specific industry sectors (e.g., radioactive parameters
in the phosphate sector and cyanide in the gold sector) and/or media-specific
parameters standards (e.g., asbestos for air or copper for surface water).
Alternatively, EPA could require the States to identify or describe procedures
for identifying additional parameters in their State Plans. EPA is seeking
recommendations on what additional parameters are of concern for the materials
characterized, and whether they should be media-specific and/or industry
sector-specific.
Based on this characterization of regulated materials, and on any other factor
the State determines is appropriate, the State would establish performance
standards (as described previously) for parameters of concern. The Strawman
does not define or establish methods by which parameters of concern would be
identified (and for which performance standards would be set). However, it is
anticipated that State Plans would have to describe the means by which
parameters of concern would be identified. EPA considered requiring that
performance standards be established for all parameters detected in the
regulated materials; this approach was not adopted in the Strawman because it
would not provide the State sufficient flexibility to take into account site-
specific conditions that could affect the potential risks. It is anticipated
that, if a similar approach is adopted as rulemaking begins, EPA would develop
guidance for identifying parameters of concern; waste types, industry sectors
and processes, and site characteristics would likely be addressed in such
guidance.
EPA also is soliciting suggestions for the type(s) of analysis to be required
for the characterization. EPA recognizes that the selection of the
appropriate type(s) of analysis depends on the specific material, parameter,
media, and other factors. For example, leachability analyses may reflect the
actual risks posed by releases of specific parameters to ground water and
surface water; total constituent analyses may be more appropriate to identify
the risks posed by emissions of fugitive dust. In addition, EPA is soliciting
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recommendations for specific analytical methods to be used for the
characterization. (See the more detailed discussion points on analytical
methods in Part XXY: Technical Criteria, Subpart C.)
EPA recognizes that frequently the risks posed by mining wastes and materials
are directly related to their acid generation potential. Therefore, the
Strawman would require owners or operators to assess acid generation potential
as a measure of the mobility of parameters of concern and the likely long-term
variability in the physical/chemical characteristics of the regulated
materials. This measure would be instrumental in determining the appropriate
monitoring, corrective action, closure, and post-closure requirements for a
given site. A number of western States currently require mine operators to
determine the acid generation potential of their wastes using column type
tests. EPA is soliciting recommendations on the appropriate method(s) to be
used to measure acid generation potential.
B. Additional Scope Issues
The Strawman would require the regulation of extraction and beneficiation
wastes and other materials generated by industry sectors addressed in the
December 1985 Report to Congress as well as certain processing wastes that are
not subject to Subtitle C. Extraction and beneficiation wastes in industry
sectors not addressed in the 1985 Report to Congress and the subsequent
regulatory determination are still conditionally exempt from Subtitle C
regulation; however, they are subject to Subtitle D. Similarly, all mineral
processing wastes not subject to Subtitle C regulation are subject to
Subtitle D.
The Strawman would not regulate wastes from mining exploration. The extent of
exploration activities, and the wastes generated, are highly variable.
Exploration wastes may consist largely of boring and coring samples, but may
also include significant amounts of overburden or other wastes from the
operation of pilot facilities. Unless specifically excluded, placer wastes
would fit the definition of regulated materials. EPA recognizes that there is
a potential for serious environmental damage from the inappropriate disposal
of wastes from mining exploration and placer mining activities. However, the
scope of placer mining activities is highly variable, and EPA has not yet
established a clear definition that differentiates aspects of this mining
activity. EPA is currently evaluating whether the Subtitle D program should
address some or all wastes associated with mining exploration and placer
mining activities. EPA is seeking the advice of interested parties on these
issues.
The inclusion in the Strawman of wastes and materials from only selected
industry sectors should not be considered as the final Agency decision on the
issue. As formal rulemaking begins later in 1990, EPA will be examining the
appropriate scope of the mining program. It may be determined that the
greater than 10,000 sand and gravel operations, as well as a wide variety of
other industry sectors not previously examined in detail, should not be
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regulated under this program. However, final decisions on which, if any,
exemptions should be included have yet to be made.
As with other issues raised and provisions contained in this Strawman, EPA is
actively seeking recommendations on the appropriate scope of the regulatory
program to be developed. Observations and recommendations are sought on which
mining activities, which industry sectors, and which wastes and materials
should be subject to the program. EPA also welcomes recommendations on
specific exemptions.
C. Closure and Post-Closure Care Criteria
1. Integration of Reclamation and Closure Requirements
Strawman II would not specifically require reclamation activities (i.e., land
enhancement or restoration), similar to those required for coal mines pursuant
to the Surface Mine Control and Reclamation Act (SMCRA), in order to avoid
duplication of existing State reclamation programs. It is likely that in some
cases a single activity may satisfy both the closure requirements under the
Strawman program and the applicable reclamation requirements imposed by the
State (e.g., final cover with revegetation). It is not clear, however,
whether the application of provisions of Strawman II might result in conflict
between reclamation and closure requirements in some cases. For example, it
is conceivable that recontouring activities required by a State for
reclamation purposes might be inconsistent with structural stability design
criteria and soils contact requirements mandated under the closure provisions
of Strawman II. EPA requests information on situations where the closure and
post-closure provisions of Strawman II would conflict with existing
reclamation requirements and seeks suggestions on how these provisions might
be modified to eliminate that conflict while remaining protective.
2. Remitting of Closed Regulated Units
The post-closure care provisions in Strawman would require that the
owner/operator control site access as necessary to, among other things,
"prevent the removal of regulated materials unless approved by the regulatory
authority." This language was intended to prevent individuals from disturbing
or removing regulated materials from a closed unit where such activity would
result in risk to human health and the environment (e.g., removing
contaminated beneficiation tailings for fill or driving off-road vehicles over
closed tailings impoundments). However, EPA does not wish to preclude the
option of remining closed units and, in fact, would advocate retaining as a
corrective action option under certain circumstances. Moreover, EPA, does not
wish to discourage the remining of closed regulated units if that remining
would be economically productive and would result in an equivalent or reduced
threat to human health and the environment. EPA solicits suggestions for
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criteria that might be used to evaluate the desirability and potential impacts
of remining closed regulated units.
D. Financial Responsibility Criteria
1. Scope of Required Coverage
The Strawman would require owners/operators of regulated units to demonstrate
financial responsibility for the costs of closure, post-closure care,
corrective action, and third-party liability. The amount of financial
responsibility required for closure, post-closure care and corrective action
would be based on site-specific cost estimates. The amount required for
third-party liability would be $2 million per occurrence and $4 million annual
aggregate for all units. These requirements are generally consistent with
other EPA programs for financial responsibility. In particular, third party
liability coverage is consistent with RCRA Subtitle C and Subtitle I
provisions. These programs require third-party liability to ensure that the
combined costs for clean-up and damages will not force financially
irresponsible firms into bankruptcy, should a release of hazardous substances
occur, and thereby leave liability costs to the regulatory authority. The
Task Force of UGA proposed that the Strawman also require financial
responsibility for the costs of credible future accidents. Financial
responsibility requirements under other RCRA programs do not address credible
accidents. EPA is seeking the views of interested parties on whether
financial responsibility requirements for credible future accidents should be
included. The mining industry has stated that financial responsibility should
be limited to reclamation bonding or closure, whichever meets State
requirements. Industry opposes the imposition of third party liability
coverage. The environmental groups favor requiring units to have financial
responsibility for costs of closure, post-closure, corrective action and third
party liability.
While EPA's current thinking is to include third-party liability coverage
requirements in the Strawman, EPA is examining appropriate levels of coverage.
Subtitle C requires coverage of $4 million per occurrence and $8 million
annual aggregate for all hazardous waste land disposal units, while Subtitle I
requires different levels of coverage depending on the number of onsite tanks,
with a maximum coverage level of $1 million per occurrence and $2 million
annual aggregate for petroleum underground storage tanks. Proposed
requirements for Subtitle D municipal solid waste landfills have no third-
party liability requirements. EPA recognizes that the risks posed by units
that would be regulated under the Strawman may differ significantly from risks
posed by units regulated under other RCRA programs. In addition, EPA
acknowledges that the risks posed may vary among the different types of units
that would be regulated under the Strawman. Therefore, EPA is requesting
suggestions for appropriate levels of required coverage, and on criteria for
establishing classes of units for the purpose of setting coverage levels.
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EPA anticipates that insurance would most often be used to comply with a
third-party liability coverage requirement and believes that Environmental
Impairment Liability (EIL) coverage is currently available for some mine
facilities. To verify this assumption, EPA is requesting information on the
types of insurance currently available to owners/operators of units that would
be regulated under the Strawman. In addition, EPA is requesting information
on the levels and scope of insurance coverage currently available for such
units, as well as any criteria used by insurers in deciding whether to provide
coverage for particular types of units.
2. Allowable Mechanisms
The Strawman would specifically allow the use of the following mechanisms to
meet the financial responsibility requirements: trust funds, surety bonds,
letters of credit, insurance, financial test, and guarantees. The Strawman
would also allow use of any other mechanism or State or owner/operator pool
that meets the performance standard for financial responsibility mechanisms
described in Part XXY: Technical Criteria; Subpart H, Section G. EPA intends
to review any alternative financial mechanism or approach for the purpose of
meeting the financial responsibility requirements.
EPA acknowledges that many States have existing financial responsibility
requirements for some activities connected with mining and that particular
financial mechanisms are currently used to comply with these requirements. In
addition, certain mechanisms may be more suited for providing one type of
financial responsibility than another, and for different types of owners and
operators. Specifically, EPA recognizes that the use of bonds to meet the
financial responsibility requirements of existing mine programs is widespread.
EPA therefore requests recommendations on the types of mechanisms that would
be most suitable for use by owners/operators of regulated units and on ways to
integrate existing requirements with those that would be imposed by the
Strawman. EPA is specifically requesting information on bonds used by mine
owners and operators, including information on the providers of these bonds,
the scope of coverage provided by the bonds and their structure, and the
criteria used by bond providers in deciding whether to issue a bond to a
particular owner or operator.
E. Pollution Prevention
EPA is developing alternatives to incorporate pollution prevention
requirements into the Subtitle D mining waste program. Under the Strawman
approach, the costs associated with the monitoring, corrective action,
closure, post-closure, and financial responsibility requirements would
generally be related to the environmental risks posed by a regulated unit.
Therefore, these requirements would encourage mine operators to undertake
measures prior to disposal to reduce the environmental risks posed by
regulated materials. In general, EPA believes that there may be a number of
alternatives that would achieve pollution prevention or waste minimization
goals. It is the Agency's intention to engage in a dialogue with interested
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parties on appropriate pollution prevention opportunities that may be
available at active operations. In addition, EPA foresees that the potential
incentives described in Section III.C, which accommodate and encourage
remitting and waste reprocessing at inactive and abandoned units, could
significantly reduce risks associated with these types of units.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF SOLID WASTE
STRAWMAN II
REGULATORY APPROACH
May 21, 1990
This portion of the Strawman II package, the "Regulatory Approach," presents a
staff-level approach to the regulation of noncoal mining wastes and materials.
The approach is presented in language that resembles regulatory language in
order to facilitate its review by interested parties and to solicit their
input and recommendations. It should be emphasized that this Regulatory
Approach, 'as well as the entire Strawman II package, represents staff-level
approaches and discussions. Strawman II does not represent a proposed rule.
It also should be noted that EPA staff are aware that many of the provisions
in the Regulatory Approach go beyond existing RCRA authorities under Subtitle
D. As noted throughout the Strawman II package, EPA is soliciting input and
recommendations from interested parties on all aspects of the approach
presented in Strawman II.
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STRAWMAN II REGULATORY APPROACH
TABLE OF CONTENTS
40 CFR
Subpart A.
Subpart B.
Subpart C.
Subpart D.
Subpart E.
Subpart F.
Subpart G.
Subpart H.
Subpart I.
Subpart J.
Subpart K.
Subpart L.
40 CFR XXY:
Subpart A:
Page
GUIDELINES FOR STATE MINING WASTE AND MATERIALS
MANAGEMENT PLAN DEVELOPMENT, CODIFICATION,
OVERSIGHT, AND ENFORCEMENT 1
Purpose of Guidelines 1
General Requirements for State Mining Waste
and Materials Management Flans 1
Specific Requirements for State Mining Waste
and Materials Management Plans 2
State Implementation and Enforcement
Authority Requirements 7
Notification, Development, and Submission of
State Mining Waste and Materials Management
Plans 8
EPA Review and Codification of State Plans ... 10
Revisions to State Mining Waste and Materials
Management Plans 11
Federal Oversight of State Mining Waste and
Materials Management Programs 12
Federal Enforcement in States with Codified
Plans 16
Petitions for EPA Involvement in Permit
Actions or Enforcement in a Codified State .... 17
Federal Implementation Upon Withdrawal or
Revocation of Codified State Plans 17
Coordination with Other State and Federal
Programs 18
TECHNICAL CRITERIA FOR THE MANAGEMENT OF
REGULATED MATERIALS AND UNITS 19
Purpose 19
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Subpart B: Scope 19
A. Applicability 19
B. Effective Date 21
Subpart C: Performance Standards 23
A. Characterization of Regulated Materials and
Site Factors 23
B. Performance Standards for Ground Water 25
C. Performance Standards for Surface Water 29
D. Performance Standards for Air 31
E. Performance Standards for Soils and Surficial
Materials 32
Subpart D: Design and Operating Criteria 35
A. General Criteria Applicable to All Regulated
Units 35
B. Criteria Applicable to Regulated Units in
Specific Locations 41
Subpart E: Monitoring and Verification Criteria 50
A. Monitoring Criteria for Ground Water 50
B. Monitoring Criteria for Surface Water 55
C. Monitoring Criteria for Air 58
D. Monitoring Criteria for Soils and Surficial
Materials 61
E. Verification of Design and Operating Criteria 63
Subpart F: Corrective Action Criteria 64
A. Corrective Action Requirements for an Exceedance
of Performance Standards 64
B. Corrective Action for Noncompliance with
Design and Operating Criteria 69
Subpart G: Closure and Post-Closure Care Criteria 74
A. Applicability 74
B. Closure Plan 75
C. Closure Deadlines 77
D. Closure Activities 78
E. Certification of the Completion of Closure 79
F. Post-Closure Care Plan 79
G. Post-Closure Care Deadlines 81
H. Post-Closure Care Activities .82
I. Certification of the Completion of Post-Closure
Care 82
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Subpart H: Financial Responsibility Criteria 84
A. Applicability 84
B. Scope of Coverage 84
C. Financial Responsibility for Closure 84
D. Financial Responsibility for Post-Closure Care .... 87
E. Financial Responsibility for Corrective Action .... 89
F. Financial Responsibility for Third-Party
Liability 91
G. Allowable Mechanisms 93
Subpart I: Pollution Prevention 95
40 CFR XXZ: GUIDELINES FOR EPA IMPLEMENTATION OF MINING WASTE
AND MATERIALS MANAGEMENT PROGRAMS IN NON-PRIMACY
STATES 96
A. Purpose of Guidelines 96
B. EPA Development and Implementation of a Mining
Waste and Materials Management Plan 96
C. EPA Mining Waste and Materials Management Permits ... 97
D. Public Participation 104
E. EPA Enforcement Authority 105
APPENDIX:
DEFINITIONS 107
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40 CFR XXX:
Guidelines for State Mining Waste and Materials Management
Plan Development, Codification, Oversight, and Enforcement
Subpart A: Purpose of Guidelines
A. The purpose of these guidelines is to assist in the development,
submission, and implementation of State Mining Waste and Materials
Management Plans. The guidelines contain methods for achieving
environmentally sound management of regulated units, including
maximum utilization of resources.
B. The guidelines establish minimum requirements by which State
Mining Vaste and Materials Management Plans may be submitted and
codified by EPA.
Subpart B: General Requirements for State Mining Vaste and Materials
Management Flans
A. A State Mining Waste and Materials Management Plan must set forth
an orderly and manageable process for achieving the objectives of
Subtitle D of the Resource Conservation and Recovery Act and
meeting the Technical Criteria (40 CFR XXY).
B. A State Mining Waste and Materials Management Plan must ensure
that new regulated units are designed, and that existing regulated
units are upgraded or closed, so that the Technical Criteria
established under 40 CFR XXY are met.
C. A State Mining Waste and Materials.Management Plan shall provide
for coordination with and, where practicable, avoid duplication of
programs of other State and Federal agencies involved in the
regulation of mining units or activities. Other Federal agencies
may include, but are not limited to the Fish and Wildlife Service,
Forest Service, National Park Service, Bureau of Land Management,
and Mine Safety and Health Administration.
D. A State Mining Waste and Materials Management Plan must meet the
requirements of Subparts C through J below.
E. For purposes of this Part, the definitions of terms shall be those
found in 40 CFR XXY, Appendix.
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Subpart C: Specific Requirements for State Mining Waste and Materials
Management Flans
A. A State Mining Waste and Materials Management Plan or Plan element
must, at a minimum, include the following components in order to
be codified. In those instances where the State Mining Waste and
Materials Management Plan does not contain all elements of a
complete program, or EPA does not codify an element, all remaining
elements of the Plan must meet the Technical Criteria in order to
be codified.
DISCUSSION: As described in more detail in Subpart F below, the
Stravman provides for EPA codification of entire State Plans or of
only some elements of State Plans; EPA would retain responsibility
for developing and implementing elements not codified. EPA
requests suggestions on the concept of Plan elements and on
defining appropriate boundaries for those specific Plan elements
that may be separately codified. Potential approaches to defining
Plan elements include media specific elements or regulatory
subparts as elements. Issues associated with each option are
briefly discussed in Section III.A.2. of the Foreword.
1. Identification of all State, Federal, regional, and local
agencies that are responsible for implementation of various
components of the State Plan;
2. Identification of a single point of contact in the State for
purposes of coordination among all the agencies identified
in paragraph (1) above and development of procedures by
which such a single point of contact may serve as liaison
with EPA;
DISCUSSION: This agency would not be required to be the
final arbitrator in the State and would not have to be in
charge of taking the lead in program administration and
enforcement. Rather, this agency would coordinate State
agencies and serve'as a liaison between the State and EPA.
3. Description of agreements or established procedures that
address coordination and conflict resolution among the
agencies involved in the regulation of individual regulated
units;
A. Description of each agency's statutory and regulatory
authority to implement fully its responsibilities under the
State Plan for all regulated units on Federal. State, and
private lands within the State's borders;
5. Description of each agency's existing or planned procedures
for implementing the authorities described in Subpart D
below, including a description of each agency's
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organizational and functional structure necessary to
implement the State Plan;
6. Description of the resources (including budget, existing and
planned personnel, facilities, and equipment) available to
each agency for implementation and enforcement of the State
Plan;
7. Description of the public participation processes necessary
to meet the minimum requirements of this Part and 40 CFR
XXY;
a. At'a minimum, the State Plan shall provide for
effective public participation prior to initial
approvals, significant modifications, or renewals of
permits; and prior to significant modifications to or
renewals of State Plans.
b. For the purposes of this Part, "significant
modifications to permits" are defined as any changes
in the operating, closure, or post-closure plan that
have the potential to affect human health and the
environment beyond those impacts described in the
existing permit. These include changes in performance
standards or design and operating criteria that are
less stringent, addition of corrective action plan
requirements, and implementation of closure plan
requirements. In addition, certification of
completion of corrective action, closure and post-
closure plans for regulated units are considered
significant modifications to permits.
DISCUSSION: The Strawman does not set out specific
procedures that States would have to follow in
affording public participation. Rather, the State
would demonstrate that opportunity for effective
public participation is available at the points
identified in paragraph (a) above. This public
participation could consist of notice, notice and
comment, informal hearings or formal hearings, or any
combination thereof, as long as these procedures will
guarantee that the public has the opportunity to
provide meaningful input into program development and
implementation.
c. For the purposes of this Part, "significant
modifications to a State Plan" include any changes by
the regulatory authority to performance standards,
management practices, or other measures or procedures
established under paragraphs (8)(a) through (h) below
to comply with the Technical Criteria of Part XXY that
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are less stringent than those in the codified State
Plan; any revisions to the State Plan made necessary
as a result of changes in Federal or State regulations
and that are determined to be significant by EPA under
Subpart G of this Part; or other changes that EPA or
the regulatory authority identify as significant.
PJSCUSSION: EPA is seeking suggestions for more
specific definitions of significant modifications to
permits and State Plans.
8. Description of the means by which the State will ensure
attainment of the Technical Criteria in 40 CFR XXY,
including:
a. Regulated materials characterization requirements in
40 CFR XXY Subpart C, including identification of, or
procedures for identifying, specific parameters of
concern and identification of the analytical methods
to be used;
b. Information and reporting requirements in Subparts C
through H;
c. Performance standards for ground water, surface water,
air, and soils in 40 CFR XXY, Subpart C, including
procedures used to establish State- or site-specific
performance standards;
d. Design and operating criteria in 40 CFR XXY, Subpart
D. The State Plan must include the procedures to be
used in determining the adequacy of management
practices used to meet the criteria;
e. Monitoring criteria in 40 CFR XXY Subpart E, including
monitoring frequency for each performance standard and
each design and operating criterion;
f. Corrective action criteria for ground water, surface
water, air, soils, and design and operating criteria
in 40 CFR XXY Subpart F, including procedures for
reviewing corrective action plans and schedules;
g. Closure and post-closure care criteria in 40 CFR XXY
Subpart G, including State procedures for reviewing
closure plans and setting site-specific closure
schedules and criteria to be used in evaluating
economic value yielded from leaching operations, and;
h. Financial responsibility criteria in 40 CFR XXY
Subpart H.
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Nothing in this Part or Part XXY shall restrict States from
using alternative measures or programs to meet the Technical
Criteria in Part XXY as long as all elements of State Plans
and site-specific permit conditions are as protective of
human health and the environment as the Technical Criteria
in Part XXY. Nothing in this Part or Part XXY shall prevent
States from establishing standards or criteria that are more
stringent than required in this Part or Part XXY.
DISCUSSION: This provision is intended to provide States with
maximum flexibility to develop and implement, or to continue
implementing, programs designed to address State- and site-
specific conditions, while at the same time ensuring adequate
protection of human health and the environment. For example,
States may use best available technology developed for mine units,
design criteria, numerical performance standards, management
practices, or any combination of these to meet the level of
protection afforded by the Technical Criteria.
9. Description of the regulatory mechanism(s) (permits,
approvals, project authorizations or other enforceable
instruments) that the State intends to use to authorize the
operation of new units and to require compliance and/or
closure for existing units. The regulatory mechanism(s) may
consist of a single unit permit or a collection of
enforceable instruments applicable to a regulated unit. The
life of any such permit or other regulatory mechanism(s) may
not exceed five (5) years. Individually or collectively,
the instrument(s) must include enforceable conditions that
satisfy the requirements and procedures in paragraphs (8)(a)
through (h) above. For purposes of this Part, Part XXY, and
Part XXZ, these individual or collective instruments shall
be referred to as the "permit."
10. Description of the procedures by which the various agencies
will issue, renew, modify, and/or revoke permits. At a
minimum, permit reviews (and reissuance or modification as
appropriate) must occur whenever there is a major change in
the planned operating characteristics of the unit and when
the unit becomes subject to different conditions or criteria
(for example, when corrective action is required, at
closure, when existing standards are revised, or when new
standards are required). At a minimum, States must renew,
modify, or revoke each permit every 5 years.
11. Description of the inspection, enforcement, and reporting
activities that each agency will use to achieve compliance
with the State Plan or Plan element. For inspections, the
State Mining Waste and Materials Management Plan shall
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describe the authorities and procedures to inspect each
regulated unit no less than once every year during the
active life of the unit and through the post-closure period;
and
12. Description of information required of the owner/operator at
the time of permitting and the signatory requirements for
periodic reports and other information submitted by the
owner/operator.
B. A State Mining Waste and Materials Management Plan may include any
or all of the following:
1. Provisions by which the State may consult with EPA prior to
issuing or denying any permit to locate and/or operate a
regulated unit.
2. Provisions by which any owner/operator may request, and the
State grant or deny, confidentiality for proprietary
information or other information whose release would place a
regulated facility or the owner/operator at a competitive
disadvantage. The State must take appropriate precautions
to protect information that has been granted confidential
status. Information concerning quantities and
characteristics of regulated materials and concerning
exceedances or violations of performance standards may not
be designated confidential. All information must be
available to EPA.
DISCUSSION: RCRA Section 3006(f) Availability of
Information, is applicable to State hazardous waste
programs. This section specifies that a State program must
provide for the public availability of information obtained
by the State regarding facilities and sites for the
treatment, storage, and disposal of hazardous waste, and
that the information is available in the same manner and to
the same degree as if a Federal program were in place.
However, there is no such requirement in Subtitle D of RCRA.
As drafted, the Strawman would allow certain information to
be protected as confidential business information in States
where EPA implements a Plan or Plan element (see Part XXZ,
Section D(2)), but would not require State Plans to include
such procedures. EPA is requesting recommendations on
whether public availability of information should be one of
the criteria for codification of a State Plan.
3. Provisions by which States may impose fees to recover the
costs of administration and enforcement of permit conditions
or other program expenses.
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4. Provisions for the delegation of signatory authorities to
representatives of agencies identified in pursuant to
paragraph (A)(l) for specific components of the State Mining
Waste and Materials Management Plan.
5. Provisions, in addition to the requirements of Subpart H
below, for reporting on State program performance to EPA and
to the public.
Subpart D: State Implementation and Enforcement Authority Requirements
A. Each agency responsible for implementation of any component of the
State Mining Waste and Materials Management Plan must have the
following implementation and enforcement authorities:
1. Authority to issue permit(s) that contain site-specific
conditions developed pursuant to the procedures described in
paragraphs (A)(8)(a) through (h) of Subpart C above;
2. Authority to enter and inspect regulated units and areas
where regulated materials are or may be generated, stored,
treated, disposed, or released; to obtain and copy records;
to sample regulated materials; to require the submission of
characterization data on regulated materials, monitoring
data, and other information and reports the State determines
are needed from the owner/operator to ensure compliance with
the State Plan and applicable permit conditions; and to
require responses to written requests regarding that
agency's area of responsibility;
3. Authority to implement a financial assurance program;
4. Authority to issue administrative orders and/or to seek
civil orders and injunctions to require compliance with
applicable permit requirements for matters relevant to each
individual agency's area of responsibility;
5. Authority to impose administrative penalties or to seek
civil and/or criminal penalties for noncompliance with any
permit requirement or order for matters relevant to each
individual agency's area of responsibility. Each day that a
violation occurs shall be considered a separate violation;
DISCUSSION: EPA is requesting opinions and recommendations
on whether the program should establish minimum dollar
amounts of penalties that States should have the authority
to impose.
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May 21, 1990
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6. Authority to take action for matters relevant to each
individual agency's area of responsibility, when any action
or inaction by the owner/operator poses or may pose a threat
to human health or the environment. These authorities must
include:
a. Authority to suspend or revoke permits;
b. Authority to seek temporary or permanent injunctions;
and
c. Authority to require forfeiture of financial surety to
the regulatory authority and to access financial
responsibilty funds deposited to a State general fund,
or demonstrate an alternative means for accessing
financial responsibility funds. Funds forfeited under
this paragraph must be used to mitigate or prevent the
threat to human health or the environment that led to
forfeiture.
B. States or local authorities may not enact provisions or otherwise
interfere with the right of any person to bring suit to enforce
the State Plan or permit conditions as provided in Section 7002 of
RCRA and 40 CFR 254.
C. For a State that must modify its statutory or regulatory
requirements to meet the requirements of Subpart D, the scoping
document prepared pursuant to Section D of Subpart E below must
include a schedule for making such changes. State Flans will not
be codified until all necessary authorities are in place.
Subpart E: Notification, Development, and Submission of State Mining Waste
and Materials Management Plans
A. Within 90 days of the effective date of this Part, or as provided
in Section B below, the Governor of a State (or his/her designate)
may notify EPA of the intent to develop and submit a State Mining
Waste and Materials Management Plan. Notification shall consist
of a letter from the Governor (or his/her designate) to EPA
stating that the State intends to develop and seek codification of
its State Mining Waste and Materials Plan. If the Governor of a
State (or his/her designate) does not submit such notice within 90
days of the effective date of this Part, or if a State Plan or
Plan element is not codified pursuant to Subpart F, EPA may
implement a Federal Plan or Plan element in that State in
accordance with 40 CFR XXZ.
B. In any State in which a Mining Waste and Materials Management Plan
or Plan element has not been codified pursuant to Subpart F below,
the Governor may at any time notify EPA of the intent to develop
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8 May 21, 1990
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and seek codification of a Mining Waste and Materials Management
Plan or Plan element.
C. The State shall provide for public notice and comment, and may
hold public hearings, upon notifying EPA of the intent to submit a
State Plan or Plan element.
D. Within 120 days of notification under Sections A or B above, the
State must submit a scoping document that includes a development
plan and a schedule for completion of any required statutory and
regulatory revisions, completion of all funding agreements, and
description of public participation processes necessary for the
development of the State Mining Waste and Materials Management
Plan or Plan element. The scoping document shall include or
otherwise provide for:
1. Clear milestones and deadlines that will enable EPA to
evaluate progress toward Plan development, submission, and
implementation;
2. One (1) year after the consultation with EPA described in
Section E below, a report by the State describing progress
toward Plan development; and
3. Submission of the State Plan to EPA in accordance with
Section F below.
E. Within 90 days of receipt of the scoping document, EPA will
consult with the State to identify noted deficiencies.
F. Within 24 months of the consultation described in Section E, the
State shall complete the development of its State Plan, unless an
extension is granted, for good cause, by EPA. Requests for
extensions shall be made by the Governor or the Governors
designate. One extension of 12 months may be granted if EPA
determines that the State is making satisfactory progress toward
completion of the State Flan and can reasonably expect completion
within the requested extension period.
G. Upon completion of the development of a final State Mining Waste
and Materials Management Plan or Plan element, the State shall:
1. Provide for public notice and comment and, if the State
deems it necessary, hold public hearings; and
2. Submit the Plan or Plan element to EPA for review.
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H. If, at any time after notification of its intent to prepare a
State Plan or Plan element, a State does not meet the Plan
development deadlines outlined in this Subpart, EPA may implement
a Federal Plan or Plan element in that State in accordance with 40
CFR XXZ.
Subpart F: EPA Review and Codification of State Plans
A. Within 90 days of receipt of a State Mining Waste and Materials
Management Plan, EPA will review the Plan to ascertain that it has
all of the required elements identified in Subpart C of this Part
and to determine whether any or all elements of the Plan are
adequate to ensure that, upon implementation, they are sufficient
to attain the Technical Criteria in Part XXY. If any elements of
the State Plan are currently being implemented by the State, EPA
may consider the results of such implementation in the
determination of adequacy. If any deficiencies are identified,
EPA shall notify the State in writing and attempt to cooperatively
resolve these deficiencies with the State.
B. Upon notification by EPA of deficiencies in the State Plan under
paragraph A, a State may modify and resubmit its Plan. Such
modifications shall be submitted within a time mutually agreed
upon by EPA and the State, not to exceed 90 days after the notice
of deficiency. If revisions or additions to the Plan involve
significant changes, the State shall provide for public
participation as described in Subpart E, paragraph C. Upon
submission of a modified Plan or element, EPA shall review it in
accordance with paragraph A. If the State does not submit a
modified Plan or Plan element within the allotted time, EPA may
implement a Plan or Plan element in accordance with Part XXZ.
C. Based on the review in paragraph A, EPA shall make a tentative
decision whether to codify the Plan or specific element(s) of the
Plan and shall publish a notice in the Federal Register of the
tentative decision. This notice shall, if necessary, describe the
reasons why EPA tentatively decided not to codify one or more Plan
elements. The public notice shall provide for a public hearing,
which may be held jointly with the State.- EPA will afford the
public no less than 30 days after the notice to comment on the
State Plan and EPA's tentative determination.
D. If significant deficiencies in the State Mining Waste and
Materials Management Plan or Plan element(s) are identified during
the public comment period, EPA shall notify the State in writing
within 30 days of the close of the comment period. This notice
will describe the deficiencies and any required revisions to the
Plan or Plan element. Following such notice, a State may modify
and resubmit its Plan. Such modifications shall be submitted
within a time mutually agreed upon by EPA and the State, not to
** STAFF REGULATORY APPROACH **
10 May 21, 1990
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exceed 90 days after the notice of deficiency. If revisions or
additions to the Plan involve significant changes, the State shall
provide for public participation as described in Subpart E,
paragraph C. Upon submission of a modified Plan or element, EPA
shall review it in accordance with paragraph A. If the State does
not submit a modified Plan or Plan element within the allotted
time, EPA may implement a Plan or element in accordance with Part
XXZ.
E. If no significant deficiencies in the State Mining Waste and
Materials Management Plan are identified during the public comment
period, EPA shall make a final decision to codify the Plan or Plan
element(s) and publish that decision in the Federal Register
within 90 days after the close of the public comment period.
F. The State Mining Waste and Materials Management Plan shall become
effective upon notice of implementation by the State that all
applicable elements of the Plan are being implemented as described
in the Plan. This notice shall be by letter from the Governor of
the State to the Administrator of EPA. The notice must be
submitted as follows:
1. If a State Mining Waste and Materials Management Plan or
Plan element is being implemented at the time of Plan
submission [i.e., an existing program], this notice shall be
made at the time of Plan submission; and/or,
2. If a State Mining Waste and Materials Management Plan or
Plan element is not being implemented at the time of Plan
submission, or if it has undergone modification under
paragraph B or D above, this notice shall be made during the
public comment period following EPA's tentative decision to
codify the Plan or element.
Subpart G: Revisions to State Mining Waste and Materials Management Plans
State Mining Waste and Materials Management Flans shall provide for an
orderly revision process, including opportunities for effective public
participation developed pursuant to section (A)(7) of Subpart C.
Codified State Mining Waste and Materials Management Plans shall remain
in effect during any such revision process. State Plan revisions may be
necessary due to Federally required revisions or State required
revisions.
A. Federally Required Revisions
1. If any new or revised requirements are established by
amendment to this Part, or there are any other changes in
Federal statute or regulation which would invalidate all or
a portion of a State Plan, EPA will review codified State
** STAFF REGULATORY APPROACH **
May 21, 1990 11
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Plans and if necessary require appropriate modifications by
those States whose Mining Waste and Materials Management
Plans do not meet the new or revised requirements. EPA
shall clearly demonstrate to such affected States how such
Plans do not meet new or amended requirements.
2. If, as the result of a program review of a codified State
Plan pursuant to Subpart H below, EPA determines that the
State Plan or its implementation does not meet the
requirements of Subparts B or C, above, EPA shall notify the
State of such deficiencies and that revisions to the Plan
are necessary.
3. The schedules for States submitting, and EPA reviewing and
codifying revised State Plans, shall be the same as those
set forth in Subparts E and F above.
B. State Instituted Revisions
1. In the event of changes in State statute or regulation or
changes in procedures established under paragraphs (A)(8)
(a) through (h) above that significantly modify or
invalidate the State Plan, the State shall notify EPA within
60 days of such changes. EPA, upon reviewing the changes,
will, within 60 days, notify the State if revisions to the
State Plan are required. EPA shall clearly demonstrate to
such affected States how such State Plans do not meet the
new or amended requirements. Any change by the State in
performance standards that would make them less stringent
than those previously codified by EPA shall be considered a
significant modification to the State Plan for the purposes
of this Part.
2. The schedules for States submitting, and EPA reviewing and
codifying revised State Plans, shall be the same as those
set forth in Subparts E and F above.
3. All changes and revisions to State Plans and to relevant
State regulatory and statutory authorities shall be
identified in £he biannual reports required under Subpart H,
Section C, below.
Subpart H: Federal Oversight of State Mining Waste Management Programs
A. EPA Program Review of State Plan Implementation
1. At a minimum, EPA will conduct a program review to evaluate
State implementation of codified Plans every five years to
determine if the requirements of the State Plan are being
met. EPA may conduct program reviews on a more frequent
** STAFF REGULATORY APPROACH **
12 May 21, 1990
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basis at its discretion. Program reviews of States with
codified Plans or Plan elements shall be based on the
effectiveness of State implementation of the Plan or
element. The evaluation shall focus upon the performance of
State and Federal mining waste management methods and
programs as employed at regulated sites, and their
effectiveness in protecting human health and the
environment. The program review may include, but not
necessarily be limited to: a review of staffing, State
enforcement activities, and permits and also may include
site-specific inspections. One measure of program
performance shall be the ability of the State to solve
problems as evidenced through responses to violations of
permit conditions and to citizen complaints. EPA will
notify the State 30 days prior to a program review and
identify which site(s), if any, will be inspected during the
program review. EPA will integrate and coordinate, to the
extent possible, program reviews under other existing
delegated programs such as the Clean Air Act and the Clean
Water Act with the program reviews that are necessary under
this program.
2. Within 90 days of completing its program review, EPA will
make a tentative decision whether to require modification to
a codified Plan. Such modifications will be based on EPA's
demonstration to the State how the State Flan, or its
implementation, does not meet the requirements of this Part
or Part XXY.
3. The processes and schedules by which EPA will notify the
State of deficiencies in its State Flan or in Flan
implementation and by which States will modify and submit
revised Plans and EPA will review and, if appropriate,
codify the modified Flan shall be the same as those set
forth in Subpart F. If required, schedules for States'
submitting, and EPA reviewing and codifying revised State
Flans, shall be the same as those set forth in Subparts E
and F above.
4. If the program review does not identify major deficiencies
or require significant modifications to the State Plan, EPA
will notify the Governor in writing of this finding.
5. EPA may initiate an evaluation of State implementation of a
codified State Plan in response to a petition from an
interested party alleging failure of the State to comply
with the requirements of a codified State Plan.
DISCUSSION: For the purposes of this section, an owner or
operator would be considered an interested party and could
address its concerns with a State's implementation of a
** STAFF REGULATORY APPROACH **
May 21, 1990 13
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codified Mining Waste and Materials Management Plan through
petitions. Besides this petition for EPA review of overall
Plan implementation, Subpart J belov would allow citizens in
States with codified Plans or Plan elements to petition EPA
to become involved in permit issuance or enforcement.
B. Site-Specific EPA Oversight Activities
1. EPA may conduct site inspections to determine if the
requirements of a codified State Mining Waste and Materials
Management Plan and all permit requirements are being met on
individual sites. These inspections may be conducted
jointly with one or more of the agencies involved in
implementation of the State Plan.
2. EPA may become involved in an individual State's permit
issuance actions under the following circumstances:
a. EPA must have codified the State Plan or a Plan
element; and
b. One or more of the following triggering circumstances
exists:
(1) The State requests EPA participation in permit
comment and conditions development;
(2) EPA finds that a State has failed to follow the
codified State Plan;
(3) In cases where there is an imminent danger to
human health or the environment, or the threat
of such imminent danger;
(A) EPA finds that interstate or international
issues are present; or,
(5) In other circumstances specifically defined in
the codified State Plan.
DISCUSSION: EPA is requesting input on the
appropriateness of all tirggers. EPA is
requesting recommendations on what its
involvement should be in each of the cases
identified above. For example, EPA could review
draft permits and submit formal or informal
comments or recommendations; in such cases, the
timing of EPA reviews must be established and
the procedures to be followed in the State-EPA
interaction must be carefully developed.
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May 21, 1990
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In addition, EPA is requesting recommendations
on the means by which EPA would become involved
when "the State has failed to follow the State
Plan" (trigger (b)(2) above) or in cases of
imminent danger. One means of identification
could be through the public participation
process required by section A(7) of Subpart C
above; another could be through the biannual
report required in Section C below. EPA
requests viewpoints on these issues and on the
concept of "triggers" for permitting
involvement. EPA also requests recommendations
on whether additional triggers should be
included. Finally, EPA is requesting
alternative language to the "imminent danger"
trigger.
3. Comments from EPA resulting from individual permit reviews
under one of the above circumstances shall be considered by
the State and specifically responded to in findings prior to
permit issuance. In situations where the State's findings
differ from EPA recommendations, specific conflict
resolution procedures will be used. In all cases, the State
retains the authority to make the final determination on
permit conditions.
DISCUSSION: CERCLA models for conflict resolution may be
used to develop specific procedures for the mining program.
The CERCLA (Superfund) Program uses alternative dispute
resolution techniques to resolve environmental enforcement
disputes. The CERCLA model for conflict resolution uses
third-party neutrals to aid in resolution through
arbitration, mediation, mini-trials, and fact-finding
procedures.
C. Biannual Reports
1. States shall prepare and submit to EPA a report by January
31 and July 31 of each year. These reports will include the
information listed in paragraph (2) and will cover the
previous six month period.
2. At a minimum, these reports shall include:
a. A list of all permit applications noting date of
anticipated State action;
b. A list of all units subject to the requirements of the
codified State Mining Waste and Materials Management
Plan;
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May 21, 1990 15
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c. The permit status for each unit, including a list of
all applicable permits, and the issuance and
expiration dates for each;
d. A list of all violations of permit conditions
detected, and the enforcement actions taken by the
State for each;
e. The current compliance status of permits issued, and a
list of all corrective actions initiated, currently in
progress, or completed;
f. A list of site inspections conducted by the State;
g. A discussion of any problems or concerns with
implementation or enforcement of the State Plan; and
h. Identification of all changes in State statutes or
regulations affecting the State Plan and resultant
changes in the State Plan.
Subpart I: Federal Enforcement In States vith Codified Flans
A. EPA may take enforcement actions against owners/operators in
States with codified State Plans in the following circumstances:
1. The State requests EPA to take enforcement actions;
2. EPA finds that a State has failed to follow the State Plan;
3. In cases where there is an imminent danger to human health
or the environment, or the threat of such imminent danger,
and the State has not taken appropriate actions;
A. EPA finds that interstate or international issues are
present; or,
5. In other circumstances specifically defined in the codified
State Plan.
DISCUSSION: EPA is requesting input on the appropriateness
of all triggers. An issue to be resolved is whether EPA
enforcement vill be limited to compliance with specified
permit conditions or if EPA will have authority to enforce
the requirements of a codified State Plan if a permit does
not have all necessary conditions. Should the permit act as
a shield, whereby the owner/operator must only comply with
the permit, or should there be some degree of self-
** STAFF REGULATORY APPROACH
May 21, 1990
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implementation (i.e., the owner/operator would have to
comply with the State Plan as well as the permit)? EPA
requests recommendations on this issue.
B. EPA shall give notice to the affected State at least 60 days prior
to taking enforcement action under Section A, unless such action
is taken in response to an imminent danger to human health or the
environment. EPA shall not take further action if, within 60 days
of EPA's notice, the State has commenced an appropriate
enforcement action to require compliance.
DISCUSSION: Should there be a conflict resolution process
specified? The CERCLA model is one option being considered. See
above and page 21 of the Foreword.
C. EPA will review any State request for Federal enforcement of a
permit under paragraph (A)(2) above to determine its merits prior
to taking any further action. This review may include a joint
inspection with the State to evaluate the need for Federal action.
Subpart J: Petitions for EPA Involvement in Permit Actions or Enforcement in
a Codified State
A citizen of a State with a codified State Plan or Plan element may. at
any time, allege in a petition to EPA that any of the circumstances that
are required for EPA involvement in State permit issuance actions under
Subpart H, Section B(2)(b), or for EPA enforcement in States with
codified Plans under Subpart I, Section A, exists with regard to State
action or inaction at one or more sites in the State. Upon receipt of
such a petition, EPA shall work cooperatively with the petititioner and
the State to determine the merits of the petition. Should EPA determine
that the allegations are valid, EPA may become involved in a State's
permit issuance action under Subpart Subpart H, Section B(2)(b), or take
enforcement action against an owner/operator under Subpart 1, Section A.
Subpart K: Federal Implementation upon Withdrawal or Revocation of Codified
State Plans
A. EPA may withdraw its codification of the State Plan or Plan
element where a State fails to adequately implement the State Plan
or element at one or more units and may take appropriate action to
implement a Federal Plan in that State in accordance with the
provisions of 40 CFR XXZ.
B. When EPA begins proceedings to determine whether to withdraw its
codification of a State Plan or Plan element, these proceedings
shall be conducted in accordance with the procedures in Subpart F.
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Subpart L: Coordination vith Other State and Federal Programs
A. To the extent feasible, the requirements of this Part and the
requirements of a codified State Mining Waste and Materials
Management Plan shall be coordinated and integrated with all other
provisions of the Resource Conservation and Recovery Act and with
other Federal Acts in order to minimize duplication of
administrative and enforcement efforts.
B. During the period of development of a State Mining Waste and
Materials Management Plan, the State retains the authority to
administer its existing programs. The failure of a State to
develop and submit a Plan or implement a codified Flan shall not
affect the State's authority to implement any program applicable
to regulated materials and units.
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40 CFR XXY: Technical Criteria for the Management of Regulated Mining
Materials and Units
Subpart A: Purpose
A. Protect human health and the environment from improper management
of mining wastes and other regulated materials.
B. Establish minimum Federal criteria under RCRA for the management
of regulated materials and units.
Subpart B: Scope
A. Applicability
1. The Criteria in this Part apply to owners and operators of
new and existing regulated units that contain regulated
materials generated by extraction and beneficiation
facilities in the mining industry sectors addressed in the
December 1985 Report to Congress (extraction and
beneficiation of metallic ores, phosphate rock, uranium
overburden, asbestos and oil shale). These criteria also
apply to owners and operators of mineral processing
facilities that generate mineral processing wastes that:
(1) remain within the fievill exclusion, or (2) are non-
Bevill, non-Subtitle C wastes that are co-located and co-
mingled with regulated materials generated by extraction and
beneficiation. [Non-Subtitle C means that the mineral
processing waste neither exhibits a characteristic of
hazardous waste nor is listed as a hazardous waste under
Subtitle C of RCRA.]
DISCUSSION: The advice of interested parties is requested
on a number of scope-related issues. As discussed in the
Foreword and in the definitions (Appendix). the proposed
scope of this program would go beyond traditional RCRA solid
wastes to include active heap and dump leaching units and
associated leaching solutions, subgrade ore piles, and units
in which mine vater may accumulate and be released at
extraction and beneficiation facilities. EPA is also
seeking opinions as to whether the program should apply to
various aspects of placer mining or to certain exploration
and/or development wastes.
In addition, it should be noted that the use in the Strawman
of various terms, including '"new" and "existing" regulated
units (which together constitute "active" units, to which
the Strawman also refers), correspond to the definitions of
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May 21, 1990 19
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Chose terms in the Appendix. EPA is aware that these terms
may be defined somewhat differently in the Strawman than
when commonly used by States or industry.
It should also be noted that, except for some provisions of
Subpart D, the Strawman does not generally distinguish
between new and existing units. EPA is aware that it may be
appropriate to treat new and existing units somewhat
differently in some cases, and would welcome any suggestions
or recommendations as to distinctions that should be made.
2. Criteria in this Part, Part XXX, and Part XXZ do not apply
to activities and releases specifically regulated in items
(a) through (i) below. However, nothing in this Part, Part
XXY, or Part XXZ preempts the owner/operator's
responsibilities to comply with the programs and statutes
referenced in these items.
a. Units and materials regulated under Subtitle C of
RCRA;
b. Disposal of mining waste by underground well injection
regulated by the Underground Injection Control (UIC)
Program under the Safe Drinking Water Act, as amended
(42 U.S.C. 3007 et seq.);
c. Discharges that are regulated by permits under Section
402 of the Clean Water Act, as amended (33 U.S.C. 1251
et seq.);
d. Emissions of air pollutants that are otherwise
regulated under the Clean Air Act, as amended (42
U.S.C. 7401 et seq.);
e. Source, special nuclear, or byproduct material, as
defined by the Atomic Energy Act, as amended (41
U.S.C. 2011 et seq.) and;
f. Activities that are regulated under permits under
Sections 403 or 404 of the Clean Water Act, as amended
(33 U.S.C. 1251 et seq.); except that regulated units
in dredge and fill situations must also meet the
requirements of this Part.
g. Activities that are regulated by permits under the
Surface Mining Control and Reclamation Act (30 U S C
1201 to 1211, 1231 to 1328).
h. Activities that are regulated under the Uranium Mill
Tailings Radiation Control Act (42 U,S C 7901 to
7942).
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20 May 21, 1990
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i. Activities that are carried out by the States or their
contractors, or activities delegated to and carried
out by lower governmental units, specifically for the
purpose of closure, post-closure or corrective action
at units that are not otherwise subject to this Part
or other elements of this program, whether for
environmental, human health or public safety purposes,
either under the provisions of Title IV of the Surface
Mining Control and Reclamation Act (SMCRA), the
Uranium Mill Tailings Radiation Control Act (UMTRCA)
or other State or Federal statutes associated with the
reclamation, stabilization, re-vegetation, sealing,
barricading, or other actions intended to improve the
condition of such units.
B. Effective Date
All new and existing units must be in compliance with all codified
elements of a State Mining Vaste and Materials Management Flan by
a date established by the regulatory authority, not to exceed five
years after the date that EPA codifies a State Plan or element or
five years after implementation of a Federal Plan or Plan element.
For purposes of this Part, the compliance date, as established
above, is referred to as the "effective date."
DISCUSSION: EPA is requesting the views of interested parties on
which, if any, subparts of Part XXY should become effective by a
certain date in the absence of a codified State Plan (Federally or
State-implemented). Performance standards generally could not be
self-implementing, as they must be established by a regulatory
authority following procedures established in a State Plan.
However, to enhance the protection of human health and the
environment, it may be appropriate to require all owner/operators
to be in compliance with the design and operating criteria in
Subpart D by a certain date, even in the absence of a State Plan.
In addition, EPA is requesting viewpoints on the definition of new
and existing regulated units. As currently defined (see the
Appendix), new units are those for which construction begins on or
after the compliance date. However, EPA is concerned that a delay
of up to five years between the codification of a State Plan and
required compliance with the Plan could pose a substantial burden
on units that are under design (but not under construction) during
this period and that will become subject to the design and
operating criteria for new units.
A related concern is that the potential five year delay could
result in a number of units that could have been regulated under
this program, but that choose instead to close before the delayed
** STAFF REGULATORY APPROACH **
May 21, 1990 21
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effective date to avoid the costs of complying with a State or
Federal Plan. The result would be many more inactive units that
would not be regulated under this program. EPA is requesting
suggestions on how to address these issues.
** STAFF REGULATORY APPROACH **
22 May 21, 1990
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Subpart C: Performance Standards
A. Characterization of Regulated Materials and Site Factors
DISCUSSION: The characterization requirements established in
Section A of this Subpart are designed to address the broad range
of risks posed by units and materials that would be regulated
under Strawman. The characterization of regulated materials
required by this section would provide information to the
regulatory authority on the physical/chemical characteristics of
the materials placed and/or expected to be placed or to accumulate
in the regulated unit. The results of the characterization would
enable the regulatory authority to identify parameters of concern
and aid in the development of performance standards and monitoring
requirements that are tailored to site-specific factors.
1. Prior to the initial issuance of a permit for a regulated
unit, and no less frequently than every 5 years thereafter,
the regulatory authority shall require the owner/operator to
submit the results of a characterization of the materials
placed and/or expected to be placed or to accumulate in the
regulated unit. The characterization must meet both the
requirements of paragraph (2) below and the following:
a. For new units, the characterization shall be conducted
for all materials to be placed in the regulated unit
prior to the unit's operation. If no samples of the
regulated materials are available, the regulatory
authority may allow the owner/operator to submit an
estimate, prepared by a qualified professional, of the
likely characteristics of the materials to be placed
in the regulated unit. In such cases, a characteri-
zation of the regulated materials must be performed
and submitted to the regulatory authority as soon as
such materials are available. The regulatory
authority may modify any performance standards or
permit requirements for the regulated unit based on
the results of the actual characterization.
b. For existing units, the characterization shall be
conducted on representative samples of the materials
placed or accumulating in the regulated unit.
c. If wastes or other materials not similar to the
materials already in the regulated unit are proposed
to be placed in the regulated unit, these materials
must be characterized prior to being placed in the
unit. In such cases, the regulatory authority may
modify any permit issued for the regulated unit based
on the results of this characterization.
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May 21. 1990 23
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2. The characterization required under paragraph (1) shall
include, at a minimum:
a. Results of total constituent analyses o
representative samples of the materials, using SW-846
methods or equivalent for arsenic, barium, cadmium,
chromium, lead, mercury, selenium, and silver.
DISCUSSION: The metals identified above are those for
which maximum contaminant levels (HCLs) have been
established under the Safe Drinking Water Act. EPA is
considering requiring that the characterization
include analyses for additional minimum parameters.
This could include parameters for specific industry
sectors (e.g., radioactive parameters in the phosphate
sector and cyanide in the gold sector) and/or media-
specific parameters standards (e.g., asbestos for air
or copper for surface water). Alternatively, EPA
could require the States to identify or describe
procedures for identifying additional parameters in
their State Plans. EPA is seeking advice on what
additional parameters are of concern, and whether they
should be media-specific and/or industry sector-
specific .
EPA is also soliciting information and recommendations
on the type(s) of analysis to be required for the
characterization. EPA recognizes that the selection
of an appropriate type of analysis depends on the
specific material, parameter, media, and other
factors. For example, leachability analyses may
reflect the actual risks posed by releases of specific
parameters to ground water and surface water, while
total constituent analyses may be more appropriate to
identify the risks posed by emissions of fugitive
dust. In addition, the Agency requests the views of
interested parties on the appropriate means of
identifying specific analytical methods to be used for
the characterization.
b. Results of analyses for additional parameters, using
SW-846 methods or the equivalent, as required by the
regulatory authority.
c. A measure of the acid generation potential of the
regulated materials.
DISCUSSION: EPA recognizes that frequently the risks
posed by mining wastes and materials are directly
related to their acid generation potential.
Therefore, the Strawman would require owners or
** STAFF REGULATORY APPROACH **
24 May 21, 1990
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operators to assess acid generation potential as a
measure of the mobility of parameters of concern and
the likely long-term variability in the physical/
chemical characteristics of the regulated materials.
EPA is soliciting information and suggestions on the
appropriate method(s) to be used to measure acid
generation potential.
d. A quantitative assessment of potential variability in
the compositions of the materials placed and/or
expected to be placed or to accumulate in the
regulated unit, including the concentrations of the
parameters of concern.
e. A description of why the characterization data are or
are believed to be representative of the materials
placed or expected to be placed or to accumulate in
the regulated unit.
f. Descriptions of the protocols used by the
owner/operator for the following:
i. Sample collection;
ii. Sample preservation and shipment;
iii. Analytical procedures; and
iv. Chain-of-custody procedures.
3. Prior to the initial issuance of a permit for a regulated
unit, the regulatory authority shall require the
owner/operator to submit an assessment of the site that
describes the physical setting including: the climate,
surrounding land use, location and use of all surface water
bodies including intermittent streams, topographical
features, and proximity to environmental receptors,
including native and migratory wildlife.
DISCUSSION: EPA seeks the advice of interested parties on
the requirement to submit site assessment information. What
exactly should be required? In what format should the
information be submitted?
B. Performance Standards for Ground Water
1. Performance standards for ground water shall be set to
protect the quality and the use of this water resource at
the point of compliance and at downstream points determined
** STAFF REGULATORY APPROACH **
May 21, 1990 25
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to be hydrologically connected to the point of compliance.
Performance standards for ground water shall be established
as described in (2) or (3) below.
2. Based on the results of the characterization conducted under
Section A of this Subpart and any other factor identified by
the regulatory authority, ground-water performance standards
shall be established for all parameters of concern. The
performance standards for specific parameters must be
protective of human health and the environment and shall be
established as follows:
DISCUSSION: It is anticipated that guidance would be
developed on what are parameters of concern for various
waste types and site characteristics. As described in
Section IV(A) of the Foreword, EPA considered specifying in
the Strawman the means by which States would identify
parameters of concern. It was determined that States should
be provided maximum flexibility to consider site-specific
factors in determining the parameters for which performance
standards should be set. The views of interested parties
are requested on this issue.
a. Where a State has appropriate numerical ground-water
quality standards or a ground-water classification
system that includes appropriate numerical standards
for various classes or designated uses of ground
water, these standards shall serve as performance
standards for ground-water protection.
b. In the absence of numerical State-specific or site-
specific ground-water quality standards for one or
more parameters of concern, Maximum Contaminant Levels
(MCLs) promulgated under the Safe Drinking Water Act
shall serve as performance standards for ground-water
protection for such parameter(s) with the following
exception:
i. Background concentrations may be established as
performance standards when background
concentrations for specific parameters exceed
MCLs. Background concentrations shall be
established in accordance with the criteria
specified in paragraph A(5)(d) of Subpart E.
c. In the absence of numerical State-specific or site-
specific ground-water quality standards and MCLs for
one or more parameters of concern, the performance
standard for ground-water protection for such
parameter(s) shall be established based on the
following criteria:
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26 May 21, 1990
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i. Derived using a risk-based approach that
considers the following:
a. Is consistent with those guidelines set
forth in 51 FR 33992, 34006, 34014, 34028
or subsequent revisions to these
guidelines;
b. Based on scientifically valid studies
conducted in accordance with 40 CFR 792 or
studies deemed by the regulatory authority
to be equivalent;
c. For known or suspected carcinogens, the
concentration associated with maximum
probability of excess lifetime risk of
1 x 10 , assuming continuous daily
exposure;
DISCUSSION: EPA is soliciting suggestions
on the appropriate excess lifetime risk or
risk range to be used to develop
performance standards for all media.
d. For systemic toxicants, the concentration
that is likely to present no appreciable
risk of adverse effects over a lifetime of
continuous daily exposure; or
e. Environmental risks, as defined by the
regulatory authority.
OR
ii. Equivalent to background concentrations
(established in accordance with the criteria
specified in paragraph A(5)(d) of Subpart E) if
the background concentrations are higher than
such health-based standards and are protective
of human health and the environment.
Where the regulatory authority determines that the ground
water underlying the regulated unit is hydrologically
connected to surface waters, surface water standards
established under Section C below shall be considered in
setting ground-water performance standards. If more
stringent than would otherwise be established, these surface
water standards shall be established as ground-water
performance standards.
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Kay 21, 1990 27
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Performance standards established under paragraphs (2) and
(3) must be met at a location designated by the regulatory
authority. This point of compliance shall be as close as
technically practical to the predicted lifetime boundary of
the regulated unit. The regulatory authority may designate
an alternative point of compliance if the regulatory
authority determines, based on site-specific factors, that
such an alternative point is more appropriate and is no less
protective of human health and the environment. The
regulatory authority shall base any such determination on an
evaluation of site-specific information submitted by the
owner/operator (or otherwise available to the regulatory
authority), including information listed in paragraphs (a)
through (f) below. In either case, the point of compliance
may not be further than the facility's property boundary.
Factors that must be considered in the establishment of an
alternative point of compliance include, but are not limited
to:
a. Hydrogeologic characteristics of the regulated unit
and the surrounding land;
b. Physical/chemical characteristics and rates of
releases from the regulated unit;
c. Quantity, quality, and direction of flow of the ground
water potentially affected by the unit;
d. Proximity and withdrawal rates of current and
potential future users of the ground water potentially
affected by the unit;
e. Availability and cost of supplying other sources of
drinking water, or other beneficial uses of the
potentially affected ground waters; and
f. Public health, safety, and welfare effects.
DISCUSSION: EPA requests suggestions on this means of
identifying the ground-water point of compliance.
Specifically, should the point of compliance ever
extend beyond the unit boundary? In addition, it may
be appropriate to distinguish between new and existing
units when establishing points of compliance. Also,
in some cases, it may be technically difficult to
delineate between active units and other areas.
Alternative recommendations are welcome.
** STAFF REGULATORY APPROACH **
28 May 21, 1990
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C. Performance Standards for Surface Waters
1. The performance standards for surface waters shall protect
surface water quality. A new or existing regulated unit
shall not cause a discharge of pollutants into waters of the
U.S. that violates any requirements of the Clean Water Act,
including, but not limited to, the National Pollutant
Discharge Elimination System (NPDES) pursuant to Section 402
and any area-wide or state-wide water quality management
plan that has been approved under Section 208 or 319, nor
shall any State surface water quality standards be violated,
including standards established under Section 303.
2. Based on the results of the characterization conducted under
Section A of this Subpart and any other factor identified by
the regulatory authority, surface water performance
standards shall be established for all parameters of
concern. The performance standards for specific parameters
shall be protective of human health and the environment and
shall be established as follows:
a. Where the State has established appropriate numerical
surface water quality criteria derived from State
surface water quality standards, such criteria shall
be the performance standards.
DISCUSSION: The 1987 amendments to the CWA required
States to develop numeric standards for toxic
pollutants; EPA will promulgate criteria in States not
in compliance. [Section 303(c)(2)(B) .]
b. In the absence of numerical State-specific or site-
specific surface water quality criteria for one or
more parameters of concern, Maximum Contaminant Levels
(MCLs) promulgated under the Safe Drinking Water .Act
shall serve as performance standards for surface water
protection for such parameter(s) with the following
exception:
i. Background concentrations may be established as
performance standards when background
concentrations for specific parameters exceed
MCLs. Background concentrations shall be
established in accordance with the criteria
specified in paragraph B(4)(c) of Subpart E.
c. In the absence of numerical State-specific or site-
specific surface water quality standards and MCLs for
one or more parameter(s) of concern, the regulatory
authority shall use a risk-based approach to derive
STAFF REGULATORY APPROACH **
May 21. 1990 29
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site-specific numerical criteria. These site-specific
criteria shall be the performance standards with a
following exception:
i. Background concentrations shall be established
as performance standards for specific parameters
when background concentrations of these
parmeters exceed the numerical water quality
standards derived in the previous paragraph.
Background concentrations should be established
in accordance with the criteria specified in
paragraph B(4)(c) of Subpart E.
DISCUSSION: EPA is concerned about discharges
during storm events that may pose threats from
sediment loading. Therefore, EPA is considering
developing performance standards and
establishing monitoring requirements for
parameters such as total suspended solids (TSS)
that would be applied only during storm events.
This approach is consistent with similar
requirements of NPDES permits for discharges
during storm events. EPA is soliciting the
advice of interested parties on this approach
and the appropriate numerical performance
standards, monitoring requirements, and storm
interval.
3. Performance standards shall apply in all waters of the U.S.
and other surface waters identified by the regulatory
authority.
A. The owner/operator shall be required to meet the performance
standards for surface water at the point of compliance. The
point of compliance shall be defined as a location in the
receiving water(s) as close as feasible to the downstream
edge of all discharges by the regulated unit(s) (except
discharges permitted under Section 402 of the Clean Water
Act).
DISCUSSION: It should be noted that because the point of
compliance may be a substantial distance from the regulated
unit, the facility may be required to consider the
contributions of other regulated units to the discharge.
Therefore, the Agency is seeking the views of interested
parties on using the property boundary in establishing
surface water performance standards.
** STAFF REGULATORY APPROACH
30 May 21, 1990
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D. Performance Standards for Air
DISCUSSION: In the case of performance standards for air and
soils, it is not EPA's intent to force unnecessary standard-
setting by the regulatory authority where standards do not exist
for parameters of concern at the State or Federal level.
Therefore, based on the results of the characterization conducted
under Section A of this Subpart and other site-specific
information including management practices, the regulatory
authority will make an initial determination, for each parameter,
whether the potential risks warrant performance standard
development. EPA acknowledges that this approach allows
management practices to serve as alternatives to numerical
performance standards. Opinions on the Strawman approach and
recommendations for alternative approaches are welcome.
1. For all parameters detected or determined to be potentially
present in the regulated materials by the waste
characterization conducted under Section A of this Subpart
and other parameters identified by the regulatory authority,
the regulatory authority shall require the owner/operator to
conduct an assessment of the potential for air migration
through fugitive dust emissions. This assessment shall
consider, at a minimum, the following factors:
a. The concentrations of parameters in the regulated
materials as determined by the waste characterization.
b. The potential for the parameter to be entrained in
fugitive dust.
c. Climatological conditions at the facility including
wind conditions.
d. Proximity of environmental receptors.
e. Any available sampling data that characterizes
fugitive dust emissions.
f. Any management practices used by the owner/operator to
mitigate fugitive dust emissions.
2. a. Based on the results of this assessment and other
information available to the regulatory authority, the
regulatory authority may develop numeric air
performance standards for any parameters detected or
determined to be potentially present in the
characterization of the regulated materials and for
other parameters identified by the regulatory
authority. Performance standards shall be human
health-based and environmental standards that satisfy
f
** STAFF REGULAluRY APPROACH **
May 21, 1990 31
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the criteria and procedures in paragraph B(2)(c) of
this Subpart as applied and adapted for air emissions,
except as provided in paragraph (C)(4) of Subpart E.
DISCUSSION: EPA is soliciting viewpoints on the
appropriateness of establishing air performance
standards for some or all regulated units.
Suggestions are also requested on how standards should
be established, other than using the above risk-based
approach. Options include ambient air quality
standards established under the Clean Air Act,
National Institute for Occupational Safety and Health
(NIOSH), Mine Safety and Health Administration (MSHA),
National Emissions Standards for Hazardous Air
Pollutants (NESHAPs), and/or other Agency guidelines
and screening levels.
b. If, based on the assessment conducted under paragraph
(1) above, the regulatory authority determines that
management practices are likely to minimize releases
of fugitive dust, the regulatory authority may, in
lieu of establishing numeric performance standards,
establish the management practice(s) as air
performance standards.
3. The performance standards for air shall be met at a point of
compliance determined by the regulatory authority. This
location shall be the ambient air over and surrounding the
regulated unit, unless the regulatory authority determines,
based on the factors listed below, that another location is
appropriate. If another location is established as the
point of compliance, it must be no further than the property
boundary. In establishing an alternative point of
compliance, the regulatory authority shall consider, at a
minimum:
a. Proximity of environmental receptors;
b. Climatological conditions including wind conditions;
c. Public health, safety, and welfare effects; and
d. The likelihood that soils outside the unit boundary
could be contaminated by fugitive dust.
E. Performance Standards for Soils and Surficial Materials
DISCUSSION: In the case of performance standards for air and
soils, it is not EPA's intent to force unnecessary standard-
setting by the regulatory authority where standards do not exist
for parameters of concern at the State or Federal level.
** STAFF REGULATORY APPROACH **
32 May 21, 1990
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Therefore, based on the results of the characterization conducted
under Section A of this Subpart and other site-specific
information including management practices, the regulatory
authority will make an initial determination, for each .parameter,
whether the potential risks warrant performance standard
development. EPA acknowledges that this approach allows
management practices to serve as alternatives to numerical
performance standards. Opinions on the Strawman approach and
recommendations for alternative approaches are welcome.
1. For all parameters detected or determined to be potentially
present in the regulated materials by the characterization
conducted under Section A of this Subpart and other
parameters identified by the regulatory authority, the
regulatory authority shall require the owner/operator to
conduct an assessment of the potential for onsite and
offsite releases to soils and surficial materials. This
assessment shall consider, at a minimum, the following
factors:
a. Descriptions of the activities at the regulated unit
and all potential pathways for contamination of soils
and surficial materials. The descriptions shall
include estimates of the amount of material deposited
and resulting concentrations of parameters.
b. Management practices that prevent soils and surficial
material contamination that would otherwise pose a
threat to human health and the environment.
c. Results of analyses of representative samples of soils
and surficial materials to determine the
concentrations of parameters in soils and surficial
materials that have been affected by operations at the
site. Analyses of soils and surficial materials
samples shall be sufficient in number and quality to
allow the regulatory authority to characterize impacts
on soils and surficial materials caused by activity at
the regulated unit.
d. Proximity of environmental receptors.
e. Public health, safety, and welfare effects.
2. a. Based on the results of the assessment in paragraph
(1) and other information available to the regulatory
authority, the regulatory authority may develop
numerical soils and surficial materials performance
standards for any parameters detected or determined to
be potentially present in the characterization of the
regulated materials and for other parameters
** STAFF REGULATORY APPROACH **
May 21, 1990 33
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identified by the regulatory authority. The
performance standards for soils and surficial
materials shall be human health-based and/or
environmental levels that satisfy the criteria and
procedures in paragraph B(2)(C) of this Subpart, as
applied and adapted for soils and surficial materials,
except as provided in paragraph (D)(4) of Subpart E.
Direct contact, bioaccumulation in plants and animals,
and food chain impacts shall be considered when
establishing standards.
DISCUSSION: As for all media, EPA is soliciting
recommendations on the appropriate means by which
performance standards for soils and surficial
materials should be established.
b. If, based on the assessment conducted under paragraph
(1) above, the regulatory authority determines that
management practices are likely to mitigate soils and
surficial materials contamination so that there is no
significant risk to human health or the environment,
the regulatory authority may, in lieu of establishing
numeric performance standards, establish management
practice(s) as soil performance standards.
DISCUSSION: Strawman provides the authority to
regulate releases to soils and surficial materials if
appropriate, vhile not requiring that soils and
surficial materials performance standards be developed
for all sites. EPA is soliciting opinions on the
appropriateness of establishing performance standards
for soils and surficial materials (which include
sediments) for some or all regulated units, or
requiring management practices as an alternative to
numerical performance criteria. Recommendations are
also requested on how standards should be established.
For example, CERCLA (Superfund) approaches could be
used in standards development.
3. The performance standards for soils and surficial materials
developed under paragraph (2) shall be met at the point(s)
of compliance, which shall be defined as any point(s) where
direct contact exposure to the soils may occur. The
regulatory authority shall specify the point(s) of
compliance based on information collected under paragraphs
l(a) through (e).
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34 May 21, 1990
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Subpart D: Design and Operating Criteria
All new and existing regulated units must comply with the design and
operating criteria in this Subpart, as provided in Sections (A) and (B).
Design and operating criteria for regulated units are classified in two
categories in this Subpart: (A) general criteria applicable to all
regulated units, and (B) criteria applicable to regulated units located
in environmentally sensitive or potentially hazardous areas. To ensure
that the requirements of this Subpart and the performance standards of
Subpart C are met, the regulatory authority may require the
owner/operator to submit, initially and periodically thereafter, any
design, construction, and operating information required to evaluate
compliance with applicable design and operating requirements and the
performance standards.
The regulatory authority shall include all applicable design and
operating requirements as enforceable conditions in a permit issued to
the owner/operator of the regulated unit. Nothing in this Subpart shall
limit the regulatory authority's ability to require the owner/operator
to use specific technologies or management practices to meet the
requirements of this Part.
DISCUSSION: The issue of minimum technology standards (Best Mining
Waste Management Practices - BMWMPs) has been raised by interested
parties. Opinions are requrested on the appropriateness of some minimum
design criteria for various classes of materials and situations. Goals
to consider for BMWMPs would include pollution prevention, resource
recovery, source control, and low maintenance closure.
A. General Criteria Applicable to All Regulated Units
1. All new and existing regulated units shall be designed and
operated in a manner that meets the performance standards
established in Subpart C during construction, operation,
closure, and post-closure care of the unit.
2. All owners/operators must ensure the continued structural
stability of regulated units, and that releases from these
units that exceed performance standards and/or catastrophic
failure do not occur.
DISCUSSION: Few numeric design and operating criteria are
established by the general criteria because EPA believes
that such criteria are best established on a State- and
site-specific basis. Opinions on whether such an approach
is appropriate and recommendations on alternative approaches
are requested.
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May 21, 1990 35
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Section E of Subpart £ provides procedures to verify
compliance with all design and operating criteria. Annual
inspections are presented as a Federal minimum, but more
frequent inspections may be performed.
EPA also requests the advice of interested parties on the
need to require that owner/operators inspect their units
after major seismic or flood events, in addition to the
annual inspections noted above. EPA envisions that such
requirements would be established in a State Plan.
3. Run-on/run-off control systems
a. Run-off from a regulated unit shall not cause a
discharge of pollutants into waters of the U.S.,
including wetlands, that violates any requirements of
the Clean Water Act, as amended, or any requirements
of this Part.
b. The owner/operator of a new or existing regulated unit
with a potential to violate the performance standards
of Subpart C must design, construct, and maintain:
i. A run-on control system to prevent or control
flow onto the unit; and
ii. A run-off control system to collect and control
run-off from the unit.
c. Run-on and run-off control systems must be designed
and placed in a configuration to allow for restoration
of the natural drainage network to the extent
practicable upon unit closure.
d. The run-on and run-off control systems must be
designed to control the water volume from the design
event and any potential contributions to run-on and
run-off by melt water from snowfall. The design event
shall be specified by the regulatory authority to be
appropriate to the site climatology and hydrology.
DISCUSSION: EPA is interested in receiving viewpoints
and recommendations on the following issues related to
run-on/run-off control systems:
Appropriate return interval for run-on and run-
off from rain and snowmelt;
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36 May 21, 1990
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• Whether separate return intervals would be
appropriate for integrity of the unit during
catastrophic events and for ability to control
releases;
• Adequacy of the protection provided, including
whether these requirements protect stream
channel stability;
• Whether to require run-on/run-off control
systems for all regulated units or only those
units with the potential to exceed surface water
performance standards.
EPA is attempting to coordinate this program effort
with a concurrent stormwater rulemaking at EPA in
order to analyze the implications for mine sites. The
mining waste program is not intended to duplicate any
future NPDES permitting requirements related to
stormwater discharges from regulated units.
4. The owner/operator of a new or existing regulated unit shall
not allow hazardous wastes to be disposed or otherwise
managed in the unit. As used in this paragraph, a
hazardous waste is a solid waste that is hazardous as
defined in 40 CFR 261.3 and that is not excluded from
regulation as a hazardous waste under 40 CFR 261.4(b) or by
the regulatory determination made for extraction and
beneficiation wastes in 51 FR 24496 (or subsequently for
processing wastes).
5. The owner/operator of a new or existing regulated unit shall
prevent unauthorized access" to the unit that could result in
risk to human health and safety.
6. The owner/operator of a new or existing regulated unit
shall, during development and operation, prevent onsite and
offsite use of or contact with materials in the unit if such
use or contact could pose a risk to human health or the
environment. The closure plan for regulated units shall
minimize the onsite and offsite use of or contact with
regulated materials if such use or contact would pose a
significant risk to human health or the environment.
Nothing in this paragraph shall be construed to prevent the
reprocessing or reuse of wastes or other regulated materials
as long as such activities and use do not pose a risk to
human health or the environment.
STAFF REGULATORY APPROACH **
May 21, 1990 37
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7. Standards applicable to surface impoundments
DISCUSSION : "Surface impoundment," as defined in Che
Appendix, includes leachate transport and collection systems
associated with heap and dump leaching operations.
a. All new surface impoundments shall be designed,
constructed, maintained, and operated to prevent
overtopping resulting from overfilling, snowmelt, wind
and wave action, rainfall, and run-on.
b. All existing surface impoundments shall maintain
sufficient freeboard to prevent any overtopping of the
unit by overfilling, snowmelt, wind and wave action,
rainfall, and run-on.
DISCUSSION: Recommendations are requested on whether
EPA should specify the storm event, snowmelt, etc.
under which overtopping cannot occur.
c. All new and existing surface impoundments shall be
designed, constructed, maintained, and closed such
that structural integrity is sufficient to prevent
failure of the containment structures and embankments
through the closure and post-closure periods. In the
case of existing impoundments, the regulatory
authority may require such changes to design and
construction as are necessary to ensure structural
integrity.
d. The owner/operator shall submit a certification
prepared by a qualified professional that the design
and cons .ruction of e surface impoundment meet the
requirements of pa-agcaphs (a) through (c) above. The
qualified professional must meet such signatory
requirements as are established by the regulatory
authority.
8. Criteria for land application of regulated wastes and
materials
a. The disposal or application of regulated materials to
soils and surficial materials as a soil amendment
shall meet the following requirements:
i. The owner/operator shall prepare and submit to
the regulatory authority a land application plan
that:
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38 May 21, 1990
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A. Characterizes the materials to be applied
and specifies the volume of material to be
applied
B. Defines appropriate application rates that
do not exceed safe plant uptake limits and
that prevent toxic accumulation of waste
pollutants either in soils, plants, or
animals that consume such plants
C. Provides for operation of a test plot as
required by the regulatory authority
D. Ensures that the performance standards for
ground water, surface water, air, and
soils are met
E. Provides for periodic sampling of the
applied materials, soils, and plants at
intervals established by the regulatory
authority, to verify that application
rates and safe plant uptake limits are not
being exceeded, and for submission of
verification reports as required by the
regulatory authority.
ii. The owner/operator shall not commence such land
application operations until the land
application plan is approved by the regulatory
authority.
b. The disposal or application of wastes or other
regulated materials to soils or surficial materials as
a waste treatment process shall meet the following
requirements:
i. The owner/operator must submit a soil and
surficial material protection plan that
incorporates any or all of the following
elements as deemed appropriate by the regulatory
authority:
A. Vadose zone monitoring system
B. Initial and periodic measurements of the
depth of the soil treatment zone
C. Definition of the distance and
characteristics of materials between the
soil treatment zone and the uppermost
aquifer
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May 21, 1990 39
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D. Test plot(s) to verify that application of
the regulated materials will not cause
waste migration out of the treatment zone
that exceeds any performance standards
E. Soil loadings of pollutants from the
applied materials
F. Periodic reports on any of (A) through (E)
above, as required by the regulatory
authority.
ii. The owner/operator shall not commence such land
application operations until the land
application: plan is approved by the regulatory
authority.
9. Protection of biological resources
a. The owner/operator shall be required to comply with
the applicable requirements of the Endangered Species
Act of 1973, and implementing rules in 50 CFR 17,
including the following:
i. The construction, operation, closure, or post-
closure care of a regulated unit shall not cause
or contribute to the taking of any endangered or
threatened species of plants, fish, or wildlife.
ii. The construction, operation, closure, or post-
closure care of a regulated unit shall not cause
or contribute to the destruction or adverse
modification of critical habitat of an
endangered or threatened species of plants,
fish, or wildlife.
b. The owner/operator shall be required to comply with
the applicable requirements of the Migratory Bird
Treaty Act, the Bald and Golden Eagle Protection Act
and other applicable wildlife protection acts.
c. As used in this section:
i. "Endangered or threatened species" means any
species listed as such pursuant to Section A of
the Endangered Species Act.
ii. "Destruction or adverse modification" means a
direct or indirect alteration of critical
habitat that appreciably diminishes the
** STAFF REGULATORY APPROACH **
40 May 21. 1990
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likelihood of the survival and recovery of
threatened or endangered species using that
habitat.
iii. "Taking" means harassing, harming, pursuing,
hunting, wounding, killing, trapping, capturing,
or collecting or attempting to engage in such
activities.
DISCUSSION: State regulatory authorities may also establish
requirements similar to those above to protect State-listed
endangered and threatened species.
B. Criteria Applicable to Regulated Units in Specific Locations
DISCUSSION: There would be no bans on regulated units in
specific locations. Rather, Strawman would require that
certain demonstrations be made in environmentally sensitive
areas to facilitate the regulatory authority's determination
that the performance standards can be met. For example, EPA
recognizes that there are unique engineering and design
factors that must be taken into account in order for units
in a floodplain to comply with all the Technical Criteria.
Prior to permit approval in a 100-year floodplain, an
owner/operator would have to demonstrate that certain
circumstances would not occur to such an extent that
performance standards would be exceeded or that design and
operating criteria for run-on and run-off controls would not
be met. EPA is considering developing criteria for
additional locations, including Wellhead Protection areas.
EPA is requesting recommendations on whether additional
locations should be addressed. States may develop criteria
for additional locations at their discretion.
1. Floodplains
a. All owners/operators of new regulated units that are
or will be located in the 100-year floodplain must
demonstrate to the regulatory authority that the units
are designed, constructed, operated, and closed such
that performance standards and design and operating
criteria are met. Such a demonstration must consider
the degree to which the unit will:
i. Restrict the flow of up to a 100-year flood;
ii. Reduce temporary water storage or conveyance
capacity of the floodplain; or
iii. Result in the washout of regulated materials.
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May 21, 1990 41
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b. The regulatory authority may require owners/operators of
existing regulated units in 100-year floodplains to modify
unit design and/or to implement such .additional operating
requirements as the regulatory authority determines may be
necessary to meet performance standards.
c. For purposes of this Subpart:
i. A "100-year floodplain" means any land area that
is subject to a one percent or greater change of
flooding in any given year from any source; for
fluvial systems it is divided into the floodway
and the floodway fringe.
ii. "100-year flood" means a flood discharge that
has a one percent chance of being equalled or
exceeded in any given year.
iii. "Washout" means the movement of a solid waste or
other regulated material from a regulated unit
as a result of a flood event.
vi. "Floodway" means the channel of a stream or
river, as well as any adjacent areas of the 100-
year floodplain, that must be left sufficiently
unobstructed so that the 100-year floodplain
will be carried by the water course without an
increase of greater than one foot at any point
in this area.
vii. "Floodway fringe" means the part of the 100-year
floodplain that could be obstructed without
increasing the elevation of the 100-year flood
by more than one foot at any point in the
floodway.
DISCUSSION: EPA acknowledges that Federal
Emergency Management Administration (FEMA)
floodplain maps may not be available for all
areas; and that, in these cases, it may be
prudent to allow owners/operators to develop
floodplain maps themselves to avoid unacceptable
delays in permitting. However, the regulatory
authority muse establish careful procedures for
reviewing maps submitted by the owner/operator.
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2. Wetlands
a. Owners/operators of new regulated units that are to be
located in wetlands must comply with the applicable
provisions of the Clean Water Act, Section 404. The
owner/operator must provide sufficient information for
the regulatory authority to make such a wetlands
determination. Sufficient information may include a
copy of the Section 404 permit, results of any
compliance monitoring, and results of monitoring the
effectiveness of any mitigation efforts, where
applicable.
b. The regulatory authority may require owners/operators
of existing regulated units in wetlands to modify unit
design and/or to implement such additional operating
requirements as the regulatory authority determines
may be necessary to meet performance standards.
c. For purposes of this section, "wetlands" means those
areas that are inundated or saturated by surface or
ground water at a frequency and duration sufficient to
support, and that under normal circumstances do
support, a prevalence of vegetation typically adapted
for life in saturated soil conditions. Wetlands
include, but are not limited to, swamps, marshes,
bogs, and similar areas.
3. Seismic Impact Zones
a. New regulated units in seismic impact zones that
contain wastes or other regulated materials with high
moisture or liquid content shall be designed,
constructed, operated, and maintained to withstand the
maximum horizontal acceleration from seismic impacts
during operation, closure, and post-closure. Other
new regulated units in seismic impact zones shall be
designed, constructed, and maintained as necessary to
meet performance standards during operation, closure,
and post-closure.
b. The regulatory authority may require the
owner/operator of an existing regulated unit located
in a seismic impact zone to modify unit design and/or
to implement such additional operating requirements as
the regulatory authority determines are necessary to
meet the performance standards during operation,
closure, and post-closure.
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May 21, 1990 43
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c. For purposes of this section:
i. "Maximum horizontal acceleration" means the
maximum expected horizontal acceleration
depicted on a seismic map, with a 90 percent
probability that the acceleration will not be
exceeded in 50 years or a period determined by
the regulatory authority, or the maximum
horizontal acceleration based on a site-specific
seismic risk assessment conducted with the
approval of the regulatory authority. Such maps
are available in Open-File Report No. 82-1033 of
the U.S. Geological Survey.
ii. "Seismic impact zone" means an area where the
probability that the maximum horizontal
acceleration in lithified earth material will
equal or exceed 0.20 g in 50 years (expressed as
a percentage of the earth's gravitational pull
(g)) is greater than or equal to ten percent.
DISCUSSION: EPA seeks the opinion of interested
parties as to whether the return interval for
seismic events should be designated by the
regulatory authority, as provided here, or by
EPA.
4. Unstable Areas
a. The owner/operator of a new regulated unit that is to
be located in an unstable area must demonstrate to the
satisfaction of the regulatory authority that the
proposed design of the unit is adequate to ensure the
stability of all structural components of the unit
during operation, closure, and post-closure care.
b. The regulatory authority may require owners/operators
of existing regulated units in unstable areas to
modify the unit design and/or to implement such
additional operating requirements as the regulatory
authority determines are necessary to ensure the
stability of all structural components of the unit and
to meet applicable performance standards during
operation, closure, and post-closure care.
c. When requested by the regulatory authority, the
owner/operator must determine, and the regulatory
authority must approve, whether an area is unstable by
considering, at a minimum, the following factors:
** STAFF REGULATORY APPROACH **
44 Kay 21, 1990
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i. Onsite or local soil conditions that may result
in significant differential settling;
ii. Onsite or local geologic or geomorphologic
features; and
iii. Onsite or man-made features or events (both
surface and subsurface).
d. For purposes of this section:
i. "Structural components" means dams, other
slopes, liners, leachate collection and
transport systems, final cover, run-on and
run-off systems, and any other component(s) and
ancillary devices used in the construction and
operation of a regulated unit.
ii. "Unstable areas" shall include but not be
limited to areas with landslide or significant
rockfall hazard, areas overlying underground
mine workings, karst terrain, areas in paths of
significant avalanches, and other similar
natural and manmade hazards that could damage
the regulated unit, thereby potentially
resulting in adverse impacts on human health and
the environment.
5. Fault Areas
a. Owners/operators of new regulated units that are to be
located within 61 meters (200 feet) of a fault that
has had displacement in Holocene time must make a
site-specific demonstration under paragraph (c) prior
to permit approval.
b. The regulatory authority may require owners/operators
of existing regulated units that are located within 61
meters of a fault that has had displacement in
Holocene time to modify the unit design and/or
implement such additional operating requirements as
the regulatory authority determines are necessary to
meet the performance standards. The regulatory
authority may require the owner/operator to make a
site-specific demonstration under paragraph (c).
c. As required under paragraphs (a) or (b) above, the
owner/operator must perform comprehensive site- and
region-specific studies to demonstrate, to the
satisfaction of the regulatory authority, that any
movement along the Holocene fault and in the adjacent
** STAFF REGULATORY APPROACH **
May 21, 1990 45
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zone of deformation will not disrupt the contents of
any unit or damage the structural integrity of any
unit such that any perfrnuance standard or design and
operating standard is violated.
d. For purposes of this Subpart:
i. "Bedding plane fractures" means breaks along a
planar or nearly planar bedding surface that
visibly separates each successive layer of
stratified rock from the preceding or following
layer.
ii. "Fault" means a fracture or zone of rock
fracturing in any material along which there has
been an observable amount of displacement of the
sides relative to one another.
iii. "Displacement" means the relative movement or
any two sides of a fault, measured in any
direction.
iv. "£u echelon fault clusters" means a series of
short, overlapping faults which collectively
form a linear zone, in which the strike of the
individual faults is oblique to that of the zone
as a whole.
v. "Holocene" means the most recent geologic epoch
within the Quaternary period, from the end of
the Pleistocene Epoch to the present, and
includes the last 10,000 to 12,000 years.
vi. "Splay fault" means one of a series of minor
faults at the extremities of a major fault.
vii. "Zone of deformation" means the area adjacent to
and surrounding a Holocene fault that is subject
to structural deformation as a result of
movement along the fault. Geologic features
that may occur in a zone of deformation include
splay or faults, gn echelon fault clusters, and
complexly deformed strata.
6. Karst Terrain
a. All owners/operators of new regulated units that are
to be located in karst terrain must submit information
required in paragraphs (b) through (d) below and
demonstrate that performance standards for ground and
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Hay 21, 1990
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surface water and all design and operating criteria
will be met during construction, operation, closure,
and post-closure.
b. Upon request from the regulatory authority, the
owner/operator of a new or existing regulated unit
shall conduct, at a minimum, the following studies:
i. A site hydrogeologic characterization, including
a determination as to whether the unit is in
fact located in a karst terrain, and if so,
identification of the nature of the karst
present at the site. Such studies shall be
based on a review of geologic and topographic
maps, terrain analysis, and other pertinent
background information.
ii. Where the unit or units are located in a karst
terrain as determined under paragraph (6)(b)(i),
the owner/operator shall submit a geotechnical
study demonstrating the degree of stability and
potential for subsidence of the unit(s) based on
the historical changes in regional and local
water levels and on history and presence of
sinkhole development during the Holocene. The
study shall include:
A. Determination of the location, size, and
density of features such as sinkholes,
solution channels, faults and fractures,
honeycombs, and bedding plane fractures
located beneath or adjacent to the unit.
This will include a stratigraphic column
with detailed lithologic descriptions for
the units that comprise the karst terrain;
fi. Determination of the location, density,
and orientation of large- and small-scale
conduits; and
C. A subsurface investigation to determine
the rock's solubility and porosity
(primary and secondary), rate of
dissolution, and the rock's subsurface
characteristics (i.e., structural
competency data).
c. In order to determine compliance with the requirements
of this paragraph and this Part, the owner/operator of
new and existing regulated unit(s) located in karst
terrain shall submit to the regulatory authority
** STAFF REGULATORY APPROACH **
May 21, 1990 47
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structural engineering or other qualified professional
engineering studies demonstrating that the design and
operation of the unit(s) will be in compliance with
the performance standards.
d. The regulatory authority may require owners/operators
of existing regulated units that are located in karst
terrain to modify the unit design and/or implement
such additional operating requirements as the
regulatory authority determines are necessary to meet
the performance standards.
DISCUSSION: EPA acknowledges the difficulties in
monitoring in karst terrain. If monitoring cannot be
relied on to detect releases due to karst conditions,
the regulatory authority may have to rely on design
and operating practices to ensure that performance
standards are met. See the monitoring criteria
requirements and demonstrations to be made for
exemptions in Subpart E.
e. All new and existing regulated units in karst terrain
must comply with the criteria applicable to units in
unstable areas in paragraph (4) above.
f. For purposes of this section:
i. "Holocene" means the most recent geologic epoch
within the Quaternary period, from the end of
the Pleistocene Epoch to the present, and
includes the last 10,000 to 12,000 years.
ii. "Karst terrain" means areas where karst
topography, with its characteristic surface and
subterranean features, is developed as the
result of dissolution of limestone, dolomite, or
other soluble rock. Characteristic
physiographic features present in karst terrain
include, but are not limited to, sinkholes,
sinking streams, caves, large springs, and blind
valleys.
iii. "Honeycomb" means the resultant surface on rocks
from a type of chemical weathering in which
innumerable pits are produced on the rock
exposure, thereby producing a surface resembling
a honeycomb.
iv. "Porosity" means the percentage of the bulk
volume of a rock or soil that is occupied by
interstrices, whether isolated or connected.
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48 May 21, 1990
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v. "Rate of dissolution" means the speed at which a
material dissolves.
vi. "Sinkhole" means a circular depression in a
karst area, with subterranean drainage.
vii. "Solubility" means the equilibrium concentration
of a solute in a solution saturated with respect
to that solute at a given temperature and
pressure.
viii. "Solution channel" means a tubular or planar
channel formed by solution in carbonate-rock
terrains, usually along joints and bedding
planes.
7. Permafrost
a. New regulated units located in areas underlain by
permafrost shall be designed, constructed, operated,
and maintained so as to ensure that performance
standards established pursuant to Subpart C are met
throughout the operating life and the closure and
post-closure periods.
b. The regulatory authority may require the
owner/operator of an existing regulated unit that is
underlain by permafrost to modify unit design and/or
to implement such additional operating requirements as
the regulatory authority determines are necessary to
meet the performance standards.
c. For purposes of this Subpart, "permafrost" is defined
as surface and subsurface material in which water
persists in the frozen or partially frozen state
throughout the year.
** STAFF REGULATORY APPROACH **
May 21, 1990 49
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Subpart E: Monitoring and Verification Criteria
A. Monitoring Criteria for Ground Water
1. The regulatory authority shall require the owners/operators
of all regulated units to establish a ground-water
monitoring system that is capable of detecting releases of
any parameter for which a performance standard has been
established under Section B of Subpart C, except as provided
in paragraph (3) below.
2. For each parameter detected or determined to be potentially
present by the characterization conducted under Section A of
Subpart C and for other parameters identified by the
regulatory authority, the owner/operator shall assess the
potential mobility of the parameter to ground water. This
assessment shall consider, at a minimum, the following:
a. Parameter concentration in the regulated materials;
b. Characteristics of the regulated materials, including
acid-generation potential, as determined under Subpart
C;
c. Hydrogeologic and climatological conditions; and,
d. Site-specific design criteria and management
practices.
3. The regulatory authority may exempt an owner/operator from
ground-water monitoring requirements for one or more
parameter(s) if the regulatory authority determines, based
on the assessment of potential mobility conducted under
paragraph (2) above, that there will be no release from the
regulated unit that may exceed the performance standard for
that parameter at the point of compliance during the
operational, closure, and post-closure periods.
A. A ground-water monitoring system required pursuant to
paragraph (1) above must meet the following criteria:
a. Prior to installation of a ground-water monitoring
system, the owner/operator shall submit to the
regulatory authority a proposed plan for establishing
a monitoring system for each regulated unit. The
proposed ground-water monitoring plan should include
the information specified below (or should reference
the source of such information if it is otherwise
available to the regulatory authority):
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50 May 21, 1990
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i. A description of the nature, number, location,
and depths of wells that will monitor the
regulated unit;
DISCUSSION: EPA is soliciting advice on whether
more detailed monitoring system requirements
should be specified in the criteria.
ii. Characterization of saturated and unsaturated
geologic units and fill materials overlying the
ground water potentially impacted by the
regulated unit, including, but not limited to,
thicknesses, stratigraphy, lithology, hydraulic
conductivities, and porosities;
iii. Characterization of the ground water potentially
affected by the regulated unit, including but
not limited to the thickness, flow rate, and
flow direction;
iv. A description of the proximity, withdrawal
rates, and intended use of the ground water
potentially affected by the regulated unit; and
v. Any other information that the regulatory
authority deems is necessary to evaluate the
proposed ground-water monitoring system.
b. The regulatory authority may approve a multi-unit
ground-water monitoring system at a specific facility
if the regulatory authority determines that such a
system is equally or more protective of human health
and the environment than individual monitoring systems
for each regulated unit (i.e. , the points of
compliance for the multi-unit system are comparable to
the points of compliance for each individual unit).
c. Subsequent to the regulatory authority's evaluation
and approval of the proposed ground-water monitoring
plan, the owner/operator may proceed with system
installation.
d. The ground-water monitoring system shall consist of a
sufficient number of wells, or other system
components, installed at appropriate locations and
depths to yield ground-water samples that:
i. Represent the background quality of ground water
(established in accordance with the criteria
specified in paragraph A(5)(d) below); and,
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May 21, 1990 51
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ii. Represent the quality of ground water at the
point of compliance designated by the regulatory
authority.
e. All ground-water monitc ig wells shall be constructed
in accordance with stanc~rds established by the
regulatory authority or with existing standards of
accepted practice. All monitoring wells must be
constructed to ensure the proper integrity of the
wells. Well casings must be screened or perforated
and grouted, as appropriate, to enable the collection
of valid ground-water samples. The annular space
(i.e., the space between the bore hole and well
casing) above the sampling depth must be sealed to
prevent contamination of samples and the ground water.
f. The owner/operator must maintain complete records of
all procedures involving the design, installation,
development, and decommissioning of any monitoring
wells, piezometers, and other measurement, sampling,
and analytical devices.
5. The owner/operator of a regulated unit shall establish a
ground-water monitoring program subject to the approval of
the regulatory authority. This program must be capable of
detecting a release of any parameter identified under
paragraph (1) above. At a minimum, the program must meet
the criteria specified below:
DISCUSSION: EPA is soliciting Che opinions of interested
parties on the possible use of indicator parameters in lieu
of or to supplement monitoring for specific parameters of
concern.
a. The ground-water monitoring program shall include
consistent sampling and analysis procedures that are
designed to ensure monitoring results that provide a
reliable indication of ground-water quality below the
regulated unit. At a minimum, the program must
include procedures and techniques for:
i. Sample collection;
ii. Sample preservation and shipment;
iii. Analytical procedures; and
iv. Chain-of-custody control.
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52 Hay 21, 1990
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b. The ground-water monitoring program must include
sampling and analytical methods that are appropriate
for ground-water sampling and that accurately measure
concentrations of parameters in ground-water samples.
c. The ground-water monitoring program must include a
determination of the ground-water surface elevation
each time ground-water samples are collected.
d. At a minimum, data for each parameter must be
collected from background wells and wells at the point
of compliance. The number and kinds of samples
collected to establish background shall be appropriate
for the form of statistical test employed, following
generally accepted statistical principles. The sample
size shall be as large as necessary to ensure with
reasonable confidence that a contaminant release to
ground water will be detected. The owner/operator
shall determine an appropriate sampling procedure and
interval for each parameter of concern. A sequence of
at least four samples from each well (background and
compliance wells) must be collected at least
quarterly. The sampling procedure shall be subject to
approval by the regulatory authority.
DISCUSSION: EPA is soliciting the views of interested
parties on the approach presented in paragraph (5)(d).
The criteria under 40 CFR Section 264.97(i) that are
referenced in paragraph (5)(g) below could provide an
appropriate approach.
Under the Strawman approach, background would
represent upgradient ground-water quality (i.e..
ground water that is unaffected by the regulated
unit). However, it may be difficult to determine the
relative contributions to contamination made by
regulated units in heavily mined areas. Determining
background in mineralized areas (in which regulated
units are likely to be located) may also be quite
complex. Public interest groups have recommended that
"natural" background be used. EPA is requesting that
interested parties review the Strawman approach and
provide recommendations and information that would
support this approach or any alternative approaches to
defining and establishing background.
e. The owner/operator must determine the ground-water
flow rate and direction at least annually.
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May 21, 1990 53
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f. The owner/operator must maintain a record of
ground-water analytical data as measured and in a form
necessary for the determination of statistical
significance.
g. The owner/operator shall select the statistical
method(s) to be used in determining whether a
performance standard has been exceeded from the
method(s) listed at 40 CFR Section 264.97(h). The
selection of the statistical method(s) to be used in
the evaluation of ground-water monitoring data shall
be subject to approval by the regulatory authority.
Use of the statistical method(s) must be protective of
human health and the environment and must comply with
the criteria set forth in 40 CFR Section 264.97(i)(l)
through (6).
DISCUSSION: EPA is soliciting recommendations on
alternative statistical methods for evaluating ground-
water data.
6. If, based on an analysis conducted using the method(s)
specified under paragraph (5) above, the owner/operator
determines that any performance standard has been exceeded,
the owner/operator shall:
a. Notify the regulatory authority of this finding in
writing within 24 hours of detecting the exceedance.
The notification must identify what performance
standard(s) have been exceeded;
b. Continue to collect data in accordance with paragraph
, (5) above;
c. Conduct any additional sampling or other activities
required by the regulatory authority to document the
exceedance; and,
d. Develop and implement a corrective action plan in
accordance with Subpart F unless the regulatory
authority determines, based on its review of the
report submitted in accordance with paragraph (7)
below, that the corrective action plan is unnecessary.
7. The owner/operator may demonstrate that a source other than
the regulated unit caused the exceedance or that the
exceedance is an artifact caused by an error in sampling,
analysis, or statistical evaluation or natural vari-ation of
the ground water. The owner/operator may be exempted from
the requirement to prepare a corrective action plan in
accordance with Subpart F, Section A, if the demonstration
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54 May 21, 1990
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shows, to the satisfaction of the regulatory authority, that
a source other than the regulated unit caused the increase,
or that the increase resulted from an error in sampling,
analysis, or evaluation. In making this demonstration, the
owner/operator shall:
a. Notify the regulatory authority in writing within
seven days of determining that any performance
standard has been exceeded that he or she intends to
make such a demonstration;
b. Within 90 days, submit a report to the regulatory
authority that demonstrates that a source other than
the regulated unit caused the contamination or that
the contamination resulted from an error in sampling,
analysis, or evaluation; and,
c. Continue to collect data in accordance with section
(5) above.
B. Monitoring Criteria for Surface Water
1. The regulatory authority shall require the owners/operators
of all regulated units to establish a surface water
monitoring system that is capable of detecting releases,
other than discharges permitted under Section 402 of the
Clean Water Act, of any parameter for which a performance
standard has been established under Section C of Subpart C,
except as provided in paragraph (3) below. This system must
be capable of detecting exceedance(s) of performance
standard(s) at the point of compliance and determining the
extent to which releases from the regulated unit, other than
those permitted under Section 402 of the Clean Water Act,
contributed to such exceedance(s).
2. For each parameter detected or determined to be potentially
present by the characterization conducted under Section A of
Subpart C and for other parameters identified by the
regulatory authority, the owner/operator shall assess the
potential mobility of the parameter to surface water. This
assessment shall consider, at a minimum, the following:
a. Parameter concentration in the regulated materials;
b. Characteristics of the regulated materials, including
acid-generation potential, as determined under Subpart
C;
c. Description of the discharge;
d. Site characteristics;
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May 21, 1990 55
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e. Treatment prior to discharge;
f. Climatological conditions; and
g. Site-specific design criteria and management
practices.
3. The regulatory authority may exempt an owner/operator from
surface water monitoring requirements for one or more
parameter(s) if the regulatory authority determines, based
on the assessment of potential mobility conducted under
paragraph (2) above, that there will be no release from the
regulated unit that may exceed the performance standard for
that parameter at the point of compliance during the
operational, closure, and post-closure periods.
4. A surface water monitoring system required pursuant to
paragraph (1) above must, at a minimum, meet the following
criteria:
a. Inclusion of consistent sampling and analysis
procedures that are designed to ensure monitoring
results that provide a reliable indication of surface
water quality at the point of compliance. At a
minimum, the program must include procedures and
techniques for:
i. Sample collection;
ii. Sample preservation and shipment;
iii. Analytical procedures; and
iv. Chain-of-custody control.
b. Inclusion of sampling and analytical methods that are
appropriate for surface water sampling and that
accurately measure concentrations of parameters in
surface water samples.
c. Provision for monitoring to determine background in
the receiving water. Background samples shall be
collected as close as possible to the upstream edge of
the discharge and as close in time as possible to the
collection of samples at the point of compliance.
DISCUSSION: EPA recognizes the difficulties
associated with establishing background concentration
in a receiving water, where the quantities of
parameters may vary significantly with time. The
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Strawman would require that background samples be
collected during the same sampling event as samples
collected at the point of compliance. EPA is
soliciting recommendations for alternative approaches
for establishing background levels.
d. The surface water monitoring program shall specify the
monitoring frequencies required by the regulatory
authority for each parameter. Monitoring, at least
quarterly, at the point of compliance and the
background location shall be required for all
monitored parameters.
DISCUSSION: As discussed in Section C of Subpart C,
EPA is considering establishing performance standards
and monitoring requirements during storm events. EPA
is soliciting recommendations on specific monitoring
requirements for storm events and the appropriate
storm interval.
5. If the owner/operator determines that any performance
standard has been exceeded, the owner/operator shall:
a. Notify the regulatory authority of this finding in
writing within 24 hours of detecting the exceedance.
The notification must identify what performance
standard(s) have been exceeded;
b. Continue to collect data in accordance with paragraph
(4) above;
c. Conduct any additional sampling or other activities
required by the regulatory authority to document the
exceedance; and,
d. Develop and implement a corrective action plan in
accordance with Subpart F, except as provided in
paragraph (6) below.
DISCUSSION: EPA is soliciting suggestions for the
appropriate definition of an exceedance of a
performance standard for surface water. EPA is
specifically concerned that corrective action could be
triggered by a single exceedance of a standard, which
may not accurately reflect long-term surface water
quality. EPA is considering the approach used by the
National Pollutant Discharge Elimination System
(NPDES) program to define noncompliance. This
approach, established by Agency guidance, considers
patterns of violations and levels of exceedance in
defining "significant noncompliance."
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6. The owner/operator may demonstrate that a source other than
the regulated unit caused the exceed, nee or that the
exceedance is an artifact caused by an error in sampling,
analysis, or statistical evaluation or natural variation of
the surface water. The owner/operator may be exempted from
the requirement to prepare a corrective action plan in
accordance with Subpart F, Section A, if the demonstration
shows, to the satisfaction of the regulatory authority, that
a source other than the regulated unit caused the increase,
or that the increase resulted from an error in sampling,
analysis, or evaluation. In making this demonstration, the
owner/operator shall:
a. Notify the regulatory authority in writing within
seven days of determining that any performance
standard has been exceeded that he or she intends to
make such a demonstration;
b. Within 90 days, submit a report to the regulatory
authority that demonstrates that a source other than
the regulated unit caused the contamination or that
the contamination resulted from an error in sampling,
analysis, or evaluation; and,
c. Continue to collect data in accordance with section
(5) above.
C. Monitoring Criteria for Air
1. For all air emissions not permitted or specifically
authorized under the Clean Air Act, the owner/operator shall
be required to meet the monitoring requirements established
under this section during the operational, closure, and
post-closure periods.
2. For each parameter for which the regulatory authority
establishes a numeric air performance standard under Section
D of Subpart C, the owner/operator shall consider the
factors listed under paragraph D(l) of Subpart C and assess
whether the concentration of the parameter at the compliance
point may exceed the performance standard during the
operational, closure, and post-closure periods.
3. The regulatory authority shall require the owners/operators
of all regulated units to establish a monitoring system
capable of detecting releases to air of any parameter for
which a numeric performance standard has been established
under Section D of Subpart C, except as provided in
paragraph (4) below. If management practices have been
established as performance standards, the reguatory
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authority shall require the implementation of such practices
in such a manner that minimizes the generation and release
of fugitive dust.
4. The regulatory authority may exempt an owner/operator from
air monitoring requirements for one or more parameter(s) if
the regulatory authority determines, based on the assessment
conducted under paragraph (2) above, that there will be no
release from the regulated unit that may exceed the
performance standard for that parameter at the point of
compliance during the operational, closure, and post-closure
periods.
5. An air monitoring system required pursuant to paragraph (3)
above must meet the following criteria:
a. Inclusion of consistent sampling and analysis
procedures that are designed to ensure monitoring
results that provide a reliable indication of air
quality at the point of compliance. At a minimum, the
program must include procedures and techniques for:
i. Sample collection;
ii. Sample preservation and shipment;
iii. Analytical procedures; and
iv. Chain-of-custody control.
b. Inclusion of sampling and analytical methods that are
appropriate for air sampling and that accurately
measure concentrations of parameters in air samples.
c. Inclusion of monitoring to determine background.
Background samples shall be collected at a location
designated by the regulatory authority upwind of the
regulated unit.
d. The air monitoring program shall specify the
monitoring frequencies required by the regulatory
authority for each parameter. Monitoring shall be
required at the compliance point and the background
location at least quarterly.
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6. If the owner/operator determines that any performance
standard has been exceeded, the owner/operator shall:
a. Notify the regulatory authority of this finding in
writing within 24 hours of detecting the exceedance.
The notification must identify what performance
standard(s) have been exceeded;
b. Continue to collect data in accordance with paragraph
(4) above;
c. Conduct any additional sampling or other activities
required by the regulatory authority to document the
exceedance; and,
d. Develop and implement a corrective action plan in
accordance with Subpart F, except as provided in
parargraph (7) below.
DISCUSSION: EPA seeks Che advice of interested
parties on the appropriate definition of an exceedance
of a performance standard for air. EPA is
specifically concerned that corrective action could be
triggered by a single exceedance of a standard, which
may not accurately reflect long-term air quality.
7. The owner/operator may demonstrate that a source other than
the regulated unit caused the exceedance or that the
exceedance is an artifact caused by an error in sampling,
analysis, or statistical evaluation or natural variation of
the air. The owner/operator may be exempted from the
requirement to prepare a corrective action plan in
accordance with Subpart F, Section A, if the demonstration
shows, to the satisfaction of the regulatory authority, that
a source other than the regulated unit caused the increase,
or that the increase resulted from an error in sampling,
analysis, or evaluation. In making this demonstration, the
owner/operator shall:
a. Notify the regulatory authority in writing within
seven days of determining that any performance
standard has been exceeded that he or she intends to
make such a demonstration;
b. Within 90 days, submit a report to the regulatory
authority that demonstrates that a source other than
the regulated unit caused the contamination or that
the contamination resulted from an error in sampling,
analysis, or evaluation; and,
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c. Continue to collect data in accordance with section
(5) above.
D. Monitoring Criteria for Soils and Surficial Materials
1. Owners/operators of all regulated units shall be required to
meet the monitoring requirements established under this
section during the operational, closure, and post-closure
periods.
2. For each parameter for which the regulatory authority
establishes a soils and surficial materials performance
standard under Section E of Subpart C, the owner/operator
shall consider the factors listed under paragraph E(l) of
Subpart C and assess whether the parameter may exceed the
performance standard at the point of compliance during the
operational, closure, and post-closure periods.
3. The regulatory authority shall require the owners/operators
of all regulated units to establish a monitoring system
capable of detecting releases to soils and surficial
materials of any parameter for which a performance standard
has been established under Section E of Subpart C, except as
provided in paragraph (4) below. If one or more management
practices have been established as a performance standard,
the regulatory authority shall require the owner/operator to
implement such practices in such a manner that mitigates
soil and surficial materials contamination.
4. The regulatory authority may exempt an owner/operator from
monitoring requirements for one or more parameter(s) if the
regulatory authority determines, based on the assessment
conducted under paragraph (2) above, that there will be no
release from the regulated unit that may exceed the
performance standard for that parameter at the point of
compliance during the operational, closure, and post-closure
periods.
5. A monitoring system required pursuant to paragraph (3) above
must meet the following criteria:
a. Inclusion of consistent sampling and analysis
procedures that are designed to ensure monitoring
results that provide a reliable indication of soils
and surficial materials quality at the point of
compliance. At a minimum, the program must include
procedures and techniques for:
i. Sample collection;
ii. Sample preservation and shipment;
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iii. Analytical procedures; and
iv. Chain-of-custody control.
b. Inclusion of sampling and analytical methods that are
appropriate for soils and surficial materials sampling
and that accurately measure constituent concentrations
in soils and surficial materials samples.
c. Inclusion of monitoring of native soils to establish
background concentrations. Background samples shall
be collected at a location designated by the
regulatory authority.
d. Specification of monitoring frequencies established by
the regulatory authority for each parameter. At least
quarterly monitoring shall be required at the point of
compliance and the background location.
6. If the owner/operator determines that any soils and
surficial materials performance standard has been exceeded,
the owner/operator shall:
a. Notify the regulatory authority of this finding in
writing within 24 hours of detecting the exceedance.
The notification must identify what performance
standard(s) have been exceeded;
b. Continue to collect data in accordance with paragraph
(5);
c. Conduct any additional sampling or other activities
required by the regulatory authority to document the
exceedance; and,
d. Develop and implement a corrective action plan in
accordance with Subpart F, except as provided in
paragraph (7) below.
DISCUSSION: EPA seeks advice on the appropriate
definition of an exceedance of a performance standard
for soils and surficial materials. EPA is
specifically concerned that corrective action could be
triggered by a single exceedance of a standard, which
may not accurately reflect long-term soils and
surficial materials quality.
7. The owner/operator may demonstrate that a source other than
the regulated unit caused the exceedance or that the
exceedance is an artifact caused by an error in sampling,
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analysis, or statistical evaluation or natural variation of
the soil. The owner/operator may be exempted from the
requirement to prepare a corrective action plan in
accordance with Subpart F, Section A, if the demonstration
shows, to the satisfaction of the regulatory authority, that
a source other than the regulated unit caused the increase,
or that the increase resulted from an error in sampling,
analysis, or evaluation. In making this demonstration, the
owner/operator shall:
a. Notify the regulatory authority in writing within
seven days of determining that any performance
standard has been exceeded that he or she intends to
make such a demonstration;
b. Within 90 days, submit a report to the regulatory
authority that demonstrates that a source other than
the regulated unit caused the contamination or that
the contamination resulted from an error in sampling,
analysis, or evaluation; and,
c. Continue to collect data in accordance with section
(5) above.
E. Verification of Design and Operating Criteria
1. For all regulated units, the regulatory authority shall
establish verification requirements for design and operating
criteria. The requirements must be adequate to ensure that
all applicable design and operating criteria are met in
accordance with Subpart D and shall be effective during the
operational, closure, and post-closure periods.
2. The regulatory authority shall specify the frequency and
protocols for verification of design and operating criteria.
Verification requirements shall include at least annual
inspections by a qualified professional. All inspections
reports shall be submitted to the regulatory authority.
3. If an owner/operator determines that design and operating
criteria are not being met, the owner/operator shall:
a. Notify the regulatory authority within 24 hours; and,
b. Develop and implement a corrective action plan in
accordance with Subpart F, paragraph B.
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Subpart F: Corrective Action Criteria
DISCUSSION: Corrective action may be required during r -ration, closure,
or post-closure. It is not expected that all correct action plans
submitted pursuant to this Subpart would require lar± volumes of
information. Instead, the length of the Plan would be commensurate with
the level of corrective action required at a given site. The process
established in Section A would be followed for an exceedance of a
performance standard in any of the media, while Section B lays out the
corrective action process for noncompliance with any design and
operating criteria.
A. Corrective Action Requirements for an Exceedance of Performance
S tandards
1. Corrective Action Plan Development Schedule
a. If the regulatory authority determines under Subpart E
that corrective action is necessary based on
exceedance of the performance standard(s). the
owner/operator shall submit a schedule for corrective
action plan development within 14 days of the
exceedance.
b. The schedule prepared under paragraph (l)(a) above
shall identify the specific information that will be
collected for the corrective action plan and the date
that the corrective action plan will be submitted to
the regulatory authority. In no case shall the
submission date of a corrective action plan exceed one
year after the exceedance of the performance
standard(s).
c. The regulatory authority shall review and, as
appropriate, approve or require revision to the
corrective action plan development schedule within 30
days after submission by the owner/operator. Upon
approval, the owner/operator shall prepare the
corrective action plan in accordance with paragraph
(2) below.
2. Corrective Action Plan Development and Submission
a. The owner/operator shall prepare and submit a
corrective action plan, based on the corrective action
plan development schedule approved under paragraph
(l)(c) above. This plan shall, at a minimum:
i. Be protective of human health and environment;
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ii. Propose a remedy to control the source(s) of
releases and ensure compliance with the
performance standard(s) established under
Subpart D throughout operation, closure, and
post-closure; and
iii. Propose a schedule for initiating and completing
the corrective action.
b. In developing the corrective action plan, the
owner/operator shall consider, at a minimum, the
following:
i. Extent and nature of contamination;
ii. Capability of the remedy to achieve compliance
with the performance standard(s) and to prevent
future releases;
iii. Availability of alternative treatment or
disposal capacity for materials managed during
implementation of the remedy;
iv. Desirability of using technologies that are not
currently available but are expected to become
available, and that offer advantages over
currently available technologies (in terms of
effectiveness, reliability, safety, or success);
v. Potential risk to human health and the
environment from exposure prior to completion of
remedy; and,
vi. Other relevant factors specified by the
regulatory authority.
DISCUSSION: EPA envisions that relevant
technical studies may be appended to the
corrective action plan. The regulatory
authority would establish.any additional
elements required for a specific corrective
action plan for a given site. For example, the
regulatory authority would undoubtedly require
hydrogeological studies when corrective action
is proposed for exceedance of a ground-water
performance standard.
The Strawman would not establish best
demonstrated available technology requirements.
Rather, it would allow the owner/operator to
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May 21, 1990 65
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select from whatever measures are available Co
achieve the requirements of this section.
3. Corrective Action Plan Approval
a. The regulatory authority shall review a corrective
action plan submitted pursuant to paragraph (2) above
within 30 days of submission. The regulatory
authority may tentatively approve the plan based on
the extent to which the plan meets the requirements of
paragraph (2) and the following criteria:
i. The probable short- and long-term success of the
remedy in meeting performance standards;
ii. Effectiveness of the remedy in controlling -he
source to reduce further releases; and,
iii. Ability to comply with other State and Fede. -1
regulations.
DISCUSSION: EPA requests input from interested
parties on whether opportunities for public
involvement should be provided prior to
tentative corrective action plan approval or
prior to permit modification under paragraph (c)
below.
b. If, based on the review of the corrective action plan,
the regulatory authority does not approve the plan,
the regulatory authority may require the
owner/operator to revise the corrective action plan or
prepare a new plan, which may be based on a specific
remedy identified by the regulatory authority. In
such cases, the owner/operator shall submit a
corrective action plan development schedule as
required in paragraph (A)(l) above. The revised plan
shall address the elements identified in paragraph
(A)(2)(b) above or any other factors that the
regulatory authority determines are appropriate, and
shall be reviewed by the regulatory authority in
accordance with paragraph (a) above.
c. The regulatory authority shall modify the unit
permit(s) to include an approved corrective action
plan as an enforceable condition. Prior to such
permit modification and approval, the regulatory
authority shall provide for effective public
participation, as developed under p_ragraph (A)(7),
Subpart C of Part XXX. Final corrective action p_<=r.
approval and the resultant permit modification must be
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based on the factors in paragraph (a) above and shall
consider any additional information obtained through
public participation.
d. At any time after an exceedance of a performance
standard, the regulatory authority may, in addition to
requiring the development and implementation of a
corrective action plan, require the owner/operator to
implement such interim measures as may be necessary to
protect human health or the environment.
Corrective Action Plan Implementation
a. The owner/operator shall implement the corrective
action plan in accordance with the permit conditions
required under paragraph (3)(c) above.
b. Persons who own or reside on land or use ground or
surface water down-gradient from any water, air, or
soil contamination, or who otherwise may be adversely
affected by the release from the regulated unit, must
be notified.
DISCUSSION: EPA is seeking recommendations on whether
this notification should occur when the corrective
action plan is implemented, as provided here, or when
contamination is first detected.
c. During implementation of the corrective action plan,
the owner/operator may propose an alternative
corrective action plan for approval by the regulatory
authority that better meets the criteria of paragraph
(3)(a) above or is more cost-effective and achieves
the same level of protection as the originally
approved corrective action plan.
d. If such an alternative corrective action plan is
approved, the regulatory authority shall modify the
permit to include the alternative corrective action
plan. The regulatory authority shall provide for
effective public participation prior to permit
modification.
e. All wastes and materials generated or otherwise
managed pursuant to implementation of a corrective
action plan shall be managed in a manner that:
i. Complies with the performance standards, where
applicable;
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May 21, 1990 67
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ii. Is protective of human health and environment;
and,
iii. Complies with applicable Federal, State, and
local requirements.
5. Corrective Action Plan Completion
a. A corrective action plan implemented pursuant to this
Subpart shall be considered complete when the
regulatory authority determines that:
i. Compliance with the performance standards
established under Subpart C has been achieved,
and the requirements of paragraph (A)(4) above
have been met; or,
ii. The owner/operator provides sufficient
justification to the regulatory authority that
further remediation of the release at the
regulated unit would provide no significant
reduction in the levels of contamination by
parameters of concern. In making this
determination, the regulatory authority will
consider other available remediation
alternatives.
DISCUSSION: EPA is aware that there are times
when an owner/operator may not be able to bring
a unit into compliance with the performance
standard during corrective action. If the
regulatory authority determines that an
owner/operator implementing a corrective action
plan has made every effort to implement the
approved remedy, this provision would allow the
regulatory authority to determine corrective
action to be complete and allow the facility to
undergo closure, even though it can not be
brought up to the performance standard. A State
Plan would contain provisions for such a
determination if the State determined this
approach could be appropriate. EPA's intent is
to encourage both the net environmental benefit
to be gained by such closure activities and the
net environmental benefit of regulated remining
in areas of existing contamination. Opinions
and recommendations on this provision are
requested.
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ill. The owner/operator has, to the maximum extent
technically practical, taken action to eliminate
any future releases that could cause violations
of the performance standards.
b. Upon completion of corrective action, the
owner/operator must submit to the regulatory authority
certification that corrective action is complete in
accordance with paragraph (A)(5)(a) above. This
certification must be in a form approved by the
regulatory authority. The regulatory authority must
provide for effective public participation prior to
determining that corrective action is complete.
DISCUSSION: EPA recognizes that releases to media
that may pose risks to human health and the
environment may involve parameters for which no
performance standards have been established and
included in permits. EPA is investigating whether
statutory authority exists to require corrective
action to address these releases.
B. Corrective Action for Noncompliance with Design and Operating
Criteria
DISCUSSION: Corrective action requirements of this section are
confined to remediation to meet design and operating criteria. For
example, a leachate detection system may detect that a leak is
occurring even though the ground-water monitoring system had not
yet detected the release. The provisions of this section would
allow the regulatory authority, prior to the actual exceedance of
a performance standard, to require the owner/operator to meet the
design and operating requirements that were intended to prevent
releases.
1. Corrective Action Flan Development Schedule
a. If, based on the monitoring/verification results of
Subpart E, Section E, defects are found in the
regulated unit or the unit is otherwise found to be in
noncompliance with applicable design and operating
requirements, the regulatory authority shall require
the owner/operator to submit a corrective action plan
development schedule that meets the requirements of
paragraph (A)(l)(a) and (b) above.
b. The regulatory authority shall review and, if
appropriate, approve or require revisions to the
schedule prepared pursuant to paragraph (a) above
within 30 days after submission by the owner/operator.
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Upon approval, the owner/operator shall develop a
corrective action plan in accordance with paragraph
(2) below.
2. Corrective Action Plan Development and Submission
a. The owner/operator shall prepare and submit a
corrective action plan, based on the corrective action
plan development schedule approved under paragraph
(l)(b) above. This plan shall, at a minimum:
i. Be protective of human health and environment;
ii. Propose a remedy to ensure compliance with the
design and operating criteria established under
Subpart D throughout operation, closure, and
post-closure; and
iii. Identify a schedule for initiating and
completing the corrective action.
b. In developing the corrective action plan, the
owner/operator shall consider, at a minimum, the
following:
i. Extent and potential impacts of noncompliance;
ii. Capability of the remedy to achieve compliance
with the design and operating criteria; and
iii. Potential risk to human health and the
environment from exposure prior to completion of
remedy; and,
iv. Other relevant factors specified by the
regulatory authority.
3. Corrective Action Plan Approval
a. The regulatory authority shall review a corrective
action plan submitted pursuant to paragraph (2) above
within 30 days of submission. The regulatory
authority may tentatively approve the plan based on
the extent to which the plan meets the requirements of
paragraph (2) and the following criteria:
i. The probable short- and long-term success of the
remedy in meeting design and operating
requirements, including structural stability;
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ii. Effectiveness of the remedy in controlling the
source to reduce further releases and/or
catastrophic failure; and,
iii. Ability to comply with other State and Federal
regulations.
DISCUSSION: EPA is seeking recommendations on
whether opportunities for public involvement
should be provided prior to tentative corrective
action plan approval or prior to permit
modification under paragraph (c) below.
b. If, based on the review of the corrective action plan,
the regulatory authority does not approve the plan,
the regulatory authority may require the
owner/operator to revise the corrective action plan or
prepare a new plan, which may be based on a specific
remedy identified by the regulatory authority. In such
cases, the owner/operator shall submit a corrective
action plan development schedule as required in
paragraph (B)(l) above. The revised plan shall
address the elements identified in paragraph (B)(2)(b)
above or any other factors that the regulatory
authority determines are appropriate, and shall be
reviewed by the regulatory authority in accordance
with paragraph (a) above.
c. The regulatory authority shall modify the unit
permit(s) to include an approved corrective action
plan as an enforceable condition. Prior to such
permit modification and approval, the regulatory
authority shall provide for effective public
participation, as developed under paragraph (A)(7).
Subpart C of Part XXX. Final corrective action plan
approval and the resultant permit modification must be
based on the factors in paragraph (a) above and shall
consider any additional information obtained through
public participation.
d. At any time after design and operating requirements
fail to attain established standards, including
structural failure, the regulatory authority may, in
addition to requiring the development and
implementation of a corrective action plan, require
the owner/operator to implement such interim measures
as may be necessary to protect human health and/or the
environment.
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4. Corrective Action Plan Implementation
a. The owner/operator shall implement the corrective
action plan in accordance with the permit conditions
required under paragraph (3)(c) above.
b. Persons who own or reside on land potentially affected
by a violation of design and operating requirements,
including structural failure, must be notified.
DISCUSSION: EPA is seeking recommendations on whether
this notification should occur when the corrective
action plan is implemented, as provided here, or when
a violation is first detected.
c. During implementation of the corrective action plan,
the owner/operator may propose an alternative
corrective action plan for approval by the regulatory
authority that better meets the criteria of paragraph
(3)(a) above or is more cost-effective and achieves
the same level of protection as the originally
approved corrective action plan.
d. If such an alternative corrective action plan is
approved, the regulatory authority shall modify the
permit to include the alternative corrective action
plan. The regulatory authority shall provide for
effective public participation prior to permit
modification.
e. All wastes and materials generated or otherwise
managed pursuant to implementation of a corrective
action plan shall be managed in a manner that:
i. Complies with the performance standards, where
applicable;
ii. Is protective of human health and environment;
and,
iii. Complies with applicable Federal, State, and
local requirements.
5. Corrective Action Plan Completion
a. A corrective action plan implemented pursuant to this
Subpart shall be considered complete when the
regulatory authority determines that:
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i. Compliance with the design and operating
standards established under Subpart D has been
achieved, and the requirements of paragraph
(B)(4) above have been met; or,
ii. The owner/operator provides sufficient
justification to the regulatory authority that
further remediation would provide no significant
reduction in risk to human health and the
environment. In making this determination, the
regulatory authority will consider available
remediation alternatives.
iii. The owner/operator has, to the maximum extent
technically practical, taken action to eliminate
any future releases that could cause a potential
threat to human health and the environment.
b. Upon completion of corrective action, the
owner/operator must submit to the regulatory authority
certification that corrective action is complete in
accordance with paragraph (B)(5)(a) above. This
certification must be in a form approved by the
regulatory authority. The regulatory authority must
provide for effective public participation prior to
determining that corrective action is complete.
6. Correction of defects shall be based upon designs prepared
by a qualified professional, as determined by the regulatory
authority.
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Subpart G: Closure and Post-Closure Care Criteria
The purpose of these closure and post-closure care provisions is to
minimize the release of contaminants into all media throughout the
closure and post-closure care periods. In order to meet this objective,
all regulated units must continue to meet all performance standards
(Subpart C), design and operating criteria (Subpart D), monitoring and
verification criteria (Subpart E), and, if applicable, corrective action
criteria (Subpart F) throughout the closure and post-closure care
periods. Closure activities taken under this Subpart might include the
removal of all regulated materials from a unit, the permanent isolation
of regulated materials from contact by humans or animals, prevention of
activities that would allow the release of parameters for which
performance standards were established under Subpart C, and/or the
demonstration that all applicable performance standards and design and
operating criteria have been met on a permanent basis.
DISCUSSION: EPA does not intend to duplicate the land reclamation
requirements imposed by Federal land managers and State mine land
reclamation programs. EPA is soliciting opinions regarding potential
implementation problems with this approach and is requesting suggested
approaches for integrating these programs.
A. Applicability
1. Owners/operators of all new and existing regulated units are
subject to the closure requirements in this Subpart.
2. Owners/operators of all new and existing regulated units are
subject to the post-closure care requirements in this part.
An owner/operator may be released from the post-closure care
requirements for a new or existing regulated unit at any
time before or during the post-closure care period for that
unit if he demonstrates to the regulatory authority that no
ongoing maintenance or monitoring will be required to ensure
continued compliance with all applicable performance
standards and design and operating criteria established in
Subparts C and D.
DISCUSSION: EPA does not intend to require ongoing post-
closure care where such activity is unnecessary. The need
for post-closure care will be determined in a manner similar
to that used for determining monitoring requirements, which
are based, among other things, on the results of the
regulated materials characterization and the design and
operating practices used. The State Plan should describe
what criteria will be used in determining whether an
owner/operator's activities warrant the release from post-
closure care. EPA is soliciting the views of interested
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74 Hay 21, 1990
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parties on whether this is the most appropriate way to
provide for release from post-closure care in such
situations.
Nothing in these closure or post-closure care provisions
shall be construed to prevent the reprocessing or reuse of
regulated materials so long as such activities do not result
in the exceedance of one or more performance standards or
the noncompliance with design and operating criteria, and do
not otherwise present a significant risk to human health and
the environment.
B. Closure Flan
1. The owner/operator must prepare a detailed written closure
plan for each regulated unit that, at a minimum, includes
the following information:
a. A description of the activities, methods, procedures,
and processes necessary at each regulated unit to
ensure compliance with applicable performance
standards established in Subpart C, including, as
necessary:
i. Removal of regulated materials from the unit;
ii. Incorporation of structures or activities, such
as a final cover or permanent fugitive dust
control, to ensure the permanent isolation of
regulated materials;
iii. Treatment of regulated materials to neutralize,
destroy, or immobilize any parameters of
concern;
iv. Management of all mine water, mine waste
solutions and other regulated liquids;
v. Operation of monitoring systems, required under
Subpart E, during the closure period; and
vi. Inspections and maintenance activities to ensure
compliance with all applicable design and
operating criteria, established in Subpart D,
during the closure period;
b. An estimate of the maximum areal extent or maximum
capacity of the regulated unit that will be in
operation at any one time over the life of the unit;
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May 21, 1990 75
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c. An estimate of the maximum quantity and type of
regulated materials that will be managed in each
regulated unit at any time during the life of the
unit, and a schedule for the periodic deposition and
removal of materials from the unit, if applicable;
DISCUSSION: The purpose of the requirements in
paragraphs fc and c above is to ensure that the closure
plan will address adequately the activities that vould
be required if a regulated unit operating at its
mariimim operating capacity was required to close
unexpectedly. The requirements are intended to
account for maximum conditions assuming normal
business operations, not for the "worst case
scenario.* This approach is consistent with other
RCRA programs.
d. A description and plan of operation for the run-
on/run-off controls and monitoring systems required
under Subparts D and E as needed to satisfy applicable
performance standards and design and operating
criteria;
e. A description of how site access during the closure
period will be controlled as necessary:
i. To ensure compliance with all applicable
performance standards established in Subpart C
and design and operating criteria established in
Subpart D; and
ii. To prevent onsite contact by humans and animals
with regulated materials containing parameters
in concentrations exceeding performance
standards established in Subpart C;
f. A schedule of closure activities for each regulated
unit, including the total time required to complete
closure.
2. The closure plan must be certified by a qualified
professional that it meets the closure requirements of this
Subpart.
3. Closure plans for existing repulated units must be prepared
and submitted to the regulated authority with the
appropriate permit application, as designated by the
regulatory authority. Closure plans for new regulated units
must be prepared and submitted to the regulatory authority
for approval prior to the initiation of construction of
those units.
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76 May 21, 1990
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4. The owner/operator must submit a request to the regulatory
authority at any time over the operating life of the
regulated unit to amend the closure plan whenever changes in
closure technology or in the design or operation of the
regulated unit require a significant modification to the
closure plan.
5. The regulatory authority must approve the initial closure
plan for new operations prior to the initiation of
construction and must approve any significant modifications
to the closure plan prior to the implementation of design or
operational changes. The regulatory authority may prepare
the closure plan in lieu of the owner/operator if it deems
such action necessary to ensure the continued compliance
with performance standards.
DISCUSSION: EPA recognizes the long time frame between
preparation of a closure plan at the time of permitting and
the actual closure of the regulated unit at the end of its
active life. This regulatory approach would allow the
owner/operator to modify, as appropriate, the closure plan
throughout the active life of the regulated unit. All
significant changes, however, would be considered
modifications to the permit and thus subject to all permit
modification procedures, including public participation, as
required under paragraph (A)(7) of Subpart C, Part XXX. The
State Plan would describe criteria to determine whether
proposed changes to the closure plan would constitute a
significant modification to the permit.
6. The approved closure plan will be incorporated as an
enforceable condition of the permit and reviewed at least
every five years.
C. Closure Deadlines
1. An owner/operator must begin closure of a regulated unit no
later than 24 months after the most recent receipt of
regulated materials at that unit for treatment, storage, or
disposal. An owner/operator must begin closure of a heap or
dump leach operation no later than 24 months after the
beneficiation activities have ceased to yield economic
value.
DISCUSSION: Under this approach for triggering closure,
States would be required to submit with their State Plans
criteria for defining economic value from leach operations
and the point at which leaching activity no longer yields
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economic value. EPA requests suggestions for these
deadlines and appropriate criteria for evaluating the
economic value of leaching activities.
2. The regulatory authority may grant an extension of the 24
month deadline for beginning closure provided that human
health and the environment are not endangered and that the
owner/operator meets all permit requirements for active
operations.
DISCUSSION: As drafted, the Stravman simply allows an
extension of closure; the only condition is that the unit
continue to protect human health and the environment and
meet permit conditions. Should the Stravman provide a
maximum length of time for any single extension, and then
allow additional extensions to be granted after re-
evaluations? Should there be a maximum time before closure
is initiated (i.e., should indefinite extension(s) be
allowed, even if the unit continues in full compliance)?
Recommendations on these or alternative approaches would be
welcome.
3. The owner/operator must submit a written notification and a
regulated materials characterization, pursuant to paragraph
(D)(l) below, to the regulated authority at least 60 days
prior to the initiation of closure of each regulated unit.
4. An owner/operator must complete closure in accordance with
the most recently approved closure plan as rapidly as
reasonably practicable, but no later than five years
following the initiation of closure activities.
DISCUSSION: EPA wants to ensure that closure is completed
as quickly as possible while recognizing that some units may
require an extended closure period. EPA, therefore, would
establish five years as the maximum amount of time allowed
for completing closure, with the expectation that most units
will be closed in a shorter period of time. EPA is
requesting recommendations on this timeframe, including data
to support any suggested alternative deadlines.
D. Closure Activities
1. The owner/operator must submit a regulated materials
characterization for each regulated unit, as required by
Section A of Subpart C, to the regulated authority with the
notification of intent to close that unit as specified in
paragraph (C)(3) above.
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78 May 21, 1990
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2. Closure of each regulated unit must be conducted in
accordance with all of the provisions in the approved
closure plan.
3. No later than the completion of closure of a regulated unit
at which regulated materials will remain after closure, the
owner/operator must record, on the deed to the property or
other instrument normally examined during title search, a
notation that regulated materials will remain at the unit.
The notation must state that the land has been used for the
treatment, storage or disposal of regulated materials and
that these materials remain at the unit. The deed notation
must describe the anticipated post-closure land use of the
regulated unit as specified in the approved post-closure
care plan and may place limitations to alternate land uses.
E. Certification of the Completion of Closure
1. No later than 60 days after the completion of closure of
each regulated unit, the owner/operator must submit to the
regulatory authority a statement signed by the
owner/operator and an independent qualified professional
certifying that closure activities have been completed in
accordance with the most recent closure plan approved by the
regulatory authority.
2. The regulatory authority must conduct an onsite inspection
of the closed regulated unit, and provide public notice of
its findings in the largest newspaper in the State and the
largest local newspaper, at least 30 days prior to approving
the certification of closure.
3. Approval of the certification of closure of a unit by the
regulatory authority does not release the owner/operator
from any subsequent corrective action requirements for that
unit if applicable under Subpart F.
F. Post-Closure Care Flan
1. The owner/operator must prepare a detailed written post-
closure care plan for each regulated unit that, at a
minimum, includes the following information:
a. A description of the activities, methods, procedures
and processes necessary to ensure the continued
effectiveness of closure measures and compliance with
applicable performance standards including, as
necessary:
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May 21, 1990 79
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i. Treatment of regulated materials to ensure
continued neutralization or immobilization of
any parameters for which performance standards
were established in Subpart C;
ii. Operation of monitoring systems required under
Subpart E;
iii. Inspections and maintenance activities to ensure
compliance with all applicable design and
operating criteria, established in Subpart D;
and
iv. Procedures for maintaining the final cover and
controlling erosion and fugitive dust.
b. A description of the planned use of the regulated unit
during the post-closure care period, which must ensure
compliance with all applicable performance standards
established in Subpart C and design and operating
criteria established in Subpart D.
c. A description of how site access during the post-
closure period will be controlled as necessary:
i. To ensure the continued compliance with all
applicable performance standards established in
Subpart C and design and operating criteria
established in Subpart D;
ii. To prevent unauthorized access to the site as
established in the design and operating criteria
in Subpart D; and
iii. To prevent the removal of regulated materials
unless approved by the regulatory authority.
DISCUSSION: EPA does not wish to prevent the
reprocessing or reuse of regulated materials in
all cases. EPA is requesting advice from
interested parties on how to ensure the
continued protection of human health and the
environment while not discouraging remining
activities.
d. The name, address, and telephone number of a contact
person during the post-closure care period.
2. The post-closure care plan must be certified by a qualified
professional that it meets the post-closure care
requirements of this Subpart.
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80 May 21, 1990
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3. Post-closure care plans for existing regulated units must be
prepared and submitted to the regulated authority with the
appropriate permit application, as designated by the
regulatory authority. Post-closure care plans for new
regulated units must be prepared and submitted to the
regulatory authority prior to the initiation of construction
of those units.
4. The owner/operator must submit a request to the regulatory
authority anytime during the operating life, closure period,
or post-closure care period to amend the post-closure plan
whenever changes in facility technology or in the design or
operation of the unit or the facility require a significant
modification to the post-closure plan.
5. The regulatory authority must approve the initial post-
closure plan for new operations prior to the initiation of
construction of the unit and must approve any significant
modifications to the post-closure care plan for new and
existing units prior to the implementation of design or
operational changes. The regulatory authority may prepare
the post-closure care plan in lieu of the owner/operator if
it deems such action necessary to ensure compliance with
performance standards.
DISCUSSION: EPA recognizes the long time frame between
preparation of a post-closure care plan at the time of
permitting and the actual post-closure care of the regulated
unit following closure. This regulatory approach would
allow the owner/operator to modify as appropriate the post-
closure care plan throughout the active life of the
regulated unit. All significant changes to the post-closure
care plan, however, would be considered modifications to the
permit and thus subject to all permit modification
procedures, including public participation, as required by
paragraph (A)(7) of Subpart C, Part XXX. The State Plan
would describe criteria to determine whether proposed
changes are significant.
6. The approved post-closure plan will be incorporated as an
enforceable condition of the permit and reviewed at least
every five years until the end of the post-closure care
period.
G. Post-Closure Care Deadlines
1. For each regulated unit requiring post-closure care not
exempt under paragraph (A)(2) of this Subpart, the
owner/operator must begin post-closure care immediately
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May 21, 1990 81
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following the certification of closure of that regulated
unit and continue post-closure care for 30 years after that
date.
2. The regulatory authority may modify the permit to reduce the
length of the post-closure care period at any time before or
after closure of the unit if a reduced period would ensure
compliance with all applicable performance standards
established in Subpart C and design and operating criteria
established in Subpart D. The regulated authority may
modify the permit to extend the period beyond 30 years if
necessary to ensure compliance with all applicable
performance standards or design and operating criteria.
DISCUSSION: A 30-year post-closure care period, with
options to increase or decrease that period, is consistent
with other existing RCRA program requirements. EPA requests
input on whether such a time frame is appropriate for the
post-closure care of regulated materials and requests data
to support any suggested alternative periods.
H. Post-Closure Care Activities
1. Post-closure care of each regulated unit must be conducted
in accordance with the provisions in the approved post-
closure care plan and must satisfy all applicable
performance standards.
2. The owner/operator may request, and the regulatory authority
may approve, the removal of regulated materials during the
post-closure care period if it will not result in the
exceedance of an applicable performance standard or
otherwise result in significant risks to human health and
the environment. The regulatory authority may approve the
removal of the notation to the deed of property required in
paragraph (D)(5) of this Subpart if all regulated materials
have been removed.
DISCUSSION: EPA expects that these actions will constitute
significant changes to the permit and therefore will
necessitate formal permit modification procedures, including
public notification. Again, as noted above, EPA is
analyzing the implications of these provisions on remining.
I. Certification of the Completion of Post-Closure Care
1. No later than 60 days after completion of post-closure care
of each regulated unit, the owner/operator must submit to
the regulatory authority a statement signed by the
owner/operator and an independent qualified professional
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82 May 21, 1990
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certifying that post-closure activities have been completed
in accordance with the most recent post-closure plan
approved by the regulatory authority.
2. The regulatory authority must conduct an onsite inspection
of the regulated unit, and provide public notice of its
findings in the largest newspaper in the State and the
largest local newspaper, at least 30 days prior to approving
the post-closure certification.
3. Approval of the certification of the completion of post-
closure care of a unit by the regulatory authority does not
release the owner/operator from any subsequent corrective
action requirements for that unit if applicable under
Subpart F.
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May 21, 1990 83
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Subpart H: Financial Responsibility Criteria
J ''SCUSSION: EPA will review any alternative financial mechanism or
approach to meeting financial responsibility re-_ .-.rements. EPA is
requesting information on existing financial responsibility programs and
on the applicability of these programs to units that would be subject to
the Strawman.
A. Applicability
The financial responsibility criteria apply to all
owners/operators of new and existing regulated units except units
owned and operated by a State or the Federal government.
pISCUSSION: Because many units are operated by private entities
on Federally-managed land, the exemption applies only to units
owned and operated by a State or the Federal government.
B. Scope of Coverage
Owners and operators of regulated units are required to
demonstrate financial responsibility for each regulated unit for
the costs of:
1. Closure and, if applicable under Subpart G, post-closure
care;
2. Corrective action for known releases from a regulated unit
in exceedance of a performance standard or for noncompliance
of applicable design and operating requirements, as required
under Subpart F; and,
3. Third-party bodily injury and property damage caused by a
release, from a regulated unit, of contaminants into or upon
land, the atmosphere, or ground and surface water.
DISCUSSION: The third-party liability coverage requirement
is not tied to meeting performance standards or design and
operating criteria in order to be consistent with other
financial responsibility programs and with standard
insurance industry practice for Environmental Impairment
Liability (EIL) coverage. EPA is seeking the opinions of
interested parties on whether this approach is appropriate
for units to which the Strawman would apply.
C. Financial Responsibility for Closure
1. Closure Cost Estimates
The owner/operator must prepare a detailed written cost estimate
for the conduct of all closure activities described in the closure
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84 Hay 21, 1990
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plan prepared under Subpart G and which meets the requirements of
this Subpart for each regulated unit.
a. Cost estimates for existing regulated units must be
prepared and submitted with the appropriate permit
application, as designated by the regulatory
authority. Cost estimates for new regulated units
must be prepared and submitted for approval prior to
initiation of construction of the new units.
b. The owner/operator must base initial cost estimates on
current dollars.
c. The owner/operator must base cost estimates on the
cost of hiring a third party to conduct closure
activities.
DISCUSSION: EPA acknowledges that cost estimates
based on the use of third parties may not reflect the
availability of alternative work forces at remote
sites. EPA is seeking input on alternatives to this
approach.
d. Cost estimates may not include any salvage value that
may be realized with the sale of wastes, facility
structures, equipment, land, or other assets
associated with the unit at the time of closure.
e. The owner/operator must base cost estimates on the
maximum costs to complete all closure activities.
DISCUSSION: EPA does not intend that maximum costs
account for the "worst case" scenario for closure.
Rather, maximum costs means the cost to complete
closure activities at that point in the unit's normal
operating life when closure would be most expensive.
Because the closure cost estimate serves as the basis
for the amount of closure financial responsibility
required, requiring the cost estimate to reflect the
maximum costs of closure would ensure that adequate
funds are always available, even if closure occurs
earlier than expected. This is consistent with other
EPA financial responsibility programs.
f. The owner/operator must adjust the closure cost
estimate annually for inflation until the
certification of the completion of closure for each
regulated unit required under Subpart G has been
approved by the regulatory authority.
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May 21, 1990 85
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DISCUSSION: EPA is leaving to the State the
responsibility for specifying whether modifications to
the cost estimate constitute permit modifications.
State Plans should describe the changes that would be
considered major modifications. EPA would expect
that, if a change in the cost estimate was due to a
significant change in closure techniques or in design
and operations that requires a change in the closure
plan, the State would also review the cost estimate.
EPA anticipates, however, that changes in the cost
estimate due to inflation would not require review.
g. The owner/operator must adjust the closure cost
estimate, if current costs of closure exceed the cost
estimate any time during the life of the unit until
certification of the completion of closure has been
approved by the regulatory authority in accordance
with Subpart G, Section E.
h. The owner/operator may reduce the cost estimate if the
current estimate exceeds the maximum costs of closure
at any time over the remaining life of the unit and if
the decrease is approved by the regulatory authority.
i. The approved closure cost estimate will be
incorporated as an enforceable condition of the permit
and reviewed at least every five years. The
regulatory authority may prepare the cost estimate in
lieu of the owner/operator if it deems such action
necessary to ensure compliance with the performance
standards established under Subpart C.
2. Financial Responsibility Requirements
a. The owner/operator must submit a demonstration with
the permit application that a financial mechanism that
satisfies the requirements of Subpart H, Section G
will be established and effective on the day of permit
approval to cover the costs of closure.
DISCUSSION: Such a demonstration could, for example,
include a letter from a surety company stating that it
will issue a bond pending approval of the applicable
permit, or a letter from a bank stating that a trust
fund has been established and a promise from the
owner/operator that he will make his first payment
into the trust fund at permit approval.
b. Financial responsibility must be demonstrated using
one or a combination of the allowable mechanisms
described in Section G below.
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86 May 21. 1990
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DISCUSSION: As discussed at the beginning of this
Subpart, EPA will consider any financial mechanism or
approach in addition to those discussed in this
section.
c. The owner/operator must demonstrate continuous
financial responsibility for closure in an amount
equal to the current closure cost estimate until
released from financial responsibility requirements as
discussed in paragraph (d) below. If, at any time,
the amount of the cost estimate increases, the
owner/operator must increase the amount of financial
responsibility demonstrated.
d. The owner/operator may be released from financial
responsibility requirements for closure of a regulated
unit only after meeting the following requirements:
i. The owner/operator must submit a written request
to the regulatory authority for release from the
financial responsibility requirements for
closure for that unit. Such written request
shall include certification that all closure
activities have been completed according to the
approved closure plan, as required in Section E
of Subpart G.
ii. The regulatory authority will notify the
owner/operator of release from financial
responsibility requirements or submit to the
owner/operator a written statement explaining
why the regulatory authority is not accepting
the certification of completion of closure
required in Subpart G, Section E.
D. Financial Responsibility for Post-Closure Care
1. Post-Closure Cost Estimate
The owner/operator must prepare a detailed, site-specific written
estimate of the cost of conducting all post-closure activities
described in the post-closure plan prepared under Subpart G that
meets the requirements of this Subpart for each regulated unit.
a. Cost estimates for existing regulated units must be
prepared and submitted with the appropriate permit
application, as designated by the regulatory
authority. Cost estimates for new regulated units
must be prepared and submitted for approval prior to
initiation of construction of the new units.
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May 21, 1990 87
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b. The owner/operator must base initial cost estimates on
current dollars.
c. The owner/operator must base cost estimates on cost of
hiring a third party to conduct post-closure
activities.
d. The owner/operator must base cost estimates on the
maximum costs to complete all post-closure activities.
DISCUSSION: EPA does not intend that maximum costs
account for the "worst case" scenario for post-closure
care. Rather, maximum costs mean the cost of
conducting the most extensive post-closure activities
likely to be required (e.g., monitoring for the
maximum number of parameters likely to be required).
e. The owner/operator must adjust the post-closure cost
estimate for each regulated unit annually for
inflation until the post-closure certification for
that regulated unit required under Subpart G has been
approved by the regulatory authority.
f. The owner/operator must adjust the post-closure cost
estimate until completion of the post-closure care
period is certified in accordance with Subpart G,
Section I if the current costs of post-closure care
exceed the post-closure cost estimate.
g. The owner/operator may reduce the cost estimate if the
current estimate exceeds the maximum cost of post-
closure care remaining over the post-closure care
period, and if the decrease is approved by the
regulatory authority.
h. The approved post-closure cost estimate will be
incorporated as an enforceable condition of the permit
and reviewed at least every five years. The
regulatory authority may prepare the cost estimate in
lieu of the owner/operator if it deems such action
necessary to ensure compliance with the performance
standards established under Subpart C.
2. Financial Responsibility Requirements
a. The owner/operator must submit a demonstration with
the permit application that a financial mechanism
which satisfies the requirements of Subpart H, Section
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88 May 21, 1990
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G will be established and effective on the day of
permit approval to cover the costs of post-closure
care.
b. Financial responsibility must be demonstrated using
one or a combination of the allowable mechanisms
described in Section G below.
c. The owner/operator must demonstrate continuous
financial responsibility for post-closure care in an
amount equal to the current post-closure cost estimate
until released from financial responsibility
requirements as discussed in paragraph (d) below. If,
at any time, the amount of the cost estimate
increases, the owner/operator must increase the amount
of financial responsibility demonstrated.
d. The owner/operator may be released from financial
responsibility requirements for post-closure care of a
regulated unit only after meeting the following
requirements:
i. The owner/operator must submit a written request
to the regulatory authority for release from the
financial responsibility requirements for post-
closure care for that unit. Such written
request shall include a certification that all
post-closure activities have been completed
according to the approved post-closure plan, as
required in Section I of Subpart G.
ii. The regulatory authority will notify the
owner/operator of release from financial
responsibility requirements or submit to the
owner/operator a written statement explaining
why the regulatory authority is not accepting
the post-closure care certification required in
Subpart G, Section 1.
Financial Responsibility for Corrective Action
DISCUSSION: Financial responsibility for corrective action would
not be required at the time of permitting of the unit unless an
exceedance of a performance standard has already occurred.
Financial responsibility for corrective action would be required
only at the time of a release or when verification indicates
noncompliance with the design and operating criteria.
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May 21. 1990 89
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1. Corrective Action Cost Estimate
The owner/operator must prepare a detailed written cost
estimate to conduct corrective action as described in the
corrective action plan required under Subpart F, Section A,
if corrective action is required for a regulated unit under
Subpart F.
a. The cost estimate must be prepared and submitted with
the corrective action plan required in Subpart F.
b. The owner/operator must base the initial cost estimate
on current dollars.
c. The owner/operator must base the cost estimate on the
costs of hiring a third party to complete corrective
action.
d. The owner/operator must adjust the cost estimate
annually for inflation until certification that
corrective action is completed is approved by the
regulatory authority.
e. The owner/operator must adjust the corrective action
cost estimate until completion of corrective action is
certified in accordance with Subpart F if the current
costs of corrective action exceed the post-closure
cost estimate.
f. The owner/operator may reduce the cost estimate if the
costs of corrective action decrease and if the
decrease is approved by the regulatory authority.
g. The approved corrective action cost estimate will be
incorporated as an enforceable condition of the permit
and reviewed at least every five years. The
regulatory authority will prepare the cost estimate in
lieu of the owner/operator if it deems such action
necessary to ensure compliance with the performance
standards established under Subpart C.
2. Financial Responsibility Requirements
a. The owner/operator must submit a demonstration with
the corrective action plan that a financial mechanism
which satisfies the requirements of Subpart H, Section
G will be established and effective on the day of
corrective action plan approval to cover the costs of
corrective action.
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90 Kay 21, 1990
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b. Financial responsibility must be demonstrated using
one or a combination of the allowable mechanisms
described in Section G below.
c. The owner/operator must demonstrate continuous
financial responsibility for corrective action in an
amount equal to the current corrective action cost
estimate until released from financial responsibility
requirements as discussed in paragraph (d) below. If,
at any time, the amount of the cost estimate
increases, the owner/operator must increase the amount
of financial responsibility demonstrated.
d. The owner/operator may be released from financial
responsibility requirements for corrective action only
after meeting the following requirements:
i. The owner/operator must submit a written request
to the regulatory authority for release from the
financial responsibility requirements for
corrective action for that unit. Such written
request shall include certification that all
corrective action activities have been completed
according to the approved corrective action
plan, as required in Section (A)(2) of Subpart
F; and
ii. The regulatory authority will notify the
owner/operator of release from financial
responsibility requirements or submit to the
owner/operator a written statement explaining
why the regulatory authority is not accepting
the corrective action certification required in
Subpart F.
F. Financial Responsibility for Third-Party Liability
1. The owner/operator must demonstrate continuous financial
responsibility for the costs of third-party bodily injury
and property damage caused by a release from a regulated
unit(s), of contaminants into or upon land, the atmosphere,
or ground and surface water in an amount of at least two
million dollars per occurrence with an annual aggregate of
at least four million dollars, exclusive of legal defense
costs.
DISCUSSION: EPA acknowledges that some classes of regulated
units may pose less risk and therefore may warrant lower
levels of third-party liability coverage. EPA requests
suggestions on appropriate minimum levels of coverage for
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various types of regulated units and on currently available
levels of coverage. It is intended that the environmental
liability requirement applies to the entire facility, and is
not necessarily based on the number of regulated units
onsite.
2. Financial responsibility must be demonstrated using one or a
combination of the allowable mechanisms described in Section
G below.
DISCUSSION: As discussed at the beginning of this Subpart,
EPA will consider any financial mechanism or approach. EPA
recognizes that insurance is the mechanism that is most
likely to be used to comply with the third-party liability
coverage requirement and requests information on the cost
and availability of such insurance for units that would be
subject to these requirements, and on any requirements
imposed by insurers as conditions of coverage.
3. The owner/operator must submit a demonstration that an
adequate financial mechanism will be in place on the day of
permit approval to cover the costs of third-party liability.
The actual financial mechanism must be in place at approval
of a permit designated by the regulatory authority.
DISCUSSION: Such a demonstration could, for example,
include a letter from an insurer stating that it will issue
a policy pending approval of the applicable permit.
4. The owner/operator may be released from financial
responsibility requirements for third-party liability after
meeting the following requirements:
a. The owner/operator must submit a written request to
the regulatory authority for release from the
financial responsibility requirements for third-party
liability for that unit. Such written request shall
include certification that closure has been completed
according to the approved closure plan, as required in
Section E of Subpart G; and
b. The regulatory authority will notify the
owner/operator of release from financial
responsibility requirements or submit to the
owner/operator a written statement explaining why the
regulatory authority is not accepting the closure
certification required in Subpart G, Section E.
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G. Allowable Mechanisms
1. Financial mechanisms used to demonstrate financial
responsibility for closure, post-closure care, corrective
action, or coverage for third-party liability must meet the
following criteria:
a. The financial responsibility mechanism must ensure the
amount of funds assured is sufficient to cover the
costs of closure, post-closure care, corrective
action, and third-party liability when needed.
b. The financial responsibility mechanism must ensure
that funds will be available in a timely manner when
needed.
c. The financial responsibility mechanism must be legally
valid, binding, and enforceable under State and
Federal law.
2. The wording of the financial responsibility mechanism(s).
and any subsequent changes, must be approved by the
regulatory authority. Financial responsibility mechanisms
deemed acceptable by the regulatory authority, subject to
the criteria of paragraph (G)(l) above, include but are not
limited to trust funds, surety bonds (payment and
performance), letters of credit, insurance, financial test,
and corporate guarantee.
3. The regulatory authority or owners/operators may establish
insurance pools, State funds, or other such mechanisms to
demonstrate compliance with the financial responsibility
requirements of this Subpart. Such alternative plans,
whether organized by the State or owners/operators, must
establish a funding source and must also meet the criteria
described in paragraph (G)(l) above and be approved by the
regulatory authority.
DISCUSSION: EPA will review any alternative financial
mechanism or approach for the purpose of meeting financial
responsibility requirements. EPA recognizes that certain
mechanisms may be more suited for providing one type of
financial responsibility over another and for different
types of owners/operators (e.g., insurance is most suitable
for providing third-party liability coverage) and is
requesting recommendations on the types of mechanisms or
approaches that would be appropriate for use under this
regulatory scheme. In particular, EPA acknowledges the
widespread use of surety bonds for surface mine reclamation
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and is requesting information on their use, including Che
potential cost and availability for activities covered by
the Strawman, and conditions for obtaining bonds.
4. A financial mechanism used to demonstrate financial
responsibility may be cancelled by the owner/operator only
upon notification of the regulatory authority and only if it
is replaced by an alternate mechanism or if the
owner/operator is released from financial assurance in
accordance with the requirements of paragraphs (C)(2)(d),
(D)(2)(d), (E)(2)(d), or (F)(4) of this Subpart.
5. A financial mechanism used to demonstrate financial
responsibility may be cancelled by the provider of the
mechanism only upon adequate notice to the owner/operator
and the regulatory authority;
6. If changes in the ownership or operational control of a
regulated unit occur, the new owner/operator must
demonstrate compliance with the requirements of this Subpart
within six months of the change in the ownership or
operational control of the unit. Upon demonstration of
compliance with this Subpart to the regulatory authority by
the new owner/operator, the regulatory authority shall
notify the old owner/operator that he is released from the
requirements of this Subpart.
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Subpart I: Pollution Prevention
DISCUSSION: EPA believes that a Pollution Prevention Program may be a
way to accomplish source reduction in the mining industry using
incentives rather than requirements. EPA requests suggestions on the
most effective approach to developing and implementing a Pollution
Prevention Program within the mining industry. EPA is considering
relating the cost associated with the monitoring, corrective action,
closure, post-closure, and financial responsibility requirements in the
Stravman to the environmental risks posed by a regulated unit. EPA
believes that these requirements will encourage mine operators to
undertake measures, such as reuse or treatment, prior to disposal to
reduce the environmental risks posed by regulated materials.
Options considered for other industry sectors include a pilot program
where generators are allowed additional time (deferral of effective
date) to comply with a set of standards (e.g., TCLP) in exchange for
redesigning their environmental management programs to include pollution
prevention concepts and technologies and reducing the volume of their
wastes through recycling and environmentally sound treatment.
Other approaches include requiring all owners/operators to conduct
pollution prevention assessments, or writing pollution prevention
programs as a permit requirement. Both of these approaches may address
chemical use onsite, potential for replacement with less toxic or
hazardous materials, and means to reduce the generation of all types of
wastes onsite (technical and administrative).
Currently EPA is developing a strategy to attempt to encourage remining
of abandoned mine sites. In some cases remining may act as a remedial
action by removing the source of hazardous constituent releases. EPA is
considering options for changes to RCRA/CERCLA liability in order to
make the concept more attractive. In addition, EPA foresees that the
potential incentives described in Section III.C of the Foreword, which
accommodate and encourage remining and waste reprocessing at inactive
and abandoned units, could significantly reduce risks associated with
these types of units. Also. EPA has set aside funds for pollution
prevention activities, one of which includes remining research in fiscal
years 1991-1992.
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40 CFR XZZ: Guidelines for EPA Implementation of Mining Waste Management
Programs In Non-Primacy States
A. Purpose of Guidelines
DISCUSSION: See Section III(B) of the Foreword for a discussion
of Federal implementation of a Plan or Plan element in non-
codified States.
The purpose of these guidelines is to establish minimum
requirements for Federally-administered mining waste management
programs. At a minimum, such a program must:
1. Provide for environmentally sound management of regulated
materials;
2. Require new and existing regulated units to operate and
close, and conduct post-closure care if applicable, in
compliance with this Part and Part XXY; and
3. Ensure that all regulated materials subject to the program
are managed in accordance with the Plan and Technical
Criteria of Part XXY.
B. EPA Development and Implementation of a Mining Waste and Materials
Management Plan
1. EPA may develop a Mining Waste and Materials Management Plan
or Plan element in a particular State when:
a. The State has not developed and/or implemented a
codified State Plan or Plan element pursuant to the
provisions of Subparts E and F of Part XXX.
b. EPA has withdrawn the codification of the State Plan
or Plan element pursuant to Subpart K of Part XXX.
2. EPA may, at its discretion, incorporate in the Federal Plan
or Plan element existing State requirements if they are at
least as protective as the Federal criteria.
3. Development of a Federal Mining Waste and Materials
Management Plan by EPA
a. Prior to implementing a Federal Mining Waste and
Materials Management Plan or Plan element in a non-
primacy State, EPA must undertake the following:
i. Publish a notice in the Federal Register and in
the largest newspaper(s) in the State that
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describes the Plan EPA proposes to implement in
that State, and identifies the Federal
standards and the existing State requirements
to be incorporated into the Plan or .element;
ii. Allow for a public comment period of not less
than 30 days; and
iii. At the end of the comment period, publish a
notice in the Federal Register and in the
largest newspaper(s) in the State of the final
State Plan.
b. All new and existing regulated units must be in full
compliance with the Federal Plan or Plan element no
more than 5 years after the publication of the final
notice under paragraph (iii) above, or as required in
the Plan or Plan element, whichever is shorter.
DISCUSSION: See Che discussion on effective dates in
Subpart B of Part XXY.
4. EPA may choose not to develop a Plan specific to a
particular State if that State has limited mining
operations.
DISCUSSION: EPA is requesting viewpoints on developing
comprehensive Federal performance standards that could be
used in all non-primacy States.
C. EPA Mining Waste Management Permits
1. For the purposes of this section, references to specific
Federal criteria shall be considered references to the
applicable State requirements where EPA has incorporated
those requirements into a Federally-implemented Mining Waste
and Materials Management Plan in accordance with the
requirements of paragraph (B)(3) above.
2. Permit Issuance
a. EPA may issue a single comprehensive permit or permits
to authorize the owner/operator of a regulated unit to
engage in:
i. The construction, operation, closure, and if
applicable, post-closure care and corrective
action of new regulated units; or
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ii. The operation, closure, and if applicable,
post-closure care and corrective action of
existing regulated units.
b. EPA shall have the authority to require applicants for
a permit to submit relevant information and data to
demonstrate that unit operation, closure, and, if
applicable, post-closure care and corrective action
will meet the standards and criteria of Part XXY.
c. EPA shall have the authority to include any conditions
in the permit necessary to ensure compliance with the
Plan or Plan element.
3. Permit Application
a. Owners/operators must submit a permit application
within 180 days of codification of a Federal Plan or
Plan element.
b. The permit application must include the following
general information:
i. A description of the activities conducted by
the applicant which require it to obtain a
permit under this Part.
ii. A description of current or proposed uses of
the land in addition to the uses subject to
these regulations, if applicable.
iii. The name, mailing address, and location,
including latitude and longitude, of the
regulated unit(s) for which the application is
being submitted.
iv. The operator's name, address, telephone number,
ownership status, and status as Federal, State,
private, public or other entity.
v. The name, address, and telephone number of the
owner of the regulated units(s), if different
than the operator.
vi. An indication of whether the regulated unit(s)
is located on Federal, State, or Indian lands.
vii. An indication of whether the unit is new or
existing and whether the application is a first
or revised application.
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viii. A description of the processes to be used for
managing regulated materials in the regulated
unit(s) and the design capacity of the unit(s).
ix. A specification of the regulated materials to
be managed in the regulated unit(s). an
estimate of the quantity of such materials to
be managed annually, and a general description
of the processes used to generate and, if
applicable, treat or otherwise manage such
materials.
x. A listing of all applicable permits or
construction approvals received or applied for
under any of the following programs:
1) Hazardous Waste Management program under
RCRA.
2) UIC program under the SWDA.
3) NPDES program under the CWA.
4) Prevention of Significant Deterioration
(PSD) program under the Clean Air Act.
5) Nonattainment program under the Clean Air
Act.
6) National Emission Standards for Hazardous
Pollutants (NESHAPS) preconstruction
approval under the Clean Air Act.
7) Ocean dumping permits under the Marine
Protection Research and Sanctuaries Act.
8) Dredge or fill permits under section 404
of the CWA.
9) Other relevant environmental permits,
including State permits.
xi. A topographic map (or other map if a
topographic map is unavailable) extending one
mile beyond the property boundaries, depicting
the facility, each of its regulated units, and
wells, springs, other surface water bodies, and
drinking water wells listed in public records
or otherwise known to the applicant within 1/4
mile of the facility property boundary.
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xii. A description of current uses of nearest
surface water, ground-water uses as indicated
by the State ground-w£-.er classification
system, proximity to populated areas, and a
description of ambient air quality.
xiii. Permit applications shall be signed, certifying
to the best knowledge of the signatory that the
information supplied in the permit application
is true, accurate, and complete. Signature
requirements are as follows:
1) For a corporation: by a responsible
corporate officer;
2) For a partnership or sole proprietorship:
by a general partner or the proprietor,
respectively; or
3) For a municipality, State, Federal, or
other public agency: by either a
principal executive officer or ranking
elected official.
The Federal Plan or Plan element will specify permit
application requirements, which may include the
submission of any or all of the following:
i. The regulated materials characterization
prepared in accordance with Part XXY, Subpart
C, Section A.
ii. An evaluation of the potential for fugitive
dust emissions as required under Part XXY,
Subpart C, Section D.
iii. A description of run-on/run-off control systems
required under Part XXY, Subpart D, Section A.
iv. A description of means to be used to prevent
unauthorized access to the site as required
under Part XXY, Subpart D, Section A.
v. For surface impoundments, a description of
Plans to comply with the design and operating
criteria of Part XXY, Subpart D, Section A.
vi. A copy of the sludge/liquid application plan
and additional information if required under
Part XXY, Subpart D, Section A.
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vii. A copy of the soil and surficial material
management plan as required in Part XXY,
Subpart C, Section E.
viii. An evaluation of the biological resources
potentially adversely affected by operations at
the site.
ix. For units located in 100-year flood plains,
demonstrations of compliance with the
requirements of Part XXY, Subpart D, Section B,
including the following information:
1) The source of the data for determining
location in the flood plain.
2) Information identifying the 100-year flood
level and any other special flooding
factors.
3) Engineering analyses to indicate the
various hydrodynamic and hydrostatic
forces expected to result at the site as a
consequence of the 100-year flood.
A) Structural or other engineering studies
showing the design of regulated units and
flood protection devices (e.g.,
floodwalls, dikes) at the facility and how
these will prevent washout.
x. For units located in wetlands, demonstrations
of compliance with the requirements of Part
XXY, Subpart D, Section B.
xi. For units located in seismic impact zones,
demonstrations of compliance with the
requirements of Part XXY, Subpart D, Section B.
xii. For units located in unstable areas,
demonstrations of compliance with the
requirements of Part XXY, Subpart D, Section B.
xiii. For units located in fault areas,
demonstrations of compliance with the
requirements of Part XXY, Subpart D, Section B.
xiv. For units located in areas of karst terrain,
demonstrations of compliance with the
requirements of Part XXY, Subpart D, Section B.
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xv. For units located in areas of permafrost,
demonstrations of compliance with the
requirements of Part XXY, Subpart D, Section B.
xvi. The ground-water monitoring system and program
required under Part XXY, Subpart E, Section A.
xvii. The surface water monitoring system and program
required under Part XXY, Subpart E, Section B.
xviii. Any air monitoring required under Part XXY,
Subpart E, Section C.
xix. The soils and surficial materials monitoring to
be carried out as required under Part XXY,
Subpart E, Section D.
xx. A copy of the closure and post-closure plans
and cost estimates prepared in compliance with
Part XXY, Subparts G and H.
xxi. A copy of the demonstrations of financial
responsibility in compliance with Part XXY,
Subpart H.
xxii. Any other information required by the Agency to
ensure compliance with the performance
standards and design and operating criteria of
Part XXY.
d. Upon receipt of a complete application, EPA:
i. Will review the application and consult with
the owner/operator as necessary to obtain any
additional permit information.
ii. May issue a draft permit following review of
all application information. If issued, EPA
will provide for public comment on the draft
permit. Public participation will be conducted
according to the requirements of Section D
below.
iii. Following a public comment period, will review
comments and may issue a final permit.
iv. May conduct a site inspec-'^n as deemed
necessary to verify info: on submitted with
the permit application pr o permit
issuance.
102
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4. Permit Term, Modifications, and Renewals
a. Permits issued by EPA shall have a maximum term of 5
years.
b. Permits may be modified or renewed either at the
request of an interested party or upon the initiative
of EPA. If EPA determines that a request is not
justified, a notice shall be sent to the requester
that provides a brief written response explaining the
decision. Denials of requests are not subject to
public notice, comment, or appeal.
c. Significant Permit Modifications.
i. Significant modifications to permits shall
require approval, public notice and the
opportunity for public hearing, following the
same requirements as a new permit.
ii. Significant modifications shall be defined as
any change in the regulated unit operating
conditions or closure or post-closure plans
that has the potential to impact compliance
with the performance standards of Part XXY
beyond those impacts approved in the existing
permit.
d. Minor modifications to permits shall require a request
from the operator to EPA and shall be decided
administratively by EPA within 60 days of submission
by the owner/operator. No public notice shall be
required for minor modifications.
e. Permit Renewals.
i. Permits shall be renewable during the life of
the operation, and if applicable, during the
post-closure care period.
ii. EPA must make a determination of whether to
grant the renewal within 90 days after
expiration of the permit. Renewals shall be
granted by EPA with public notice.
iii. During the renewal process, the conditions of
the expired permit continue in force until the
effective date of the new permit.
iv. Permit renewals may be granted in increments
not to exceed 5 years.
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5. Revocation of Permits
a. EPA shall have the authority to revoke a permit upon
failure of the owner/operator to comply with the
requirements of 40 CFR XXY.
b. Permits may be revoked either at the request of an
interested party or upon the initiative of EPA. If
EPA decides that a request is not justified, a notice
shall be sent to the requester that provides a brief
written response explaining the decision. Denials of
requests are not subject to public notice, comment, or
appeal.
c. Revocation shall occur after notice to the
owner/operator and an opportunity for public hearing
according to the public participation requirements of
Section D below.
D. Public Participation
1. EPA administered programs shall contain the following
provisions for public participation:
a. For all EPA permit approvals and for major
modifications to existing permits or revocations of
existing permits for regulated units issued under a
EPA administered State Plan, EPA shall:
i. Provide for notice in the Federal Register of
EPA's determination concerning the permit;
ii. Provide opportunity for a public hearing
concerning EPA's determination at the request
of at least one person; and
iii. Provide for a public comment period of not less
than 30 days;
b. Provide public notice of certification of completion
of closure, post-closure care and corrective action,
and Agency determinations of release from financial
responsibility requirements. Such notice must, at a
minimum, be published in the largest newspaper(s) in
the State; and
c. Provide for open public access to applications,
monitoring reports and other public records regarding
regulated units or permits.
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2. Confidentiality of Information
An owner/operator may request confidentiality for
proprietary information or other information. If EPA
determines that the release of any such information would
place a regulated facility or the owner/operator at a
competitive disadvantage, EPA will grant the request and
will take appropriate precautions to protect information
that has been deemed confidential. If no claim is made at
the time of submission, EPA may make the information
available to the public without further notice. Claims of
confidentiality for information concerning quantities and
characteristics of regulated materials and exceedances or
violations of performance standards may not be granted.
DISCUSSION: As noted in Part XXI, RCRA Subtitle D does not
contain any specific requirements concerning confidentiality
or public availability of information (for that reason, 40
CFR 2, which provides that certain categories of information
may be held as confidential, applies to Subtitle D
information). EPA requests that interested parties express
their views on whether a specific provision is appropriate
for this program (and whether State Plans should be no less
restrictive).
E. EPA Enforcement Authority
1. In EPA administered programs, EPA shall have the authority
to enforce all standards that are incorporated in Mining
Waste and Materials Management Plans implemented or permits
issued under this Part.
2. EPA shall have the following implementation and enforcement
authorities:
a. Authority to issue permit(s), licenses, approvals or
other enforceable instruments;
b. Authority to enter and inspect relevant facilities and
units, to obtain and copy records, and to require
responses to written requests for information;
c. Authority to request and collect any information
deemed necessary to implement the requirements of this
Part;
d Authority to issue administrative orders and to seek
civil orders and injunctions, to require compliance
with applicable Plan or permit requirements;
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e. Authority to impose administrative penalties, or to
seek civil and/or criminal penalties for noncompliance
with any Plan requirement, order, or permit;
f. Authority to take action when any action (or inaction)
by owner/operator poses or may pose imminent threat to
human health or environment. These authorities
include:
i. Authority to suspend or revoke the permit;
ii. Authority to seek temporary or permanent
inj unctions; and
iii. Authority to require forfeiture of financial
responsibility mechanisms.
3. States or local authorities may not enact provisions or
otherwise interfere with right of any person to bring suit
to enforce Technical Criteria of 40 CFR XXY, as provided in
Section 7002 of RCRA and 40 CFR 254.
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Appendix : Definitions
When used in Parts XXX, XXY, and XXZ, the following terms have the neanings
given below:
An "Active regulated unit' is an "existing" or "new regulated unit."
"Beneficiation" Beans the dressing or processing of ores for the purpose
of (1) regulating the size of the desired product; (2) removing unwanted
parameters; and (3) iaproving the quality, purity, or assay grade of a
desired product. Beneficiation operations include crushing, grinding,
washing, dissolution, crystallization, filtration, sorting, sizing,
drying, sintering, pelletizing, briquetting, calcining to remove water
and/or carbon dioxide, roasting, autoclaving and/or chlorination in
preparation for leaching (except where the roasting and/or autoclaving
and/or chlorination/leaching sequence produces a final or intermediate
product that does not undergo further beneficiation or processing) ,
gravity concentration, magnetic separation, electrostatic separation,
flotation, ion exchange, solvent extraction, electrotwinning,
precipitation, amalgamation, and heap, dump, vat, tank, and in situ
leaching. Beneficiation does not include any operations following the
initial processing step in the production sequence, irrespective of
whether they involve only the techniques defined above as beneficiation.
In addition, leaching operations that are not followed by additional
beneficiation or processing operations are defined as processing
operations and not as beneficiation.
"Closed regulated unit" is one that has been closed in accordance with
this Part.
"
Closure" is the act of closing or shutting down a regulated unit in
accordance with an approved closure plan and all other applicable
requirements in Subpart G.
"Defect" in a regulated unit is a defect which is detectable by a
•qualified professional" after undertaking an onsite visual inspection
or reviewing instrumental or monitoring device readings of a regulated
unit structure in accordance with current engineering, geologic, and
construction practices. Defects may include, but are not limited to:
slides, piping of fines, unusual zones of softness or settlement, cracks
in an impoundment structure, spillways that are measured or calculated
to be inadequate for the design flood, severe erosion, and uncontrolled
seepage from the slope or foundation of an impoundment structure.
"Disposal" means the discharge, deposit, injection, dumping, spilling,
leaking, or placing of any regulated materials into or on any land or
water so that such material or any constituent thereof may enter the
environment or be emitted into the air or discharged into any waters,
including ground waters.
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An "Existing regulated unit" is one in which regulated materials have
been placed or are located prior to the effective date and in which
regulated materials are placed or accumulate after the effective date,
and where extraction, beneficiation and/or processing activities that
generate regulated materials occur after the effective date.
"Exploration" means the search for minerals or ores by geological
surveys; geophysical prospecting (ground or aerial); boreholes and trial
pits; or surface or underground headings, drifts, or tunnels, for the
purpose of locating the presence of economically viable deposits for
mining and establishing their nature, shape, and grade. Exploration
consists of preliminary activities and certain final activities.
DISCUSSION: EPA is seeking Che opinion of interested parties on
limiting which, if any, exploration activities and/or materials
should be regulated under the program.
"Extraction" means the process of mining and removal of ores, minerals,
and overburden, but does not include the injection of leaching
solutions, lixiviants or solutions to solubilize or extract minerals in
place (in situ). from existing geologic formations.
"Facility" or "Mining facility" is an extraction, beneficiation, or
processing activity or collection of such activities that generates
regulated materials and/or includes regulated units.
"Financial responsibility" means any method of assurance acceptable to
the regulatory authority that guarantees the availability of funds to
implement closure and post-closure care and corrective action for known
releases, and to cover the costs of third party liability, and which may
include, but is not limited to, such methods as surety bonds, letters of
credit, trust funds, financial tests, self-insurance, insurance,
insurance pools, or any other method that complies with the requirements
of Subpart H.
A "Geological formation" consists of groups of rocks of similar
character and age.
"Ground water" means the subsurface water that occurs beneath the water
table in soils and geologic formations that are fully saturated.
DISCUSSION: It should be noted that this definition is somewhat
different than that used in other RCRA programs. EPA is seeking
suggestions for a definition of ground water that might be
appropriate for this program.
"ID situ leaching/mining" is the leaching or mining of ores or minerals
occurring in the situation in which they were originally formed or
deposited.
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"Leachate" means any liquid, Including any suspended components In the
liquid, that has passed through or emerged from a regulated material.
"Leaching" means the intentional separation, selective removal,
dissolving-out, or extraction of soluble metals, salts, or other
constituents from an ore by the action of percolating water or other
percolating solution. "Heap" leaching occurs when the ore being leached
has been intentionally placed for the purpose of leaching; "dump"
leaching occurs when the ore being leached has been placed in its
current location for other purposes, including previous disposal or
abandonment. "In situ" leaching occurs when the ore being leached has
not first been "extracted" from its original location in the earth.
"Mining" means the process of obtaining useful minerals from the earth's
crust or from previously disposed or abandoned mining wastes; mining
includes both underground excavations and surface workings.
"Mining waste" means materials or releases from materials from the
exploration, extraction, beneficiation, or processing of ores or
minerals, including wastes from placer mining, that meet the definition
of "solid waste" in 40 CFR 261.2.
DISCUSSION: As provided in Subpart B above, not all "mining
wastes", as defined here, are currently addressed in this
Strawman, which addresses wastes from specific industry sectors
(and other regulated materials that are not wastes). See the
Foreword discussion on scope and the Applicability section in
Subpart B. As described in "regulated materials" below, the
Strawman's scope extends beyond wastes.
"Mining Waste and Materials Management Plan" means the Plan submitted by
a State to EPA that describes the program to be used by that State to
protect human health and the environment from the risks associated with
regulated materials. A Plan consists of a number of elements that
describe a State's means of attaining the Technical Criteria; any or all
Plan elements may be codified to become Federally enforceable.
DISCUSSION: Both the issue of what constitutes a Plan element and
the issues of whether Plan requirements or permit conditions are
Federally enforceable are described in detail in various places in
the Foreword and Strawman.
"New regulated unit" is one for which construction has not begun and in
which regulated materials have not been placed prior to the effective
date and in which regulated materials are placed in or are accumulated
on or after the effective date.
"Operator" means the person responsible for the operation of a regulated
unit.
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"Ore" means the naturally occurring material from which a mineral or
minerals of economic value can be extracted at a reasonable profit. It
also includes the minerals thus extracted and prior to subsequent
beneficiation or processing.
"Overburden" means the earthen material overlying the ore body or
deposit that must be removed to expose the ore body or deposit during
mining.
"Owner" means the person or persons who owns all or part of the
operation at which regulated materials are generated or where regulated
units are located.
"Permit" means an enforceable authorization, license, approval, or
equivalent control document(s) issued by EPA or a State with a codified
Plan to implement the requirements of this program. As used in Parts
XXX, XXY, and XX2, "permit" may refer to a single document or multiple
documents or instruments that collectively ensure full implementation of
this program.
DISCUSSION: EPA is requesting recommendations on whether a class
permit approach should be allowed for certain mining sectors or
generators of certain quantities of regulated materials.
n
Person" means an individual, trust, firm, joint stock company, Federal
Agency, corporation (including a government corporation), partnership,
association, State, municipality, commission, political subdivision of a
State, or any interstate body.
"Placer mining" is the extraction of heavy minerals from a placer
deposit by concentration in running water. It includes ground sluicing,
panning, shoveling gravel into a sluice, scraping by power scraper,
excavation by dragline, and hydraulic mining.
DISCUSSION: EPA requests the views of interested
parties concerning which placer mining activities and
materials should be covered under this program. For
example, EPA does not want to place undue burden on
simple panning and sluicing operations. Also, it may
be appropriate to include only onshore activities.
"Processing" means the treatment of ores and minerals following
extraction and/or beneficiation for the purpose of removing unwanted
parameters, improving the quality or purity grade of the desired
product, and serving to produce a final mineral product or an
intermediate to a final mineral product. These steps may involve the
use of recycled or secondary materials and do not include alloying
operations.
DISCUSSION: EPA issued a final rule on September 1, 1989 that
included the Agency's definition of mineral "processing" for the
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purposes of defining processing wastes chat would remain excluded
Bevill wastes (54 £g 36592). EPA has decided that, for processing
wastes to be excluded Bevill wastes, they must be solid wastes
uniquely associated with mineral industry operations and must
orginate from "processing" operations that possess all of the
following attributes: (a) follow beneficiation of an ore or
mineral (if applicable); (b) serve to remove the desired product
from an ore or mineral or from a beneficiated ore or mineral, or
enhance the characteristics of ores or minerals or beneficiated
ores or minerals; (c) use mineral-value feedstocks that are
comprised of less than 50 percent scrap materials; (d) produce
either a final mineral product or an intermediate to the final
product; and (e) do not combine the product with another material
that is not an ore or mineral, or beneficiated ore or mineral
(e.g., alloying), do not involve fabrication or other
manufacturing activities, and do not involve further processing of
a marketable product of mineral processing.
"Qualified professional" means a scientist, engineer, or professional in
a technical discipline with sufficient training and experience, as
defined by the regulatory authority, that enables the individual to make
sound professional judgments regarding the design, construction and
operation of regulated units and ancillary structures.
"Reclamation" means actions to minimize the environmental disruption
from mining and mineral processing operations and provide for the
rehabilitation of land affected by mining and mineral processing
operations through the use of plant cover, soil stabilization, natural
system restoration, or other measures appropriate to the subsequent use
of land affected by mining or mineral processing.
"Regulated materials" means wastes and other materials generated by
exploration, extraction, beneficiation, and processing of ores and
minerals that are not subject to regulation as hazardous under Subtitle
C of RCRA but that have the potential to pose risks to human health and
the environment. Regulated materials include, but are not limited to:
mining waste from extraction and beneficiation; wastes from certain
placer mining and mining exploration activities;..,
DISCUSSION: EPA is seeking recommendations on which, if any,
wastes from placer mining and exploration activities should be
regulated under this program.
... materials being leached in active heap and dump leaching operations
and associated pregnant and barren leaching solutions; water or other
liquid that has the potential to accumulate hazardous constituents, and
which accrues or is expected to accrue in open pits, mine shafts,
tunnels or other structures, and which has the potential for release to
the environment; mill tailings (including land-applied tailings);
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overburden; stockpiled ores and subgrade ores; and any other material
uniquely associated with mining that the regulatory authority determines
has the potential to pose a threat to human health and the environment.
DISCUSSION: As described in the Applicability section (Subpart
B), the Strawman would not address all "regulated materials."
Rather, it would confine the program to regulated materials
generated by the extraction and beneficiation facilities addressed
in the 1985 Report to Congress and to processing wastes that
remain within the Bevill exclusion or. are non-Bevill, non-Subtitle
C waste that are co-located and commingled with regulated
materials generated by extraction and beneficiation. (Non-
Subtitle C means that the mineral processing waste neither
exhibits a characteristic of hazardous waste nor is listed as a
hazardous waste under Subtitle C of RCRA.) EPA does not
anticipate applying the "regulated materials" concept to stand-
alone mineral processing facilities. The Strawman would not
include exploration wastes in the program, and it may be
appropriate to include certain placer mining wastes. As noted in
the Foreword discussion, Subtitle D authority currently extends to
exploration, extraction, and beneficiation wastes and to
processing wastes not otherwise subject to Subtitle C. By
addressing the wider universe of materials of concern through the
broader concept of "regulated materials," EPA's intent is to be
able to regulate the potential releases from these materials. EPA
is seeking public input on the proper scope of the program.
In addition, EPA is seeking advice on what categorical exemptions
from the regulated materials definition might be appropriate.
Exemptions might be based on risk or a limited number of
facilities, or they might be sector-wide, such as sand and gravel,
garnet, or turquoise mining.
"Regulated units" are new or existing units in which regulated materials
are placed or accumulate on or after the effective date. Regulate:
units include, but are not limited to: free-standing processing units
that generate Bevill wastes that are not subject to Subtitle C; surface
impoundments, tailings ponds, and waste piles containing mining waste;
active heap and dump leaching units; any production unit such as an open
pit, mine shaft or tunnel which has the potential for release of
hazardous constituents; units containing mine tailings used in a manner
constituting disposal or through land-application; areas and units where
overburden is stored during the active life of the facility and where
overburden is placed or disposed during closure or post-closure; piles
containing stockpiled ores or subgrade ores; and ancillary structures
that are used for the collection, treatment, or storage of leachate
generated from any of these units.
DISCUSSION: Regulated units also include previously Inactive or
abandoned units not initially subject to t.:e program, in which
wastes or other regulated materials are aaaed to or removed from
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the unit After the effective date. For purposes of the program,
the "reactivated" unit will be subject to the requirements for
existing units.
"Regulatory authority" means the Administrator of EPA or the State
Director, as the context of a codified State Plan requires, or an
authorized representative as designated in the State Plan, or in the
case of Indian nations, the designated authority.
"Run-off" means any rainwater, meltwater, leachate, or other liquid that
drains from any part of a regulated unit.
"Run-on" means any rainwater, meltwater, leachate, or other liquid that
drains over land onto any part of a regulated unit.
"Saturated zone" or "zone of saturation" means that part of the earth's
crust in which voids are filled with water.
DISCUSSION: EPA is seeking recommendations for the percentage of
voids being filled that would constitute saturation.
"State" means any of the fifty States, the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa,
the Commonwealth of the Northern Mariana Islands, and an individual
Indian tribe and its associated territory.
"Soils" are weathered, unconsolidated materials that occur naturally on
the earth's surface and in which plant life can grow.
"Surficial material" is all material other than soils that occurs on the
earth's surface and which can come into contact with water, plant,
animal, or human life. This term may include material used as a soil
substitute. For the purposes of this rule, the term also includes
sediments.
"Subgrade ore" or "lean ore" is ore that has little economic value, but
which may be accumulated for purposes of beneficiation and/or processing
at a later date.
"Surface impoundment" or "impoundment" means a regulated unit that is in
a natural topographic depression, man-made excavation, or diked area
formed primarily of earthen or other materials, that is designed to hold
an accumulation of regulated liquid materials or materials containing
free liquids, and that is not an injection well. For the purposes of
this Part, "surface impoundments" include transport and collection
systems associated with heap and dump leaching operations.
"Tailings" or "tails" means those portions of washed or milled ore that
are not treated further (as distinguished from "concentrates", or
materials of value) and are managed in a manner constituting disposal.
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"Third-party bodily injury and property damage" mean whatever applicable
State laws defines them to be. However, these terms do not include
those liabilities which, consistent with standard industry practices,
are excluded from coverage in liability policies for bodily injury and
property daitage.
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