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
                        ** STAFF REGULATORY APPROACH **
                                 May  21.  1990

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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.
                        ** STAFF REGULATORY APPROACH **
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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

                        **  STAFF  REGULATORY APPROACH  **
2                                May 21, 1990

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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

           ** STAFF REGULATORY  APPROACH  **
                     May 21, 1990                                 3

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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.

           **  STAFF REGULATORY APPROACH **
                     May 21, 1990

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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
            ** STAFF REGULATORY APPROACH **
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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.
                    STAFF REGULATORY APPROACH
                           May 21,  1990

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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.
                       **  STAFF REGULATORY APPROACH **
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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

                        **  STAFF REGULATORY APPROACH **
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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.
                  ** STAFF REGULATORY APPROACH **
                           May 21. 1990

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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  **
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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.


                 **  STAFF REGULATORY APPROACH **
                           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;
                  ** STAFF REGULATORY APPROACH **
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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.
                       ** STAFF REGULATORY APPROACH
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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
                       **  STAFF REGULATORY APPROACH  **
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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).

                       ** STAFF REGULATORY APPROACH  **
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  **
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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.
                       ** STAFF REGULATORY APPROACH **
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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
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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:

                       **  STAFF REGULATORY APPROACH **
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.
      ** STAFF REGULATORY APPROACH **
               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 **
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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).
                       **  STAFF  REGULATORY  APPROACH  **
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.
                       ** STAFF REGULATORY APPROACH **
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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;
                        **  STAFF REGULATORY  APPROACH
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:
                       **  STAFF REGULATORY APPROACH  **
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

     **  STAFF REGULATORY APPROACH **
               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.
                 ** STAFF REGULATORY APPROACH **
                           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.
           ** STAFF REGULATORY APPROACH
                     May 21,  1990

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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.
           ** STAFF REGULATORY APPROACH **
                     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
           ** STAFF REGULATORY APPROACH **
                     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.

                        ** STAFF REGULATORY  APPROACH **
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):
                        **  STAFF REGULATORY APPROACH
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,
     **  STAFF REGULATORY APPROACH **
               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.
                        **  STAFF REGULATORY APPROACH
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.
      **  STAFF REGULATORY APPROACH **
               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

                        **  STAFF  REGULATORY  APPROACH **
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;

                 ** STAFF REGULATORY APPROACH **
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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

                       **  STAFF REGULATORY APPROACH  **
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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."

           ** STAFF  REGULATORY APPROACH **
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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

                       **  STAFF  REGULATORY APPROACH **
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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,
                        **  STAFF REGULATORY APPROACH **
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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,

                        **  STAFF  REGULATORY APPROACH **
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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
     ** STAFF REGULATORY APPROACH **
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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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                        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.
                        ** STAFF REGULATORY APPROACH **
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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


                       **  STAFF REGULATORY APPROACH  **
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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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                   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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      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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       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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                        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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       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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                   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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      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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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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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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                        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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                   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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                  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
                        ** STAFF REGULATORY APPROACH **
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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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            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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            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.
           ** STAFF REGULATORY APPROACH **
                    May 21,  1990

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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.
                       **  STAFF REGULATORY APPROACH  **
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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

                       **  STAFF REGULATORY  APPROACH  **
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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
                 **  STAFF REGULATORY APPROACH  **
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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.
                        **  STAFF REGULATORY APPROACH
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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.
** STAFF REGULATORY APPROACH **
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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.
                       **  STAFF REGULATORY APPROACH
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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.
** STAFF REGULATORY APPROACH **
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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
** STAFF REGULATORY APPROACH **
         May  21.  1990

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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.

           **  STAFF REGULATORY  APPROACH  **
                     May 21, 1990                               103

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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.
                 ** STAFF REGULATORY APPROACH **
                          May  21,  1990

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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;
                  ** STAFF REGULATORY APPROACH **
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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.
                        **  STAFF REGULATORY  APPROACH
106                              May 21. 1990

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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.
                        ** STAFF REGULATORY APPROACH  **
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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.
                        +*  STAFF REGULATORY APPROACH **
108                              May 21, 1990

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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.
                  ** STAFF REGULATORY APPROACH **
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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

                       ** STAFF REGULATORY APPROACH **
110                              May 21, 1990

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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);
                  ** STAFF REGULATORY APPROACH **
                           May  21,  1990                               111

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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

                       ** STAFF REGULATORY  APPROACH **
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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.


                  ** STAFF REGULATORY APPROACH **
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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.
                 ** STAFF REGULATORY APPROACH
                          May 21, 1990

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