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. ------- 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 **STAFF REGULATORY APPROACH** May 21, 1990 ------- 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 **STAFF REGULATORY APPROACH** May 21, 1990 ------- 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. **STAFF REGULATORY APPROACH** May 21, 1990 ------- 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., **STAFF REGULATORY APPROACH** May 21, 1990 ------- 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 **STAFF REGULATORY APPROACH** May 21, 1990 August 1987 ------- 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 **STAFF REGULATORY APPROACH** May 21, 1990 ------- 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. **STAFF REGULATORY APPROACH** May 21, 1990 ------- 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. **STAFF REGULATORY APPROACH** May 21, 1990 ------- 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 **STAFF REGULATORY APPROACH** May 21. 1990 ------- 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 **STAFF REGULATORY APPROACH** May 21, 1990 ------- 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 **STAFF REGULATORY APPROACH** May 21, 1990 ------- 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. **STAFF REGULATORY APPROACH** May 21, 1990 10 ------- 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. **STAFF REGULATORY APPROACH** May 21. 1990 11 ------- 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. **STAFF REGULATORY APPROACH** May 21. 1990 12 ------- 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 **STAFF REGULATORY APPROACH** May 21, 1990 13 ------- 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. **STAFF REGULATORY APPROACH** May 21, 1990 14 ------- 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 **STAFF REGULATORY APPROACH** May 21, 1990 15 ------- 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 **STAFF REGULATORY APPROACH** May 21, 1990 16 ------- 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. **STAFF REGULATORY APPROACH** May 21, 1990 17 ------- 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. **STAFF REGULATORY APPROACH** May 21, 1990 18 ------- 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. **STAFF REGULATORY APPROACH** May 21, 1990 19 ------- 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. **STAFF REGULATORY APPROACH** May 21. 1990 20 ------- 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; **STAFF REGULATORY APPROACH** May 21, 1990 21 ------- 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 **STAFF REGULATORY APPROACH** May 21, 1990 22 ------- 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 **STAFF REGULATORY APPROACH** May 21, 1990 23 ------- 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 **STAFF REGULATORY APPROACH** Hay 21, 1990 24 ------- 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, **STAFF REGULATORY APPROACH** May 21, 1990 25 ------- 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 **STAFF REGULATORY APPROACH** May 21. 1990 26 ------- 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 **STAFF REGULATORY APPROACH** May 21, 1990 27 ------- 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: **STAFF REGULATORY APPROACH** May 21, 1990 28 ------- (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, **STAFF REGULATORY APPROACH** May 21. 1990 29 ------- 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). **STAFF REGULATORY APPROACH** May 21. 1990 30 ------- 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. **STAFF REGULATORY APPROACH** May 21, 1990 31 ------- 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 **STA7F REGULATORY APPROACH** May 21, 1990 32 ------- 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 **STAFF REGULATORY APPROACH** May 21, 1990 33 ------- 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. **STAFF REGULATORY APPROACH** May 21, 1990 ------- 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. **STAFF REGULATORY APPROACH** May 21, 1990 35 ------- 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 **STAFF REGULATORY APPROACH** May 21, 1990 36 ------- 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. **STAFF REGULATORY APPROACH** May 21. 1990 37 ------- 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 **STAFF REGULATORY APPROACH** May 21. 1990 38 ------- 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 **STAFF REGULATORY APPROACH** May 21, 1990 39 ------- 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 **STAFF REGULATORY APPROACH** May 21, 1990 40 ------- 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. **STAFF REGULATORY APPROACH** May 21, 1990 41 ------- 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 **STAFF REGULATORY APPROACH** May 21, 1990 42 ------- 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. **STAFF REGULATORY APPROACH** May 21, 1990 43 ------- 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. ------- 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 ** STAFF REGULATORY APPROACH ** May 21. 1990 ------- 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 STAFF REGULATORY APPROACH ** May 21, 1990 ------- 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 ------- 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 ** May 21, 1990 ------- 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 ------- 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 ------- 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 ------- 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 ** May 21, 1990 ------- 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 ------- 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 ** May 21, 1990 ------- 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 ** 8 May 21, 1990 ------- 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 ------- 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 ------- 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 ------- Plans and if necessary require appropriate modifications by those States whose Mining Waste and Materials Management Plans do not meet the new or revised requirements. EPA shall clearly demonstrate to such affected States how such Plans do not meet new or amended requirements. 2. If, as the result of a program review of a codified State Plan pursuant to Subpart H below, EPA determines that the State Plan or its implementation does not meet the requirements of Subparts B or C, above, EPA shall notify the State of such deficiencies and that revisions to the Plan are necessary. 3. The schedules for States submitting, and EPA reviewing and codifying revised State Plans, shall be the same as those set forth in Subparts E and F above. B. State Instituted Revisions 1. In the event of changes in State statute or regulation or changes in procedures established under paragraphs (A)(8) (a) through (h) above that significantly modify or invalidate the State Plan, the State shall notify EPA within 60 days of such changes. EPA, upon reviewing the changes, will, within 60 days, notify the State if revisions to the State Plan are required. EPA shall clearly demonstrate to such affected States how such State Plans do not meet the new or amended requirements. Any change by the State in performance standards that would make them less stringent than those previously codified by EPA shall be considered a significant modification to the State Plan for the purposes of this Part. 2. The schedules for States submitting, and EPA reviewing and codifying revised State Plans, shall be the same as those set forth in Subparts E and F above. 3. All changes and revisions to State Plans and to relevant State regulatory and statutory authorities shall be identified in £he biannual reports required under Subpart H, Section C, below. Subpart H: Federal Oversight of State Mining Waste Management Programs A. EPA Program Review of State Plan Implementation 1. At a minimum, EPA will conduct a program review to evaluate State implementation of codified Plans every five years to determine if the requirements of the State Plan are being met. EPA may conduct program reviews on a more frequent ** STAFF REGULATORY APPROACH ** 12 May 21, 1990 ------- 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 ------- 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 ------- 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 ** May 21, 1990 15 ------- 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 ------- 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. ** STAFF REGULATORY APPROACH ** May 21, 1990 17 ------- 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 18 Kay 21, 1990 ------- 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 ** May 21, 1990 19 ------- 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 ------- i. Activities that are carried out by the States or their contractors, or activities delegated to and carried out by lower governmental units, specifically for the purpose of closure, post-closure or corrective action at units that are not otherwise subject to this Part or other elements of this program, whether for environmental, human health or public safety purposes, either under the provisions of Title IV of the Surface Mining Control and Reclamation Act (SMCRA), the Uranium Mill Tailings Radiation Control Act (UMTRCA) or other State or Federal statutes associated with the reclamation, stabilization, re-vegetation, sealing, barricading, or other actions intended to improve the condition of such units. B. Effective Date All new and existing units must be in compliance with all codified elements of a State Mining Vaste and Materials Management Flan by a date established by the regulatory authority, not to exceed five years after the date that EPA codifies a State Plan or element or five years after implementation of a Federal Plan or Plan element. For purposes of this Part, the compliance date, as established above, is referred to as the "effective date." DISCUSSION: EPA is requesting the views of interested parties on which, if any, subparts of Part XXY should become effective by a certain date in the absence of a codified State Plan (Federally or State-implemented). Performance standards generally could not be self-implementing, as they must be established by a regulatory authority following procedures established in a State Plan. However, to enhance the protection of human health and the environment, it may be appropriate to require all owner/operators to be in compliance with the design and operating criteria in Subpart D by a certain date, even in the absence of a State Plan. In addition, EPA is requesting viewpoints on the definition of new and existing regulated units. As currently defined (see the Appendix), new units are those for which construction begins on or after the compliance date. However, EPA is concerned that a delay of up to five years between the codification of a State Plan and required compliance with the Plan could pose a substantial burden on units that are under design (but not under construction) during this period and that will become subject to the design and operating criteria for new units. A related concern is that the potential five year delay could result in a number of units that could have been regulated under this program, but that choose instead to close before the delayed ** STAFF REGULATORY APPROACH ** May 21, 1990 21 ------- 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 ------- 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 ** May 21. 1990 23 ------- 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 ------- operators to assess acid generation potential as a measure of the mobility of parameters of concern and the likely long-term variability in the physical/ chemical characteristics of the regulated materials. EPA is soliciting information and suggestions on the appropriate method(s) to be used to measure acid generation potential. d. A quantitative assessment of potential variability in the compositions of the materials placed and/or expected to be placed or to accumulate in the regulated unit, including the concentrations of the parameters of concern. e. A description of why the characterization data are or are believed to be representative of the materials placed or expected to be placed or to accumulate in the regulated unit. f. Descriptions of the protocols used by the owner/operator for the following: i. Sample collection; ii. Sample preservation and shipment; iii. Analytical procedures; and iv. Chain-of-custody procedures. 3. Prior to the initial issuance of a permit for a regulated unit, the regulatory authority shall require the owner/operator to submit an assessment of the site that describes the physical setting including: the climate, surrounding land use, location and use of all surface water bodies including intermittent streams, topographical features, and proximity to environmental receptors, including native and migratory wildlife. DISCUSSION: EPA seeks the advice of interested parties on the requirement to submit site assessment information. What exactly should be required? In what format should the information be submitted? B. Performance Standards for Ground Water 1. Performance standards for ground water shall be set to protect the quality and the use of this water resource at the point of compliance and at downstream points determined ** STAFF REGULATORY APPROACH ** May 21, 1990 25 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- D. Performance Standards for Air DISCUSSION: In the case of performance standards for air and soils, it is not EPA's intent to force unnecessary standard- setting by the regulatory authority where standards do not exist for parameters of concern at the State or Federal level. Therefore, based on the results of the characterization conducted under Section A of this Subpart and other site-specific information including management practices, the regulatory authority will make an initial determination, for each parameter, whether the potential risks warrant performance standard development. EPA acknowledges that this approach allows management practices to serve as alternatives to numerical performance standards. Opinions on the Strawman approach and recommendations for alternative approaches are welcome. 1. For all parameters detected or determined to be potentially present in the regulated materials by the waste characterization conducted under Section A of this Subpart and other parameters identified by the regulatory authority, the regulatory authority shall require the owner/operator to conduct an assessment of the potential for air migration through fugitive dust emissions. This assessment shall consider, at a minimum, the following factors: a. The concentrations of parameters in the regulated materials as determined by the waste characterization. b. The potential for the parameter to be entrained in fugitive dust. c. Climatological conditions at the facility including wind conditions. d. Proximity of environmental receptors. e. Any available sampling data that characterizes fugitive dust emissions. f. Any management practices used by the owner/operator to mitigate fugitive dust emissions. 2. a. Based on the results of this assessment and other information available to the regulatory authority, the regulatory authority may develop numeric air performance standards for any parameters detected or determined to be potentially present in the characterization of the regulated materials and for other parameters identified by the regulatory authority. Performance standards shall be human health-based and environmental standards that satisfy f ** STAFF REGULAluRY APPROACH ** May 21, 1990 31 ------- 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 ------- 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 ------- 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 ------- 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 ** May 21, 1990 35 ------- 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 ------- • 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ** May 21, 1990 55 ------- 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 ** 56 May 21, 1990 ------- 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 ** May 21, 1990 57 ------- 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 ** 58 May 21, 1990 ------- 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. ** STAFF REGULATORY APPROACH ** May 21, 1990 59 ------- 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 ** 60 May 21, 1990 ------- 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; ** STAFF REGULATORY APPROACH ** May 21, 1990 61 ------- 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 ** 62 Hay 21, 1990 ------- 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. ** STAFF REGULATORY APPROACH ** May 21, 1990 63 ------- 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; ** STAFF REGULATORY APPROACH 64 May 21, 1990 ------- 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 ** May 21, 1990 65 ------- 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 ** STAFF REGULATORY APPROACH ** 66 May 21, 1990 ------- 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; ** STAFF REGULATORY APPROACH ** May 21, 1990 67 ------- 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 ** 68 May 21, 1990 ------- 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. ** STAFF REGULATORY APPROACH ** May 21, 1990 69 ------- 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; ** STAFF REGULATORY APPROACH ** 70 May 21, 1990 ------- 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. ** STAFF REGULATORY APPROACH ** May 21, 1990 71 ------- 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: ** STAFF REGULATORY APPROACH 72 May 21, 1990 ------- 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. ** STAFF REGULATORY APPROACH ** May 21, 1990 73 ------- 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 ** 74 Hay 21, 1990 ------- 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; ** STAFF REGULATORY APPROACH ** May 21, 1990 75 ------- 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. ** STAFF REGULATORY APPROACH ** 76 May 21, 1990 ------- 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 ** STAFF REGULATORY APPROACH ** May 21, 1990 77 ------- 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. ** STAFF REGULATORY APPROACH ** 78 May 21, 1990 ------- 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: ** STAFF REGULATORY APPROACH ** May 21, 1990 79 ------- 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. ** STAFF REGULATORY APPROACH ** 80 May 21, 1990 ------- 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 ** STAFF REGULATORY APPROACH ** May 21, 1990 81 ------- 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 ** STAFF REGULATORY APPROACH ** 82 May 21, 1990 ------- 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. ** STAFF REGULATORY APPROACH ** May 21, 1990 83 ------- 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 ** STAFF RECT _ATORY APPROACH ** 84 Hay 21, 1990 ------- 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. ** STAFF REGULATORY APPROACH ** May 21, 1990 85 ------- 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. ** STAFF REGULATORY APPROACH ** 86 May 21. 1990 ------- 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. ** STAFF REGULATORY APPROACH ** May 21, 1990 87 ------- 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 ** 88 May 21, 1990 ------- 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. ** STAFF REGULATORY APPROACH ** May 21. 1990 89 ------- 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. ** STAFF REGULATORY APPROACH ** 90 Kay 21, 1990 ------- 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 ** STAFF REGULATORY APPROACH ** May 21, 1990 91 ------- 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. ** STAFF REGULATORY APPROACH 92 May 21, 1990 ------- 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 STAFF REGULATORY APPROACH ** May 21, 1990 93 ------- 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 ------- 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 ** May 21, 1990 95 ------- 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 ** 96 May 21. 1990 ------- 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 ** May 21, 1990 97 ------- 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 98 May 21, 1990 ------- 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 ** May 21, 1990 99 ------- 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 100 May 21. 1990 ------- 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 ** May 21, 1990 101 ------- 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 ------- 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 ------- 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 ------- 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 ** May 21. 1990 105 ------- 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 ------- 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 ** Hay 21, 1990 107 ------- 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 ------- "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 ** May 21, 1990 109 ------- "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 ------- 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 ------- 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 ** 112 May 21, 1990 ------- 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 ** May 21, 1990 113 ------- "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 ------- |