United States
             Environmental Protection
             Office Of Water
EPA 833-B-97-003
September 1997
EPA's National Hardrock
Mining Framework

                       WASHINGTON  DC   20460
                                  September 12,  1997 •

EPA's Hardrock Mining Framework
Timothy Fields, Acting Assistant
Office of Solid Waste and Emergency Response

Steven  Herman, Assistant Adminis
Office of Enforcement and Compli

Robert Perciasepe, Assistant AdnJi
Office of Water            / >
Regional Administrators..
       The purpose of this memorandum is to transmit to you EPA's Hardrock Mining
 Framework (Framework).  Developed by a National workgroup, the Framework is designed to
 help EPA implement a multi-media, multi-statute approach to dealing with the environmental
 concerns posed by hardrock mining.  The focus of the Framework is  on understanding and
 improving the use of existing EPA authorities. The Agency recognizes that other parties are
 vitally involved in implementing mining-related environmental programs, and improving EPA's
 partnership role is a key consideration in achieving the Goals of the Framework.

 Why Develop a Framework?

       EPA is responsible for implementing a number of relevant environmental protection
 statutes.  As the Agency faces increasing demands on limited resources, it becomes even more
 critical that EPA continue to manage its responsibilities efficiently.  Environmental policies are
 increasingly focusing on integrating media protection and emphasing multi-statute activities to
 most effectively implement single-media statutes. Mining is but one industrial sector where EPA
 policy directives are focusing on integration as a tool to meet environmental protection goals.
       While recognizing the valuable economic contribution of the mining industry to the
 Nation, EPA also recognizes that certain mining sites have caused significant environmental
 degradation. The Framework includes a discussion of the significance of the industry and
 provides examples of some of the environmental impacts that have occurred.

Goals of the Framework

       Environmental Protection - to protect human health and the environment through
       appropriate and timely pollution prevention, control and remediation. This goal will
       apply at proposed, active and abandoned mine and mill sites on both Federal and non-
       Federally-managed lands, consistent with Agency statutory authorities.

       Administrative Efficiency - use available resources and authorities on the highest
       priority concerns, using a multi-media/multi-statute geographic approach and working
       closely with other Federal, State, Tribal, and local stakeholders.

       Fiscal Responsibility - promote cost-effective environmental controls at existing
       facilities as well as historic mining sites and minimize both current and future costs
       incurred by the public at all mining sites.
Key Considerations for Improvement

       While improving the effectiveness of existing EPA authorities is the focus of the
Framework, it also recognizes the role of other stakeholders. For example, the Framework
stresses the importance of cooperation, improving existing relationships and communication
links with other mining stakeholders in improving the effectiveness of EPA's own programs. The
Agency believes that all of the recommendations outlined below are within the scope of EPA
responsibilities, and this Framework is not an attempt by the Agency to broaden authorities
beyond those granted by Congress.

       The Framework contains 14 Recommendations and 10 Action Items (listed below) which
will serve to help EPA implement a multi-media, multi-statute approach to dealing with the
environmental concerns posed by hardrock mining. The Recommendations serve as a basis for
achieving the goals of improved environmental protection, using our resources more efficiently,
and promoting fiscal responsibility.  The Action items are designed to put life into the
Framework, serving as a catalyst to achieve the Recommendations. The Recommendations, in
the absence of the Action items will not provide the changes necessary to meet the goals of the
Summary of Recommendations
       Achieving Improved Environmental Protectioji

       1. Promote improvement of scientifically-based predictive tools (e^g., acid mine drainage
       and metals mobility) used in evaluating the environmental impacts of mine sites.

       2. Integrate NPDES permitting and NEPA site evaluation activities,  where EPA has

3. Promote an adequate consideration of environmentally protective standards and
preferred alternatives in EIS's.

4. Evaluate the adequacy of current waste management practices .and promote standards
of practice that achieve risk-based, long-term .environmental goals.

Using Resources More Effectively

5. Promote utilization of a geographic/risk-based approach to prioritize
inactive/abandoned mine cleanup.

6. Use targeted enforcement/compliance approaches to better focus resources on highest
priority operations.

7. Work with the Corps Of Engineers to consistently define "fill" and to apply the waste
treatment exclusion.

8. Prepare guidance and provide training on CERCLA site assessment, investigation and
screening tools.

9. Compile and update information regarding grants available to fund remediation
projects and distribute to stakeholders.

Promoting Fiscal Responsibility

10. Encourage development of cost-effective environmental control technologies for both
active and inactive mine sites.

11. Evaluate the adequacy of mining EIS's with regard to the provision of financial
assurance for long term support of environmental management systems.

12. Encourage reprocessing of historic mine wastes in conjunction with or as a
component of site cleanup.

13. Develop or support legal/administrative mechanisms to encourage implementation of
environmentally beneficial response actions at mine sites (eg., Good Samaritan).

14. Work cooperatively to develop standardized methods for characterizing/analyzing
environmental concerns, predicting geochemical changes, establishing performance

Summary of Action Items

       1. Regions form cross-program mining teams and establish Regional Mining

       2. Headquarters establish a cross-program mining team.

       3. Develop Regional Mining Profiles, meet with stakeholders to gather relevant data.

       4. Develop Regional Mining Strategies to guide mining program improvements.

       5. Headquarters promote the National Interagency Coordinating Committee On Mining as
       a forum for development of consensus approaches to critical technical and policy issues.

       6. EPA sponsor periodic workshops on the "toolbox" approach to foster innovative
       problem solving, technology transfer, and stakeholder involvement.

       7. Regions sponsor workgroups for methodology development for mine site

       8. Regions hold workshops on Good Samaritan, reprocessing/remining, or
       legal/administrative obstacles.

       9. Regions screen/prioritize upcoming mining EIS's and become actively involved in all
       major mining EIS's.

       10. Headquarters request comment on whether a re-examination of high risk Bevill
       wastes is warranted for future RCRA Land Disposal rulemakings. Consider revival of
       Policy Dialogue Committee.

       In closing, we feel that implementation of the Recommendations and Action Items
identified in the Framework will provide the Agency with the most cost effective means for
exhibiting sound public policy with regard to addressing the environmental impacts of hardrock
mining. We fully support implementation of the Framework, and look forward to working with.
the you and your staff on development of time schedules and workplan development.

cc:     Regional Water Management, Division Director
       Regional Solid Waste, Division Director

                                 	HARDROCK MINING FRAMEWORK

                                 Table of Contents
1.0  Purpose and Organization of the Framework	1
     1.1   Purpose of the Hardrock Mining Framework	,	1
     1.2   Why Develop an EPA National Mining Framework Now?  	1
          1.2.1  Need For Program Integration	'	1
          1.2.2  The Environmental Impacts of Mining 	1
     1.3   Goals of EPA's Mining Framework	3
     1.4   Guide to the Framework	3

2.0  Current Status	3
     2.1   Overview of Regulatory Framework for Mining	3
     2.2   EPA Statutory Authority	:	4
     2.3   Partnerships	6

3.0  Improving How We Do Business	7
     3.1   Key Considerations	7
     3.2   Recommendations	8

4.0  Implementation Actions	10
     4.1   Putting the Framework into Action	10
     4.2   Next Steps	11

5.0 Introduction to the Appendices	11

     A.   Profile of the Mining Industry
     B.   Potential Environmental Impacts of Hardrock Mining
     C.   Regulatory and Non-Regulatory Tools
     D.   Other Federal Programs
     E.   Summary of State Programs
     F,   Priority Setting Options
     G.   Responsiveness Summary
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1.0    Purpose and Organization of the Framework

1.1    Purpose of the Hardrock Mining Framework

This Framework has been developed to help the U.S. Environmental Protection Agency (EPA)
implement a multi-media, multi-statute approach to dealing with the environmental concerns posed
by hardrock mining.  Although the Framework focuses on understanding and improving the use of
existing EPA authorities it does so with a clear recognition of the role of other parties. Building
effective working relationships with other mining stakeholders is a key element of EPA's efforts to
improve the effectiveness of its own programs.
In developing the Framework, EPA invited input from a number of mining stakeholders, including
other Federal agencies, States, Tribes, local government, industry, and environmental groups. The
final Framework presented here reflects many of the ideas provided by these groups on two earlier

For the purposes of the Framework, mining refers to proposed, active, and inactive and abandoned
mines (lAMs) and mills from the metal, phosphate, uranium, and industrial mineral sectors; it does
not include coal mining, crushed stone quarrying and mining, or aggregate mining.

1.2    Why develop an EPA National Mining Framework Now?

1.2.1  Need For Program Integration

Environmental policies are increasingly focusing on integrating media protection (air, water, and
land) and emphasizing multi-statute  education, research, permitting,  and enforcement to more
effectively implement single-media statutes mandated by Congress. For example,  EPA's Office of
Enforcement and Compliance Assurance (OECA) has developed a number of industry profiles
(including a Profile of the Metal Mining Industry) to encourage an integrated approach towards
designing environmental policies for facilities within an industrial sector.

As the Agency faces increasing demands on limited resources, it becomes even more critical that
EPA continue to manage its responsibilities efficiently, including those related to  mining. The
collective experience of EPA Regional offices and Headquarters in addressing the environmental
concerns posed by mining should be shared and serve as a basis for development of consistent
Agency policies for mine sites.

1.2.2  The Environmental Impacts of Mining

Mining has played a significant role  in the development of this country. The industry has, and
continues to be, an important contributor to both national and regional economies  and is critical to
national defense (See Appendix A). Mining, and the industries it supports, are among the basic
building blocks of a modern society.
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                                                         HARDROCK MINING FRAMEWORK.
The benefits of mining to this country have been many, but have come at a cost to the environment.
As the country has matured there has been increasing recognition that environmental protection is
as fundamental  to  a  healthy economy  and society as is development. The challenge is to
simultaneously promote both economic growth and environmental protection.

The historic impacts of mining on the environment are significant.  While estimates vary it is
generally recognized that there are over 200,000 inactive and abandoned mines (lAMs) nationwide.
Only a fraction of these are believed to contribute significantly to environmental problems, but the
aggregate impact is substantial and  in specific cases there are serious localized environmental
impacts (see Appendix B).

A 1993 survey by the U.S. Forest Service estimates that 5,000 to 10,000 miles of streams and rivers
are impacted by acid  drainage from mines on National Forests.   The U.S. Geological Survey
estimates that over 60 million tons of contaminated sediment cover the bottom of Lake Coeur
d'Alene in northern Idaho as a result of historic mining in the Coeur  d'Alene mining district. There
are approximately 60 mine, or mining related, sites on the Superfund National Priorities List (NPL).
Identifying, prioritizing, and implementing necessary cleanup actions at lAMs across the country
is expected to take many years.  Much of the cleanup cost will likely be borne by the public.

As mines have increased in size and complexity, environmental controls have become increasingly
sophisticated. Mine operating plans must address stringent water quality standards, increased
emphasis on protection of endangered species, requirements for mitigation of habitat losses,  and
concerns about long term reclamation and closure. Modem mines are required to more fully evaluate
environmental concerns at the earliest stages of mine planning and design. Environmental controls
are now considered as an integral part of overall mine management.

In  recent years environmental practices employed  by the mining  industry  have improved
considerably. Installation of Best Management Practices (BMPs) for control of storm water runoff,
improvements in treatment of wastewater, better management of tailings and wasterock, and more
efficient metal recovery technologies have all contributed to reduced environmental impacts from
mining projects.

However, in spite of these improvements, nearly 20 percent of the mining facilities inspected by
EPA and the States between August  1990 and August 1995 were subject to enforcement actions.
About 90 percent of the actions involved the Clean Water Act, the Clean Air Act, or the Resource
Conservation and Recovery Act. Acid mine drainage and acid drainage from waste rock and tailings
disposal areas continue to create environmental concerns at some sites. A number of mines that were
designed to be zero discharge are now coming to regulatory agencies requesting discharge permits.
The Summitville Mine in Colorado  is perhaps the best known example of a modern mine with
significant environmental problems; the cleanup costs for this site are expected to be over $100

On August 16,1994, EPA's former Deputy Administrator Robert Sussman convened a Senior EPA
Management retreat to discuss Agency activities regarding hardrock mining.  This meeting was used
to identify key questions the Agency must face in addressing environmental and human health
concerns and improving EPA's  program  delivery.   Attendees included  several Assistant
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Administrators and Regional Administrators.  In an October 17,  1994 memorandum, Deputy
Administrator Sussman directed the Office of Water  (OW) to lead a multi-program,  cross-
organizational workgroup to draft an Agency-wide mining  framework.  The workgroup was
comprised of staff from the Regions, Office of General Counsel (OGC), Office of Solid Waste and
Emergency Response (OSWER), Office of Enforcement Compliance and Assurance (OECA), and
other affected programs.

1.3    Goals of EPA's Mining Framework

In developing this  Framework  EPA began with three principal goals.  First was environmental
protection.  EPA's environmental goal is to protect human health and the environment through
appropriate and timely pollution prevention, control, and remediation at proposed, active,  and
inactive and abandoned mine and mill sites (on both Federal and non-Federal land, consistent with
Agency statutory authorities). The Agency's administrative goal is to foster efficient use of available
resources and authorities on the highest priority concerns,  using a multi-media/multi-statute
geographic approach (watershed), and working closely with other Federal, State, Tribal, and local
stakeholders. Finally, EPA is seeking to promote fiscal responsibility in managing environmental
concerns at mine sites.  This goal includes efforts to promote cost effective environmental controls
at existing facilities, as well as historic mining sites. The need to minimize both current and future
environmental and fiscal costs borne by the public provides a backdrop for each of these three goals.

1.4    Guide to the Framework

This EPA Hardrock Mining Framework is intended primarily to assist EPA staff in implementing
an effective multi-media/multi-statute mining program.  It was developed by a diverse group of EPA
geologists, engineers, scientists,  researchers, economists, and others to identify important issues in
the mining sector, and to suggest improvements in how EPA does its business.

The Framework is divided into two parts. This first section (Chapters 1-5) provides a brief problem
statement, then focuses on how EPA can improve its mining program. The second section of the
Framework is a set of Appendices that provide the  reader with a more thorough discussion of
specific issues that  provide greater context for the Framework's recommendations.

2.0    Current Status

2.1    Overview of Regulatory Framework for Mining

Regulation of mining activities occurs via a complex web of sometimes overlapping jurisdictions,
laws, and regulations covering several environmental media. Land ownership and tenancy issues
further  complicate regulatory issues.  Each mine faces a somewhat  unique  set of regulatory
requirements, depending upon State statute or regulation; whether it is on State, Federal, Tribal, or
private land; local regulations; the kind of mining and metal recovery operation proposed; and the
specific environmental considerations unique to the site.
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                                                        HARDROCK MINING FRAMEWORK,
States and Tribes have often been leaders in mining regulation.  While no federal legislation
specifically addressing the environmental impacts of mining has been passed, many States have
established their own statutory programs.  In addition, all States have general environmental statutes
that provide coverage to mining operations. Many states have been authorized to implement federal
environmental programs, such as the hazardous waste program under the Resource Conservation and
Recovery Act (RCRA) and the National Pollutant Discharge Elimination System (NPDES) program
under the Clean Water Act (CWA). The  role of States and Tribes in mining regulation cannot be
overstated; it is imperative that EPA understand these programs in order to improve its own program
implementation (see Appendix E).

There are a number of statutes and associated regulatory programs that govern Federal  land
management programs as well as the disposition of minerals on federal lands. Through the 1872
Mining Law, Congress has encouraged the development of mineral resources on Federal lands for
well over a century.  In the Federal Land Policy and Management Act of 1976 Congress provided
that the Bureau of Land Management is to take any action necessary to prevent unnecessary or undue
degradation of Bureau-administered lands.  Federal land management agencies recognize the
legitimacy of mining on Federal land and  administer claims consistent with environmental statutes
and agency regulations. The Bureau of Land Management (BLM), U.S. Forest Service (FS), U.S.
Fish and Wildlife Service (FWS), National Park Service (NFS), Bureau of Indian Affairs (BIA),
Bureau of Reclamation (BR), Office of Surface Mining (OSM), and Departments of Energy (DOE)
and Defense (DOD) all play a role in influencing environmental outcomes at mine sites where they
have ownership or jurisdiction (see Appendix D).

2.2    EPA Statutory Authority

The principal environmental statutes that EPA has used to regulate and clean up releases to the
environment as a consequence of mining over the past decade are the Clean Water Act (CWA) and
the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).  The
Resource Conservation and Recovery Act (RCRA) has been used by the Agency to examine the
environmental impacts of mining. EPA's role in the National Environmental Policy Act (NEPA)
process has been important in mine site evaluation and planning. These statutes are discussed briefly

Clean Water Act

Over the past decade CWA Section 402 (NPDES permitting authority) has gradually shifted from
control of single point sources of pollution, based on a relatively small number of conventional
pollutants (biological oxygen demand, total suspended solids, pH, fecal coliform), to more complex
permitting strategies that consider multiple sources of pollution and multiple pollutant parameters,
including non-conventional (ammonia, chlorine, color, iron, and total phenols) and toxic pollutants.

The 1987 CWA amendments provided a mandate for establishing water quality standards for toxic
pollutants and for developing NPDES permits that ensure that such standards are attained. In
addition, those amendments provide a stronger basis for control of point source discharges associated
with storm events, including those at mine sites. Increasingly, permits issued by State and Federal
regulators pursuant to CWA authorities  include limitations necessary to meet specific in-stream
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water quality criteria. Such limits often go beyond technology based permit requirements. For
example, whole effluent toxicity testing is a compliance parameter included in many NPDES

An important Section 404 (dredge and fill permitting) regulatory development is implementation of
the Administration's Wetlands Plan, a set of 40 initiatives to make Federal wetland policy more
flexible for the landowner and more effective in protecting valuable wetlands. The initiatives, many
of which have been implemented, emphasize:  improving wetland science; streamlining-the permit
process; increasing cooperation with private  landowners; and increasing participation by States,
Tribes, local governments, and the public in wetland protection.

The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or

The Superfund program has been used to respond to environmental threats at a number of major
mineral mining and processing sites over the past decade. Anaconda, Bunker Hill, East Helena,
California Gulch, Blackbird, and Summitville are all sites addressed by Superfund.  Each of these
sites has posed a significant threat to human health or the environment. Many other smaller mine
sites have also been addressed under Superfund authorities. Response actions haveheen funded by
both the government and private parties liable under CERCLA; some sites have included funding
by both government and private parties.

Although Superfund authorities can potentially be applied to a broad range of mining sites, EPA has
generally used it only at significant sites where other regulatory tools have not achieved needed
environmental protection goals. For the largest, most complex cases EPA has placed mine sites on
the Superfund National Priorities List. In many instances EPA has used CERCLA to implement
response actions at sites not on the National Priorities List, commensurate with the risk posed by the

The use of CERCLA authorities is not limited to EPA. Other federal agencies, under the authority
of Executive Order 1258,0, have used CERCLA to implement cleanup activities on their lands.
Recently, the President (by Executive Order 13016) expanded the ability of other federal agencies
to use CERCLA to achieve mine site cleanup.

The liability provisions of CERCLA, coupled with the availability of federal funding (largely from
a tax on the chemical industry) for implementing response  actions, make it a powerful tool for
achieving mine site cleanup where other statutes or programs have proven ineffective. States have
also played an important role in CERCLA  implementation at mine sites, both in support of EPA
efforts, and in leading cleanup initiatives.

Resource Conservation and Recovery Act

Much of RCRA's history in mining regulation has involved rulemaking designed to determine which
mining waste streams should be regulated as "hazardous waste".  In October, 1980, Congress
amended RCRA by adding the Bevill exclusion, for "solid waste from the extraction, beneficiation,
and processing of ores and minerals".  The Bevill amendment excluded these mining waste from
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                                                         HARDROCK MINING FRAMEWORK,
regulation as a hazardous waste under Subtitle C of RCRA, pending completion of a study and a
report to Congress. As a consequence of EPA's analysis and subsequent regulatory interpretations
and rulemakings, relatively little mining waste is currently subject to RCRA regulation as hazardous

After most  mining waste was exempted from Subtitle C regulation, EPA began  work, on
development of a mine waste management program under RCRA Subtitle D. Though -the effort,
commonly referred to as "Strawman", was never adopted as regulation, it helped provide a basis for
mining regulation at the State level.

National Environmental Policy Act (NEPA)

Under NEPA, Federal agencies prepare environmental impact statements (EISs) for major federal
actions significantly affecting the quality of the human environment.  Other agencies,  including
EPA, can comment on EISs. In addition, EPA has a unique role under Section 309 of the Clean Air
Act (CAA) to review and comment in writing on the environmental impact of any matter, including
those relating to the duties and responsibilities within the authority of the Administrator, those
contained in any Federal action subject to NEPA's EIS requirement, and other Federal actions.

Actions specifically related to mining that may require EISs include  federal land management
agency approval  of Plans of Operations for hardrock mining and/or milling operations on federally
managed lands (or tribal lands), approval of mineral leases and sales on federal or tribal lands or
federal mineral estates, and certain federal permits such as NPDES wastewater discharge permits
issued by EPA for mines subject to new source performance standards, or Section 404 (dredge and
fill) permits issued by the Army Corps of Engineers (COE).

For new mining projects requiring federal permits,  NEPA offers the  opportunity to identify
environmental concerns that are  to be addressed in evaluating the proposed action, as well as
alternatives that may be available to the applicant. EPA has been actively involved in NEPA as a
lead agency, a cooperating agency, and a reviewer. The NEPA process offers an opportunity to
understand the potential direct, indirect, and cumulative impacts of mining projects and to identify
permit conditions that may be appropriate to manage, or mitigate, environmental concerns.

2.3    Partnerships

In developing this Framework EPA recognized that programs influencing the environmental impacts
of mining were administered by many parties.  States, Tribes, other federal agencies,  and local
government  each have a role in mine regulation. Non-regulatory efforts  to improve environmental
conditions at mine sites are also an integral part of mine site management and include an even
broader group of stakeholders, including industry and environmental groups.

Effective stakeholder partnerships have proven themselves to have tremendous value in addressing
mining issues. Efforts in the Clear Creek Watershed in Colorado and the Coeur d'Alene Basin in
Idaho are two examples where partnerships in addressing environmental impacts from historic
mining have yielded greater benefits than any single party could have achieved. In instances where
successful partnerships were not established environmental goals have been more difficult to realize.
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Understanding the tools available to each of the stakeholders involved in a particular mining issue
is critical to forging an effective partnership (see Appendix C). Developing a clear understanding
of what each party needs or has to offer helps to clearly define the roles and responsibilities of each
party, minimizes overlap, and makes the most of available resources.

3.0    Improving How We Do Business

The preceding sections provide a brief background on EPA's role in mine site management to give
perspective for the recommendations in this section. The Recommendations and the Tasks identified
in the Implementation section that follows, provide a strategy for improving EPA's mining program.
The reader is encouraged to refer to the appendices for a more complete discussion of specific issues
of interest.

3.1    Key Considerations

EPA  recognizes  that a number of tools are available to address  mining issues.  Many are
administered by others, including Tribes, States, other Federal agencies, and local government.
Industry and environmental groups also  have a valuable role to play.  In developing the
Recommendations in this section EPA is focusing primarily on how to fulfill agency responsibilities
more effectively, but it does so with the understanding that EPA must work in partnership with

This document has been-developed to assist EPA staff working on mining issues, and a number of
the recommendations  offered can be implemented independently  by EPA. However, many
suggestions for improving program delivery require the agency to work more effectively with others.
Obviously that requires cooperation, improving existing relationships, and in some cases building
new ones.

To the extent that these recommendations rely on some change in the way EPA works with others,
the Agency recognizes that it is incumbent upon EPA to seek other stakeholder's support. Nothing
in this document is intended to suggest that EPA can redefine the role of other stakeholders, or set
their agenda for them. However, EPA believes the recommendations and principles they represent
are sound, and welcomes the opportunity to work with other mining stakeholders to move forward
with their implementation.

In developing these recommendations EPA focused on working more effectively within the context
of existing regulatory and programmatic responsibilities. Comments received on earlier drafts of
the Framework suggested that EPA was seeking to broaden the scope of its  responsibilities beyond
legislative mandates. The Agency believes that all  the recommendations provided are within the
scope of EPA responsibilities and existing authorities.

When the workgroup began to develop the National Hardrock Mining Framework it was envisioned
that the  document would foster improvements  in the way  EPA delivers its mining program
responsibilities. The Agency has already seen results. The process of developing the Framework
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                                                         HARDROCKMINING FRAMEWORK.
has improved communication within EPA and facilitated-new dialogues with States, other federal
agencies, Tribes, environmental interests, and industry. The Framework recommendations emphasize
continued efforts to strengthen communication among stakeholders.

Framework recommendations were developed to be responsive to the goals identified in Section 1.3;
to achieve improved  environmental protection, to foster more efficient utilization of agency
resources and authorities, and to promote fiscal responsibility in managing environmental concerns
at mine sites.

3.2 Recommendations

Achieving Improved Environmental Protection

Fundamental to achieving improved  environmental  protection is  identification of potential
environmental  concerns  early in mine  site planning, developing  appropriate environmental
management controls, and assuring implementation both during the operating life of the mine, and
post-closure management. It is essential that this work be  done in cooperation with stakeholders;
specific recommendations follow:

1.     EPA should promote improvement of scientifically based predictive tools used in evaluating
       the environmental impacts of mine sites. This includes collaborative research, participation
       in information exchanges and training opportunities, and technology development. Tools
       to better predict acid mine drainage and metals mobility would be a priority. Other subjects
       would include; site characterization and monitoring,  fate and transport, treatment and
       remediation technology development and evaluation, and risk assessment (including both
       human health and ecological risk).

2.     In States where EPA retains NPDES responsibilities the Agency should integrate permitting
       and NEPA site evaluation functions. These cases provide an opportunity to streamline the
       regulatory process for mine site evaluation and planning, while assuring that permits include
       appropriate provisions requiring that the preferred alternative be implemented as presented
       in the EIS.

3.     EPA should promote an adequate consideration of environmentally protective standards and
       preferred alternatives at proposed mine sites during the EIS development.  An appropriate
       range of environmentally sound alternatives should be included in each mining EIS.

4.     The Agency should evaluate the adequacy of current mine waste management practices and
       promote standards of practice that achieve appropriate risk based, long term, environmental
       protection goals.

Using Our Resources More Efficiently

Agency resources can be more effectively utilized in two ways. EPA can do a better job in direct
program implementation, and the Agency can foster more  effective partnerships with others.
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5.      The Agency should promote utilization of a geographic/risk-based approach to determining
       priorities for Inactive and Abandoned Mine (IAM) reclamation.  Setting priorities and
       selecting appropriate cleanup strategies (including tools for implementation) should be
       conducted in cooperation with appropriate stakeholders (see Appendix F).

6.      EPA should use targeted enforcement and compliance approaches as a tool to better focus
       resources on the highest priority mining operations. These approaches should emphasize
       compliance  assistance as a  priority, but may  also include traditional  enforcement

7.      EPA should work with the Corps of Engineers to develop a consistent approach to defining
       "fill material" (in the context of Section 404 permitting) and determining the applicability
       of the waste treatment exclusion to certain mining activities.

8.      EPA should prepare guidance and provide training to State and Federal agencies on the use
       of CERCLA site assessment, investigation, and screening tools for mine sites.

9.      EPA should a compile, and periodically update, information regarding grants available to
       fund mining remediation projects for distribution to mine site management partners.

Promoting Fiscal Responsibility

Promoting cost effective strategies for management of environmental concerns at mine sites, and
assuring that mine planning includes consideration of mechanisms for implementation of necessary
environmental controls (both during the operating life of the mine and through reclamation and
closure) are included in the following recommendations.

10.    EPA should encourage development of cost-effective environmental control technologies for
       both active and inactive mine sites.

11.    EPA should evaluate the adequacy of EISs for mining operations in predicting the long-term
       environmental impacts of mining operations. Assessment of financial assurance mechanisms
       that will be utilized to provide funding of required long term environmental management
       systems is critical to this analysis.

12.    EPA should encourage reprocessing of historic mine wastes in conjunction with, or as a
       component of, site cleanup.

13.    EPA  should develop (or  support) legal and  administrative mechanisms to encourage
       implementation of environmentally beneficial response actions at mines sites, such as the
       good Samaritan provisions being considered as an amendment to the CWA.

14.    In the interest of reducing uncertainty for the regulated community, EPA should work with
       other mining stakeholders, to develop standardized methods for characterizing and analyzing
       environmental impacts at mine sites, predicting and verifying acid mine drainage and metals
       mobility, and establishing environmental performance standards.
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4.0    Implementation Actions

4.1    Putting the Framework into Action

Implementation of the recommendations provided above requires improved coordination and
cooperation within EPA Regions, between Regions and Headquarters, among various programs at
EPA Headquarters, and with partners in mine site management.  In many instances Regions are in
the best position to understand local environmental concerns, stakeholder needs and capabilities, and
opportunities  for  program improvement. However, Headquarters will play a critical role  in
supporting implementation of the Framework's recommendations. The following action items were
identified to support implementation of the Framework:

 1.     Regions with significant mining activity should establish Regional Mining Coordinators and
       cross program mining teams to optimize internal EPA program delivery, enhance technical
       capabilities, and  serve as a focal point for mining program improvement and delivery.
2.     EPA Headquarters should establish a cross-program mining team to foster effective working
       relationships with  stakeholders at the National level (including other federal agencies),
       provide appropriate support to Regions, promote Coordination among Headquarters program
       staff, and communicate with Senior EPA management.

3.     Each Region with significant mining activity should develop (and  periodically update) a
       Regional Mining Profile to assess the scope of proposed, active, and inactive and abandoned
       mines in the Region, identify environmental issues of concern, and understand the concerns
       and capabilities of key Regional stakeholders. Meetings with States, other-federal agencies,
       industry, environmental groups, and mining communities will be an essential element of
       developing a Regional Mining Profile.

4.     Regions with significant mining activity should develop Regional Mining Strategies to guide
       mining program improvements. Development of such strategies is key to implementation
       of Framework recommendations at the Regional level. EPA Headquarters should provide
       support to Regional efforts where feasible.

5.     The National Interagency Coordinating Committee on mining should be promoted  as a
       forum for development of consensus approaches to critical technical  and policy issues (e.g.
       evaluating financial assurance concerns related to long term environmental compliance at
       mine sites) on Federal lands.

6.     Regions and Headquarters should sponsor periodic workshops on the "toolbox" approach to
       foster innovative problem solving, technology transfer, and stakeholder cooperation.

7.     Regions  should sponsor workgroups (including appropriate stakeholders) to develop
       methodologies for  mine site characterization, EIS development,  wastewater treatment
       strategies, and reclamation and closure standards.
September 1997                             10

                                                        HARDROCK MINING FRAMEWORK
8.     Regions should hold workshops for identifying legal and administrative obstacles, and
       recommendations for promoting, good Samaritan mine site cleanup and reprocessing/ re-
       mining of inactive and abandoned mines.

9.     Regions  should screen  upcoming mining  EISs to determine  priorities  for  agency
       involvement. EPA should be actively involved in all major EISs for mining projects,
       participating as a cooperating agency where appropriate.

10.    EPA Headquarters should request comment on whether a reexamination of high risk Bevill
       wastes is warranted with the possibility of bringing some high-risk waste streams under
       Subtitle C in a future rulemaking. The Agency should consider revival of the Policy
       Dialogue Committee or another group to discuss this issue.

4.2    Next Steps

The Recommendations and Implementation Actions above provide a strategy for improving EPA's
work in the mining sector. Carrying out the above steps are critical to improving our relations with
other agencies. Clarification by EPA of its expectations for environmental performance for mining
operations facilitates communication and coordination with other federal and state agencies. By
working with others to establish a common vision for mine site management EPA can improve the
effectiveness of Agency programs.

Regional staff will play a major role in Framework implementation at the field level. However,
Headquarters commitment  to implementing the Framework's recommendations will be critical to
making long term program improvements,  particularly with respect to working relationships with
other federal agencies.

Fundamental to many of the ideas presented for improving EPA's mining programs is recognition
of the critical role of others in managing the environmental concerns posed by mining. Building
effective partnerships, both at the National and Regional levels, are among the most important
elements of this Framework.

5.0 Introduction to the Appendices

In earlier versions of this Framework much of the information in the Appendices was contained in
the body of the Framework.  To"  make  the   Framework more useable this information  was
consolidated in the Appendices.

The EPA Hardrock Mining Workgroup devoted considerable effort to development of this material
and the reader is strongly encouraged to review the Appendices for additional information on topics
of interest.  The  Appendices provide a Profile of the Mining Industry, background  on the
Environmental Impacts of Hardrock Mining, a discussion of Regulatory andi Non-Regulatory tools
available to address mining issues, information on other Federal agencies role in mining, a Summary
of State Programs, ideas for Priority Setting, and a summary of comments on earlier versions of the
September 1997                            11



                                                                 MINING INDUSTRY PROFILE
                                   TABLE OF CONTENTS

1.  Overview	  A-l

2.  Location of Mining Activities  	  A-4

3.  Mining Practices and Products	A-10

4.  Mining and the Economy  	A-17

5.  Inactive and Abandoned Mines  	A-20

6.  Trends  	A-21

7.  References	A-23
September 1997

                                                                      MINING INDUSTRY PROFILE

   .  This overview provides summary information on 11 commodities (10 non-fuel and uranium) that
are produced from the most important metalliferous and fertilizer ores in the United States.  The
combined value of these minerals (copper, gold, iron ore, lead, molybdenum, phosphate rock,
platinum, potash, silver, uranium, and zinc) was $12.15 billion in 1993, accounting for less than 1
percent of gross national product (GNP)"(U.S. Department of Commerce,  1994).

     This appendix is intended to provide an overview of mining activities and the mining industry, not
a comprehensive examination.  It is necessarily simplistic, but should  give a snapshot of the industry as
it existed in 1992.  This framework recognizes the dynamic nature of  this vital industry and the market,
technological, and other factors that drive its performance, environmental and otherwise.

     These metals and minerals are the primary raw materials used in  many industrial applications and
thus are essential to the American and world economies. Copper, for  example,  is essential to the
electronics and construction industries, while iron ore provides the base material for the steel,
automotive, and transportation industries.  Molybdenum is used in steel production, machinery,
electrical and chemical manufacturing. Potash and phosphate rock are used in fertilizers arid chemical
manufacturing. Gold, while primarily used in jewelry and the decorative arts, is also used in the
electronics industry and dentistry. Table 1 provides a more detailed list of the consumptive uses for
these minerals.

     The minerals industry also contributes to the national economy by virtue of its production of
exports and its reduction of industrial dependence on certain minerals  that the United  States would
otherwise import.  For example, the U.S. exports 8% of the lead  and  75% of the molybdenum it
produces.  Conversely, the U.S. imports 22% of the iron ore it consumes (Bureau of  Mines, 1995).
See Table 2 for detailed national production data (including import and export information) for these

     The extraction and beheficiation of these minerals necessarily lead to the generation of large
quantities of waste. Total waste (waste rock and tailings) produced during the extraction and
beneficiation of minerals can range  from 10% of the total material removed from the  earth (potash) to
more than 99.99% (gold).  As for total amounts of waste generated in 1992, the gold  mining industry
generated about 540,661,000 metric tons and the copper mining industry generated 731,065,000 metric
tons; potash, on the other hand, generated  197,000 metric tons (Bureau of Mines,  1992a). To put these
quantities in perspective, about 200,000,000 metric tons of municipal  solid  waste are  generated in the
United States each year.
                                             A- 1

TABLE 1. Number of Mines, Total Production and Uses of Commodities of Concern, 1992
Iron Ore
Phosphate Rock
Platinum group
of mines'
212 +
- 17
25 3
Major uses
Building construction, electrical and electronic products, Industrial
machinery and equipment, transportation equipment, and consumer
and general products
* Jewelry and arts, industrial (mainly electronic), dental
Transportation (batteries, fuel tanks, solder, seals, and bearings);
electrical, electronic, and communications uses
Iron and steel production, machinery, electrical, transportation,
chemicals, and oil and gas industry uses
Wet-process phosphoric acid, fertilizers
Automotive, electrical and electronic, chemical, dental, medical
Fertilizers, chemical manufacturing
Photographic products, electrical and electronic, electroplated
ware, sterlingware, and jewelry
Energy (fuel rods)
Chemical, agricultural, rubber, and paint industries
Total U.S. mine
production (metric tons)
Production as %
of consumption
1 Due to the nature of the mining industry, the exact number of mines is difficult to discern. For instance, several of the commodities are
produced as co-products or by-products from other commodity mining operations (e.g., gold as a result of copper production). Therefore, the
number of mines for individual commodities includes both actual commodity mines and those mines from which the commodity is a co-product
or by-product. These uncertainties result in inconsistent numbers throughout the BOM sources.
2 This includes 200 lode mines and 12 large placer mines. It does not include the hundreds of small placer mines throughout the west.
3 Account for 99% of production. ' -
U.S. Bureau of Mines. Mineral Commodity Summaries 1994.
U.S. Bureau of Mines. Minerals Yearbook, Volume I: Metals and Minerals. 1992
U.S. Bureau of Mines. Minerals Yearbook, Volume II: Area Reports: Domestic. 1992.



TABLE 2. National Mining and Beneficiation Data (by Commodity)
Iron Ore
Phosphate rock
Platinum group
of Mines'
212 +
Value of
6 3,700
(1,000 mt)
(1,000 ml)
< 3,926
Waste Handled
(1,000 mt)
. 393,332
< 6,751'
Number of
682 (person
% of GDP3
(Value of
Consumption (1,000 mt)
(% of Total
5,003 (9%)
3,723 (8%)
$7.8 (696%)
663 (39%)
388 (74%)
(% of Total
593 (34%)
12,230 (22%)
3 (6%)
4,227 (248%)
4.9 (277%)
45 (9%)
1 Due to the nature of the mining industry, the exact number of mines is difficult to discern. For instance, several of the commodities are produced as co-products or by-
products from other commodity mining operations (e.g., gold as a result of copper production). Therefore, the number of mines for individual commodities includes both
actual commodity mines and those mines from which the commodity is a co-product or by-product. These uncertainties result in inconsistent numbers throughout the
BOM sources.
2 Tailings generated = total crude ore handled - total commodity produced.
3 1992 Gross Domestic Product (GDP) was $6,020.2 billion.
4 Exports may include nonfuel minerals from U.S. Government stockpiles.
5 Imports may include nonfuel minerals imported for processing.
6 This includes about 200 lode mines and about 12 large placer mines. It does not include the hundreds of small placer mines throughout the west.
7 Includes bauxite, beryllium, molybdenum, nickel, platinum group metals, and rare-earth concentrates.
8 Account for 99% of production.
W Information withheld by the Bureau of Mines for proprietary reasons.
NA Information not available.
SOURCES: U.S. Bureau of Mines. Mineral Commodity Summaries 1994
U.S. Bureau of Mines. Minerals Yearbook, Volume 1: Metals and Minerals. 1992a. See Table 4 for sources of data in Commodity Produced, Tailings Generated, and
Other Waste Generated columns.

                                                                     MINING INDUSTRY PROFILE

     Tables 3 and 3a show the distribution of hardrock mining activities in the United States (1992
Bureau of Mines data for number of mines and state-by-state production for each commodity).  The
following discussion briefly summarizes location information for each sector. The information
presented below focuses on primary production.  However, significant volumes of some minerals are
produced as byproducts (e.g., molybdenum as a byproduct of copper flotation). For the purposes of
this discussion, primary production refers to the major mineral extracted at the mine. Byproducts are
the ancillary minerals that are found in and recovered from the same ore as the primary mineral,
although the presence of that byproduct is not the primary target.

     Copper. As shown in Tables 3 and 3a, southern and central Arizona copper mines produce
nearly two-thirds of U.S. copper.  Among other primary copper producers, several large copper mines
are located in New Mexico near the Arizona border (close to smelter facilities) and one of the largest
copper mines in the country, Kennecott Utah Copper, is located near Salt Lake City. An additional
medium-size underground mine, Copper Range's White Pine facility, is  near Lake Superior on the
Upper Peninsula, of Michigan.  The copper mines in other states identified in Table 3 either are small
operations or represent limited byproduct  production at gold, molybdenum, and other mines (Bureau of
Mines, 1992a,  1992b, and 1995; EPA, 1994a).

     Gold.  With the widespread application of heap leaching technology, most of the U.S. gold
production now occurs in Nevada.  Nevada mines account for more man 60 percent of the total
production, with most mines located along the Carlin Trend in northwestern Nevada. Most other gold
mining operations are located throughout the western United States, including Alaska, although four
gold mines are located in South Carolina (Bureau of Mines, 1992a; 1992b; EPA, 1994c).

     Iron.  Nearly all of the iron mined in the United States is produced from taconite ore found in
Northern Minnesota and Michigan.  The largest mining operations (all open pits) are found along the
Mesabi Range in Minnesota, which extends from Hibbing to north of Duluth (Bureau of Mines, 1992a;
1992b; EPA, 1994f).

     Lead/Zinc.  The Viburnum area of southeastern Missouri is the center of U.S.  lead production.
The lead mines in this area also produce significant quantities of zinc (as a byproduct from smelter
operations). Alaska is the largest zinc producer in the  United States (with associated lead byproducts)
at the Red Dog and Greens Creek Mines (the Red Dog Mine is the primary producer).  Central
Tennessee and northern New York State are also major sources of zinc ore (Bureau of Mines, 1992a;
1992b; EPA, 1994g).
Septemberl997                               A - 4

^ V

TABLE 3. Location of Mining Activities, 1992

United States
New Mexico
New York
North Carolina
South Carolina
South Dakota







metric tons


1 W









metric tons




Iron Ore




metric tons









metric tons
• 15.6%






Phosphate Rock

. 7



metric tons







TABLE 3. Location of Mining Activities, 1992 (continued)
United States

% U.S.
metric tons


% U.S.-
metric tons

Iron Ore

metric tons


metric tons

Phosphate Rock

metric tons

NA = Information not available.
W = Information withheld by the Bureau of Mines for proprietary reasons.
1 Due to the nature of the mining industry, the exact number of mines is difficult to discern. For instance, several of the commodities are produced as co-products
or by-products' from other commodity mining operations (e.g., gold as a result of copper production). Therefore, the number of mines for individual
commodities includes both actual commodity mines and those mines from which the commodity is a co-product or by-product. These uncertainties result in
inconsistent numbers throughout the BOM sources.
2 At all of these mines, copper is produced as a byproduct of other commodity operations.
3 This includes about 200 lode mines and about 12 large placer mines. It does not include the hundreds of small placer mines throughout the west.
U.S. Bureau of Mines. Mineral Commodity Summaries 1994.
U.S. Bureau of Mines. Minerals Yearbook, Volume I: Metals and Minerals. 1992..
U.S. Bureau of Mines. Minerals Yearbook, Volume II: Area Reports: Domestic. 1992.


United Slates
New Mexico
New York
North Carolina





metric tons





TABLE 3a. Location of Mining Activities, 1992 _J


8,300 metric






% U.S.
metric tons









1,800 metric
9.2% .








metric tons

' NA



Zinc ||





% U.S.
Production ||
metric tons ||
47.5% If


NA ||
NA ||

3.9% ||

W ||


TABLE 3a. Location of Mining Activities, 1992 (continued)
United States
South Carolina
South Dakota


% U.S.
metric tons



% U.S.
8,300 metric



metric tons





% U.S. .
1,800 metric





metric tons





metric tons



NA — Information not available.
W = Information withheld by the Bureau of Mines for proprietary reasons.
1 Due to the nature of the mining industry, the exact number of mines is difficult to discern. For instance, several of the commodities are produced as co-products or by-
products from other commodity mining operations (e.g., gold as a result of copper production). Therefore, the number of mines for individual commodities includes both
actual commodity mines and those mines from which the commodity is a co-product or by-product. These uncertainties result in inconsistent numbers throughout the BOM
2 The numbers for platinum include all the platinum-group metals. Those metals include platinum, palladium, rhodium, ruthenium, iridium, and osmium.
3 Of the 10 molybdenum mines, only three are in busjness to mine molybdenum. The other seven produce molybdenum as a result of other commodity operations. Of the
three true molybdenum mines, two are located in Colorado and one in Idaho.
4 Uranium was produced at these two sites as a byproduct of phosphate processing.
5 One of the two mines in the state reported production of 61 metric tons of uranium. Production data for the other mine was not available.
U.S. Bureau of Mines. Mineral Commodity Summaries 1994.
U.S. Bureau of Mines. Minerals Yearbook, Volume 1: Metals and Minerals. 1992.
U.S. Bureau of Mines. Minerals Yearbook, Volume II: Area Reports: Domestic. 1992.

                                                                     MINING INDUSTRY PROFILE
     Phosphate Rock. The Tampa/Bartow area of central Florida is the major phosphate rock
producing area of the United States. The recent introduction of a heavy media separation process at
IMC's Four Corners mine has led to possibly increased phosphate recovery, from types of ore that
previously could not be beneficiated (i.e., the potential for additional production in the area). Beyond
the Florida operations, TexasGulf operates a large phosphate facility along the North Carolina coast
near New Bern, and smaller phosphate mines are  located in Idaho, Montana, and Utah (Bureau of
Mines, 1992a;  1992b; EPA, 1994h).

     Molybdenum.  Recent market conditions have limited molybdenum production in the United
States, especially primary production.  In 1994, Cyprus' Henderson Mine in central Colorado was the
only active primary molybdenum operation in the country (compared with three in 1992). Byproducts
represent the remainder of U.S. production, mostly as a  byproduct of copper ore  flotation at mines and
mills in Arizona and Utah (Kennecott) (Bureau of Mines, 1992a and 1992b).

     Platinum.  Only one platinum mine is active in the United States, the Stillwater Mine  operated by
the Stillwater Mining Company near Nye, Montana (Bureau of Mines,  1992a and 1992b).

     Potash. New Mexico produced almost all potash produced in the United States in 1992.  In the
state, five producers operated six mines, all of which mined potash in underground bedded  ore zones.
The other potash-producing states (California, Michigan, and Utah) produced potash by two-well
solution mining, solar evaporation, and  selective crystallization (Bureau of Mines, 1992a and 1992b).

     Silver.  Silver is mined primarily in the Western United States both through  primary and
byproduct production.  Primary silver production generally  occurs in Montana, Idaho, and  Nevada.
Silver  is  also recovered as a byproduct from copper, lead/zinc, and gold production. In Alaska, silver
is a significant byproduct at the Green Creek and Red Dog Mines. In Nevada, much of the total silver
production is derived as a byproduct of the state's extensive gold mining industry (Bureau of Mines,
1992a  and 1992b; EPA, 1994 and 1994c).

     Uranium. The total amount of uranium produced in 1992 (522 metric tons) was more than 70
percent less than the quantity produced in 1991  and the lowest amount produced since 1951. The
decreased demand for uranium (and the resulting decrease in price) shut down several mines and put
others  on standby. According to the Bureau of Mines, Nebraska produced nearly 35 percent of the
uranium  produced in the United States.  Texas was second producing more than 12 percent. Of the 17
mines in  operation in 1992, five were conventional mines (both underground and  open pits), four were
in situ, and eight were reported as "other"  (heap leach, mine water, mill tailings,  or low-grade
stockpiles).  In  Florida, uranium has also been produced as a byproduct of phosphoric acid production
(Bureau of Mines, 1992a and 1992b; EPA, 1994 and 1994J; U.S. Department of Energy, 1993).

                                                                      MINING INDVSTRYPROFILE

     Overall, as shown in Table 4, hardrock mining operations handle large quantities of material, the
vast majority of which becomes waste in most industry sectors.  Although it varies by commodity, the
amount of product per ton of ore is generally very small for most of these commodities.  Overall, the
quantities and characteristics of the wastes are largely beyond the control of the industry, since they are
the direct product of the material being mined.

     Conventional underground and surface mining techniques account for most of the hardrock mining
in the United States. Until recent decades, nearly all mining occurred underground, but with the
advent of large earthmoving equipment and cheaper energy sources, surface mining has become
prevalent in most industry sectors. The relatively lower cost of surface mining has allowed much
lower-grade ores to be exploited economically in some industry sectors (EPA, 1994). In addition, in
situ leaching has been used for about two decades in uranium and copper mining.

     Primary iron and phosphate ores are mined almost exclusively by surface mining methods.  Open
pit mining is also the predominant extraction method used in primary gold and copper production,
although there are several significant exceptions.  For example, Homestake's facility in Lead, South
Dakota, and Copper Range's White Pine mine in Michigan are large underground gold and copper
mines, respectively. An additional mining practice used during the past 20 years in the copper and
uranium sectors is in situ leaching.  Lead/zinc and the only platinum mine in the United States, on the
other hand, are industry sectors where nearly all primary production occurs at underground mines
(Bureau of Mines, 1993; 1992a; 1992b).

     The major wastes generated by mines include mine water, waste rock, tailings, and overburden.
Mine water is produced when the  water table is higher than the underground mine workings or the
depth of an open pit surface mine. When this occurs, the water must be  pumped or drained out of the
mine.  Alternatively, water may be pumped from wells surrounding the mine to create a cone of
depression in the ground water table, thereby reducing infiltration.  Mine water may be used in milling
operations as makeup water, used for dust suppression, or discharged. When mining ends and
pumping stops, groundwater will usually recover to its pre-mining level,  although this can take decades
or centuries.

     Surface mines generate greater volumes of waste rock than underground operations.  Waste rock
is typically managed in angle-of-repose piles, either within or near the pit/mine.  Waste rock also can
be used on-site for road  construction, in tailings dams, and to backfill mined-out areas. The
differentiation between waste rock and ore (i.e., the cutoff grade) is generally an economic distinction,
and can vary significantly over time depending on economic conditions;  thus, what is disposed as
waste rock (or sub-ore) at one time during a mine's life may be ore at another time.  In addition, the
development of new technologies can lead to economically viable mineral recovery from historic waste
Septemberl997                               A - 10

                                                                    MINING INDUSTRY PROFILE
rock piles.  Sub-ore is often stored in freestanding piles until economic conditions favor its
beneficiation or until the mine reaches the end of its active life (EPA, 1994).

TABLE 4. Solid Waste Generated by Mines, 1992
Iron Ore
Platinum group
Phosphate Rock
metric tons)
> 6,759
< 10,677s
> 2,824
Waste rock1
metric tons
< 6,751'
metric tons
< 3,926
metric tons
Total waste
(waste rock + tailings)
metric tons
< 10,677
1 Total Material Handled = Crude Ore Handled + Waste Handled + Total Commodity Produced.
2 In BOM sources, this category is simply classified as "Waste." Here, it is categorized as "Waste Rock."
3 Tailings = Total Crude Ore Handled - Total Commodity Produced.
4 Calculated as a percentage of the Material Handled column.
5 Includes bauxite, beryllium, molybdenum, nickel, platinum group metals, and rare-earth concentrates.
W Information withheld by the Bureau of Mines for proprietary reasons.
MA Information nnt avnilahlp

                                                                       MINING INDUSTRY PROFILE
     Waste rock piles are generally designed to drain freely to minimize the potential for unstable
conditions.  Therefore, these piles are often located in natural drainages and now frequently have
drainage systems installed during construction (e.g., French drains). Due to the potential for
contamination of water flowing over or through waste rock piles, many mining facilities are now
installing systems or taking steps to prevent or reduce the infiltration of precipitation. Contamination
from piles may include sediments and solids, and also acid mine drainage or toxic pollutant loadings,
depending upon the mineralogy of the waste rock.  Systems used to reduce or prevent drainage into, or
over, waste rock piles include uphill diversions, sloped and compacted surfaces, drains, and covers
(EPA, 1994).
     Except for the gold and copper sectors, in which leaching is increasingly prevalent, beneficiation
of most other metal and phosphate ores occurs by conventional milling technologies. These include
crushing, grinding, autoclaving, roasting, chlorination, calcining, and reagent flotation, by which a
chemical reagent causes the target mineral to stick to air bubbles.  In these  cases, the ore  is crushed and
ground and the target mineral(s) are recovered, leaving very fine "tailings" as a waste to  be disposed
of. Tailings can  be dewatered and disposed of in piles or used as backfill in the mine; more commonly,
they are  pumped as a slurry (typically 30 to 65 percent solids) to impoundments.  In tailings
impoundments, the solid component of the  tailings settles out behind embankments and the ponded
water is  either reused in the process or discharged to surface water.  The volumes of water discharged
and reused are dependent on site-specific conditions, including water availability and evaporation rates.
Tailings  embankments/dams can be constructed of concrete, earthen materials,  and/or waste rock or
tailings (EPA, 1994 and  1994e; Bureau of Mines, 1995).

     Table 5 is a summary of mining methods and beneficiation waste management practices for the
various industry sectors.       '

     While conventional flotation involves a wide range of flotation reagents (oils, xanthates, lime,
etc.), depending on the industry sector and site-specific geology residual reagents comprise  a
diminishing fraction of the total amount of waste. One exception is in the phosphate industry where
flotation  occurs in conjunction with "washing" stages that use both ammonia and  sulfuric acid; even
there, at  least one company now uses a substitute reagent that both increases recovery efficiency and
reduces the toxicity of discharges (EPA,  1994  and 1994h).

     Cyanidation technologies, some of which have been available for more than 100 years, are widely
used for  gold beneficiation. Higher-grade ores ("higher-grade" is relative; the  highest grades are
generally in the tenths of an ounce of gold per ton of ore) are crushed and ground, then the ore slurry
passes through a  series of tanks or vats that contain a sodium cyanide solution that dissolves the gold
values; then the gojd is recovered from the solution via Merrill-Crowe zinc precipitation or carbon
adsorption, electrowinning, melting, and refining.  The slurry of fine tailings is then disposed of,
typically in impoundments (EPA, 1994, 1994c, and 1994i).

TABLE 5. Predominant Mining Methods and Waste Management Practices
Number of
200 lode
100s placer
Predominant mining methods
Underground, open pit, in situ
Most open pit
Several underground
Open pit, dredge, etc.
Open pit
Most by surface mining
Underground, solution mining,
lake brine
Open pit, underground, placer,
Predominant Beneficiation Methods
Flotation, Leaching, SX/EW
Gravity, magnetic separation, flotation
Cyanidation: heap, tank, vat leaching
Gravity, some cyanidation
Flotation, heavy media separation
Flotation, heavy media separation,
dissolution - recrystalization
Flotation (base metal ores), Smelting
(copper ores), Cyanidation (gold/ silver
ores), precipitation (silver ores)
Major beneficiation waste
management practices
. Tailings impoundments
Tailings impoundments, spent ore
Tailings impoundments
Tailings impoundments (tank, vat),
dumps and heaps (heaps), spent ore
Tailings back into mine cut
Tailings impoundments
Tailings impoundments
Backfilling and clay ponds
Tailings impoundment

Tailings impoundments
Tailings used as backfill
1 Due to the nature of the mining industry, the exact number of mines is difficult to discern. For instance, several of the commodities are produced
as co-products or by-products from other commodity mining operations (e.g., copper as a result of gold production). Therefore, the number of
mines for individual commodities includes both actual commodity mines and those mines from which the commodity is a co-product or by-product.
These uncertainties result in inconsistent numbers throughout the BOM sources.
Source: Various

                                                                       MINING INDUSTRY PROFILE
     Lower grade gold ore (dowiLto two hundredths of an ounce of gold or less per ton of ore), which
may be crushed, is piled onto lined "pads," and a "barren" cyanide solution is applied to the surface.
The cyanide solution percolates through the heap, dissolving gold values. This "pregnant" solution is
recovered from the base of the heap, gold is recovered from the solution, and the "barren" solution is
refortified with cyanide and reapplied. The pregnant and barren solutions are generally stored in lined
ponds.  Following leaching, spent ore may either be left in place (with new ore added over it) or
removed for disposal (after detoxification/neutralization)  in a spent ore pile/dump.  Where spent ore is
managed hi place, neutralization of the residual cyanide occurs after the heap has reached the
maximum height (EPA,  1994, 1994c, and 1994i).

     The process of using cyanide to extract gold works most effectively on oxide ores.  (Oxide ores
are those exposed to weathering and the action of water,  and that have little or no sulfur content.)  As
the sulfur content of the  ore increases, the efficiency of gold recovery decreases. As shallow oxide
deposits are mined out, gold mines are beginning to extract ores with ever higher concentrations of
sulfur bearing minerals.  In response, operators are treating these  sulfide ores with a variety of
techniques to reduce their sulfur content.  Such techniques include roasting and biological treatment.
The trend towards greater exploitation of sulfide ores is of concern in that these ores contain potentially
acid generating sulfide minerals, as does the waste rock (EPA,  1994c  and 1994i).

     In addition,  copper ores  are increasingly being leached, primarily in very large dumps (e.g.,
Cyprus Minerals Col, ASARCO, Inc., and Magma Copper Co.) but also in situ.  Leaching of copper
ores has occurred since the  1950s  and 1960s, but the use of dump leaching for copper recovery has
only become viable  during the past decade,  with the acceptance of solvent extraction/electrowinning
(SX/EW) technology.  In this process, oxide ores and low grade sulfide ore (those that cannot be
economically milled and recovered by flotation) are placed in lined heaps or unlined dumps, typically
with no crushing or  grinding.  Leaching solution is  applied to the surface and collected at the base.
Ore can also be leached  in situ, with leach solution  injected into the ore body through wells and
recovered in underground workings or through recovery  wells. The pregnant solution from these leach
operations  is collected and conveyed to the SX plant, where the copper is extracted by a proprietary
organic chemical dispersed in a kerosene diluent. The copper  is then extracted from the  organic base
with a strong sulfuric acid solution that then becomes the electrolyte for electrowinning.  In the
electrowinning tankhouse, the copper is plated out of solution onto a cathode suitable for sale.  The
entire SX/EW process is almost exclusively closed-looped.  For low-grade sulfide ores, water is the
lixiviant; for oxide ores, sulfuric acid is used to make up leaching solution.  To facilitate collection of
pregnant solution, dump leach units are typically located  within a pit or a natural drainage. Dump
leach units (and in situ operations) are not always designed to ensure maximum collection of pregnant
solution; there are technological limits to containment, but the  more important factor is the balance
struck between the economics of facility design/construction and the anticipated efficiency of solution
recovery.  (Another factor,  state regulation, is increasingly important: Arizona's new regulations, for

                                                                     MINING INDUSTRY PROFILE

example, have led to increased attention on improving solution containment there (EPA, 1994 and

     Mineral processing operations generally follow beneficiation and include techniques that often
change the chemical make-up of the ore or mineral by chemical attack or digestion, electrolytic
refining, and pyrometallurgical/thermal processes.  In contrast to extraction and beneficiation wastes,
processing operations generate waste streams that generally bear little or no resemblance to the
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. Most often, the volume of processing waste is very small compared with the total
waste quantity managed on-site (e.g., co-disposing 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, hi some industry sectors, a gypsum stack.

Environmental Performance

     Mining operations can be and have been sources of widespread environmental impacts, with more
than 60 sites on the National Priorities List.  During the past 20 years, however, there has been
significant improvement in environmental performance at many hardrock mining operations. This is
due to many factors:

     •  Increasing environmental awareness and commitment to environmental protection by many
        mining companies.

     .  Better techniques to predict and detect potential environmental effects before damage occurs.

     .  Continually developing technologies to prevent, mitigate, or remediate environmental impacts.

     .  Broader state and federal regulatory requirements, including post-mining liability.

     Many of the largest mining companies have set up extensive environmental programs.  They have
begun to incorporate environmental concerns into all phases of mining operations, from exploration to
mining planning,  through development, operations, closure and reclamation. At some mines,
management performance standards now include environmental accomplishments.  Other mining
companies have set up comprehensive environmental auditing  programs. Therefore, environmental
costs are now being characterized during the earliest stages of mine planning as part of the economic
evaluation of recovering target minerals (EPA, 1994).
September 1997                              A -16

                                                                      MINING INDUSTRY PROFILE
     The most significant environmental threats posed by mine sites are often complex and highly
dependent on site-specific factors.  Acid generation potential and water balances, for example, can be
very difficult to predict, but also can be very difficult, and expensive, to deal with once problems
occur. Poor understanding of water balances, or site hydrology, can contribute to making uninformed
decisions about control technologies, and that in turn can result in environmental problems.  During the
past decade, predictive tools have been greatly improved; this reduces uncertainty and provides more
reliable information to develop and carry out mitigation measures.  Uncertainty does remain, though,
and unanticipated environmental impacts continue to occur at some sites, which emphasizes the need
for continued development and refinement of site characterization and mine planning tools (EPA, 1994
and 1994k).

     Along with better predictive tools, technologies also continue to be developed to reduce potential
environmental threats and address  impacts where they do occur.  Mining companies have learned to
build better, more efficient,  and more environmentally safe operations. Advances in liner and other
containment systems, piping and spill control, and reclamation techniques are all examples of such
improvements. It is important to recognize that the economic costs of environmental controls are a
significant element, as is the concentration of the target mineral in the ore body, in the planning and
economic evaluation of a site for mine development and operation. Environmental controls must be
affordable, cost-effective, and meet certain standards. Where there are potential or actual releases to
the environment, treatment and remedial technologies also continue to evolve.  For example, nearly 20
years ago, the Homestake Mining Company developed an innovative biotreatment technology for
cyanide destruction at the company's gold mine in Lead, South Dakota.  Other biotechnologies are
being started and improved for cyanide heap leach detoxification and acid drainage control, among
other environmental applications.  Information management and process controls are also improving
environmental performance  at many mine and mill sites. By better classifying ore grades and by
improving mineral recovery from ore, mines and mills can improve productivity  and thus generate
somewhat less waste rock or tailings for every pound of metal recovered. (Better classification and
recovery, however, have finite limits imposed by the absolute amount of the valuable mineral in the ore
and the technologies that are available for recovery.) Because of the high waste-to-product ratios and
the volume of wastes generated, however, any improvement in recovery can reduce wastes by
substantial amounts (but generally  only by small proportions) (EPA, 1994 through 1994k).

     Historic mining operations were often unregulated, resulting in extensive uncontrolled
environmental releases.   In recent decades, particularly since the early 1970s, state and federal agencies
have established broad regulatory requirements that generally address all phases of mine operations.
During mine planning, operators may be required to complete baseline studies and assess the potential
effects of and risks associated with proposed operations. Mine units frequently have to meet specific
design standards (liner requirements, stability standards, overflow protection, etc.).  Environmental
statutes and regulations, such as the Clean Water Act, Clean Air Act and corresponding state
requirements, are intended to address environmental releases. Bonding requirements are imposed to

                                                                     MINING INDUSTRY PROFILE
ensure that reclamation will be successfully completed. In some states, bonding also serves to protect
against environmental problems.


     All non-fuel mineral beneficiation and extraction activities accounted for approximately -0.23% of
GNP (Commerce,  1995a) and 0.85% of total employment (Commerce, 1995c) at the national level in
1993. In contrast, the manufacturing industries accounted for 17.63% of GNP (Commerce, 1995a) and
19.2% of total employment (Commerce,  1995c) during the same year.  The apparently small portion of
the national economy attributed to mining can be traced to several factors: 1) the national economy of
the United  States is the largest, and most diverse, in the world; 2) improvements in productivity,
technology, and mechanization have reduced the need for a large workforce; and 3) the mining sector
of the economy has not grown at the same rate as other major sectors of the economy (U.S.
Department of Commerce, 1995a).

     Although basic non-fuel metal mining occupies a statistically small position in the overall national
economy, the mining sector provides basic raw materials for major sectors of the U.S. economy, and
thus is more important then the mere numbers suggest.  Copper is essential to the electronics and
construction industries.  Iron ore provides the base material for the steel, automotive, and
transportation industries. Molybdenum is used in steel production, machinery, electrical and chemical
manufacturing.  Potash and phosphate rock are used in fertilizers and chemical manufacturing.  Gold,
while primarily used in jewelry and the decorative arts, is also used in the electronics industry and
dentistry.  These minerals are essential to the operation of a modern,  industrialized economy. Without
a domestic iron ore industry for example, the unit cost to produce automobiles in the United States
would be significantly different.  Copper, molybdenum, phosphate rock, gold, silver, lead, and zinc
play similar roles.  The amount of raw materials produced by the U.S. mining industry has provided
and will continue to provide raw  materials necessary to drive the diverse U.S. economy.

     Other important contributions of the minerals industry to the national economy  are  its value as .a
producer of exports, and in reducing industrial dependence on certain minerals that would otherwise be
imported.   For example, in 1994 the-United States exported 8% of the lead and 75% of the
molybdenum it produced.  Conversely, the United States imported 22% of the iron ore it consumed in

     While mining is a small part of the national economy, the importance of mining to  state economies
varies widely (See  Table 6).  Of the twelve states producing significant amounts of minerals, there
exists a large difference  in the percentage of GSP (gross state product) contributed by mining.
Generally,  states with  large, diverse economies (Florida, Missouri) reflect the same trend as is
evidenced at the national level: mining is responsible for a very small percentage of GSP.  This is even
true in Arizona,  which is ranked  first in terms of dollar value of copper produced, yet whose mining
Septemberl997                              A - 18

                                                                   MINING INDUSTRY PROFILE
Table 6. Percentage of GSP Derived from Mining (1992)
New Mexico
South Carolina
South Dakota
Source: U.S. Department of Commerce, Economics and Statistics Administration, Bureau of Economic
Analysis. May 1995. Survey of Current Business. Volume 75, Number 5.
sector accounts for "only" 2.32% of GSP. However, in states with smaller, less diverse economies,
mining has a much greater role in the state economy. This is notable in Montana and New Mexico,
where mining accounts for 7.39% and 9.38% of GSP, respectively (U.S. Department of Commerce,
1995b). Mining at the state level is similarly important to overall employment.  As shown in Table 7,
the percentage of state employment in the mining sector is  small in the five states that are the major
producers of their respective commodities.
                                           A- 19

                                                                    .  MINING INDUSTRY PROFILED
     On average, the hardrock mining industry is a viable industry.  However, some firms and
 individual mines, particularly small ones, have financial difficulties. Assessing the financial health of
Table 7. Economic Status of Mining in Major Producing States (1991)
Leading State
Phosphate Rock
Value of
Commodity ($)
2.1 billion
2.7 billion
1.22 billion
240 million
% State
0.74 ;
% State
W Data withheld by Bureau of Mines to protect proprietary sources
U.S. Department of the Interior, Bureau of Mines. 1993. State Mineral Commodity Summaries, 1993.
U.S. Department of Commerce. 1993. Statistical Abstract of the United States.
 individual commodities is difficult because many firms produce various commodities from various
 countries.  Reports by Standard and Poor's, Moody's and the Value Line assess the finances for the
 mining companies, which includes non-American holdings.  In addition, publicly available financial
 statements for companies are consolidated, and include the assets, liabilities, and operating accounts of
 the parent company and its subsidiaries.  This creates a problem in trying to understand the financial
 health of the American hardrock mining industry because the consolidated financial statements include
 financial information from operations outside of the United States. Therefore, it becomes a problem in
 distinguishing the financial health of the American  mining industry from the world's mining industry.

     The discussion below covers the major industry sectors, as  reported by Standard & Poor's,
 Moody's, and the Value Line.  Individual commodities not discussed indicates that Standard & Poor's
 or Moody's did not compile information.  Note that the latest financial information reported by
 Standard & Poor's, Moody's, and the Value Line includes information ending before the economic
 recovery of the mid-1990s.  It should also be rioted that the industry's, and individual companies',
 financial health can be quite volatile over relatively short periods of time, so the discussion  that follows
 is necessarily only a snapshot hi time.

     Copper.  Three financially viable producers dominate the copper mining industry (ASARCO
 Incorporated, Cyprus Amax Mining Company, and Phelps Dodge). However, other firms are not as

                                                                      MINING INDUSTRY PROFILE
financially healthy. From 1989 to 1992, the copper mining industry was characterized by decreasing
operating revenues, net income (including some companies with negative net income), asset-use
efficiency, average share prices, and earnings per share.  Short-term and long-term liabilities have
increased for some companies but are stable. Overall the industry is financially secure.

     Lead and Zinc.  For purposes of its analysis, Standard & Poor's combined the lead and zinc
industries. Leading lead producers include The Doe Run Company, ASARCO, and Cominco, while
leading zinc producers include Cominco, Doe Run, Jersey Miniere Zinc, and the Green Creek mine
(Kennecott,  Hecla, and others).  From 1988 to  1991, decreasing operating revenues, net income
(including some companies with negative net income), asset-use efficiency, average share prices,  and
earnings per share characterized the lead and zinc mining industry. The industry began a modest
improvement in 1992.  Short-term and long-term liabilities have remained constant, but decreasing
sales has reduced the industry's ability to meet short-term and long-term obligations.  Companies
focusing on the lead and zinc industry may be problematic.

     Gold.  The gold mining industry is dominated by a few firms (Barrick Gold Corporation, Echo
Bay Mines Limited, Homestake Mining, Lac Minerals Limited, and Newmont Mining Corporation)
that are gaining an increasing portion of the market share.  None of these firms have a problem
meeting either short- or long-term debt. Decreasing operating revenues, net income and increasing
liability characterize smaller firms.  In the gold mining industry, the major producing companies are
financially strong, although other firms within the industry are not as healthy and some have a problem
meeting short-term debt.

     Silver.  Many companies that produce gold also produce silver.  Therefore, much said about gold
can also be repeated for silver. However, Standard & Poor's classifies a few firms as primarily silver
producers (Coeur d'Alene Mines Corporation, Hecla Mining Corporation, and Sunshine Mining
Company).  Net income for silver producers has continued to decline with the three major silver
producers having negative net income during 1991 and 1992. However, the companies do not have
liquidity problems. Based on current ratios (current assets divided by current liabilities), the three
companies have had consistently large cash reserves.

     Miscellaneous sectors.  In the metals-miscellaneous category. Standard & Poor's used financial
data from several selected companies that mine diverse commodities.  On average, for the companies in
the miscellaneous category sales, operating income, profit margin, cash flow, and earnings have all
decreased. All of the indicators  started to decrease in 1988 and continued until 1992.  However,  based
on measures of liquidity for selected companies there does not appear to be a problem meeting short-
and long-term liabilities.

     Capital Expenditures for Pollution Abatement.  The U.S. Bureau of the Census does not
separate capital expenditures for pollution from companies identified by SIC codes 10, 11, 12, or 14,

                                                                      MINING INDUSTRY PROFILE
but reports them together (those SIC codes include metal mining, industrial minerals mining, and coal
mining). In 1991, capital expenditures for pollution abatement equipment was a combined $273.6
million for these four major groups. This included expenditures of $117.5 million for air pollution
control, $119.6 million for water pollution control, and $38.5 million for solid waste control (U.S.
Department of Commerce, 1993).


     The number of inactive and abandoned mines in the United States is simply not known. (Although
"inactive and abandoned mines," or lAMs, has become a commonly used term, the mines so
categorized may be better described as abandoned mines; most mines that are temporarily inactive are
still considered "active" by state and federal regulators.)  Many federal agencies and others have made
estimates of the number of mines, with little consistency and unknown accuracy. There are several
areas of agreement among most sources and commentators. First, nearly all agree that the total
number of abandoned mines is very large.  In addition, there is some agreement that only a minority
cause environmental damages-the size of the minority is uncertain, however. Also, many have noted
that some mines pose a threat to safety but otherwise pose little or no risk to human health or the
environment.  Finally, there is also some agreement that the costs of remediation dwarfs available
resources,  at whatever level.

     Major areas of disagreement include the extent to which resources should be devoted to detailed
inventories instead of remediation (the ultimate issue is how sites  should be ranked), what the cleanup
goals should be, and who should be the responsible party (e.g., federal or private land owners or prior
claimants/lessees).  If additional resources were made available for remediation, the major issue would
likely become establishing priorities among sites (Frieders and Raney, 1994).


     Commodity prices are generally set or at least strongly influenced by the global economy.  In .
addition, there are alternative sources for every commodity mined in the United States, many at lower
or marginally higher costs.  Thus, increases in production costs in the United States compared with
other sources could reduce U.S. production of any commodity.

     Future trends in the United States mining industry are almost entirely dependent on various
aspects of the domestic and world economies. As such, they are extremely difficult to predict with any
degree of certainty. The following are observations (taken largely from Bureau of Mines, 1992a
1992b,  1993, and 1995) on trends that are likely to occur or that have been predicted.

    To some extent, changes hi the environmental requirements can affect future trends in the
domestic mining industry that are applicable to mining operations. Industry  reports (including annual
Septemberl997                              A - 22

                                                                      MINING INDUSTRY PROFILE
reports and other filings) and Bureau of Mines commentaries nearly always note the uncertainty of
future environmental requirements and the impacts those requirements may have on the cost of
production.  The most commonly cited areas of uncertainty are possible requirements under a RCRA
program and possible liability under Superfund. The actual effects of existing regulations (including
the many new state requirements), not to mention possible future effects, have not been well assessed.

     Gold.  Contrary to prices of most metals and other commodities (e.g., copper), gold prices
increase in uncertain times.  No major economic expansions or retractions are being predicted, so gold
production worldwide is likely to hold steady or increase slowly in coming years. Prices should do the
same, although increased production from the former Soviet Union could drive prices down somewhat.
Unless gold prices increase dramatically, however, U.S. production is likely to decline over time as
higher grade deposits are mined out in the contiguous states. Many gold mines that opened in the late
1970s and early 1980s have reached or are nearing the end of their active lives.  Thus, unprecedented
numbers of mines are (or will be) closing and being reclaimed under "modern" environmental
requirements. In addition, future production will come increasingly from lower-grade ores (which will
increase waste generation, even as production declines) and ores with higher sulfide content.

     Copper. Copper prices and production are very sensitive to global and domestic economic
health.  Expansions trigger increases in demand and prices, which drive production upward.
Increasingly, U.S. mines are leaching copper from lower-grade ores,  which significantly increases the
waste-per-product ratio.  This trend will likely continue, as several major U.S. copper operations have
announced major expansions of SX/EW production.  State reclamation requirements have only recently
been developed and imposed on operations in Arizona and New Mexico, where most copper production
occurs, and  the impacts of those requirements are not clear.

     Lead.  Although domestic demand for lead grew an average of 4 percent per year from 1985 to
1989, the Bureau of Mines predicts that the growth in domestic lead demand will range from 0.5
percent to 1.5 percent per year during the 1990s.  The  availability of scrap lead will influence
production increases and decreases in the U.S.  secondary industry (Jordan, 1994). The most probable
world growth in lead use until the end of the century is forecast to average about 1.5 percent per year.
In recent years, the United States has-increasingly relied on secondary sources (e.g., scrap batteries),
and concern over lead exposure has reduced lead consumption.

     Phosphate Rock. World production and consumption have declined steadily since 1989.  After
1993, a modest increase was forecast.  The long-term growth in phosphate rock production is forecast
to average about 1.3 percent annually beginning in 1997

     Iron Ore.  The domestic iron ore industry is entirely dependent  on the steel industry for sales
(molybdenum also is used primarily in the steel industry, and molybdenum trends should follow iron).
Dependence is not expected to change in the near future. For the long-term there is little expected

                                                                      MINING INDUSTRY PROFILE
 growth in the domestic steel industry or countries with highly developed economies.  In contrast to the
 United States, the demand for iron ore is expected to increase, especially in Asia.  The increase in iron
 ore consumption in Asia is expected to benefit Australia rather than the United States

      Uranium.  Uranium mines within the United States produced 522 metric tons (1.4 million pounds)
 of U3O8 equivalent in 1992.  Production figures from 1992 showed a drop of more than 70 percent
 from 1991 levels and the lowest level of production since 1951. Uranium prices and production are
 down.  In 1992, the average price per pound of uranium oxide equivalent was $8.70, down from an
 average of $13.66 in 1991 (U.S. Department of Energy, 1993). Uranium requirements in the next two
 decades are forecast to increase at less than 1 percent per year.  Decreases are possible in the near
 term, as premature shutdowns of existing reactors balance the few new additions. Development of new
 projects without most or all of the production from the new projects being committed will not occur.
 In addition, future uranium supplies for nuclear power will contain 15 percent converted weapons
 material by the year 2000 (Pool, 1994).

      Platinum.  Platinum sales  are dependent largely upon the automobile industry, since platinum is
 used in catalytic converters. The automobile market is expected to continue growing until  1997 and
 then to slow (Federal Reserve, 1994).
Septemberl997                              A-24

                                                                  MINING INDUSTRY PROFILE
Frieders, T. and R. Raney. April 1994.  "Abandoned Mines - the Federal Response" in Minerals
     Today.  U.S. Bureau of Mines, Washington, D.C.

Jordan, Jeffrey, G. "Lead: Modest Recovery for Immediate Future,"  Engineering and Mining
     Journal: 125th Annual Survey & Outlook, vol. 195 (March 1994), pp. 24-25.

Mineral Policy Center.  June 1993. Burden of Gilt: The Legacy of Environmental Damage from
     Abandoned Mines, and What America Should Do About It.  Washington, D.C.

Pool, Thomas C. "Uranium: Weapons Conversion Looms,"  Engineering and Mining Journal:  125th
     Annual Survey & Outlook, vol. 195 (March 1994), pp. 55-58.

Standard and Poors. December 9, 1993. Industry Surveys: Volume No. 2 M-2.

The Federal Reserve Bank of Chicago September 1994. Chicago Fed Letter.  Number 85.

U.S. Department of Commerce, Economics and Statistics Administration, Bureau of Economic
     Analysis.  August 1994.  Survey of Current Business. Volume 74, Number 8. Washington, D.C.

U.S. Department of Commerce, Economics and Statistics Administration. January 1993. Pollution
     Abatement Cost and Expenditures, 1991. MA200(91)-1.  Washington, D.C.

U.S. Department of Commerce. Bureau of the Census.  1993. Statistical Abstract of the United States.
     Washington,  D.C.

U.S. Department of Commerce. Bureau of the Census.  1994. Statistical Abstract of the United States.
     Washington,  D.C.

U.S. Department of Commerce, Bureau of Economic Analysis. 1995a.  Survey of Current Business:
     April 1995",  Volume 75, Number 4. Washington,  DC.

U.S. Department of Commerce, Bureau of Economic Analysis. 1995b.  Survey of Current Business:
     May 1995", Volume 75, Number 5. Washington, DC.  .

U.S. Department of Commerce, Bureau of the Census.  1995c. County Business Patterns 1993: United
     States. Washington, DC.

U.S. Department of Energy, Energy Information Administration. 1993. Domestic Uranium Mining and
     Milling Industry 1992, Viability Assessment.  DOE/EIA-0477(92), Distribution Category UC-98,
     Washington,  D.C.

U.S. Department of the Interior, Bureau of Mines. 1968.  A Dictionary of Mining and Related Terms.
     Edited by P.W. Phrush.

                                                                 -  MINING INDUSTRY PROFILE
U.S. Department of the Interior, Bureau of Mines. 1992a. Minerals Yearbook, Volume I:  Metals and
     Minerals. Washington, D.C.

U.S. Department of the Interior, Bureau of Mines.  1992b.  Minerals Yearbook, Volume II: Area
     Reports: Domestic.  Washington, D.C.

U.S. Department of the Interior, Bureau of Mines.  1993.  State Mineral Commodity Summaries, 1993.
     Washington, D.C.

U.S. Department of the Interior, Bureau of Mines.  1994.  Mineral Commodity Summaries 1994.
     Washington, D.C.

U.S. Department of the Interior, Bureau of Mines.  1995.  Mineral Commodity Summaries 1995.
     Washington, D.C.

U.S. Department of the Interior, Office of Inspector General.  September 1991.  Audit Report.
     Noncoal Reclamation, Abandoned Mine Land Reclamation Program, Office of Surface Mining
     Reclamation and Enforcement.  Report No. 91-1-1248. Washington, D.C.

U.S. Environmental Protection Agency, Office of Federal Activities. 1994: EIA Guidelines for
     Mining.  Washington D.C.

U.S. Environmental Protection Agency, Office of Solid Waste. 1994a. Copper- Extraction and
     Beneficiation of Ores and Minerals, Volume 4, EPA/530-R-94-031, NTIS/PB94-200 979,
     Washington D.C.

U.S. Environmental Protection Agency, Office of Solid Waste. 1994b. Design and technical
     Evaluation of Tailings Dams, EPA/530-R-94-038, NTIS/PB94-201 845, Washington D.C.

U.S. Environmental Protection Agency, Office of Solid Waste. 1994c. Gold - Extraction and
     Beneficiation of Ores and Minerals, Volume 2, EPA/530-R-94-013, NTIS/PB94-170 305,
     Washington D.C.

U.S. Environmental Protection Agency, Office of Solid Waste. 1994d. Gold Placer - Extraction and
     Beneficiation of Ores and Minerals, Volume 6, EPA/530-R-94-035, NTIS/PB94-201 811,
     Washington D.C.

U.S. Environmental Protection Agency, Office of Solid Waste. 1994e. Innovative Methods of
     Managing Environmental Releases at Mine Sites, EPA/530-R-94-012, NTIS/PB94-170 255,
     Washington D.C.

U.S. Environmental Protection Agency, Office of Solid Waste. 1994f. Iron - Extraction and
     Beneficiation of Ores and Minerals, Volume 3, EPA/530-R-94-030, NTIS/PB94-195 203,
     Washington D.C.

U.S. Environmental Protection Agency, Office of Solid Waste. 1994g. Lead-Zinc - Extraction and
     Beneficiation of Ores and Minerals, Volume 1, EPA/530-R-94-011, NTIS/PB94-170 248,
     Washington D.C.
September 1997                             A - 26

                                                                  MINING INDUSTRY PROFILE
U.S. Environmental Protection Agency, Office of Solid Waste. 1994h. Other Mining Sectors:
     Phosphate and Molybdenite - Extraction and Beneficiation of Ores and Minerals,  Volume 7,
     EPA/530-R-94-034, NTIS/PB94-201 001, Washington D.C.

U.S. Environmental Protection Agency, Office of Solid Waste. 1994i.  Treatment of Cyanide Heap
     Leaches and Tailings, EPA/530-R-94-037, NTIS/PB94-201 837, Washington D.C.

U.S. Environmental Protection Agency, Office of Solid Waste. 1994J.  Uranium - Extraction and
     Beneficiation of Ores and Minerals, Volume 5, EPA/530-R-94-032, NTIS/PB94-200 987,
     Washington D.C,

U.S. Environmental Protection Agency, Office of Solid Waste. 1994k. Acid Mine Drainage
     Prediction, EPA/530-R-94-036, NTIS/PB94-201 829, Washington D.C.

U.S. Environmental Protection Agency. 1996. CERCLIS Report SCAP 11: Site Summary Report for
     NPL Sites, Washington, D.C.

U.S. General Accounting Office.  1988.  Federal Land Management: An Assessment of Hardrock
     Mining Damage.  Briefing report to the Chairman, Subcommittee on Mining and Natural
     Resources, Committee on Interior and Insular Affairs,  House of Representatives.  GAO RCED-
     88-123BR.  Washington, D.C.

U.S. National Park Service, Land Resources Division, Mining and Minerals Branch.  March  1990.
     Abandoned Mineral Lands in the National Park System. Washington, D-C.

Western Governors'Association.  April 1991. Inactive and Abandoned Non-coal Mines: A Scoping
     Study.  Prepared for the Western Governors' Association Mine Waste Task Force by the Western
     interstate Energy Board. Denver, CO.

            APPENDIX B


                                                        POTENTIAL ENVIRONMENTAL IMPACTS
                                 TABLE OF CONTENTS

1.     Introduction:  The Nature of Mining Sources	-	B-l

2.     Surface Water Quality Issues	B-3

3.     Ground water Quality	B-l 1

4.     Hydrolbgic Impacts  	B-12

5.     Physical Stability	B-14

6.     Air Quality	B-16

7.     Soils	B-17

8.     Terrestrial and Aquatic Habitat/Ecosystem Quality	B-l8

9.     References	B-21
September 1997

                                                              POTENTIAL ENVIRONMENTAL IMPACTS
L._   Introduction:  The Nature of Mining Sources

       Hardrock mining, as described in Appendix A, is a large-scale industrial activity that takes place
in the natural environment potentially disturbing large amounts of material and land area.  Large
volumes of mining waste are generated because of the high waste-to-product ratios associated with
producing most ores.  "Waste" is defined as the leftover material generated as a result of mining and
benefication activities used to recover a target mineral.  Most of the materials handled in mining are
-wastes, or non- marketable products, distinguishing the industry from others that generate less waste in
comparison to  those materials used in the final product. Consequently, operations at some of the larger
mine sites handle more material and generate more waste than many entire industries.

       This appendix describes potential environmental effects of hardrock mining.  EPA recognizes
that some of the discussion in this appendix may not accurately reflect the environmental conditions at
modern hardrock mining operations that are well designed, well operated, and well regulated. The
intent of the discussion is to highlight environmental problems at (predominantly historic) mining sites
and to suggest that these are potential problems that could occur at existing and future sites.  In
addition,  there is some repetition in the following sections resulting from the inter-related nature of
impacts (for example, the fact that erosion and sedimentation are relevant both to water quality and
aquatic ecosystem quality). Following a brief section that recaps some of the discussion from Appendix
A, successive sections describe several of the major impacts of mining operations.

       Overview of operations and major pollutant sources. At mining sites, the major pollutant
sources of concern include waste rock/overburden disposal, tailings, heap leaches/dump leaches, and
mine water.  Waste rock/overburden is the soil and rock mining operations move during the process of
accessing an ore or mineral body.  It also includes rock removed while sinking shafts, and accessing or
exploiting the ore body and rock bedded with  the ore.  The size of the waste rock ranges from small
clay particles to boulders. Waste rock can be used as backfill  in previously excavated areas or
transported off-site and used at construction projects.  However, most of the waste rock generated is
disposed of in piles near the mine site.

       Tailings are the waste solids remaining after beneficiation of ore through a variety of milling
processes. After the ore is extracted from the mine, 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.  Conventional beneficiation
processes generate tailings, which generally leave the mill as a slurry consisting of 40 to 70 percent
liquid and 30 to 60 percent solids.  Most mine tailings are disposed of in onsite impoundments,  such as
tailing ponds.
September 1997

                                                             POTENTIAL ENVIRONMENTAL IMPACTS
       Leaching is another beneficiation process commonly used to recover certain metals, including
gold, silver, copper, and uranium, from their ores. In dump leaching, the material to be leached is
generally placed (or is already located) directly on the ground and a leaching solution is applied to the
material.  The type of leaching solution used depends on the characteristics of the ore and the mineral.
As the liquid percolates through the ore, it leaches out metals. Leaching may recover economic
quantities for years or decades. Dump leach piles can be very large, often covering hundreds of acres.
Heap leaching (as distinguished from dump leaching) is used for higher trade (more valuable) ores and
is generally smaller than dump leach operations.  Almost invariably, there are one or more
impermeable liners under the leach material to maximize recovery of the leachate. Heap leaching often
takes place over months rather than years.  When leaching no longer produces economically attractive
quantities of valuable metals, the spent ore is left in place (or nearby) after rinsing or other

       Long-Term Nature of Mining Impacts.  Closure of a mining operation occurs during temporary
shutdown of operations  or permanent decommissioning  of the facilities. During downturns in metals
markets and cash flows, temporary shutdowns can reduce the expenditures necessary to maintain
environmental controls (roads and diversions erode, siltation ponds and spillways deteriorate even as
they are filling and losing treatment capacity).  Although reclamation is often thought of as involving
only regrading and revegetation, permanent closure now includes such actions as removal/disposal of
stored fuels and chemicals, structure tear down, removal-.of roadways and ditches, sealing of adits,
capping of tailings, waste detoxification and final removal of sediment control structures and/or
reestablishment of drainage ways.  Long-term maintenance is required  in many closure situations,  such
as equipment fueling and lubrication after normal maintenance facilities have been removed, water
diversions, dam stability, water treatment, and treatment sludge management. Without accrued funds
or other cash flows to cover these expenses, there can be substantial risk of inadequate attention to
proper site closure. Reclamation cost estimates~and bonds—are still sometimes based primarily on
regrading and revegetation, and thus can easily underestimate tnie closure expenses.

       The long-term nature of mining impacts requires that predictive tools, design performance,
monitoring, and financial assurance be effective for many decades.  For example, negative changes in
geochemistry over time can occur when a materials'  environment changes (e.g., going from a reducing
environment to an oxidizing one) or buffering capacity is exceeded (such as when the total neutralizing
capacity of a rock mass is exceeded by acid generation). When these conditions are present, problems
can develop well into, or after, a facility's operating life.  Predictive tools can help mitigate potential
problems by factoring control measures into facility designs and operating plans, while
design/operation can be modified based on monitoring.  Financial assurance helps ensure that resources
will be available to address long-term mine water and site management.

       Complicating the effective environmental control at mining sites is the interrelationship between
the extraction, beneficiation, and processing of the ore material and the waste materials generated from
September 1997                               B - 2

                                                             POTENTIAL ENVIRONMENTAL IMPACTS
each of these operations.  Together, mining operations and the pollutant sources of concern can affect
surface and ground water quality, create hydrologic impacts, decrease air quality, contaminate soils,
and diminish ecosystem quality.  The major categories of environmental problems encountered from
mining are discussed briefly below.  The following sections describe surface water quality, ground
water quality, hydrologic impacts, physical stability, air quality, soils, and terrestrial and aquatic
habitat/ecosystem quality issues.


       One of the problems that can be associated with mining operations is the release of pollutants to
surface waters.  Many activities and sources associated with a mine site can contribute toxic and
nontoxic materials to surface waters. Open pits, tailings ponds, ore  and subore stockpiles,  waste rock
dumps, and heap and dump leach piles are all potentially significant  sources of toxic pollutants. The
mobility of the pollutants from these sources is magnified by exposure to rainfall and snowfall.  The
eventual discharge of surface runoff, produced from rainfall and snow melt-, is one mechanism by
which pollutants are released into surface  waters.  Seepage from impoundment areas and ground water
originating from open pits and mine openings is another example by which heavy metals can be
mobilized and eventually released to surface waters.  Releases of pollutants to surface waters may also
occur indirectly via ground water that has a hydrological connection to surface water.

       Impacts to surface waters include the buildup of sediments that may be contaminated with heavy
metals or other toxics, short- and long-term reductions in pH levels (particularly for lakes and
reservoirs), destruction or degradation of  aquatic habitat, and contamination of drinking water supplies
and other human health issues.

       Acid Drainage.  It is generally acknowledged that  a major environmental problem facing the
U.S. mining industry is the formation of acid drainage and the associated mobilization of contaminants.
Commonly called acid mine drainage (AMD) or acid rock drainage (ARD), acid drainage primarily
depends on the mineralogy of the rock material and the availability of water and oxygen.  Acid
drainage is generated at both abandoned and active mine sites. Although testing methods used to predict
AMD have improved in recent years, there is often substantial uncertainty, and new mines can develop
unpredicted AMD after only a few years of operation.

       The potential for a mine or its associated waste to generate acid and release contaminants
depends on many site-specific factors. AMD occurs at mine sites when metal sulfide minerals are
oxidized.  Metal sulfide minerals are common constituents in the host rock associated with metal
mining activity.  Before mining, oxidation of these minerals and the  formation of sulfuric acid is a
(slow) function of natural weathering processes.  Natural discharge from such deposits poses little
threat to aquatic ecosystems except in rare instances.  Mining and beneficiation operations greatly
increase the rate of these same chemical reactions by removing sulfide rock material and exposing the
September 1997

                                                              POTENTIAL ENVIRONMENTAL IMPACTS
material to air and water. Once acid drainage has occurred,"controlling the releases is a difficult and
costly problem, so prediction is becoming an important tool for regulators and operators.

       Materials and wastes from metal mining activities that have the potential to generate acid
drainage include spent ore from heap and dump leach operations, tailings, waste rock, and overburden
material. Equally or more important at some sites are the pit walls at surface mining operations and the
underground workings associated with underground mines.

       Acid generation is largely the result of oxidation of metallic sulfides. The major metallic sulfide
of concern is iron sulfide (FeS2), or pyrite.  All metal sulfides and reduced mineral species can
potentially contribute to acid generation. Metal sulfides besides pyrite that contribute to acid generation
include galena (lead sulfide), sphalerite (zinc sulfide) and chalcopyrite (iron copper sulfide).

       Both water and oxygen are necessary to generate acid drainage.  Water serves as both a reactant
and a medium for bacteria to catalyze the oxidation process.  Water also transports the oxidation
products. A ready supply of atmospheric oxygen is required to drive the oxidation reaction.  Oxygen is
particularly important to maintain the rapid bacterially catalyzed oxidation at pH values below 3.5.
Oxidation is significantly reduced when the concentration of oxygen in the pore space of mining waste
units is less than 1 or 2 percent.  The type of bacteria and the population necessary to catalyze
oxidation change as pH levels, chemical and physical characteristics of the  soil and water environments
change (Ferguson and Erickson,  1988).                                         ;

       Other factors affecting acid  drainage are the physical characteristics of the material, the
placement of the acid-generating and any acid-neutralizing materials (whether naturally occurring in the
material or  supplemental), and the climatologic and hydrologic regime in the vicinity.  The physical
characteristics of the material,  such as particle size, permeability, and weathering characteristics, are
important to the acid generation potential. Particle size is a fundamental concern since it affects the
surface area exposed to weathering and oxidation: smaller particles have more surface area and
therefore more reactive sites than larger particles.  The relationships  between particle size, surface
area, and oxidation play a prominent role in acid prediction methods.

       The  hydrology of the area surrounding mine workings and waste units is important in the
analysis of acid generation potential.  Wetting and drying cycles in any of the mine workings or other
waste units  will affect the character of any produced acid drainage.  Frequent wetting will generate a
more constant volume of acid and other contaminants as water moves through and flushes oxidation
products out of the  system.  The buildup of contaminants in the system is proportional to the length of
time between wetting cycles.  As the length of the dry cycle increases, oxidation products will
accumulate  in the system. A high magnitude wetting event will then flush the accumulated
contaminants out of the system. This relationship is typical of the increase  in the contaminant load
Observed .following heavy precipitation for those areas having a wet season. In underground mines,
September 1997                               B - 4

                                                               POTENTIAL ENVIRONMENTAL IMPACTS
however, the acid generating material occurs below the water table and the slow diffusion of oxygen in
water can retard acid production.

       During acid generation, the pH values of the associated waters typically decrease to values near
2.5.  These conditions result in the dissolution of the minerals associated with the metallic sulfides and
release of toxic metal cations (e.g., lead, copper, silver, manganese, cadmium, iron, and zinc).  In
addition, the concentration of dissolved anions (e.g., sulfate) also increases.

       Acid generation and drainage affect both surface and ground water. The sources of surface
water contamination are leachate from mine openings, seepage and discharges from waste rock or
tailings or spent ore, ground water seepage, and surface water runoff from waste rock and tailings
piles. It should also be noted that mined materials-waste rock or tailings-used for construction or
other purposes (e.g., road beds, rock drains, fill material) or off a mine site can also develop acid

       The receptors of contaminated surface water include aquatic birds,  fish and other aquatic
organisms, and humans.   Direct ingestion of contaminated surface water or direct contact through
outdoor  activities such as swimming can affect humans. Fish, birds, and other aquatic organisms are
potentially affected by bottom foraging and direct exposure to surface water.

       No easy or  inexpensive solutions to acid drainage exist.   Two primary approaches to addressing
acid generation are 1) avoiding mining deposits with high acid generating potential and 2) isolating or
otherwise special-handling wastes with acid generation potential.  In practice, avoiding mining in areas
with  the potential to generate acids may be difficult due to the widespread  distribution of sulfide
minerals.  Isolation of materials with the potential to generate acids is now being tried as a means of
reducing the perpetual effects to surface water and ground water from mining wastes. Control of
materials with a potential for acid generation can be implemented by preventing or minimizing oxygen
from contacting the material, preventing water from contacting the material, and/or  ensuring that an
adequate amount of natural or introduced material is available which can neutralize any  acid produced.
Techniques used to isolate acid generating materials include subaqueous disposal, covers, waste
blending, hydrologic controls, bacterial control, and  treatment.

       Acid generation prediction tests are increasingly relied upon to assess the long-term potential of
a material, or waste, to generate acid.  Mineralogy and other factors affecting the potential for AMD
formation are highly variable from site to site, and this can result in difficult, costly, and questionable
predictions.  In general, the methods used to predict the acid generation potential are classified  as either
static or  kinetic.  These tests are not intended to predict the rate of acid generation, only the potential to
produce  acid. Static tests can be conducted quickly and are inexpensive compared with kinetic tests.
Kinetic tests are intended to mimic the processes found in the waste unit environment, usually at an
accelerated rate. These tests require more time and are much more expensive than static tests.
September 1997

                                                            POTENTIAL ENVIRONMENTAL IMPACTS
       Cyanide Heap Leaching.  For over a century, the mining industry has used cyanide as a pyrite
depressant in base metal flotation and in gold extraction.  Continued improvements in cyanidation
technology have allowed the economic mining of increasingly lower-grade gold ores. Together with
continued high gold prices, these improvements have resulted in increasing amounts of cyanide being
used in mining. The mining industry now uses much of the sodium cyanide produced in the United
States, with more than 100 million pounds used by gold/silver leaching operations in 1990.

       Aqueous cyanide (CN~) has a negative valence and reacts readily to form more stable
compounds.  Aqueous cyanide complexes readily with metals in the ore, ranging from readily soluble
complexes such as sodium and calcium cyanide, to the complexes measured by weak acid dissociable
(WAD) cyanide analytical methods, to strong complexes such as iron-cyanide. At a pH below 9,
weaker cyanide compounds can dissociate and form HCN,  a volatile poison gas that rapidly evaporates
at atmospheric pressure.  The stronger complexes are generally very stable in natural aqueous

       Unsaturated soils provide significant attenuation capacity for cyanide. Within a short time and
distance, for example, free cyanide can volatilize to HCN if solutions are buffered by the soil to a pH
below 8.  Adsorption, precipitation, oxidation to cyanate, and biodegradation can also attenuate free
(and dissociated complexed) cyanide in soils under appropriate conditions. WAD cyanide behavior is
similar to that of free cyanide except WAD cyanide also can react with other metals in soils to form
insoluble salts.

       Many other constituents besides cyanide may be present in the waste material, creating potential
problems following closure and reclamation. Nitrate (from cyanide degradation) and heavy metals
(from trace heavy metals in the ore) migrations are examples of other significant problems that can be
faced at the closure of cyanide operations.

       Water balance is a major  concern at some sites. In arid  regions, with limited water resources,
the amount of water necessary to rinse heaps to a required standard could be a significant concern.
Conversely, in wet climates like  South Carolina, excess water from heavy precipitation and/or snow
melt can place  a strain on system operations and may make draining or revegetating a heap or
impoundment very difficult.

       In addition, the chemistry of a spent heap or tailings impoundment may change over time.
Although effluent samples at closure/reclamation may meet state requirements, the effluent
characteristics may be dependent on the pH.  Factors affecting chemical changes in a heap or tailings
impoundment include pH, moisture, mobility, and geochemical stability of the material.  The principal
concerns with the closure of spent ore and tailings impoundments are long-term structural stability and
potential to leach contaminants.  The physical characteristics of the waste material (e.g.,  percent slimes
vs.  sands in impoundments), the  physical configuration of the waste unit,  and site conditions (e.g.,
September 1997                              B - 6

                                                              POTENTIAL ENVIRONMENTAL IMPACTS
timing and nature of precipitation, upstream/uphill area that will provide inflows) influence structural

       The acute toxicity of cyanide, and many major incidents, have focused attention on the use of
cyanide in the mining industry.  When exposure occurs (e.g., via inhalation or ingestion), cyanide
interferes with many organisms' oxygen metabolism and can be lethal in a short time.

       Overall,  cyanide can cause three major types of environmental impacts:  first, cyanide-
containing ponds and ditches can present an acute hazard to wildlife and birds. Tailings ponds present
similar hazards, but less frequently (because of lower cyanide concentrations).  Second, spills can result
in cyanide reaching surface water or ground water and cause short-term (e.g., fish kills) or long-term
(e.g., contamination of drinking water) impacts. Finally, cyanide in active heaps, ponds and in mining
wastes, primarily spent ore heaps, dumps and tailings impoundments,  may be released and present
hazards to surface water or ground water.  Geochemical changes can also affect the mobility of heavy

       Through the 1980s, as cyanidation operations and cyanide usage proliferated, many incidents
occurred where waterfowl died after using tailings ponds or other cyanide-containing solution ponds
(e.g., pregnant or barren ponds). Operators in Nevada, California, and Arizona  reported to regulatory
authorities more than 9,000 wildlife deaths, mostly waterfowl, that had occurred  on federal  lands in
those states from 1984 through 1989.  In addition, many major spills have  occurred, the most
significant occurring in South Carolina in 1990,  when a dam failure resulted in the release of more  than
10 million gallons of cyanide solution, causing fish kills for nearly 50  miles downstream of the

       The heightened awareness of the threat to wildlife presented by cyanide-containing ponds and
wastes led federal land managers and states to develop  and  implement increasingly stringent regulations
or, more often, non-mandatory guidelines. These regulations and/or guidelines address the design of
facilities that use cyanide (e.g., requiring/recommending liners and site preparation for heap leach piles
or tailings impoundments), operational concerns (e.g.,  monitoring of solutions in processes and in
ponds, and sometimes treatment requirements for cyanide-containing wastes), and closure/reclamation
requirements (e.g., rinsing to a set cyanide concentration in rinsate before  reclamation can begin).
Operators are generally required to take steps either  to reduce/eliminate access to cyanide solutions or
to reduce  cyanide concentrations in exposed materials to below lethal levels. Regulatory requirements
and guidelines as to the allowable concentration of cyanide  in exposed process solutions are widely
variable (when numeric limitations are established, they generally range around 50 mg/1), as are the
means by  which operators comply.  Operators reduce access in several ways, including covering
solution ponds with netting or covers, using cannons and other hazing devices (e.g., decoy owls) to
scare off waterfowl and other wildlife, and/or installing fencing to preclude access by large  wildlife.
September 1997

                                                              POTENTIAL ENVIRONMENTAL IMPACTS
       Closure and reclamation measures are becoming increasingly well established for cyanide heap
 leaching operations but are not entirely proven because of their recent use.  Closure entails those
 activities conducted after a cyanide unit ceases operating in order to prepare the site for reclamation.
 Closure essentially consists of those activities required to remove a hazard or undesirable component,
 whether it is chemical or physical, to the extent required by states or federal land managers. It can
 entail detoxification/neutralization of wastes, treatment and/or evaporation of rinse liquids and pond
 water, dismantling associated equipment and piping, removal or treatment of waste, reconstruction,
 grading or stabilizing, and/or chemical testing. Reclamation consists of those activities undertaken to
 return the site to a condition  suitable for the future uses specified by the state or federal  land manager.
 Reclamation may involve regrading; backfilling ponds; removal of wastes; site drainage control such as
 diversions, channels, riprap, and collection basins; perforating liners to allow drainage through heaps;
 capping to reduce infiltration and/or to provide a substrate for revegetation; and revegetation to
 establish ground cover and protect against erosion.

       Metals and Dissolved Pollutants. Dissolved pollutants (primarily metals, sulfates, and nitrates)
 can migrate from mining operations to local ground and surface water. While AMD can enhance
 contaminant mobility by promoting leaching from exposed wastes and mine structures, releases can
 also occur under neutral pH conditions.  Primary sources of dissolved pollutants from me.tal mining
 operations include underground and surface mine workings, overburden and waste rock piles, tailings
 piles and impoundments, direct discharges from conventional milling/beneficiation operations,  leach
 piles and processing facilities, chemical storage areas (runoff and spills), and reclamation activities.
 Discharges of process water, mine water, runoff, and seepage are the primary transport  mechanisms to
 surface water and ground water.

       One potential source of dissolved pollutants is chemical usage in mining and beneficiation.
 Common types of reagents include copper, zinc, chromium, cyanide, nitrate and phenolic compounds,
 and, at copper leaching operations, sulfuric acid.  Except for leaching operations and possibly the
 extensive use of nitrate compounds in blasting and reclamation, the quantities of reagents used  are very
 small compared with the volumes of water generated. As a result, the risks from releases of toxic
 pollutants from non-leaching-related reagents are generally limited.

       Naturally occurring substances in the ore create a major source of pollutants.  Mined ore  not
 only contains the mineral being extracted but varying concentrations of a wide range of other minerals,
 including radioactive minerals.  Frequently other minerals may be present at much higher
 concentrations and can be much more mobile than the target mineral.  Depending on the local geology,
 the ore (and the surrounding  waste rock and overburden) can include trace levels of aluminum, arsenic,
 asbestos, cadmium, chromium, copper, iron, lead, manganese, mercury, nickel,  silver, selenium, and
 zinc, as well as naturally occurring radioactive materials.
September 1997                               B - 8

                                                              POTENTIAL ENVIRONMENTAL IMPACTS
       The occurrence of specific pollutants, their release potential, and the associated risks are highly
dependent on facility-specific conditions, including:  design and operation of extraction and
beneficiation operations, waste and materials management practices, extent of treatment/mitigation
measures, the environmental setting (including climate, geology, hydrogeology, waste and ore
mineralogy and geochemistry, etc.) and nature of and proximity to human and environmental receptors.

       EPA's 1986 Quality Criteria for Water (EPA 440/5-86-001) provides information on the acute
and chronic impacts of dissolved pollutants in surface water (including suggested water quality
standards). Each state has promulgated water quality criteria for surface waters based on the
designated uses of the waters and has established guidelines on how to apply the standards.  Regulators
and operators have to be aware that, unlike many other types of industrial operations and discharges,
toxic constituent loadings from mining operations can be extremely variable, from day to day, over
months, and/or years. Furthermore, the receiving water may be particularly sensitive to loadings of
toxic pollutants during specific periods (e.g., under certain flow conditions).

       Dissolved pollutants discharged to surface waters can partition to sediments.  Specifically, some
toxic constituents (e.g., lead and mercury) associated with discharges  from mining operations are often
found at elevated levels in sediments, while undetected in the water column. Sediment contamination
may affect human health through consumption offish that bioaccumulate toxic pollutants.
Furthermore, elevated levels of toxic pollutants in sediments can have direct acute and chronic impacts
on macroinvertebrates and other aquatic life.  Finally, sediment contamination provides a long-term
source of pollutants through potential redissolution in the water column.

       Erosion and Sedimentation.  Because of the large area of land disturbed by mining operations
and the large quantities of earthen materials exposed at sites, erosion can be a major concern at
hardrock mining sites.  Consequently, erosion control must be considered from the beginning of
operations through completion of reclamation. Erosion may cause significant loadings of sediments
(and any entrained chemical pollutants) to nearby waterbodies, especially during severe storm events
and high snow melt periods.

       Sediment-laden surface runoff typically originates as sheet flow and collects in rills, natural
channels or gullies, or artificial conveyances.  The ultimate deposition of the sediment may occur in
surface waters or it may be deposited within the  flood plains of a stream valley. Historically, erosion
and sedimentation processes have caused the buildup of thick layers of mineral fines and sediment
within regional flood plains and the alteration of aquatic habitat and the loss of storage capacity within
surface waters.  The main factors influencing erosion includes the volume and velocity of runoff from
precipitation events, the rate of precipitation infiltration downward through the soil, the amount of
vegetative cover, the slope length or the distance from the point of origin of overland flow to the point
where deposition begins, and operational erosion control structures.
September 1997                               B - 9

                                                             POTENTIAL ENVIRONMENTAL IMPACTS
       Major sources of erosion/sediment loadings at mining sites can include open pit areas, heap and
dump leaches, waste rock and overburden piles, tailings piles and dams, haul roads and access roads,
ore stockpiles, vehicle and equipment maintenance areas, exploration areas, and reclamation areas.  A
further concern  is that exposed materials from mining operations (mine workings, wastes, contaminated
soils, etc.) may  contribute sediments with chemical pollutants, principally heavy metals. The
variability in natural site conditions (e.g., geology, vegetation, topography, climate, and proximity to
and characteristics of surface waters), combined with significant differences in the quantities and
characteristics of exposed materials at mines, preclude any generalization of the quantities and
characteristics of sediment loadings.

       The types of impacts associated with erosion and sedimentation are numerous, typically
producing both  short-term and long-term impacts.  In surface waters, elevated concentrations of
paniculate matter in the water column can produce both chronic and acute toxic effects in fish. The
buildup of sediment in stream beds also destroys benthic macroinvertebrate habitat by smothering and
filling pore spaces between cobbles while simultaneously reducing suitable fish spawning areas. Over
the long-term, bio-geochemical reactions in deposited contaminated sediments may result in
resuspension of dissolved forms (possibly bioaccumulative) of heavy metals into the water column.
Contaminated sediments in surface waters may be a persistent source of toxics thus a chronic threat to
aquatic organisms and/or human health.  Exposure may occur through direct contact, consumption of
fish/shellfish, or drinking water exposed to contaminated sediments. Bioaccumulation of toxic
pollutants in aquatic species may limit their use for human consumption. Accumulation in aquatic
organisms, particularly benthic species, can also cause acute and chronic toxicity to aquatic life.

       Sediments deposited in layers in flood plains or terrestrial ecosystems can produce many
impacts associated with surface waters, ground water, and terrestrial ecosystems. Minerals associated
with deposited sediments may depress the pH of surface runoff thereby mobilizing heavy metals that
can infiltrate into the surrounding subsoil or can be carried away to nearby surface waters.  The
associated impacts could include substantial pH depression or metals loadings to surface waters and/or
persistent contamination  of ground water sources. Contaminated sediments may also lower the pH of
soils to the extent that vegetation and suitable habitat are lost.

       Beyond the potential for pollutant impacts on human and aquatic life, there are potential
physical impacts associated with the increased runoff velocities and volumes from new land disturbance
activities.  Increased velocities and volumes can lead to downstream flooding, scouring of stream
channels, and structural damage to bridge footings and culvert entries.

       In areas where air emissions have deposited acidic particles and the native vegetation has been
destroyed, runoff has the potential to increase the rate of erosion and lead to removal of soil from the
affected area.  This is particularly true where the landscape is characterized by steep and rocky slopes.
September 1997                              B - 10

                                                             POTENTIAL ENVIRONMENTAL IMPACTS
Once the soils have been removed, it is difficult for the slope to be revegetated either naturally or with
human assistance.

       Paniculate matter, entrained in water currents, can be toxic to fish. Decreased densities of
macroinvertebrate and benthic invertebrate populations have been associated with increased suspended
solids.  Enhanced sedimentation within aquatic environments also inhibits spawning and the
development of fish eggs and larvae, and smothering of benthic fauna. In addition, high turbidity may
impair the passage of light, which is necessary for photosynthetic activity of aquatic plants.

       Two options exist for reducing erosion and the off-site transport of sediment: end-of-pipe
treatment and implementing best management practices to prevent or to eliminate pollution.  The
selection of the most effective means to control erosion is based on site-specific considerations such as:
facility size, climate,  geographic location, geology/hydrology and the environmental setting of each
facility, and volume and type of discharge generated.  Each facility will be unique  in that the source,
type, and volume of contaminated discharges will differ.  The fate and transport of pollutants in these
discharges will also vary. Mining facilities are often in remote locations and may operate only
seasonally or intermittently, yet need year-round controls because pollutant sources remain exposed to
precipitation when reclamation  is not completed. At least six categories of best management practice
options are available to limit erosion and the off-site transport of sediment, including discharge
diversions; drainage/storm water conveyance systems; runoff dispersion; sediment control and
collection; vegetation and soil stabilization; and capping of contaminated sources.


        Ground water impacts due to mining are not as widespread as surface water impacts because of
the much slower  velocity of ground water movement, the more limited extent of many affected
aquifers, and the  lack of available oxygen to continue the oxidation process. Nevertheless, the fact that
ground water contamination is extremely difficult to remedy once it occurs makes it a serious concern.

       Mining operations can affect ground water quality in several ways.  The most obvious occurs  in
mining below the water table, either in underground workings or open pits. This provides a direct
conduit to aquifers.  Ground water quality is also affected when waters (natural  or process waters or
wastewaters) infiltrate through surface materials (including overlying wastes or other material) into
ground water.  Contamination  can also occur when there is an hydraulic connection between surface
and ground water.  Any of these can cause elevated pollutant levels in ground water. Further,
disturbance in the ground water flow regime may affect the  quantities of water available for other local
uses. Finally, the ground water may recharge surface water downgradient of the mine, through
contributions to base flow in a stream channel or springs.
September 1997                              B-ll

                                                             POTENTIAL ENVIRONMENTAL IMPACTS
       The ability of pollutants to dissolve and migrate from materials or workings to ground water
varies significantly depending on the constituent of concern, the nature of the material/waste, the design
of the management,  soil characteristics, and local hydrogeology (including depth, flows, and
geochemistry of the  underlying aquifers).  Risks to human health and the environment from
contaminated ground water usage vary with the types of and distance to local users. In addition,
impacts on ground water can also indirectly affect surface water quality (through recharge and/or

       Zinc and other base and precious metals were produced from ores excavated from an
underground mine in central Colorado from 1878 to 1977. The resultant wastes consist of roaster
piles, tailings ponds, waste rock piles and acid drainage from the mine.  Percolation from the tailings
ponds has contaminated ground water below and down gradient of the ponds. The ground water
discharges to a nearby stream.  Runoff from the roaster, waste piles and acid drainage from the mine
also discharge directly to the stream.  The main parameters of concern are pH, arsenic, cadmium,
copper, lead, manganese, nickel, and zinc. In particular,  concentrations of cadmium, copper, and zinc
exceed water quality criteria in the stream. In addition, levels of dissolved solids are also above
background concentrations.  At least two private  wells previously used for drinking water have been
contaminated.  The site is currently on the National Priorities List (Superfund) and various remedial
actions have been proposed.

       Mining operations themselves are a critical part of environmental control because they interact
with the site hydrology.  Mine design not only impacts day-to-day operations, but also closure and post-
closure conditions.  Mine design, and location, can affect  the following  site conditions, which in turn
can result affect environmental performance.

       •       Regional surface and ground water movement.

               Ground water inflow into the mine, with subsequent contact with mining related

               Surface water inflow and precipitation related  recharge.

       .       Increases in surface and ground water interaction with the mine workings because of

       .        Loss of surface features such as lakes through subsidence.

       .        Pathways for post closure flow resulting from adits, -shafts,  and overall mine design.

       .        Operational and post closure geochemistry and resulting toxics mobility.

       .        Overall site water and mass balance.
September 1997                              B -12

                                                            POTENTIAL ENVIRONMENTAL IMPACTS
       Specifically, mine water, ground water withdrawal, and land subsidence can potentially create
environmental problems that cannot be easily corrected.

       Mine Water. Mine water is produced when the water table is higher than the underground
mine workings or the depth of an open pit surface mine. When this occurs, the water must be pumped
out of the mine.  Alternatively, water may be pumped from wells surrounding the mine to create a cone
of depression in the ground water table, thereby reducing infiltration. When the mine is operational,
mine water must be continually removed from the mine to facilitate the removal of the ore.  However,
once mining operations end, the removal and management of mine water often end, resulting in
possible accumulation in rock fractures, shafts, tunnels, and open pits and uncontrolled releases to the

       Ground Water Drawdown. Ground water drawdown and associated impacts to surface waters
and nearby wetlands can be a serious concern in some areas, particularly in the Carlin Trend of
northeastern Nevada.  Several Carlin Trend gold mines are dewatering open pits; one mine is permitted
to pump more than 60,000 gallons/minute.  Cumulatively, the pumping could curtail flows in the
Humboldt River and its tributaries and degrade or eliminate associated wetland areas. For example,
Newmont Gold's South Operations project could result in impacts to 1,342 acres of riparian (river
bank) habitat,  857 of which are jurisdictional waters of the United States.  An additional  10 acres of
seeps and springs at 25 different sites could also be affected. Ground water pumping at two of the
largest 15 or so mines that are or will be dewatering in the area, the Newmont Gold's South Operations
site and the nearby Barrick Gold Corporation's Betze Pit, could cumulatively affect a total of 2,700
acres of wetlands and riparian areas.                                       *

       Impacts from ground water drawdown may include reduction or elimination of surface water
flows; degradation of surface water quality and beneficial uses; degradation of habitat (not only riparian
zones, springs, and other wetland habitats, but also upland habitats such as greasewood as ground
water levels decline below the deep root zone); reduced or eliminated production in domestic supply
wells; and erosion, sedimentation, and other water quality/quantity problems associated with discharge
of the pumped ground water back into surface waters downstream from the dewatered area. The
impacts could  last for many decades.  While dewatering is occurring, discharge of the pumped  water,
after appropriate treatment, can often be used to mitigate adverse effects on surface waters.  However,
when dewatering ceases, the cones of depression may take many decades to recharge and may continue
to reduce surface flows in the Humboldt River and its tributaries. Mitigation measures that rely on the
use of pumped water to create wetlands may only last as long as dewatering occurs.

       Besides off-site habitat replacement, mitigation may include small-scale ground water pumping
projects in the affected area to provide individual wetlands or stream segments with a continuous water
supply. However, this must be carefully designed not to affect ground water and surface water
adversely in the immediate area of pumping.
September 1997                              B -13

                                                             POTENTIAL ENVIRONMENTAL IMPACTS
       Subsidence.  Mining subsidence occurs when overlying strata collapse into mine voids.  The
potential for subsidence exists for all forms of underground mining. Subsidence may manifest itself as
sinkholes or troughs. Sinkholes are usually associated with the collapse of part of a mine void (such as
room and pillar mining); the extent of the surface disturbance is usually limited in size. Subsidence of
large portions of the underground void forms troughs, typically over areas where most of the resource
had been removed.

       The threat and extent of subsidence is related to the method of mining employed. Typically,
traditional room and pillar methods leave enough material in place to avoid subsidence effects.
However,  high-volume extraction techniques, such as pillar retreat, can increase the likelihood that
subsidence will occur. At some mines, waste rock and/or stabilized tailings are backfilled in the mine
to minimize subsidence.

       Effects of subsidence may not be confined to or even visible from the ground surface.
Sinkholes or depressions in  the landscape interrupt surface water drainage patterns; ponds and streams
may be drained or channels may be redirected.  Farmland can be affected to the point that equipment
cannot conduct surface preparation activities. Irrigation systems and drainage tiles may be disrupted.
In developed areas, subsidence has the potential to affect building foundations and walls, highways, and
pipelines.  Ground water flow may be interrupted or disrupted as impermeable strata break down, and
this could result in flooding  of the  mine voids.  Impacts to ground water include changes in water
quality and flow patterns, including surface water recharge.


       Physical stability of mine units is an important long term environmental concern because of the
amounts of materials involved and the consequences of slope failure.  Mining operations can result in
the formation of slopes composed of earth, rock, tailings, other mine wastes, or combinations of
materials.  Other than sheer physical impacts, catastrophic slope failure can affect the environment or
human health when toxic materials are released from the failure especially if it occurs in an area where
such a release results in a direct pathway to receptors.  Ensuring physical stability requires adequate
pre-mining design of waste management units and may require long-term maintenance.

       Mine slopes fall into two categories:  natural or cut slopes and manufactured or filled slopes.
The methods of slope formation reflect the hazards associated with each. Natural or cut slopes are
created by the removal of overburden or  ore which results in the creation of or alteration to the surface
slope of undisturbed native materials. Changes to an existing slope may create environmental problems
associated with increased erosion,  rapid runoff, changes in wildlife patterns and the exposure of
potentially reactive natural materials.  Dumping or piling of overburden, tailings, waste rock or other
materials creates manufactured or filled slopes.  These materials can be toxic, acid forming, or
September 1997                              B - 14

                                                            POTENTIAL ENVIRONMENTAL IMPACTS
reactive. Slope failure can result in direct release or direct exposure of these materials to the
surrounding environment.

       Slope failure results from exceeding the internal mass strength of the materials composing the
slope.  This occurs when the slope angle is increased to a point where the internal mass strength can no
longer withstand the excess load resulting from over steepening or overloading of the slope. When the
driving forces associated with over steepening exceed the internal resisting forces, the slope fails and
the materials move to a more stable position.

       The most common method of tailings disposal is placement of tailings slurry in impoundments
formed behind raised embankments. Modern  tailings impoundments are engineered structures that
serve the dual functions of permanent disposal of the tailings and conservation of water for use in the
mine and mill.  The disposal of tailings behind earthen dams and embankments raises many concerns
related to the stability and environmental performance of the units. In particular, tailings
impoundments are frequently accompanied by unavoidable and often necessary seepage of mill effluent
through or beneath the dam structure.  Such seepage results from the percolation of stored water
downward through foundation materials or through the embankment and the controlled release of water
to maintain embankment stability. Impoundment seepage raises the probability of surface water and
ground water contamination and, coupled with the potential for acid rock drainage,  may require long-
term water treatment well after the active life of the facility. Seepage from tailings  impoundments can
be reduced by construction of lined facilities, which is becoming more common in modern  design and
construction. Moreover, failure to maintain hydrostatic pressure, within and behind the embankment,
below critical levels may result in partial or complete failure of the structure, causing releases of
tailings and  contained mill effluent to surrounding areas.

       Tailings impoundments and the embankments that confine them are designed using information
on tailings characteristics, available construction materials, site specific factors (such as topography,
geology, hydrology and seismicity) and costs.  Dynamic interplay among these factors influences the
location (or siting) and actual design of the impoundment.

       A primary concern in the design of tailings impoundments is the control of pore water pressure
within and beneath the embankment.  Excessive pore pressure  within the embankment may lead to
exceeding the sheer strength of the fill material, resulting in local or general slope failure.
Additionally, high pore pressures within or beneath the embankment face may result in uncontrolled
seepage at the dam face leading to piping failure. Similarly, seepage through weak permeable layers of
the foundation may result in piping or exceeding soil shear strength, causing foundation subsidence and
compromising the stability of the overlying embankment.

       Embankment drainage systems also create a post-closure environmental concern.  Contaminated
effluent, possibly including acid rock drainage, may be released from the impoundment after the active
September 1997                              B -15

                                                             POTENTIAL ENVIRONMENTAL IMPACT^
 life of the project  because the impoundment is not designed-to be impermeable.  If the active pump-
 back system for the toe pond is no longer in operation, such effluent may be released to area surface
 water.  Accordingly, treatment-in-perpetuity or some alternative passive treatment or containment
 method may be necessary to prevent surface water releases.

       Another trade off between stability and environmental performance is the incorporation of
 liners.  In areas of shallow alluvial ground water, liners may be necessary to prevent intrusion of water
 into the impoundment. However, such liners will simultaneously increase the retention of impounded
 water behind the dam and reduce dam stability, all else being equal. On the other hand,  the absence of
 a liner may increase the downward migration of impoundment constituents to shallow ground water.

       Surface water controls may be very important in post-closure stability considerations. Surface
 water runoff diversions are generally employed to limit the intrusion of excessive amounts of water into
 the impoundment, which reduces dam stability and prevents drying of tailings.  Failure of surface water
 controls after impoundment closure could result in an increase in pore water pressure within the
 impoundment,  threatening the stability of the embankment.  Usually, active measures to control surface
 water runon and runoff during the operative life of the project may require alternative methods or long-
 term management after closure.

       Many systems have been developed for monitoring movement of slopes. Inclinometers and
 slope indicators can be built into new slopes as part of construction or installed in existing slopes.
 Frequent monitoring of inclinometers and slope indicators can track the movement or lack of movement
 within a slope mass. The key becomes assessing the proper locations for monitoring systems and in
 interpreting the results of the monitoring systems.  This monitoring program should be coupled with
 ground water monitoring to assess seepage or changes of seepage within the slope mass.


       The primary air pollutant of concern at mining sites is paniculate matter.  EPA has established
 National Ambient  Air Quality Standards for paniculate matter with a diameter of less than 10 microns,
 and State Implementation  Plans must ensure sufficient control of paniculate emissions from all sources
 to allow attainment of the ambient air standard and to meet opacity requirements.

       A variety of mining operations emit particulates, usually as fugitive dust (as opposed to
 emissions from stacks), and relatively simple controls are often sufficient:

               Ore crushing and conveyors can be substantial sources of fugitive dust, and control
               generally involves water sprays or mists in the immediate area of the crusher and along
               conveyor routes.
September 1997                              B - 16

                                                             POTENTIAL ENVIRONMENTAL IMPACTS
       •        Loading bins for ore, limestone, and other materials also generate dust. Again, water
               sprays are typically used for control.

       .        Blasting generates dust that can be, and is sometimes, controlled with water sprays.

       .        Equipment and vehicle travel on access and haul roads are major sources of fine and
               coarse dust.  Most mines use water trucks to dampen the surface periodically.

       .        Waste rock dumping can generate dust, but this generally consists of coarse particles
               that settle out rapidly with no other controls.

       .        Venting of shafts  can emit dusts.

       .        Wind also entrains dust from dumps and spoil piles, roads, tailings (either dry as
               disposed or the dry portions of impoundments), and other disturbed areas.  Spray from
               water trucks are often used when the mine is operating. During temporary closures,
               particularly after the active life, stabilization and reclamation are aimed in part at
               reducing fugitive  dust emissions.  Tailings in particular can be a potent source of fine
               particulates; temporary or permanent closure great increases the potential for surface
               tailings to dry out and become sources of dust.  Rock and/or topsoil covers, possibly
               with vegetative covers, can be effective controls.

       Tailings and waste rock at metal mines usually contain trace concentrations of heavy metals.
Fugitive  dust would also contain, such metals, and areas immediately downwind could accumulate
heavy metals concentrations greater than the background levels as coarse particles settle out of
suspension in the air.  Occasionally, wind  has caused cyanide sprays on heap leach piles to blow short
distances and.caused very localized damage.  Consequently, more operators are turning to drip
application of cyanide solutions, a solution with multiple advantages in arid environments since this also
minimizes evaporative losses.

       The inherent risk from toxic dust depends upon the proximity of environmental receptors, the
susceptibility of the receptor* the  type and form of ore being mined. High levels of arsenic, lead, and
radionuclides in windblown dust would be expected to pose the greatest risk.

       Some of the larger copper and gold tailings ponds in the arid west can cover areas over several
square miles.  The sand-sized tailings particles are especially susceptible to prevailing wind transport
due to the lack of moisture and the flat topography.  Most tailings ponds are not covered during
operation, although some pond water will be near the current tailings disposal pipe, spigot, or cyclone.
Most abandoned and inactive tailings ponds do not have any cover.

       Paniculate from smelter flue stacks may pose significant human health and environmental risks
(in general, smelter emissions are no longer a significant concern in the United States).  While smelter
flue dust collected before stack emission is recycled at most active smelters, windblown flue dust at
inactive and abandoned smelters has caused significant environmental damage.  For example, air
September 1997                              B - 17

                                                             POTENTIAL ENVIRONMENTAL IMPACTS
emissions from the Palmerton Zinc smelter in Palmerton, Pennsylvania, contained large quantities of
zinc, lead, cadmium, and sulfur dioxides.  The emissions led to the defoliation of approximately 2,000
acres on nearby Blue Mountain, and deposited heavy metals throughout the valley.  The rate of erosion
escalated on Blue Mountain and the mountain side became denuded of all soils, making revegetation

7.     SOILS

       Mining operations routinely modify the surrounding landscape by exposing previously
undisturbed earthen materials.  Erosion of exposed soils, extracted mineral ores, tailings, and fine
material in waste rock piles can result in substantial sediment loadings to surface waters and
drainageways. In addition, spills  and leaks of hazardous materials and the deposition of contaminated
windblown dust can  lead to soil contamination.

       Soil Contamination. Human health and environmental risks from soils generally fall into two
categories: (1) contaminated soil  resulting from windblown dust, and (2) soils contaminated from
chemical spills and residues. Fugitive dust can pose significant environmental problems at some mines.
The inherent toxicity of the dust depends upon the proximity of environmental receptors and type of ore
being mined.  High levels of arsenic, lead,  and radionuclides in windblown dust usually pose the
greatest risk.  The Bunker  Hill  Superfund site is an example of soil contamination from fugitive dust,
stack emissions, and deposition of discarded mine tailings. Soils contaminated from chemical spills and
residues at mine sites may  pose a  direct contact risk when these materials are misused as fill materials,
ornamental landscaping,  or soil supplements.
       As  noted above, cyanide may escape from heap sprays at gold facilities. If the cyanide lands on
unsaturated soils, free cyanide can volatilize to HCN  (this is not usually  a problem, however).
Adsorption, precipitation, oxidation to cyanate, and biodegradation also  attenuate free (and dissociated
complexed) cyanide  in soils under appropriate conditions.  Minor spills of cyanide are common at gold
facilities.  Spills or leaks of cyanide occur,  for example,  when portions  of a heap leach pile slumps
into a drainage ditch or solution pond and cause an overflow of cyanide-containing solution. They can
also occur  when a pipe carrying pregnant or barren solution, or tailings  slurry, fails or  is
punctured/severed by mining equipment or vehicles.  In all but a few major cases, cyanide spills have
been contained on-site, and soils usually provide  significant attenuation.  Facilities routinely store
hypochlorite or other oxidants for use in detoxifying such spills.


       By  its very nature, mining causes  land disturbances.  These disturbances can affect aquatic
resources,  wildlife, vegetation,  and wetlands,  and can lead to habitat destruction.  Surface mining
activities directly destroy habitat as a result of removal of overburden to expose ore bodies, deposition
September 1997                              B -18

                                                             POTENTIAL ENVIRONMENTAL IMPACTS
of waste and other materials on the ground surface,, and the construction of roads, buildings, and other

       Aquatic Life. Mining operations can have two major types of impacts on aquatic resources,
including aquatic life. The first type of impact results from the contribution of eroded soil and material
to streams and water bodies and from the release of pollutants from ore, waste rock, or other sources.
The second results from the direct disruption of ephemeral, intermittent, or perennial streams^
wetlands; or other water bodies. Temporary disruptions occur from road construction and similar
activities.  Permanent impacts are caused by actual mining of the area or by placement of refuse,
tailings, or waste rock directly in the drainageway. More often than not, this is in the upper
headwaters of intermittent or ephemeral streams. In addition, lowering of area surface water and
ground water caused by mine dewatering can affect sensitive environments and associated aquatic life.

       Aquatic life is generally defined as fish and benthic macroinvertebrates; however, phytoplankton
and other life forms may also be considered, depending on the type of aquatic habitat and the nature of
impacts being assessed.

       The impacts of mining operations on aquatic resources can be either beneficial or adverse.
Potential impacts also vary significantly with the affected species.  For example,  increases in stream
flow may preclude habitation of certain species of macroinvertebrates and/or fish but may also provide
new habitat for other species of aquatic life.

       The impacts of mines on aquatic resources have been well documented. For example, a
Mineral Creek fisheries and habitat survey conducted by the Arizona Game and Fish and the U.S. Fish
& Wildlife Service showed that significant damage was caused by an active mining activity on the
shores of Mineral Creek.  In summary, the upstream control station showed an overhead cover
(undercut bank, vegetation, logs, etc.) of 50% to 75%.  The dominant substrate was small gravel, and
instream cover consisted of aquatic vegetation.   Five species of fish were captured for a total of 309
individual fish.  In contrast, the downstream station showed an overhead cover of less than 25 %. The
dominant substrate was small boulders, and instream cover consisted of only interstitial spaces and very
little aquatic vegetation. No species of fish were captured and very few aquatic insects were observed
or captured. This Mineral Creek survey shows a significant degradation of habitat quality below the
mine.  Pinto Creek, which received a massive discharge of tailings and pregnant leach solution from an
active copper mine, was also surveyed. The tailings had a smothering, scouring effect on the stream.
Pinto Creek is gradually recovering from this devastating discharge through the import of native
species from unaffected tributaries.  However,  the gene pool of the native fish is severely limited as
only one age group of fish has repopulated Pinto Creek.  A second unauthorized discharge of pollutants
to the Creek could eliminate that fish species.
September 1997                              B - 19

                                                              POTENTIAL ENVIRONMENTAL IMPACTS^
       Wildlife. Mining operations can have substantial impacts on terrestrial wildlife, ranging from
 temporary noise disturbances to destruction of food resources and breeding habitat.  Unless closure and
 reclamation return the land essentially to its pre-mining state, certain impacts to some individuals or
 species will be permanent.

       Biological diversity is often viewed as a way to measure the health of an ecosystem. Noise
 during the construction phase or during operations, for example, may displace local wildlife
 populations from otherwise undisturbed areas surrounding the site.  Some individuals or species may
 rapidly acclimate to such disturbances and return while others may return during less disruptive
 operational activities.  Still other individuals may be displaced for the life of the project. Other wildlife
 impacts include habitat loss,  degradation, or alteration.  Wildlife may be displaced into poorer quality
 habitat and therefore may experience a decrease in productivity or other adverse impact. Habitat loss
 may be temporary (e.g., construction-related impacts), long-term (e.g., over the life of a mine), or
 essentially permanent (e.g., the replacement of forested areas with waste rock piles).

       Vegetation.  Vegetation consists of natural and managed plant communities.  Native uplands
 consist of forests, shrublands and grasslands; managed uplands include agricultural lands, primarily
 croplands and pastures.

       Native plant  communities perform several functions in the landscape.  Vegetation supports
 wildlife, with the diversity of vegetation strongly related to the diversity of wildlife within the area.
 Vegetation stabilizes the soil surface, holding soil in place and trapping sediment that may otherwise
 become mobilized; it also functions to modify microclimatic conditions, retaining soil moisture and
 lowering  surface temperatures.  A diverse landscape also provides some degree of aesthetic value.

       All vegetation within  the active mining area is removed before and during mine development
 and operation.  Vegetation immediately adjacent may  be affected by the roads, water diversions or
 other development.  Vegetation further removed from activities may be affected by sediment carried by
 overland flow and by fugitive dust.
September 1997                               B - 20

                                                         POTENTIAL ENVIRONMENTAL IMPACTS

U.S. Environmental Protection Agency, Office of Federal Activities. 1994. EIA Guidelines for
      Mining. Washington, D.C.

U.S. Environmental Protection Agency, Office of Solid Waste. 1994a. Copper - Extraction and
      Beneficiation of Ores and Minerals, Volume 4, EPA/530-R-94-031, NTIS/PB94-200 979,
      Washington, D.C.

U.S. Environmental Protection Agency, Office of Solid Waste. 1994b. Design and Technical
      Evaluation of Tailings Dams, EPA/530-R-94-038, NTIS/PB94-201 845, Washington, D.C.

U.S. Environmental Protection Agency, Office of Solid Waste. 1994c. Gold - Extraction and
      Beneficiation of Ores and Minerals, Volume 2, EPA/530-R-94-013, NTIS/PB94-170 305,
      Washington, D.C.

U.S. Environmental Protection Agency, Office of Solid Waste. 1994d. Gold Placer - Extraction and
      Beneficiation of Ores and Minerals, Volume 6, EPA/530-R-94-035, NTIS/PB94-201 811,
      Washington, D.C,

U-S- Environmental Protection Agency, Office of Solid Waste. 1994e. Innovative Methods of
      Managing Environmental Releases at Mine Sites, EPA/530-R-94-012, NTIS/PB94-170 255,
      Washington, D.C.

U.S. Environmental Protection Agency, Office of Solid Waste. 1994f.  Iron - Extraction and
      Beneficiation of Ores and Minerals, Volume 3, EPA/530-R-94-030, NTIS/PB94-195 203,
      Washington, D.C.

U.S. Environmental Protection Agency, Office of Solid Waste. 1994g. Lead-Zinc - Extraction and
      Beneficiation of Ores and Minerals, Volume 1, EPA/530-R-94-011, NTIS/PB94-170 248,
    .  Washington, D.C.

U.S. Environmental Protection Agency, Office of Solid Waste. 1994h. Other Mining Sectors:
      Phosphate and Molybdenite - Extraction and Beneficiation of Ores and Minerals, Volume 7,
      EPA/530-R-94-034, NTIS/PB94-201 001, Washington, D.C.

U.S. Environmental Protection Agency, Office of Solid Waste. 1994i.  Treatment of Cyanide Heap
      Leaches and Tailings, EPA/530-R-94-037, NTIS/PB94-201  837, Washington, D.C.

U.S. Environmental Protection Agency, Office of Solid Waste. 1994J.  Uranium - Extraction and
      Beneficiation of Ores and Minerals, Volume 5, EPA/530-R-94-032, NTIS/PB94-200 987,
      Washington, D.C.

U.S. Environmental Protection Agency, Office of Solid Waste. 1994k. Acid Mine Drainage
      Prediction, EPA/530-R-94-036, NTIS/PB94-201  829, Washington, D.C.
September 1997                            B - 21

             APPENDIX C


                                                  REGULATORY AND NON-REGULATORY TOOLS
                                TABLE OF CONTENTS

       I.     National Environmental Policy Act  	_._. .  C-2
       II.     Clean Water Act	  C-6
       III.    Comprehensive Environmental Response, Compensation and Liability Act	C-18
       IV.    Resource Conservation and Recovery Act	C-24
       V.     Clean Air Act	C-29
       VI.    Emergency Planning And Community Right-to-know Act (EPCRA)	C-38
       VII.   Safe Drinking Water Act	C-44
       VIII.   Toxic Substances Control Act (TSCA)	C-47

       I.     Overview	C-50
       II.     Objectives	C-51
       III.    Background	C-51
       IV.    Key Characteristics of Non-Regulatory Tools	C-52
       V.     Examples of Non-regulatory Tools .	C-55

                                                       REGULATORY AND NON-REGULATORY TOOLS
                                       1. INTRODUCTION

       Regulation of mining activities involves a complex web of sometimes overlapping jurisdictions,
laws and regulations covering several media.  In addition, ownership issue.s at many mine sites further
complicate the regulatory process.  In order to identify and implement effective actions, it is important
to have a thorough understanding of the regulatory and non-regulatory tools that are available to the

       This appendix describes the primary regulatory and non-regulatory tools that are available to
EPA to prevent, control, or remediate environmental impacts at active, inactive, and abandoned  mines.
Appendix describes the major programs of other federal agencies. Appendix E introduces and briefly
describes the nature of state regulation of mining activities.

       The description  of each of EPA's major regulatory tools is presented in outline form which
allows comparisons among their salient feature.  Descriptions are generally organized into the
following categories:

       A.  Jurisdiction/Applicability/Media/Constituents
       B.  Implementation Mechanisms (i.e., permits, response authority, standards)
       C.  Compliance/Enforcement
       D.  Funding
       E.  Natural Resource Restoration Provisions
       F.  Good Samaritan Provisions
       G.  Tribal Roles/Responsibilities
       H.  Advantages/Limitations
       I.  Integration with Other Statutes

       Categories for which the particular tools do not contain specific provisions are identified as not
applicable (N/A).
September 1997                              C - 1

                                                      REGULATORY AND NON-REGULATORY TOOLS
                               2.  EXISTING REGULATORY  TOOLS


        The National Environmental Policy Act (NEPA),  42 U.S.C. งง 4321 et seq., requires that
 federal agencies consider the environmental consequences of their actions and decisions as they carry
 out their mandated functions.

 A.      NEPA Jurisdiction/Applicability/Media/Constituents

        Pursuant to NEPA, federal agencies must prepare detailed statements assessing the
 environmental impact of, and alternatives to, major federal actions that may significantly affect the
 environment. An environmental impact statement (EIS) shall provide fair and full discussion of
 significant environmental impacts and inform decision makers and the public of the reasonable
 alternatives and mitigation measures which would avoid or minimize adverse impacts or enhance the
 quality of the environment. EISs must rigorously explore and objectively evaluate all reasonable
 alternatives even if they are not within the authority of the lead agency. For lesser actions, the agency
 may prepare an Environmental Assessment (EA) and/or make a Finding of No Significant Impact

        Federal actions specifically related to mining that may require an EIS include activities
 involving federally managed lands including approval of plans of operation for hardrock mining and/or
 milling operation and mineral leases  and sales.  In addition, certain federal permits required by EPA
 (i.e., new source National Pollutant Discharge Elimination System (NPDES) issued by EPA) or the
 U.S.  Army Corps of Engineers (COE) (i.e., Section 404) may require NEPA assessments.

        The scope of impacts to be assessed should include all affected media, such as air, water, soil,
 biological, visual, recreational, cultural, and economic resources.

 B.      NEPA Implementation Mechanisms

        Under NEPA, a lead agency is designated and is responsible for preparing the EIS.  Other
 agencies may assist as cooperating agencies. For example, the Bureau of Land Management (BLM)
 may have the lead for an EIS for a hardrock mining plan of operation, and EPA and COE may be
 cooperating agencies for purposes of the environmental assessment needs for an National Pollutant
 Discharge Elimination System (NPDES) permit to be issued by EPA and a Section 404 permit by the
 COE.  For new mining projects requiring federal permits, NEPA offers the opportunity to identify
 permit conditions, including those needed to avoid or minimize impacts or to mitigate for unavoidable
September 1997                              C - 2

                                                      REGULATORY AND NON-REGULATORY TOOLS
        EPA's review under NEPA assesses mining project alternatives, impacts, and mitigation.
Issues may inclu.de the potential for acid rock drainage, aquatic and terrestrial habitat value and losses,
sediment production, NPDES discharges, air emissions, mitigation and reclamation.  Mitigation that is
developed should be included as conditions of the NPDES permit to the extent authorized by law.
Standards, such as those established under the Clean Water Act (CWA) or Clean Air Act (CAA), serve
as thresholds in the NEPA document for determining the acceptability of project-related impacts or
mitigation requirements. Therefore,  from a procedural standpoint, the NEPA compliance process
provides the vehicle for agency consideration of overall project-related impacts prior to the permit

       New Source NPDES NEPA Compliance:   In those jurisdictions where EPA retains NPDES
permitting authority, a NEPA analysis (an environmental assessment or environmental impact
statement) must be performed prior to taking action on the NPDES permit for a mine which.is subject
to new source performance standards. The NEPA review  provides information for EPA's decision to
issue or deny the permit pursuant to the CWA. NEPA provides authority to consider the  overall
impacts (i.e., not just discharge-related) of the proposed project and alternatives.

       Section 309 of the Clean Air Act: In addition to  EPA's obligation to comply with NEPA for
certain of its actions, EPA is tasked by section 309 of the CAA to review and comment on the
environmental  impacts of any legislation submitted by a federal department or agency, major federal
actions significantly affecting the environment, newly authorized federal projects for construction, or
proposed regulations.  In the event that one of the aforementioned  are determined to be unsatisfactory
from the standpoint of public health,  welfare or environmental quality, the Administrator publishes this
determination and refers it to the Council on Environmental Quality (CEQ) for its consideration. This
referral authority has been used  15 times to date. Thus, pursuant to section 309, NEPA, and the CEQ
NEPA Implementation Regulations at 40 CFR 1500-1508, EPA reviews NEPA documents prepared by
other federal agencies.

C.     NEPA Compliance/Enforcement

        EPA's participation in NEPA analysis may influence federal  projects that are the subject of
these documents in the following ways:

       •  EPA comments on and rates the environmental impact of the proposed action  and the
           adequacy of the environmental analysis contained in the draft EIS. Based on the Agency's
          jurisdiction and/or expertise, EPA's comment  letter is  intended to foster the goals of NEPA
           by ensuring that EPA's environmental expertise is considered by Agency decision makers.
           EPA's ratings of other agencies'  actions  are viewed with considerable interest by
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                                                     —-^	•
        •   The EPA Administrator can refer an EIS that is rated as environmentally unsatisfactory to
           the CEQ.  This process provides a potential avenue for elevation of the issues and
           resolution at higher levels if solutions cannot otherwise be reached between agencies.  The
           CEQ can, among other things, publish findings and recommendations regarding the
           project, or initiate a dispute-resolution process.

        •   When EPA gets involved early in the development of a project and associated EIS, it can
           have more influence over the outcome by ensuring adequate analyses and consideration of
           environmental goals from the beginning. If it does not review a project until late in the
           development, it may be more difficult to persuade the lead agency and/or project proponent
           to make significant changes.

        •   The Agency's comments on impacts that are regulated by EPA statutes carry considerable
           influence. Both NEPA and section 309 of the CAA are used in conjunction with other
           statutes and mechanisms that regulate mining.

D.      NEPA Funding

        EPA actions carried out under NEPA and section 309 of the CAA authority do not have a  ,
specific appropriation, federal agency NEPA compliance is funded on an agency-specific basis and is
typically considered to be a normal cost of program operations.  Contract or grant funding may also be
available through EPA or other federal agencies to assist in the preparation of NEPA-related documents
and studies. The federal land management agency or regulatory agency can fund the preparation of the
information for the NEPA document through a third-party contract with the applicant for the mining
project. The CEQ does have an appropriation to support  its role in the interagency NEPA process
(currently, $1  million and 10 full-time employees (FTE)).

E.      NEPA Natural Resource Restoration Provisions - NA

F.      NEPA Good Samaritan Provisions - N/A

G.      NEPA Tribal Roles/Responsibilities - N/A

H.      NEPA Advantages/Limitations

        NEPA mandates that mitigation be analyzed. EISs have to discuss measures to mitigate adverse
environmental impacts (40 CFR 1502.16). Records of Decision have to state whether all practicable
means to avoid or minimize environmental harm from the alternative selected have been adopted, and if
not, why they  were not.  A monitoring and enforcement program must be adopted and summarized
where applicable for any mitigation (40 CFR 1505.2(c)).
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       The NEPA process may also enable land management agencies and/or states to address
performance bonds or trust funds that are established at the start of a mining project and that would not
be released at closure.  EPA comments could suggest that trust amounts would be based on the level of
risk involved in a project and could be used to remediate problems that arise long after the mining
company vis no longer managing the site. Factors such as number of years project structures would
require maintenance (e.g., in perpetuity) would be used in determining the trust amount.  Performance
bonding and perpetual trust funds should be considered as conditions of the lease or permit.
       However, NEPA is primarily limited to providing a procedural framework which requires
federal agencies to evaluate and analyze their proposed actions.  NEPA does not contain substantive
requirements and does not generally compel selection of the environmentally perforate alternative. A
further limitation is that conditions, including mitigation identified in the Record of Decision are
difficult to enforce unless they are also specifically included a permit or through some other legally
binding agreement.

       Categorical Exclusions further limit the availability of NEPA to provide for the review and
analysis of those federal actions which are determined to be categorically excluded from NEPA. These
are determined by the lead agency after there is an opportunity for public comment announced by a
notice in the Federal Register.

I.     NEPA Integration with Other Statutes

       NEPA is intended to integrate decision making, under various federal statutes to promote
"productive and enjoyable harmony between man and his environment".  With respect to new mining
projects requiring federal actions, including permits, NEPA offers the opportunity to identify
alternatives and mitigation measures in advance of permitting. NEPA provides  an excellent vehicle for
integrating overall project planning and permitting. Examples of how this integration can occur with
respect to the specific statutes are described below.

       Clean Water Act NPDES Permits. Mining projects require NPDES permits to discharge
wastewater to waters of the United States (see sections 402(a)(2), 402(1)(2)) of the CWA). A NEPA
analysis is required before an NPDES permit can be issued by EPA to a mine subject to a New Source
Performance Standard.  In addition to addressing other impacts,  a NEPA  EIS should project the quality
of the effluent using technically sound methods and representative data. The effectiveness of
alternative waste treatment methods can also be examined.  Also, under EPA's NEPA compliance
regulations, mitigation measures must be included as conditions of the NPDES permit.

       Clean Water Act Dredge and Fill Permits. Many mining projects involve some filling of
wetlands or other waters of the United States which requires authorization under section 404 of the
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 CWA.  Pursuant to Section 404(b)(l) guidelines, only the least environmentally damaging practicable
 alternative can be permitted.  The identification in a NEPA EIS of the environmentally preferred
 alternative should ideally satisfy the alternatives analysis requirements of section 404. Mitigation
 described in the EIS to replace unavoidable losses of aquatic habitat can then form the basis for
 mitigation requirements of section 404 permits. In short, the EIS should provide the information
 necessary to determine compliance with the requirements of section 404 of the CWA.

        Clean Air Act. Where a NEPA document is prepared, compliance with CAA requirements
 must,  to the fullest extent possible, be documented through the NEPA process.  This could affect the
 citing of facilities and thus the overall identification of the environmentally preferred alternative. In
 non-attainment areas, section 176(c) of the CAA prohibits issuance  of a federal permit unless it can be
 demonstrated that the proposal will conform with the SIP.

        Federal Land Policy and Management Act (FLPMA).  FLPMA governs the way the BLM
 and U.S. Forest Service (USFS) administer public lands, including  mining on public lands. Under
 FLPMA, BLM and USFS land use decisions are subject to NEPA.  Federal land managers generally
 require Plans of Operation, which include reclamation plans and describe details of the proposed
 operation. By describing these plans in a NEPA document, other federal and state regulatory agencies
 can comment on aspects of the project design that relate to their respective statutory authorities,
 regulatory requirements, or that pertain to their particular expertise.

        Other Federal and State Statutes.  Federal, state,  and local agencies commenting on  NEPA
 documents can influence the decision process and meet many of their own permitting information
 needs.  Sixteen states have implemented  NEPA type statutes.


        The Federal Water Pollution Control Act, 33 U.S.C.งง 1251 et seq. (Clean  Water Act),
 provides that point source  discharges of pollutants to waters of the United States are prohibited unless
 authorized by a permit. Mining activities often involve activities that result in discharges to waters of
 the United States.  Three separate programs established by the Clean Water Act are  significant when
 reviewing mining activities.  These include the establishment of water quality standards pursuant to
 section 303(c) of the CWA, NPDES permit requirements set forth in section 402, and dredge and fill
 permit requirements set forth in section 404.  Each of these three areas is discussed in the following
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Section 303: The Establishment Of Water Quality Standards

A.      Section 303 Jurisdiction/AppUcability/Media/Constituents

        Jurisdictional conditions.  All states, pursuant to section 303(c) and 40 CFR 131.11 are
required to establish state water quality standards for waters of the United States within their
jurisdictions that take into account the beneficial uses of the water segment, including consideration of
downstream uses.   Beneficial uses include public water supplies, protection and propagation of fish
and wildlife, recreation, agricultural and industrial water supplies, and navigation.  State water quality
standards must include designated uses of waters, criteria to protect those uses, and an antidegradation
policy.  NPDES effluent limitations necessary to attain or maintain these standards must also be
established in accordance with 40 CFR 122.44(d) where a permitting authority determines that
pollutants "are or may be discharged at a level which will cause, have the reasonable potential to cause,
or contribute to an excursion above a state water quality standard."

        Media.  Section 303 is applicable to all waters of the United States.

        Constituents: States must review, pursuant to 40 CFR 131.1 l(a)(2), water quality data and
information on discharges to identify specific water bodies where toxic pollutants (the 126 priority
pollutants identified under section 307(a) of the CWA) may be adversely affecting water quality or
attainment of the designated water use or where the levels of toxic pollutant(s) warrant concern.  In
such circumstances, states must adopt criteria for such toxic pollutants applicable to the water body
sufficient to protect the designated use.  Some of these pollutants are likely to be associated with active
and abandoned hardrock mines.

        Where a state adopts narrative criteria for toxic pollutants to protect designated uses, the state
must provide information identifying the method by which the state intends to regulate point source
discharges.  States must also adopt any other criteria that may be needed to protect the designated use.
Criteria are to be based on sound scientific rationale if less stringent than EPA recommended criteria.
EPA has issued recommended criteria pursuant to section 304(a) of the CWA.  EPA's IRIS database
provides up-to-date scientific information on the toxicity and effects of a vast array of chemicals.

B.      Section 303 Implementation Mechanisms

        Permits:  In accordance with 40 CFR 122.44(d), each NPDES permit shall include conditions
that attain or maintain water quality standards established pursuant to Section 303  of the CWA,
including state narrative criteria for water quality. Permits issued by the COE for discharges of
dredged or fill material must similarly ensure compliance with such standards (See 40 CFR
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        Review/approval: State water quality standards must be reviewed from time to time, but not
 less frequently than every three years, to determine whether any new information has become available
 for any water segments with standards that do not include the uses specified in Section 101(a)(2) of the
 CWA (i.e., fishable/swimmable).

        Remediation:  States are required to conduct and submit to EPA a use attainability analysis "
 where a water body does not have all the uses included in section 101(a)(2) of the CWA (i.e., fishable/
 swimmable).  Such an analysis could indicate the need for upgrading the us e and attendant water
 quality criteria for the water segment. This provision may relate to many areas where discharges from
 mining operations impact use attainability.

        Standard Setting: In establishing water quality standards applicable to surface waters
 associated with mining sites, states may use EPA's gold book criteria (values established as guidance
 for the section 307(a) pollutants) or develop their own levels in accordance with regulations at 40 CFR
 131 and EPA's guidance provided in the Water Quality Standards Handbook. NPDES water quality-
 based effluent limitations protective of state water quality standards for toxic pollutants must be
 established in accordance with the general provisions of 40 CFR 122.44(d).  EPA's guidance for
 establishing permit limitations for toxic pollutants is provided in the 1991 Technical Support Document
for Water Quality-based Toxics Control.

        Water quality-based effluent limits are applicable where technology-based limits are not
 sufficiently stringent to ensure that water quality standards are attained or maintained. In developing
 water quality-based effluent limitations, an NPDES permitting authority must evaluate a discharge to
 determine whether or not pollutants are or may be discharged at a level which will cause, have the
 reasonable potential to cause, or contribute to a violation of a state's water quality standard.  Water
 quality-based  effluent limitations must be set at a level that attains or maintains a state's water quality
 standards established pursuant to section 303.

 C.      Section 303 Compliance/Enforcement

        EPA review and approval/disapproval of a state's triennial review of water quality standards
provides a mechanism for oversight of state water quality standards and a basis for over-promulgation
where states fail to establish appropriate water quality standards. Compliance and enforcement of
water-quality based effluent limitations in NPDES permits is performed in the same manner as for other
conditions in NPDES permits.

D.      Section 303 Funding - N/A

E.      Section 303 Natural Resource Restoration Provisions
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       States may designate waters as outstanding national resource waters where the states want to
maintain and protect from degradation high quality waters that constitute an outstanding national
resource (ONRW) - such as waters of national and state parks, wildlife refuges, and waters of
exceptional recreational or ecological significance.

F.     Section 303 Good Samaritan Provisions - N/A

G.     Section 303 Tribal Roles/Responsibilities

       EPA may treat an Indian tribe in the same manner as a state for purposes of the water quality
standards program if the tribe meets several criteria set forth iri 40 CFR 131:

       •   Tribe is recognized by the Secretary of the Interior and meets the definitions of 40 CFR
       •   Tribe has a governing body carrying out substantial governmental duties and powers.

       •   The water quality standards program to be administered by the tribe pertains to the
           management and protection of water resources within the borders of the Indian reservation.

       •   The Indian tribe is reasonably expected to be capable, in the Regional Administrator's
           judgment, of carrying out the functions of an effective water quality standards program in a
           manner consistent with the terms and purposes of the CWA and applicable regulations.

H.     Section 303 Advantages/Limitations

       Historically, there has been some discrepancy in application of the above-described process to
ensure that appropriate standards are established, uses maintained, and uses upgraded. EPA's
December 22, 1992 rule implementing a portion of the 1987 amendments to the CWA (the so-called
National Toxics Rule (NTR)) redressed this imbalance, to an extent, by promulgating standards for
toxics where needed.

       In addition, current information indicates that water quality standards and corresponding water
quality-based effluent limitations are not always adequate in mining areas, where the waters
immediately adjacent to active or abandoned mines may be badly impaired, but where downstream
water quality is the key determinant.

        Another limitation is the limited technical resources available to establish both appropriate
water quality standards and water quality-based effluent limitations.
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        A key issue in connection with water quality standards and water quality-based effluent
 limitations for heavy metals is the manner in which a metal concentration is expressed.  The focus of
 this issue is how to accurately express the fraction of the metal that is chemically available, and thus
 able to impair human health or the environment (i.e., the dissolved fraction) in relation to the total
 recoverable portion of the metal. In section 304(a) of the CWA, the criteria for metals are expressed
 as total recoverable metal and accordingly, the numeric criteria for metals in the NTR were also based
 on  total recoverable metal. However, shortly after promulgation of the NTR, the Agency issued a
 policy statement recommending the use of dissolved metal  to set and measure compliance with water
 quality standards. On May 4, 1995, EPA revised the NTR to express the numeric metals criteria in
 terms of dissolved metal (60 FR 22229).  EPA's December 22, 1992, rule provided specific guidance
 in this respect.  Although the water quality standard (and the effluent limitations based on the standards)
 must be expressed as total recoverable metal,  the standard  can be based upon a water effect ratio.  The
 water effects ratio is designed to account for the phenomenon of a particular water bodies' ability to
 effectively bind a portion of the metal, thus making it unavailable.  In addition, guidance exists for
 establishing, on a case-by-case basis, a water effects ratio that can be reflected in site-specific water
 quality-based effluent limitations.

 /.      Section 303 Integration with Other Statutes

        The water quality standards established under the CWA provide an important baseline for
 implementing the permitting requirements of the CWA as well as for implementing many of the other
 federal environmental statutes.  (See discussion under NEPA, CERCLA)
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Section 402:  National Pollutant Discharge Elimination System  (NPDES) Program

       Over the last several years, implementation of the NPDES permitting program has moved from
control of single point sources of pollution, based on a relatively small number of conventional
pollutants (biological oxygen demand, total suspended solids, oil & grease, fecal coliform, pH) to more
complex  analyses that consider multiple sources of pollution and multiple pollutant parameters
including non-conventional (e.g., ammonia, chlorine, color, iron, and total phenols) and toxic
pollutants. Increasingly, permits issued by federal and state regulators include limitations necessary to
meet specific in-stream water quality criteria (in addition to any applicable technology-based

       Recent national initiatives are directed toward ensuring that point sources of pollution are
addressed, to the maximum extent possible, on a watershed basis.  This approach emphasizes
addressing point and nonpoirit sources of pollution in recognition of all other inputs to the basin.  It is
also designed to ensure that the highest priority sources (with respect to impacts on the basin) are
addressed. The watershed approach can be an effective administrative mechanism to provide greater
cost effective reductions of pollutant loadings.

A.     Section 402 Jurisdiction/Applicability/MedialConstituents

       NPDES permits are required for all point source discharges of pollutants to waters of the
United States.  The current operator must obtain the permit, but where there is no operator, then the
ownei must apply. Section 301(a) of the CWA provides that "[e]xcept as in compliance with .  . .
sections  . . .  402 and 404 of this Act, the discharge of any pollutant by any person shall be unlawful."

       Jurisdictional conditions: Section 402 of the CWA applies to discharges of a pollutant from a
point source.  Under section 502(14) point sources include any discernible, confined and discrete
conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete
fissure, container from which pollutants are or may be discharged to waters of the United States.

       Media: Point source discharges must be to waters of the United States.  Waters of the United
States  are defined in 40 CFR  122 to include all surface waters, wetlands, streams (ephemeral,
intermittent or constant), rivers, lakes,  and ponds which could affect interstate or foreign commerce.

       Constituents: Under the CWA pollutant is defined very broadly and generally would include
any material that may be discharged to or be placed in a water of the United States as a result of any
mining activity.
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B.      Section 402 Implementation Mechanisms

        Permits are required for all point source discharges that are not expressly excluded by Section
402(1)(1) and (2) of the CWA. This includes storm water contaminated by contact with material from
mining activities.  Individual permits may be issued and generally must include numeric end-of-pipe
limits (unless not technically feasible to develop those limits, hi which case best management practices
(BMP) may be required).  General permits may be issued to a class or category of mines and may
require BMP (including inventorying,  assessment, prioritization, and identification and implementation
of best management practices) necessary to meet water quality standards. All permits, whether
individual or general, must contain the more stringent of technology-based or water quality-based

        The NPDES regulations classify discharges from mine sites as either mine drainage, process
water, storm water or unclassified.  Those discharges classified as mine drainage or process water are
subject to the effluent limitations guidelines restrictions set forth in 40 CFR 440.  Those classified as
storm water may be permitted pursuant to NPDES general storm water permits if they are not mixed
with the two former types. EPA published a table in the September 29, 1995 Federal Register (60 FR
50804) to clarify which discharges from mining areas are subject to the effluent limitations guidelines
and which may be subject to a general storm water permit. This table has been challenged by the
National Mining Association.

        General permits are a viable option only where EPA or the state in which the sites are located
has issued a general permit for such discharges.  EPA has published two general  permits which may be
applied to storm water discharges from mining related sources. The first is the Baseline General Storm
Water Permit published on September  9, 1992 (57 FR 41236).  The second is the Multi-Sector  General
Storm Water Permit published on September 29, 1995 (60 FR 50804).

        Section 402(p) of the CWA, requires discharges of storm water associated with industrial
activity to apply for coverage under an NPDES permit by October 1, 1992.  On November  16, 1990
(55 FR 47990), EPA promulgated the  regulatory definition of storm water discharges associated with
industrial activity.   (See 40 CFR 122.26(14)).   This definition includes point source discharges of storm
water from eleven major categories of industries, including:  (I) facilities subject to storm water effluent
limitations guidelines and "(iii) facilities classified as Standard Industrial Classifications 10 through  14
(metal mining industry), including active and inactive mining operations. Storm water discharges at
mine sites may include those discharges that have come into contact with, or are contaminated by
contact with, any overburden,  raw material, intermediate products, finished products, by-products or
waste products located on  the site of such operations which is consistent with section 402(1)(2).
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       Review/approval:  New sources must have a permit before beginning to discharge.  Existing
sources must presently have a permit or be in violation of the CWA. Forty-one non-federal
jurisdictions (42 states and the U.S. Virgin Islands) have been authorized to issue permits.

       Remediation: Section 504 of the CWA  provides EPA the authority to respond to situations
presenting an imminent and substantial endangerment by bringing an action to restrain any person
causing or contributing to the alleged pollution to stop the discharge of pollutants or to take such other
action as may be necessary.  In addition, EPA's policies provide that as part of a resolution of an
enforcement proceeding under the CWA, EPA may enter into settlements containing Supplemental
Environmental Projects (SEPs) which may involve remediation of source areas.

       Standards: Technology-Based Requirements. Technology-based requirements applicable to
mining operations are described by national rule, or on a case-by-case basis using Best Professional
Judgement (BPJ) where no national rule is applicable. To date, EPA has established national
technology-based effluent limitations guidelines (ELG) for 52 categories of industrial activities,
including ore mining and dressing (See 40 CFR 440), with separate numeric limits for mine drainage
and for mill discharges. In addition, there are three other effluent  guidelines which apply to other
hardrock mining sectors addressed by this framework: mineral mining and processing (40 CFR 436),
nonferrous metal manufacturing (40 CFR 421), and ferro-alloy manufacturing (40 CFR 424). Permits
are required to impose effluent limitations reflecting Best Available Technology (BAT) for
nonconventional and toxic pollutants (i.e., applicable ELG or limitation based upon BPJ).  (See
Section  301(b)(2) of the CWA). Technology-based requirements (including zero discharge where
found to be technically and economically achievable) must be met regardless of whether they are more
stringent than necessary to meet water quality requirements. Water Quality-Based Requirements.
Permits are required to assure compliance with all applicable state  water quality standards regardless of
technological or economic feasibility.

C.     Section 402 Compliance/Enforcement

       Injunctive relief: The CWA provides authority to seek temporary or permanent injunctive
relief under  section  309(b) of CWA.

       Administrative/compliance orders: The CWA provides authority to  issue administrative
compliance orders under section 309(a) of the CWA.

       Civil penalties: The CWA provides for civil penalties of up to $25,000 per day of violation
prior to January 31, 1997 and up to $27,500 for violations after January 31, 1997 and up to one year
imprisonment under section 309 of the CWA.
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        Criminal penalties: The CWA provides for criminal penalties of up to $25,000 per day
 (and/or up to 1 year imprisonment) for negligent violations and $50,000 per day (and/or 3 years
 imprisonment) for knowing violations under section 309 of the CWA.

        Imminent hazardous authority: Section 504 of the CWA provides authority for EPA to bring
 suit to restrain pollution that presents an imminent and substantial endangerment to health or economic
 livelihood pursuant to section 504 of the CWA.

        Information collection: The CWA provides broad authority to require submission of
 information, self-monitoring, entry and inspection, and record keeping under section 308 of the CWA.

 G.     Section 402 Tribal Roles/Responsibilities

        Tribes may be delegated the authority to implement the NPDES program.

 H.     Section 402 Advantages/Limitations

        The NPDES program provides a rigorous program with limited flexibility which, at times, can
 be difficult to adapt to mining situations.   For instance, situations involving high levels of background
 pollutants are difficult to reconcile with the NPDES program.

        Permits issued under the CWA could potentially limit the availability of other statutory
 authorities to respond to environmental problems resulting from the federally permitted release. For
 instance, CERCLA provides a defense for federal permitted releases.

 77.     Section 402 Integration with Other Statutes

        See previous subsection.

 Section 404: Discharges of dredged or fill materials

        Section 404 of the CWA is jointly implemented by EPA and the COE. Section 404 generally
 requires .a permit to discharge dredged and fill material to wetlands  and other waters of the United

A.      Section 404 Jurisdiction/Applicability/Media/Constituents

        Geographical Jurisdiction Conditions:  The geographic scope of the Clean Water Act is
consistent across the Act's programs and covers waters of the United States. The term includes
wetlands adjacent to traditionally navigable waters such as interstate rivers and streams and coastal
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waters, as well as isolated waters and wetlands so long as their destruction or degradation does or could
affect interstate commerce. Section 404 defines wetlands in terms of three parameters:  wetland
vegetation, hydric soils, and hydrology (flooding/soil saturation).

       Activities Jurisdiction Conditions:  Section 404 regulates discharges of dredged material and
of fill material. The term discharge has been interpreted to include both additions and redeposits to
wetlands and other waters of the United States.  The term discharge of dredged materials includes
discharges associated with mechanized land clearing, ditching, channelization, and other excavation
activities that destroy or degrade wetlands or other regulated waters. Discharges that have only de
ndnimis,  or inconsequential, effects are excluded from the definition.

       Section 404(f) exempts from regulation discharges associated with certain activities specified in
the statute itself.  These exemptions include temporary mining roads constructed and maintained in
accordance with best management practices. These exemptions are limited and do not allow the
exemption of discharges incidental to any activity that converts a waters of the United States to another
use and impairs the flow or circulation of the waters of the United States or reduces the reach of such
B.     Section 404 Implementation Mechanisms

       Permits: Anyone wishing to discharge dredged and  fill material to wetlands and other waters
of the United States must first  obtain authorization from the COE, either through issuance of an
individual permit or as authorized under a general permit.  General permits are authorized under
section 404(e) for categories of activities that are similar in nature and will have only minimal
environmental impact.  General permits can be issued on a nationwide, regional, or state level.
Currently, there are 37 nationwide permits (NWP) listed in 33 CFR 330.  NWP 21, for example,
authorizes discharges associated with surface coal mining provided they are authorized under the
Surface Mining Control and Reclamation Act.

       Review/Approval: Discharges to wetlands and other waters of the United States not
authorized by general permits  must be authorized by the COE through the individual permit process.
COE bases its decision upon whether the proposed project (1) complies with EPA 404(b)(l) Guidelines
(See 40 CFR 230), and (2) is in the public interest. EPA Regions review COE public notices for
individual permit applications  and provide comments to the COE  regarding the proposed project's
compliance with the Guidelines.

       Criteria/Mitigation:  The guidelines set forth the environmental criteria that the COE applies
when reviewing individual Section 404 permit applications. The guidelines provide that a permit
should not be issued if the proposed discharge would either:  (1) violate state water quality standards,
(2) violate toxic effluent standards, (3) jeopardize federally listed  threatened or endangered species, or
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 (4) cause or contribute, either individually or collectively, to significant degradation of wetlands or
 other waters of the United States.  Under the guidelines' alternative analysis, consideration is given to
 whether the proposed discharge is the least damaging practicable alternative.

        The Guidelines also require that the discharger undertake all appropriate and practicable
 mitigation in order to minimize any potential harm to the aquatic resources.  COE evaluates permit
 applications to ensure that mitigation occurs  in the following sequence:  (1) avoidance of impacts,
 where practicable through the evaluation of alternative sites, (2) minimization of impacts, and (3)
 appropriate and practicable compensation of unavoidable impacts through wetlands creation or

 C.     Section 404 Compliance/Enforcement

        The CWA gives EPA and COE joint authority to enforce the requirements of the Section 404
 program. The two agencies have an enforcement Memorandum of Agreement (MOA), that allocates
 this shared responsibility. Under the MOA,  COE is the  federal permitting authority with the lead on
 permit violation cases; while EPA has the lead on many unpermitted discharge violations.

        Injunctive Relief:  EPA can seek injunctive relief administratively through issuance of an
 administrative compliance order under section 309(a), or judicially as provided by section 309(b).
 EPA's most common type of injunctive relief seeks to require a violator to stop illegal fill activity and,
 where appropriate, to undertake removal of a illegal discharge as well as restore the site to a
 functioning wetland system.

        Civil Penalties: EPA can seek civil penalties in both the administrative and judicial arenas.
 Under section 309(g), EPA is authorized to administratively assess civil penalties up to $25,000 per
 violation. Also, EPA can seek civil penalties under a civil judicial action.

        Criminal Penalties:  Under section 309(c), EPA is authorized to initiate criminal judicial
 enforcement actions for negligent violations, which are misdemeanors, and for knowing violations
 which constitute felonies.

        Information Collection:  EPA can and does avail itself of the various information gathering
 tools provided for in the CWA. In particular, under section 308, EPA can require the submission of
 information in order to determine the existence and/or extent of a violation.

 D.     Section 404 Funding - N/A

 E.      Section 404 Natural Resource Restoration Provisions - N/A
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F.     Section 404 Good Samaritan Provisions - N/A

G.     Section 404 Tribal Roles/Responsibilities - N/A

H.     Section 404 Advantages/Limitations

       Definition of Fill Material: Historically,  EPA and COE have had different definitions of the
term fill material.  EPA's fill material definition is based on an effects test and considers whether the
discharge raises the bottom elevation of a water body or replaces a water body with dry land.  The
COE definition, in contrast, also includes a requirements that the discharge be for the primary purpose
of filling the area, thereby excluding waste disposal. This difference has resulted in disagreements
between EPA and COE over whether particular waste discharges, such as mining waste, should be
regulated under section 404 or section 402.

       Waste Treatment Systems: The CWA's regulatory definition of waters of the United States
excludes certain waste  treatment systems from the  geographic scope of the Act. Efforts to interpret and
clarify this exclusion have been underway for many years. The question has arisen as to the
circumstances under which basins can be  created in waters of the United States for the disposal and
treatment of mine tailings.  EPA's Office  of Water (OW),  in consultation with the COE, addressed this
issue in a  1992  memorandum hi the context of pending section 404 permit applications for two
proposed gold mines in Alaska, the A-J Mine and the Kensington Mine.  EPA and COE agreed that the
mining companies needed a section 404 permit for the discharge of fill materials to create the basins
themselves, and that a  section 402 permit was needed for any discharges flowing out of the basins
following treatment.  The two agencies further  agreed that the basins created by the discharge of fill
material, if permitted pursuant to an individual  Section 404 permit for purposes of creating a waste
treatment system, would no longer be waters of the United States. This means that these basins could
function as waste treatment systems (i.e.,  discharges into the basins would not have  to be permitted
under section 402).  As part of the Section 404(b)(l) Guideline analysis undertaken during the
individual section 404 permit review process, COE would  consider the loss of aquatic values resulting
from construction of the treatment system, including the physical impacts of the discharge  of mine
tailings in those systems.

/.     Section 404 Integration with Other Statutes

       NEPA: In those situations where section 404 is applicable and an EIS must be prepared, there
is the opportunity for integration between NEPA and Section 404, especially with regard to decisions
relating to the determination of practicable alternatives and requirements for practicable mitigation.

       Administration Wetlands Plan:  An important section 404 regulatory development is
implementation of the Administration Wetlands Plan, a set of 40 initiatives to make  federal wetlands
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policy more flexible for the landowner and more effective in protecting valuable wetlands.  The
initiatives, many of which have been implemented, emphasize: streamlining the permit process;
increasing cooperation with private landowners; improving wetlands science; and increasing
participation by states, tribes, local governments, and the public in wetlands protection.

        CERCLA: Section 404 can be relevant in certain inactive and abandoned mine situations
where CERCLA is applicable. Reference should be made to a guidance document entitled Guidance
for Considering Wetlands and Supetfimd Sites.  Wetlands issues can arise in the context of whether part
of the site contamination involved unauthorized discharges of dredged or fill material to wetlands such
that mitigation for such discharges should be obtained.  In addition, if the proposed cleanup activities
will involve discharges to wetlands or other waters of the United States, determinations need to be
made as to whether section 404 is an applicable and relevant and appropriate requirements and, if so,
there needs to be compliance  with section 404 regulations.


        CERCLA provides EPA with authority  to assess, investigate and cleanup environmental threats
resulting from mining activities (42 U.S.C. ง 9601  et seq.).  Although Superfund authorities can
potentially be  applied to a broad range of mining sites, EPA has generally used it only at those
significant sites at where other regulatory tools have not been able to achieve environmental protection
goals. During the past decade, the Superfund program has been used to address the environmental
threats at  a number of major mineral mining/processing sites, include   Bunker Hill, Anaconda, East
Helena, Cal Gulch, and Summitville. Each of these sites posed a significant human health or
environmental risk. Other smaller sites have also been addressed under the auspices of Superfund.
Both government and privately funded response actions have been taken at sites to address localized
threats to  public health and/or the environment.

A.     CERCLA Jurisdiction/Applicability/Media/Constituents

        Jurisdictional Conditions.  CERCLA applies to releases or threatened releases of: 1) a
hazardous substance into the environment or 2)  a pollutant and contaminant which may present an
imminent  and  substantial danger to public health. The term release is defined broadly in the statute,
including  any  type of emitting or leaking of substances into the environment.

        Media. CERCLA is not media specific; thus, it can cover releases to air, surface water,
ground water and soils.

        Constituents.  The definition of hazardous substance is extremely broad, covering any
substances, hazardous constituents, hazardous wastes, toxic pollutants,  imminently hazardous chemicals
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or mixtures, hazardous air pollutants, etc., under other federal environmental laws, as well as any
substance listed under section 102 of CERCLA. The fact that a substance may be specifically excluded
from coverage under one statute does not affect CERCLA's jurisdiction if that substance is listed under
another statute or under section 102.  A comprehensive list of these substances is provided in 40 CFR
302.4. From a mining perspective, only sulfates are excluded from the broad  coverage of hazardous
substances.  Contaminants such as sulfates, however, can be covered under the more limited provisions
of CERCLA relating to pollutants and contaminants,'and will be discussed in the following subsections.
Although certain wastes are excluded from RCRA Subtitle C regulation (i.e., Bevill wastes), they can
be addressed under CERCLA. Thus, CERCLA covers almost every toxic or hazardous constituent
found at mining sites. Exceptions include petroleum (that is not mixed with a hazardous substance) and
naturally occurring releases.  However, this exception does not include any of the releases normally
found at mining sites, such as acid mine drainage,  waste rock, or any ore artificially exposed to the
elements by man.

B.     CERCLA Implementation Mechanisms

       Permits.  CERCLA does not include any permit mechanism.  Section  121(e) waives any
requirement for a federal, state or local permit for any  portion of a removal or remedial action that is to
be conducted entirely on-site.  However, that action must be performed in accordance with the
substantive requirements  of federal or state environmental laws. EPA has usually taken the position
that on-site includes a discharge to surface water within the site boundaries, even though the water
eventually flows off-site.  However, this waiver applies to actions conducted as part of the CERCLA
response.  Whether it overrides pre-existing permit obligations (e.g., the requirements of a permit for a
pre-existing discharge) is very uncertain.  The section 121(e) exemption is essential for ensuring that
EPA can take emergency actions in a timely manner.

       Review/Approval. Typically, no review or approval, is afforded at new or existing facilities
unless there is a release or threat of release addressable under CERCLA.  However, once jurisdiction is
established, EPA has the  capacity to review and approve any plans that address or affect that release or
threatened release.
       Financial assurance.  Section 108(b) gives the EPA Administrator the authority to promulgate
regulations which would require adequate financial assurance from classes of facilities that is consistent
with the degree and duration of risk associated with the production, transportation, treatment,  storage,
or disposal of hazardous substances.  This provides an extremely useful tool to fill the gap created in
RCRA financial assurance requirements by the Bevill Amendment.

       Response Authorities. CERCLA's main strength is its response authorities. EPA can either
use the Superfund to perform remedial activities (section 104) or  order parties to perform such
activities (section 106). CERCLA gives  EPA  the flexibility to cleanup sites based upon site-specific
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circumstances.  EPA's cleanup decisions are based upon both risk assessment and consideration of
applicable and relevant and appropriate requirements (ARARs). As long as the jurisdictional
prerequisites have been met, CERCLA gives EPA the ability to perform any activity necessary to
protect public health and the environment.  CERCLA provides EPA with the authority to perform
assessments, removal actions, and remedial actions.

        Assessments. A CERCLA assessment generally evaluates contaminants of concern, exposure
pathways and potential receptors.  The assessment process includes the review of all available
information as well as sampling for any other necessary information.  It is broad in its application and
is extremely useful in a multi-media mining program.

        Removal Action.  Removal actions can be performed on mining sites of any size in an
emergency situation (implementation can occur within hours) or over a long period of time.  Removal
actions are generally subject to time (two years) and money ($2,000,000) limits under the statute.
        Remedial Actions.  Remedial actions are typically long-term actions performed at those sites
placed on the National Priorities List.  These actions are not subject to the time or dollar limitations
imposed on removal actions, but require a more detailed and formal decision process. Unlike removal
actions, however, remedial actibns to be implemented with Superfund dollars (when there are no viable
parties) require a 10-percent state share in costs and a state assurance of operation and maintenance
before remediation can commence.

        Standard Setting.  Under the current statute, CERCLA has no uniform national standard
setting authorities.  However, through the use of risk assessment and ARARs analysis, EPA can set
site-specific standards for cleanup and maintenance. ARARs can be a very powerful tool, as they give
EPA the authority to enforce standards which would not otherwise be applicable, if those standards are
relevant and appropriate under the circumstances. For instance specifically related to mining, EPA has
the authority to use appropriate parts of RCRA Subtitle C despite the Bevill amendment.

C.      CERCLA Compliance/Enforcement

       Potentially Responsible Parties (PRPs).  CERCLA creates a broad category of persons who
may be liable. This includes (1) current owners (including lessees) or operators of the facility; (2) past
owner or operator at the time of disposal of hazardous substances in question; (3) anyone who arranged
for the treatment, transportation or disposal of the hazardous substances in question; and (4) any
transporter of the hazardous substances in question if the transporter chose the disposal location.
Liability is strict. That is, if the party falls into one of the above four categories, it is liable,  regardless
of fault.  Liability is joint and several so long as the harm is indivisible (i.e., there  is no rational basis
for apportionment). The burden of proof as to whether harm is indivisible is on the defendant, not on
the government.  Both EPA and courts, however, have chosen to apportion liability in appropriate
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circumstances.  Liability is retroactive, thus CERCLA can reach those responsible for disposal
activities prior to enactment of CERCLA.

       Prospective Purchasers of Contaminated Property.  EPA has developed a prospective
purchaser policy which affords a party  interested in the purchase of contaminated properties with
protection from CERCLA liability if that party is willing to provide some benefit to EPA not otherwise
available from PRPs at the site.

       Administrative and Injunctive Authorities.  Section 106 provides for administrative or
injunctive relief where:  (1) there may be an imminent and substantial endangerment to the public
health or welfare or the environment; (2) because of a release or threat of a release; (3) of a hazardous
substance; and (4) from a facility.   The scope of action that EPA can require under section 106 of is
broad. At existing facilities, EPA could enjoin production activities or order changes to those activities
(unless the activity is a discharge pursuant to a federally permitted release). Remedies can include
institutional controls or removal of hazardous substances.  The response action must not be
inconsistent with the National Oil and Hazardous Substances Pollution Contingency Plan (NCP) as
listed in 40 CFR 300.

       Cost Recovery. Sections  104 and  107 provide for the recovery of certain costs expended by
the government in responding to environmental contamination from responsible parties (as previously
defined). These response costs must be incurred as a  result of (1) a release or substantial threatened
release (2) of a hazardous  substance (3) from a facility.  In order for the United States,  a  state or Indian
tribe to recover under these provision, the costs incurred have to be not inconsistent with the NCP.
Like most recovery provisions in the law, EPA's cost recovery authority does  have a statute of
limitations.  For removal actions, EPA must commence its cost recovery action within three years of
completion of the removal action (unless the removal action proceeds into a remedial action).  For
remedial actions, EPA must commence its cost recovery action within six years of the initiation  of
physical on-site construction of the remedial action.

       Civil Penalties. Under sections 106(b) and 109, EPA imposes a fine of $25,000 per day for
failure to comply with an order issued under CERCLA.  In addition, if EPA spends Superfund  dollars
performing work where a responsible party has failed to perform such work under order, that party
may be liable for punitive  damages in an amount equal to three times the costs incurred by the United
States under Section 107(c)(3).  When EPA enters into consensual agreements with responsible parties
for the performance of work, it may also require stipulated penalties for the responsible party's  failure
to adhere to  the requirements of the agreement.

       Criminal Penalties.  Criminal penalties only apply to two provisions of CERCLA.  The first is
for failure to provide notification of a release of a reportable quantity of a hazardous substance,  the
second for destruction of records which are supposed  to be maintained under the Act.
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        Information Collection. Section 104(b) allows for investigations, monitoring, surveys, testing
 and information gathering appropriate to identify the existence and extent of release or threat thereof,
 the source and nature of hazardous substances, pollutant or contaminants; and the extent of danger to
 public health, welfare or the environment.  Studies may include planning, legal, fiscal, economic,
 engineering, architectural or others necessary or appropriate to plan and direct response actions,
 recover costs or enforce the chapter.

        Section 104(e)(2) provides EPA access to information documents relating to: (1) the
 identification, nature and quantity of materials generated, treated, stored or disposed at a facility; (2)
 the nature and extent of a release or threatened release of hazardous substance, pollutant or
 contaminant; (3) the ability of the person to pay for or perform cleanup. Section 104(e)(3) provides
 EPA with the authority to enter any place where a hazardous substance, pollutant or contaminant: (1)
 may have been generated, stored, treated, disposed of or transported from; (2) or from which there is a
 release or threatened release of a hazardous substance; (3) or any place where entry needed to
 determine the need for response, appropriate response or to effectuate a response. Section 104(e)(4)
 gives EPA the authority to inspect, and obtain samples from, any location or containers of suspected
 hazardous substances, pollutants or contaminants. If a party refuses to consent to EPA's information
 collecting authorities, EPA may issue orders and/or seek court intervention providing for the collection
 of information and provision of access.  Access may be granted through a warrant (where short-term
 access is necessary) or by court order (for long-term or intrusive access circumstances).

        Section 103 requires any owner or  operator a  facility, owner at the time of disposal at a facility
 and transporter who chose to dispose of hazardous substances at a facility to notify EPA of the
 existence of such facility if storage, treatment, or disposal of hazardous substances has occurred at such
 facility. Thus, Section  103 provides broad authority for requiring the submission of information
 necessary to identify the location of sites needing EPA's attention.

 D.     CERCLA  Funding

        The  Superfund, when not shadowed by its sunset provision, is funded by both a tax on the
 chemical industry  and some smaller contribution of appropriated funds. The Superfund typically  has
 enough money available to perform necessary investigatory and cleanup activities.  CERCLA does
 contain fund-balancing criteria to ensure that the fund does not deplete its resources on any one site.
 Cost recovery by the government is a critical element of ensuring the adequacy of the Superfund.

 E.      CERCLA  Natural Resource Damage Provisions

        Section 107(C)(4) provides for the recovery of damages for injury to, destruction of, or loss of
 natural  resources,  including  the reasonable  costs of assessing such injury, destruction, or loss.  Natural
 resources as  defined at Section 101(16) means land, fish, wildlife, biota, air, water, ground water,
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drinking water supplies, and other such resources belonging to, managed by, held in trust by,
appertaining to, or otherwise controlled by the United States, any state or local government, any
foreign government or any Indian tribe.   EPA is not responsible for recovering natural resources
damages due the federal government, this responsibility generally lies with those agencies which
administer federal lands.  (See Section 107(f)(l) and (2))

F.      CERCLA Good Samaritan Provisions

        Section 107(d) of CERCLA provides exceptions to liability for those rendering care or advice
at the direction of an On-Scene Coordinator (OSC) or in accordance with the NCP. A private party
who is not otherwise liable at the site, and provides advice or care at the direction of an OSC in
accordance with the NCP will be exempt from liability for any costs incurred as a result of actions or
omissions by that party unless those actions or omissions are negligent.

        State and local governments are exempt from liability under CERCLA for actions taken in
response to an emergency created by the release or threat of release of hazardous substances from a
facility owned by another person. Such exemption does not cover gross negligence or intentional
misconduct. As with private parties, the state or local government cannot take advantage of this
provision if it is otherwise liable for the release.

G.      CERCLA Tribal Roles/Responsibilities

        Section 126 of CERCLA provides that Indian tribes shall be afforded substantially the same
treatment as states  for certain specific purposes:  notification for releases, consultation on remedial
actions, access to information, health authorities, cleanup  roles and responsibilities under the NCP, and
establishing priorities for remedial actions. CERCLA also includes a number of additional provisions
which specifically address tribes.  For example,  Sections 107(f) and lll(b)(l) authorize tribes,to act as
trustees for tribal natural resources and to seek recovery for damages to such resources.  In addition,
Section  104(d) authorizes EPA to enter into cooperative agreements with tribes.

H.      CERCLA Advantages/Limitations

        Federally Permitted Release. EPA's ability to address mine site problems may  be limited
when a  release of concern has been permitted under a federal environmental program listed in Section
101(10). Even though such a release is addressable under Section 104 (i.e., EPA can still perform any
necessary remediation), EPA*s authority to cost  recover for such activities is removed (Section 107(j))
and its authority to order others to do the work is uncertain.
        Pollutants and Contaminants.  Some contaminants, such as sulfate, do not fall under the
definition of hazardous substance. These contaminants can be captured under the definition of pollutant
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and contaminant in CERCLA, but using the authority afforded the Agency for such contaminants
reduces flexibility. EPA may not be able to order responsible parties to address pollutants and
contaminants or be able to recover costs incurred in responding to releases of such. A statutory change
may be needed to address this uncertainty.

        Additional Limitations.  EPA's use of CERCLA to address mining sites is not without
limitations.  First, CERCLA resources are finite. Second, there are legal limitations on the use of the
Superftmd for remedial actions with respect to federally owned lands. Third,  many mining sites may
have permits issued under other federal environmental programs identified in section 101(10) of
CERCLA.  Where the release is subject to a federal permit, there may be constraints on EPA's ability
to recover costs for the cleanup.

/.      CERCLA Integration with Other Statutes

        CERCLA's limitation on judicial review presents limitations on integration with other statutes.
Under Section 113(h), CERCLA prevents courts from reviewing any pre-enforcement petitions by
respondents.  Other federal environmental statutes may provide for such review.  CERCLA's limitation
on judicial review presents issues  to consider in actions that combine CERCLA enforcement with other
statutes. Because CERCLA contains an express limitation on pre-enforcement review, it may be more
effective to issue CERCLA orders separately from other enforcement actions.

        CERCLA's broad authority  means that it may be used where other tools are less effective.
CERCLA provides positive synergistic effects when combined with other statutes because of its (1)
retroactive, joint and several liability; (2)  multi-media remedial capabilities; (3) site-specific flexibility
through risk assessment and ARARs analysis (and authority to waive ARARs), and (4) the availability
of Superfund financing.


        RCRA is the  national law governing management of solid and hazardous waste. RCRA divides
wastes into one of two RCRA regulatory tracks: Subtitle D (solid waste) and Subtitle C (hazardous
waste). In October, 1980, Congress amended RCRA by adding section 3001(b)(3)(A)(ii) (known as the
Bevill exclusion) for solid waste from the  extraction, beneficiation, and processing of ores and
minerals. The Bevill amendment  excluded such mining waste from regulation as hazardous waste
under Subtitle C  of RCRA, pending completion of a study and a Report to Congress.

A.      RCRA Jurisdiction/'Applicability'/Media/Constituents

       Jurisdictional conditions. RCRA uses the terms extraction, beneficiation, and mineral
processing to describe the Bevill waste which is excluded from regulation under Subtitle C of RCRA.
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These initial stages of mining (i.e., extraction and beneficiation) involve crushing and grinding of rocks
to produce a valuable concentrate and relatively earthen-like large volume wastes.  The latter stages of
mining involve mineral processing which takes the valuable concentrate and uses chemical and heat
intensive operations to drastically change the nature of the mineral and produce relatively low volume
wastes (with some notable exceptions such as wastes from phosphoric acid production).

       All extraction and beneficiation wastes, and 20 special mineral processing wastes are excluded
from RCRA Subtitle C regulation by virtue of the Bevill Amendment.  (See 40 CFR 261.4(b)(7)).
EPA determined that Subtitle C regulation of extraction and beneficiation wastes was unwarranted in a
1986 regulatory determination (51 FR 24296, July 3, 1986) that was subsequently upheld in
Environmental Defense Fund v. U.S. EPA, 852 F.2d 1309 (D.C. Cir. 1988).

       For mineral processing wastes no longer exempt under Bevill, EPA proposed a conditional
solid waste exclusion and other requirements (61 FR 2338, January 25, 1996).  This proposal
establishes land disposal restrictions for newly identified mineral processing wastes and rules regarding
Bevill mixtures.  EPA intends to refine the proposal in the late spring of 1997; and also will seek
comments on the proper scope of the Bevill amendment.  A final rule is expected later in 1997 or in

       Media.  Subtitle C permits address air, water, and soils releases from regulated units and
releases from solid waste management units, which include units that contain Bevill-exempt waste.
However, management of Bevill waste does not trigger Subtitle C permitting; a Subtitle C permit could
only be issued to a facility that treats, stores, or disposes of non-Bevill hazardous waste.

       Constituents addressed.  Mineral processing wastes are considered characteristically
hazardous if they exceed the toxicity characteristic leachate procedure (TCLP) as defined in 40 CFR
261.24, or if they are corrosive, ignitable, or reactive.

B.     RCRA Implementation Mechanism

       Subtitle D is intended to assist in  developing and encouraging methods for the disposal of solid
waste which are environmentally sound a'nd which maximize the utilization of valuable resources
including energy and materials and to encourage resource conservation. Subtitle D is designed to be a
state-lead program.  States may apply to EPA for approval of their solid waste management plans if
they wish to obtain funds under section 4007(b).   Subtitle D establishes minimal guidelines designed
primarily for municipal  landfills (See sections 4001 through 4010.)   No guidelines have been
developed to address mining wastes.  Aside from funding incentives,  Subtitle D has no practical
enforcement authority.
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        Several years ago, EPA drafted a strawman document covering mine waste management
program under Subtitle D which included the following provisions:

        .    Management programs would include extraction and beneficiation wastes (metallic ores and
            phosphate) and could cover mineral processing wastes for active and new operations.

            State and tribal programs would not be required to mirror federal requirements, but broad
            flexibility would be provided to states and tribes to design programs and to use existing
            state and federal programs as components of state and tribal plans and programs.

        .    Programs would address all media (ground water, air, surface water, soils) using site-
            specific risk-based performance standards.

        .    Permits would include conditions needed to achieve compliance with performance

            Management programs would require monitoring and corrective action for all media,
            closure and post-closure  care, and financial assurance.

        Subtitle C applies to hazardous waste transporters, generators, and treatment, storage, and
disposal facilities. Subtitle C applies on a limited basis to the 400 mineral processing sites that may
generate characteristic hazardous waste.  Only a few mineral processing sites have Subtitle C permits;
most ship wastes off-site to avoid the stringent Subtitle C requirements.

        Permits.  Mineral processing and mining facilities rarely seek a Subtitle C permit  However,
generator requirements, which  require  notification but no permit, apply to all mines and mineral
processing facilities.  Subtitle D has no permitting authority.

        Remediation. Subtitle C, Part B subjects permitted facilities to corrective action requirements
for both hazardous waste and solid waste management units.  These corrective action requirements
must be accomplished through the permitting process; these apply to both active and inactive waste
units.  . Closure and post-closure requirements apply to Subtitle C regulated units. Part 258 of
Subtitle D has corrective action, closure, and post-closure requirements.  Administrative orders through
imminent hazard provisions can address remedial concerns

        Standard setting.  For Subtitle C, a host of standards apply to hazardous wastes including both
technical (e.g., liner requirements) and risk based standards.  Also, air emission standards, ground
water monitoring, record keeping, financial responsibility, corrective action, and closure and post-
closure requirements apply.
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C.     Compliance/Enforcement

       Administrative Authorities. For Subtitle C, EPA may issue an administrative order under
section 3008(a) requiring compliance or it may file suit in federal district court seeking an injunction
mandating compliance.  An administrative order may also include revocation of a facility's permit
and/or assessment of a civil penalty of up to $25,000 per day of noncompliance for each requirement.
RCRA provides for an additional civil penalty of up to $25,000 per day for noncompliance with an
administrative order.  Section 3008(h) allows EPA to issue administrative orders requiring corrective
action at interim status facilities, with specific penalties for noncompliance.

       Criminal Penalties. For Subtitle C, RCRA also provides for criminal penalties for knowing
violations of Subtitle C requirements including:  a term of up to five years in prison for violations of
section  3008(d)(l) or (2) and/or a fine of up to  $50,000 per day for knowingly transporting or causing
the transport of hazardous waste to a facility without a Subtitle C  permit or without the required
manifest; treating, storing, or disposing of hazardous waste without a permit or in violation of any
material requirement of a permit or interim status; misrepresenting information on a required
document; destroying, altering, concealing, or failing to file required records; exporting hazardous
waste in violation of the requirements of RCRA; or managing used oil in violation of requirements
under section 3014 or other RCRA provisions.  Fines and sentences may be  doubled for repeat
offenders.  If a person, in committing one of these offenses, knowingly places another person in
imminent danger of death or serious bodily  injury, that offender may be subject to a $250,000 fine ($1
million for corporations) and/or 15 years in prison.

       Imminent Hazards.  For both Subtitle C and Subtitle D,  section 7003  gives EPA broad
authority to abate situations that may present an imminent and substantial endangerment to health or the
environment.  Section 7003 of RCRA authorizes EPA to obtain cleanups upon  receipt of evidence that
the past or present handling, storage, treatment, transportation or disposal of any solid waste or
hazardous waste may present an imminent and substantial endangerment to health or the environment.
The release  need not be at a facility otherwise subject to RCRA regulations,  and its application to solid
waste as well as hazardous waste makes it available for mining waste despite the Bevill exclusion.  In.
many respects, section, 7003 order authority is comparable to orders under section 106 of CERCLA and
may be issued to current or former handlers, owners, operators, transporters, and generators.  EPA
may issue an administrative order or seek an injunction in federal district court to stop the practice
causing the danger and/or take any other action  necessary. Violators of an administrative order under
section 7003 may be penalized up to $5,000 per day.

       Citizen Suits.  Under RCRA a citizen may file one of three types of suits in federal district
court:  (1) an action against any person (including the United States or a state)  in violation of a RCRA
permit or other requirement of any RCRA subtitle;  (2) an action against any person to abate an
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imminent and substantial endangerment; or (3) an action against EPA to compel the completion of a
nondiscretionary duty under the statute (e.g., a statutory mandate to issue regulations).

D.     RCRA Funding
       EPA funds substantial portions of state programs, sometimes as high as 75 percent.  Under the
RCRA program, several hundred thousand dollars of funding is available for mining related training,
education, and technical assistance grants and extramural contracts.

E.     RCRA Natural Resource Restoration Provisions - N/A

F.     RCRA Good Samaritan Provisions                                         ^

       Active management of a grandfathered or historic waste that has lost the Bevill exemption
would be considered an activity that generates a non-exempt waste.  Even if an operator actively
manages a grandfathered waste pile in order to alleviate an environmental release, that person may
generated a  new waste. In other words, the current Bevill rules may discourage cleaning up a historic
waste pile that has lost the Bevill exemption.

G.     RCRA Tribal Roles/Responsibilities

           RCRA provides no explicit provision authorizing EPA to treat tribes as states. However,
EPA has proposed a rule (61 FR 2583, January 26, 1996)  that addresses authorization of Indian tribes
to administer RCRA Subtitle D solid waste programs in the same manner as states and has also
proposed such a rule for Subtitle C hazardous waste programs (61 FR 30471, June 14, 1996).

H.     RCRA Limitations

       Bevill exclusions have been described hi the previous subsections.
/.     RCRA Integration with Other Statutes

       EPA has a policy that actions conducted pursuant to CERCLA emergency, remedial and
corrective actions generally will be considered to satisfy RCRA requirements. Cost recovery is
pursuant to CERCLA tools and is limited to cleanups.  Section 3005(f) defers regulation of coal wastes
to the Surface Mine and Coal Reclamation Act (SMCRA) at 30 U.S.C.A ง 1201.

       There are several RCRA Subtitle C provisions that are potentially applicable to mining
situations but which have not been historically applied.  These include section 2002(a) (Authorities),
section 3001(b)(3)(B)(iii) (prevention of radiation human health risks from the extraction, beneficiation,
September 1997                              C - 28

                                                      REGULATORY AND NON-REGULATORY TOOLS
and processing of phosphate rock or overburden from the mining of uranium ore), section
3001(b)(3)(C) (promulgation of new regulations under or determination that such regulations are
unwarranted), and section 3004(x) (the Administrator is authorized to modify regulations for solid
waste from the extraction, beneficiation or processing of ores and minerals, including phosphate rock
and overburden from the mining of uranium by taking into account the account the special
characteristics of such wastes).

       The CAA and its amendments of 1990 are codified in the United States Code at 42 U.S.C.
ง7401 et seq. The discussion that follows examines in more detail some of the CAA programs that are
most relevant to the mining industry.

A.     CAA Jurisdiction/Applicability/Media/Constituents

       The CAA contains planning and control requirements that apply to existing stationary sources
and provide for preconstruction review of new and modified major stationary sources to attain and
maintain national ambient air quality standards. The CAA provides for motor vehicle emission
standards, reformulated gasoline and the regulation of fuels and fuel additives.  The CAA also provides
for the regulation of hazardous air pollutants, contains an acid deposition control program,  a program
to protect visibility in national parks and wilderness areas, and a stratospheric ozone protection
program. The CAA operating permit program promotes regulatory certainty and enforceability. The
CAA contains specific enforcement provisions including information collection authorities and civil and
criminal  penalties.

B.     CAA Implementation Mechanisms

       Many of the CAA programs are implemented through a cooperative partnership between the
states and EPA.  While this partnership  can take several shapes, generally EPA issues national
standards or federal requirements and the states assume primary responsibility for implementing the
requirements.  As a prerequisite to assuming implementation responsibility, states must demonstrate to
EPA that their programs meet minimum federal CAA requirements.  EPA has issued proposed rules
that would allow federally-recognized tribes to become CAA implementation partners with  EPA in
virtually  the same fashion as states.  (See 59 FR 43,956; August 25,  1994).

B.I.  Protection of National Ambient Air Quality Standards (NAAQS).

       Establishing the NAAQS. A purpose of the CAA is to protect and enhance the quality of
ambient or outside  air.  EPA establishes national ambient air quality standards (NAAQS) for the
protection of public health (primary  standard) and welfare (secondary standard) under sections 108 &
109.  Welfare includes effects on soils, water, crops, vegetation,  manmade  materials, animals, wildlife,
September 1997                              C - 29

                                                      REGULATORY AND NON-REGULATORY TOOLS
weather, visibility, and climate, damage to and deterioration of property, and hazards to transportation,
as well as effects on economic values and on personal comfort and well-being. (See section 302(h)).

       EPA has established NAAQS for six pollutants: sulfur oxides, nitrogen dioxide, carbon
monoxide, ozone, paniculate matter, and lead. (See 40 CFR 50). The NAAQS represent the
maximum ambient levels of these pollutants that are allowed in any area of the country.  Mining and
mineral processing activities are most likely to cause significant emissions of sulfur dioxide, particulate
matter, and lead.

       The primary NAAQS for sulfur oxides measured as sulfur dioxide are 0.03 ppm, annual mean,
and 0.14, maximum 24-hour concentration.  The secondary NAAQS is 0.5 ppm, maximum 3-hour
concentration. (See 40 CFR  50.4 and 50.5).  The primary and secondary NAAQS for paniculate
matter, measured as particulate matter with an aerodynamic diameter of ten micrometers or less (PM-
10), are 150 micrograms per cubic meter, 24-hour average concentration, and 50 micrograms per cubic
meter, annual mean.  (See 40 CFR 50.6).  The primary and secondary NAAQS for lead is 1.5
micrograms per cubic meter, mean calendar quarter. (See 40 CFR  50.12)

       Planning and Control Requirements for "Nonattainment" Areas.  EPA designates areas
nationwide based on their air quality status relative to the NAAQS.  (See 40 CFR 81).  A
nonattainment area is an area that does not meet (or that significantly contribute to ambient air quality
in a nearby area that does not meet) the NAAQS for a particular pollutant. States containing areas
designated as nonattainment for a particular pollutant are required to develop state Implementation
Plans (SIPs) which must bring the areas into attainment with the NAAQS as expeditiously as

       Title I of the CAA contains general planning requirements that states containing nonattainment
areas must meet. (See sections 110(a)(2) and 171-193)!  The requirements include the application of
control measures to existing stationary sources and a preconstruction review permit program for new
and modified major stationary sources. (See section 173).

       SIPs and SIP revisions must be submitted to EPA for review.  EPA approves or disapproves (in
whole or part) SIP  submittals based on its assessment of whether the submittals meet the applicable
requirements of the CAA.  (See section 110(k)(3).)  Federally-approved SIPs and SIP revisions are
federally-enforceable (see 40 CFR 52). A state that fails to  make a  required  submission that meets the
requirements of the CAA may be subject to certain sanctions. (See sections 110(m) and  179).

       Control Measures for Existing Sources. States containing sulfur dioxide, lead, and moderate
PM-10 nonattainment areas must provide for the implementation of reasonably available control
measures (RACM) (including such reductions in emissions from existing sources in the area as may be
obtained through the adoption, at a minimum, of reasonably available control technology). (See section
September 1997                              C - 30

                                                       REGULATORY AND NON-REGULATORY TOOLS
172(c)(l)).  The requirement for RACM applies to mining sources located in sulfur dioxide, lead, and
moderate PM-10 nonattainment areas.  EPA has issued detailed guidance on the implementation of
RACM and other planning requirements that apply in these nonattainment areas. (See 57 FR 13,498;
April 16, 1992, 57 FR 18,070; April 28, 1992, and 58 FR 67,748; December 22, 1993).

       Moderate PM-10 nonattainment areas that cannot attain the NAAQS or fail to timely attain the
NAAQS are reclassified as serious.  Additional, more stringent planning requirements apply in serious
PM-10 nonattainment areas.  For example, states containing such areas must provide for the
implementation of best available control measures (BACM) (including best available control
technology) for existing  mining sources located in such areas. EPA has issued detailed guidance on the
implementation of BACM and other planning requirements in serious PM-10 nonattainment areas.  (See
59 FR 41,998; August 16, 1994).

       Nonattainment  New Source Review (NSR).  States containing  nonattainment areas must also
submit to EPA for approval a preconstruction review permit program for new and modified major
stationary sources.  (See section 173). For example, affected new and modified sources  are required to
install control technology that meets the lowest achievable emission rate, as defined in section  171(3),
and to obtain enforceable offsetting emissions reductions from existing sources.  Implementing
regulations at 40 CFR 51.165 have not been updated to reflect changes to the program made in the
1990 Clean Air Act Amendments.  EPA has issued interim transitional guidance.  (See 57 FR  13,498;
57 FR 18,070;  Appendix D of New Source Review (NSR) Program Transitional Guidance, dated
March 11, 1991; and New Source Review (NSR) Program Supplemental Transitional Guidance on
Applicability of New Part D NSR Permit Requirements, dated September 3,  1992).

       A mining source or processing facility locating in sulfur dioxide, lead, and moderate PM-10
nonattainment areas is subject to NSR if it emits or has the potential to emit  100 tons per year or more
of any pollutant subject to regulation under the CAA.  (See 40 CFR 51.165(a)(l)(iv)).  In serious PM-
10 nonattainment areas the applicability threshold is 70 tons per year. (See section 189(b)(3)).

       Fugitive emissions' are only counted in the major source determination for sources listed in 40
CFR 51.165(a)(l)(iv)(C). The list includes these hardrock mining related sources: primary zinc,
copper, and lead smelters; lime plants; taconite ore processing plants; phosphate rock processing
plants; sintering plants; and any other source regulated under section 111 or 112 as of 1980 (see
following discussion of new source performance and air toxics standards). For all other  sources,
including surface mines, fugitive emissions are not included for purposes of meeting the  100 ton per
year or 70 ton per year thresholds.
    1 Fugitive emissions are emissions that could not reasonably pass through a stack, chimney, vent or other
functionally-equivalent opening. (See 40 CFR 51.165(a)(l)(ix)).
September 1997                             C - 31

                                                       REGULATORY AND NON-REGULATORY TOOLS
B.2.  Prevention of Significant Deterioration of Air Quality Program (PSD) and Protection of Visibility
in National Parks and Wilderness Areas.

        PSD Permit Program.  The PSD program provides for preconstruction review of the control
technology and air quality impacts associated with new and modified major stationary sources.  (See
sections 160-169 and 40 CFR 51.166). This preconstruction review is implemented through a permit
process, and affected sources are prohibited from beginning construction unless a permit has been
issued addressing PSD requirements.

        The PSD program applies to new and modified major stationary sources in areas designated as
attainment or unclassifiable.  (See section 161). Areas designated attainment or unclassifiable are areas
that either meet the NAAQS or for which there is insufficient information to reach a conclusion about
their air quality status.  (See section 107(d)(l)(A)(ii) and (iii)).  These areas are commonly referred to
as clean air areas or PSD areas. Since all areas of the country meet at least one of the NAAQS, all
states are required to have a PSD program for  areas within their jurisdiction.  EPA administers  PSD
programs for states that have failed to submit approvable programs. (See 40 CFR 52.21).

        All PSD areas are categorized or designated as either class I, II or III.  (See section 162).  The
classification of an area determines the corresponding maximum allowable increases of air quality
deterioration (increments).  (See section 163).  Only a relatively small increment of air quality
deterioration is permissible in class I areas and consequently these areas are afforded the greatest
degree of air quality protection. An increasingly greater amount of air quality deterioration is allowed
in class II and III areas. In all instances the NAAQS represent the over arching air quality ceiling that
may not be exceeded, notwithstanding any allowable increment.

        New and modified major stationary sources under the PSD program must apply best available
control technology (BACT) for each pollutant subject to regulation under the Act.  (See sections
165(a)(4) and 169(2)(C)).  Another fundamental aspect of the PSD program is an air quality analysis
which calls for an assessment of a proposed source's compliance with allowable increments of air
quality deterioration and the NAAQS.

        The PSD program provides an additional layer of special protection for federal class I areas.
(See section 165(d)).  Mandatory federal class  I areas are national parks greater than 6000 acres in size,
national wilderness areas greater than 5000 acres in size and other areas specified in section 162(a) of
the CAA.  These federal class I areas are mandatory in that they may not be redesignated as any other
classification. While all other PSD areas in the country were initially designated as class II areas (See
section 162(b)),  federal  lands not already designated as class I areas under section 162(a) may be
redesignated as class I areas.  (See section 164).
September 1997                              C - 32

                                                        REGULATORY AND NON-REGULATORY TOOLS
       The federal land manager2 and the federal official charged with direct responsibility for
management of any federal lands within a class I area have an affirmative responsibility to protect the
air quality related values (AQRVs) of such lands. (See section 165(d)(2)(B)).  AQRVs include
visibility impacts, aquatic and terrestrial ecosystem effects such as acid deposition and foliar injury, etc.
The land manager protects AQRVs through a prescribed statutory role in assessing the potential
impacts of a proposed PSD source. (See section 165(d)(2)(C)). If a proposed source does not cause or
contribute to a class I increment violation, the federal land manager may, nevertheless, demonstrate to
the satisfaction of the permitting authority that the source will have an adverse impact on the AQRVs of
a specific federal class I area and, if so demonstrated, the PSD permit shall not be issued. Conversely,
if the proposed source will cause or contribute to a class I increment violation, then the owner or
operator must demonstrate to the satisfaction of the federal land manager that there will be no adverse
impact to AQRVs and, if the federal land manager agrees, the PSD permit may be issued.  (See section
165(d)(2)(C)(ii) and (iii)),

        A major stationary source under the PSD program is any source which emits, or has the
potential to emit, 100 tons per year or more of any pollutant subject to regulation under the CAA and is
listed in 40 CFR 51.166(b)(l)(I)(a). This list is similar to the list for counting fugitive emissions under
the NSR program and includes the same mining facilities specifically listed in part V.B.2. All other
sources must have 250 tons per year or more of potential emissions to be major.  The PSD rule about
counting and discounting fugitive emissions in determining whether a source is major is the same as the
NSR rule.  EPA has declined to require the consideration of fugitive emissions in determining whether
a surface coal mine is a major stationary source subject to PSD.  (See 54 FR 48,870; November 28,

        EPA administers the PSD and NSR permit programs for affected sources proposing to locate on
lands within the jurisdiction of federally-recognized Indian tribes. (See 59 FR 43,960).

        Visibility Protection Program.  The CAA contains a visibility protection program for
mandatory federal class I areas: certain large  national parks and wilderness areas.  (See  sections 169A
and  169B).  While these provisions only apply to visibility, they are broader than the PSD program by
providing direct authority  to require reductions at existing sources that impair visibility in mandatory
federal class I areas.  In addition, new and modified stationary sources locating in both PSD and
nonattainment areas are subject to visibility preconstruction review requirements.

        These provisions establish as a national goal the prevention of any future, and the remedying of
any existing, manmade  impairment of visibility in mandatory federal class I areas. (See section
169A(a)(l)>. The visibility protection program applies to mandatory class I areas (certain large national
       2 The federal land manager is defined as the Secretary of the department with authority over such lands,
i.e., Department of the Interior and Department of Agriculture. (See section 302(1)).
September 1997                               C - 33

                                                         REGULATORY AND I^ON-REGULATORY TOOLS
parks and wilderness areas) where visibility has been determined to be an important value.  (See 40
CFR 81, subpart D).

        In 1980, the EPA promulgated regulations addressing visibility impairment under section 169A
of the CAA.  (See 45 FR 80,084; December 2,  1980).  In broad outline, the regulations required
affected states to (1) coordinate development of visibility SIPs with appropriate land managers; (2)
develop a program to assess and  remedy visibility impairment from new and existing sources; and (3)
develop a long-term strategy to assure reasonable progress toward the national visibility goal. (See 40
CFR 51, subpart P).

        In the preamble to the  1980 regulations, the EPA stated that it would implement section 169A
in phases.  Phase I included the control of visibility impairment that can be traced to a single existing
stationary facility or small group of existing stationary facilities.  (See 45 FR 80,085).  The term of art
for this type of impairment is reasonably attributable impairment.  (See 40 CFR 51.301(s) and
51.302(c)(4)(I)). The EPA deferred addressing  other types of impairment such as regional haze
(widespread haze from a multitude of sources which impairs visibility in every direction over a large
        States must determine whether visibility impairment in a mandatory class I area may be
reasonably attributable to a single or small group of existing stationary facilities. Visibility impairment
means any perceptible change in  visibility (visual range, contrast, coloration) from that which would
have existed under natural conditions. (See 40 CFR 51.301(x)).  Such impairment may be reasonably
attributable by visual observation or any other technique the state deems appropriate.  (See 40 CFR
51.300(s)). If the impairment is reasonably attributable, the state must analyze the best  available
retrofit technology (BART) for the source.  (See 40 CFR 51.302(c)(4)).

        Major stationary sources that may be subject to BART because of their impact on visibility in a
mandatory class I area include  the following mining and related sources in existence on  August 7,
1977, with the potential to emit at least 250 tons per year of any pollutant:  coal cleaning plants;
primary zinc, copper, and lead smelters; lime plants; phosphate rock processing plants;  sintering
plants; and taconite ore processing facilities. (See 40 CFR51.301(c)).  Fugitive emissions must be
        3 The CAA, as amended in 1990, provides for the establishment of interstate regions and associated
commissions to address the potential interstate transport of visibility- impairing pollutants. (See section 169B).
The EPA has established a visibility transport commission for the region affecting the Grand Canyon National
Park and the other class I areas in the Golden Circle of national parks and wildernesses on the Colorado Plateau.
(See section 169B(f) and 56 FR 57,522; November 12, 1991). The Grand Canyon Visibility Transport
Commission is issuing a that examines, among other measures, the promulgation of regulations establishing long
range strategies for addressing regional haze in affected Class I areas.  (See section 169B(d)(2)).
September 1997                               C - 34

                                                       REGULATORY AND NON-REGULATORY TOOLS
 counted, to the extent quantifiable, in determining potential to emit.  (See 40 CFR 51.301(c)).  Sources
 operating before August 7, 1962, may not be subject to BART.

        Minor Source Review.  The CAA also contains a minor source permit program that requires
 SIPs to include a program regulating the modification and construction of any stationary source,
 regardless of size or attainment status, as necessary to assure that the NAAQS are achieved. (See
 section 110(a)(2)(D)).  Federally-approved minor source permit programs are federally-enforceable.

        New Source Performance Standards (NSPS).   EPA also issues NSPS that affected new or
 modified sources must meet in both attainment and nonattainment areas. (See sections 111 and 129 and
 40 CFR Part 60).  Several mining-related sources are regulated under NSPS, including: primary copper
 smelters (Subpart P); primary zinc smelters (Subpart Q); primary lead smelters (Subpart R); coal
 preparation plants (Subpart Y); lime manufacturing plants (Subpart HH); metallic mineral  processing
 (Subpart LL); phosphate rock plants (Subpart NN); nonmetallic mineral processing plants  (Subpart
 OOO); and calciners and dryers in mineral industries (Subpart UUU).  These NSPS standards may be
 adopted by states and either approved as part of the SIP or delegated by EPA. EPA retains primary
 enforcement authority if a state fails to enforce a NSPS.

        Regulation of Hazardous Air Pollutants (HAPs).  Prior to the 1990 Clean Air Act
 Amendments, EPA issued hazardous air pollutant standards, still effective, for radon from uranium
 mines (See 40 CFR 61, subpart B), for radionuclide emissions from elemental phosphorus plants
 (Subpart K), and for arsenic emissions from copper smelters (Subpart O).  In many instances states
 have adopted these standards and they have either been approved by EPA as part of the SIP or
 delegated by EPA. EPA retains primary enforcement authority.

        The CAA, as amended in 1990, contains a list of 189 HAPs and calls for EPA to develop
 maximum achievable control technology (MACT) standards for all categories of major sources by the
 year 2000. (See^ section 1 12).  A major source is any stationary source or group of stationary sources
 located within a contiguous area and under common control that emits, or has the potential to emit, 10
 tons or more per year of one HAP, or 25 tons per year of any combination of HAPs.  (See section
        New standards will be developed for primary copper smelters, primary lead smelters, primary
' aluminum processing, steel foundries, and site remediation. Mining does not appear on the list of
 categories of major HAP sources.  States must impose MACT on a case-by-case basis on all new major
 sources and modified existing major sources until EPA issues standards for the relevant categories.
 (See section 112(g)). If EPA fails to issue such standards by the relevant deadlines, states must issue
 permits, under the Title V operating permit program, setting MACT for all major sources in the
 category for which a standard has not been timely issued.
 September 1997                              C - 35

                                                      REGULATORY AND NON-REGULATORY TOOLS
B.3.  Title V Operating Permit Program

        Title V of the CAA requires states to develop and submit to EPA an operating permit
program.4  (See sections 501-506).  The program calls for permitting of sources by certain deadlines.
Operating permits issued under EPA-approved programs to affected sources are to contain all of the
applicable CAA requirements and are federally-enforceable.  Title V also provides for the collection of
fees by the permitting agency that reflect the reasonable cost of the permit program. EPA has issued
rules specifying the minimum requirements for state operating permit programs in 40 CFR 70, and has
proposed significant revisions to the rules.

C.      CAA Compliance/Enforcement

        Notices of Violation (NOVs) and Administrative  Compliance Orders (ACOs).  The
enforcement authorities under the CAA include provisions  for NOVs and ACOs. (See section 113(a)).
These pre-enforcement mechanisms are not subject to judicial review.  NOVs are a pre-requisite for
any action to enforce a SIP.  The CAA imposes a 30-day waiting period after issuing an NOV before
taking further action. An NOV may be issued without regard to the period of violation.  (See section
113(a)). The CAA provides for civil action when a person has violated or is in violation of a SIP.  (See
section 113(b)). Thus,  EPA can initiate enforcement action for a past violation of a SIP.

        Most ACOs are effective only after an opportunity  is provided to conference with EPA and all
ACOs must require compliance within no more than on year.  Permit terms may be enforced by
identifying permits specifically as subjects for enforcement. EPA also has authority to prohibit the
construction or modification of a source that has received a defective PSD permit, as well as for
defective NSR permits.  (See section 113(a)(5)).

        Civil Enforcement.  Section 113(b) authorizes civil enforcement for injunctive relief and
monetary penalties up to $25,000 per day per violation.

        Criminal Enforcement.  For SIP and other listed violations, criminal enforcement action can
be brought for a knowing violation  that occurs during any period of federally assumed enforcement or
more than thirty days after the violator receives an  NOV.  (See section 113(c)). Section 113(c) also
establishes felony offenses, with up to two years of imprisonment,  for false statements (which include
omission, alteration or concealment of required information) and tampering with a monitoring device or
method. Offenses, with heavy penalties,  are established for negligent or knowing release of HAPs
which puts another person in imminent danger of death or serious bodily injury.
       4 The operating permit program is not the same as the NSR and PSD permit programs described
previously that, by contract, require construction permits.
September 1997                             C - 36

                                                        REGULATORY AND NON-REGULATORY TOOLS
       Administrative Civil Penalties.  Section 113(d) authorizes administrative penalties for
violations of the CAA, when the penalty sought is no more than $200,000 and the first alleged date of
violation is no more than twelve months prior to initiating the action. Section 113(d) also authorizes a
field citation program for issuing "tickets" on the spot, with penalties no more than $5,000 per day per
violation. Regulations for the field citation program have been proposed by EPA.

       Penalty Assessment Criteria. Several criteria for assessing penalties are set forth including
seriousness of the violation and the violator's ability to pay a penalty,  history of compliance and good
faith efforts to comply, duration of violation, previous payment of a penalty for the  same violation, and
the economic benefit of violation (avoided costs of compliance).  (See section 113(e)).  Section 113(e)
allows EPA to establish the duration of violation by any credible evidence (including evidence other
than the applicable test method).

       In addition, where the source has been notified of the violation and EPA makes a prima facie
showing  that the violation was likely to have continued or recurred after the date of the notice, there  is
a presumption that the violation continues each day thereafter until the violator establishes that
continuous compliance has been achieved, or by a preponderance of the evidence shows that the
violation was not continuing in nature. This provision shirts the burden of proof to  the violator to rebut
die presumption of continuing violation.

       Emergency Orders. Upon receiving evidence that a source or combination of sources is
presenting an imminent and  substantial endangerment to public health or welfare, or the environment,
EPA can immediately file suit for a restraining order or other relief, or it can issue an emergency order
as may be necessary to protect such values.  An order remains in effect for up to sixty days, or longer
if a suit is filed. (See section 303).

       Citizen Suits.  In addition to the EPA enforcement authorities described above, the CAA
authorizes citizens who provide the minimum required advance notice to bring a civil  action against:
(1) any person, including any governmental entity or agency, who is in violation of an emission limit;
(2) any person who proposes to construct or constructs any new or modified major stationary source
without a NSR or PSD permit that meets the requirements of the CAA; and (3) any  person who is
alleged to be in violation of such permit. (See section 304).  The term person includes an individual,
corporation, partnership, association, state, municipality,  political subdivision of a state, and any
agency, department or instrumentality of the United States and any  officer, agent, or employee thereof.
(See section 302(e)).  The federal district courts have jurisdiction over citizen suits.
       Citizen Awards.  The CAA authorizes monetary awards, up to $10,000, for information or
services that lead to a criminal conviction or judicial or administrative civil penalty.  (See section
September 1997                              C - 37

                                                      REGULATORY AND NON-REGULATORY TOOLS
        Information Collection.  Record Keeping, Inspections, Monitoring, and Entry.  The CAA
 authorizes EPA to require records, reports, sampling of emissions (including stack tests), and such
 other information that EPA may "reasonably require." (See section 114(a)(l)). Section 114
 information requests may be detailed and extensive in scope.  The CAA authorizes inspection by EPA
 or an authorized representative.  (See section 114(a)(2)).  The CAA also requires enhanced monitoring
 and compliance certifications for major sources. Enhanced monitoring and compliance regulations
 were proposed in 1993 and will be promulgated at 40 CFR 64.

        Administrative Subpoenas. The CAA authorizes subpoenas for the testimony of witnesses and
 production of documents, for the purpose of obtaining information under any investigation, compliance
 inspection, or administrative proceeding under the Act. (See section 307(a)).

 D.      CAA Funding - N/A

 E.      CAA Natural Resources Restoration Provisions - N/A

 F.      CAA Good Samaritan Provisions - N/A

 G.      CAA Tribal Roles/Responsibilities - N/A

 H.      CAA Advantages/Limitations - N/A

 /.      CAA Integration with Other Statutes - N/A


        Passed as Title III of the Superfund Amendments and Reauthorization Act of 1986, EPCRA has.
 two main purposes:  to encourage and support emergency planning for responding to chemical
 accidents, and to provide local governments and the public with information about possible chemical
 hazards and releases in their communities.  The statute requires reporting of information on hazardous
 or toxic chemicals and substances (defined in section 329) by businesses and government agencies
 which produce, process, use or store them.

 A.      EPCRA Jurisdiction!Applicability/Media/Constituents

        Jurisdiction Conditions.  The statute requires reporting of information on extremely hazardous
 substances (EHS) by businesses and government agencies that produce, use or store them. Under
 section 313, which provides the authority for the Toxic Release Inventory(TRI), the law provides
citizens as well as local, state,  and federal government agencies with access to information on releases
September 1997                              C - 38

                                                      REGULATORY AND NON-REGULATORY TOOLS
of toxic chemicals by manufacturing facilities (i.e., those in Standard Industrial Classification (SIC)
Codes 20-39) A  release may be to any of the environmental media. EPA has proposed to add SIC
code 10 (Metal Mining) (61 FR 33587; June 27, 1996), with a final rule anticipated in mid-1997.

        Executive Order 12856 requires all federal agencies to comply with EPCRA and phases in this
reporting during 1994-1995. Executive Order 12969 (60 FR 40989; August 8, 1995) requires all
federal agencies to require companies that bid on federal contracts to certify that they are in compliance
with TRI reporting requirements and that they will continue to comply for the life of the contract if they
receive  the award.

        Media. Most EPCRA provisions  cover data on toxic chemicals and releases to all media.

        Constituents.  In addition to the over 300 toxic chemicals originally reportable under TRI, a
final rule (59 FR 61432; November 30, 1994) added 286 additional chemicals and chemical categories
subject to the TRI reporting requirements.  These chemicals were added based on human health effects,
toxicity, and significant adverse effect on the environment. Also, approximately 361 chemicals are
identified as extremely hazardous substances (EHS) for purposes of emergency planning (see following
subsection. For each EHS, there is a threshold planning quantity.  If this amount or more of the
chemical is present at a facility, the owner or operator must notify in writing both the State Emergency
Response Commission  (SERC) and the  local emergency planning committee (LEPC). There is a 1
percent de minimis threshold for mixtures  and solutions.  If a mixture contains an extremely hazardous
substance in excess of 1 percent of the total mixture, that EHS must be considered under section 302.
The facility must designate an emergency coordinator, provide planning information to the LEPC or
TERC,  and coordinate  emergency response planning with the community.

B.      EPCRA Implementation Mechanisms

        Emergency Planning (Section 301). The governor appoints a SERC, which divides the state
into local emergency planning districts and appoints a broadly representative LEPC  for each district.
Frequently, LEPC's are organized based on county boundaries. The LEPC receives information
submitted by local businesses and other facilities that store, produce or use chemicals. The LEPC also
conducts a community hazard analysis, identifying types and location of chemical hazards, vulnerable
areas and populations, the risk of accidents and their potential effects on the community.  The LEPC
develops a local emergency response plan based upon the information  gathered. Mining operations
should be included in these plans, to the extent they use extremely hazardous substances above the
threshold planning quantities.  A representative from any mines within the planning area or the federal
land manager could participate in the LEPC.  A tribal chairman can appoint a tribal emergency
response commission (TERC), with duties similar to that of a SERC.
September 1997                              C - 39

                                                      REGULATORY AND NON-REGVLATORY TOOLS
       Extremely Hazardous Substances (Section 302): For each EHS, there is a threshold planning
quantity. If this amount or more of the chemical is present at a facility, the owner or operator must
notify in writing both the SERC and the LEPC.  There is a 1 percent de minimis threshold for mixtures
and solutions.  If a mixture contains an extremely hazardous substance in excess of 1  percent of the
total mixture, that EHS must be considered under section 302. The facility must designate an
emergency coordinator, provide planning information to the LEPC or TERC, and coordinate
emergency response planning with the community.

       Emergency Release Notification (Section 304): This section applies if there  is a release from a
facility of a CERCLA section 102 hazardous substance or an EHS above the Reportable Quantity
within a 24-hour period. For the purposes of section 304, facility includes motor vehicles, rolling
stock, and aircraft.  Release reporting is not affected by the Bevill exclusion.

       If the chemical is a CERCLA  102 hazardous substance and the release exceeds the Reportable
Quantity, the facility must immediately notify the National Response Center in addition to notifying the
LEPC and the SERC or TERC. Releases of reportable quantities of CERCLA 102 chemicals must be
reported when they occur, regardless of whether they are likely to leave the property  boundaries.
There are more than 700 hazardous substances subject to CERCLA  spill notification requirements.

       If the chemical is an EHS but not a CERCLA  102 chemical, the facility must  immediately
notify the LEPC and the SERC or TERC when the release leaves the property boundaries. Releases of
mixtures and solutions are subject to notification requirements only where  a component hazardous
substance or EHS of the mixture or solution is released in a quantity equal to or greater than its
Reportable Quantity.

       Right-to-Know Reporting (Sections 311-312): Businesses and government agencies must
report amounts, location and potential effects of  EHS present in the community to the SERC or TERC
and LEPC.  More than 500,000 products in commerce are covered by. these sections.  Since mines  are
not covered by OSHA, they do not presently have to report under these sections.

       Any business or facility that is required by OSHA regulations to keep material safety data
sheets (MSDS) on file for hazardous chemicals in the workplace must determine, based upon
inventories of these materials, how and if it may  need to comply with the inventory provisions of this
law. If the chemical is a CERCLA section 102 hazardous substance, the facility must report for
chemicals for which it has 10,000 pounds or more on site at any time during the year. If the chemical
is an Extremely Hazardous Substance, the amount that triggers section  311/312 reporting is 500 pounds
or the TPQ, whichever is lower.

       To report under section 311, the facility  is required to provide  the SERC or TERC, the LEPC
and the local fire department with either a list of the hazardous chemicals at the facility for which
September 1997                              C - 40

                                                      REGULATORY AND NON-REGULATORY TOOLS
. MSDSs are required, or a copy of each MSDS. Approximately 4.5 million facilities are covered,
 including some related to mining such as smelters, refineries, fertilizer product operations, and milling
 operations associated with gypsum board plants not located on mine property. Under section 312,
 companies must submit annual inventories of EHS to the SERC, LEPC and local fire department in
 March every year.
        Since the mines themselves, as well as preparation and milling operations, are covered by the
 Mine Safety and Health Administration (MSHA), not OSHA, these provisions would not apply to those
 'operations.  MSHA and OSHA have signed a national Memorandum of Agreement (MOA) to delineate
 their respective areas of authority.  Per this MOA,  MSHA jurisdiction includes mineral extraction and
 milling operations, salt processing facilities on mine property, electrolytic plants where the plants are
 an integral part of milling operations, and alumina  and cement plants.

        For operations near the end of the milling cycle and the beginning of the manufacturing cycle,
 the scope of the term milling may be extended or narrowed, as determined by agreements between the
 MSHA District Manager and the OSHA Regional Administrator developed in accordance with the
 national MOA.

        Toxic Release Inventory Reporting (Section 313): This section requires manufacturing
 facilities having 10 or more employees and using at least a threshold amount (25,000 pounds or 10,000
 pounds or 1 million pounds for small releasers ) of a TRI chemical(s) to report annually on their
 releases of that chemical(s) to the environment (See Alternate Threshold Rule, 50 FR 61488;
 November 30, 1994).  Pounds of chemical released to each environmental medium must be reported.

        Smelters are currently  covered under TRI and report for chemicals such as lead and lead
 compounds, copper and copper compounds, zinc fume or dust, zinc compounds, manganese and
 manganese compounds, sulfuric acid, and hydrochloric acid. In addition, EPA has proposed that
 facilities in the metal mining SIC code be subject to TRI  reporting.

        General Implementation.  Implementation of EPCRA is split between EPA and state/local/
 tribal governments.  EPA provides technical assistance to state, tribal, and local government agencies
 to help them implement most sections of EPCRA.  The state, tribe, or EPA can take enforcement
 action for violations of sections 302, 304,  and 311-312.  EPA is solely responsible for both
 implementation and enforcement of section 313 (TRI).

 C.     EPCRA Compliance/Enforcement

        Administrative and Injunctive Authorities.  EPCRA grants specific state and local authority
 to request information from facilities and to take  enforcement actions in those situations where
 September 1997                             C - 41

                                                       REGULATORY AND NON-REGULATORY TOOLS
 voluntary compliance has not occurred.  LEPCs, TERCs, or SERCs could file a civil action under
 section 326 against a facility owner or operator in the U.S. District Court for violations of EPCRA, or
 they could assist the EPA in an enforcement action.  Citizen suits against the owner or operator of a
 facility, the EPA Administrator, or the Governor or SERC, are also provided for under section

        Under section 325, the federal government can bring administrative and civil or criminal
 judicial actions against violators.  Section 325(a) authorizes EPA to order owners or operators of
 facilities to comply with sections 302 and 303.  The local U.S. District Court has jurisdiction to enforce
 the order and assess a civil penalty of up to $25,000 per violation per day. EPA cannot assess these
 penalties administratively.

        Penalties. Violations of section 304 emergency notification provisions can be addressed
 through administrative or judicial enforcement. There are also criminal penalties for knowingly  and
 willfully failing to provide notice, or for providing false or misleading information.  Section 304
 violations can carry a Class I civil penalty of not more than $25,000 per violation or a Class II civil
 penalty of not more than $25,000 per violation per day.  In the case of subsequent violations. Class II
 penalties of up to $75,000 for each day a violation continues may be assessed.

        For violations of sections 311, 312 and 313, EPA can assess civil penalties by issuing
 administrative orders or by filing actions in the U.S. District Court.  Violation of section 311 subjects
 the violator to a civil penalty of up to $10,000 for each violation.  Sections 312 and 313 violations
 carry civil penalties of not more than $25,000 for each violation. The statute establishes that every day
 a violation continues is considered a separate violation.

 D.      EPCRA Funding

        Actions carried out under EPCRA do not have a specific appropriation.  LEPC's and SERC's
 can charge fees to facilities who report information to them to cover the administrative costs of
 handling the information.

 E.      EPCRA Natural Resource Restoration Provisions - N/A

 F.      EPCRA Good Samaritan Provisions - N/A

 G,      EPCRA Tribal Roles/Responsibilities - N/A

        Native American communities may benefit from improved information TRI provides on
 facilities in or near their communities. Tribes can also designate themselves  as Tribal Emergency
September 1997                              C - 42

                                                      REGULATORY AND NON-REGULATORY TOOLS
Response Commissions (tribal SERC's or TERC's) or they can form local Tribal Emergency Response
Committees under the existing SERC.

H.     EPCRA Advantages and Limitations

       An advantage of EPCRA is that it could assist small communities in getting preventive
emergency planning at active or inactive mines before there is a spill or accident.  By including mining
facility representatives on LEPC's and enforcing mine owner/operator responsibility to notify the
planning committee/state commission about the presence of extremely hazardous substances on site, it
may be possible to improve the owner/operator's environmental awareness and responsiveness.

       There are also potentially large fines for facilities that do not report information under this
statute.  Threats of fines could be used to encourage pollution prevention or obtain mitigation

       A significant limitation is that EPCRA cannot stop releases.  As long as the releases are
reported properly, there is no requirement that they be eliminated (that is largely the province of other
authorities).  Section 103 of CERCLA does not require reporting for some federally permitted releases.
And the reporting frequency for continuous releases stable in quantity and rate can be reduced under
section 103 of CERCLA.  It can be difficult for the Agency to quantify releases after they occur, since
it must be proven that the release exceeded the Reportable Quantity to show that reporting was required
under section 304.

       Mines are not presently covered by the chemical inventory requirements of sections 311-312
because of MSHA jurisdiction, nor by the TRI reporting requirements of section 313.  The flexibility
of MSHA and OSHA to decide what portions of a mining facility are regulated under each authority
could be explored to see if those agencies are willing or able to expand OSHA coverage at some
problem sites within the limits of the MO A. Guidance for federal facility reporting under Executive
Order 12856 also should be reviewed to determine how federal land managers may be covered by

       Disadvantages of the TRI include:

       •   Rulemaking is necessary in order to require reporting to TRI of releases from mining

       •   Listed toxic chemicals potentially represent only a subset of chemicals that may be
           manufactured, processed, or otherwise used in mining activities.
September 1997                              C - 43

                                                      REGULATORY AND NON-REGULATORY TOOLS
        •  The manufacturing, process, and otherwise .use threshold definitions and levels may inhibit
           reporting of the entire universe of chemicals that may be used at a mining facility.

        •  The release volumes indicated in TRI for a given facility may be only estimates; facilities
           are not required to do any additional monitoring for purposes of TRI data collection, so
           many facilities provide estimates of releases based on EPA guidance.

 /.      EPCRA Integration with Other Statutes

        There are many overlaps of chemicals/metals in EPCRA with those covered by other
 environmental statutes.  For example, 97 of the 126 toxic chemicals known as the priority pollutants for
 Clean Water Act purposes are also TRI chemicals. EPA has published aquatic life and/or human health
 protective ambient water quality criteria for 81 of the TRI chemicals.  A number of TRI chemicals are
 covered by state water quality standards.

        Approximately 305 of the individually listed TRI chemicals are also CERCLA hazardous
 substances.  Two thirds of the individually listed TRI chemicals are regulated  under RCRA. Forty of
 the individually listed TRI chemicals are currently used to identify a waste as a characteristic hazardous
 waste.  When such chemicals are found in the waste above specified levels,  the waste is subject to
 RCRA regulation. In addition,  181 of the individually listed TRI chemicals are also listed as hazardous
 waste when they are unused or discarded commercial chemical products.
        Approximately 180 TRI chemicals are also hazardous air pollutants under the CAA. Fifty-five
 TRI chemicals are regulated under the Safe Drinking Water Act.

        TRI data are used to identify gaps in regulatory coverage under environmental statutes. To
 some degree, TRI data were used  in EPA's review of states' lists of impaired waterbodies developed
 under section 304(1) of the CWA.  TRI data is one factor which EPA is using  to identify industrial
 categories for which effluent limitations and standards should be developed or revised under the
 NPDES  program.


        In 1974, Congress amended the Public Health Service Act and retitled it the Safe Drinking
 Water Act (SDWA). Part C of the SDWA directed EPA to establish a federal program setting
 minimum requirements for effective state programs to prevent underground injection which endangers
 ground-water resources of public water supply systems. The resulting regulations established two
 methods for authorization to inject: authorization by rule (40 CFR 144, subpart C) or by permit (40
 CFR  144, subpart D).  Since its passage in  1974, the SDWA has been amended six times (1976, 1977,
 1979, 1980, 1986, 1996).  The net effect of these amendments is that federal and state regulatory
September 1997                             C - 44

                                                       REGULATORY AND NON-REGULATORY TOOLS
agencies have modified existing programs and/or established new strategies to protect ground water by
promulgating even more effective regulations to control the permitting, construction, operation,
monitoring and closure of injection wells.

        Over the past 50 to 60 years, the practice of underground injection has become diverse in its
many applications and  essential to many human activities, including petroleum production, chemical
production, foods production, manufacturing, mining, and many specialty plants and related businesses.
The practice has expanded from disposal of produced brine from oil production to liquid hazardous and
nonhazardous industrial waste.  It is also a key component in the recovery of some natural resources,
such as uranium and salt, and in the remediation of uranium contamination.

A.      SWDA Jurisdiction!Applicability/Media/Constituents

        The goal of the underground injection control (UIC) program, as established by SDWA and
UIC Regulations by 40 CFR Part 124, and 144 through 148, is to prevent contamination of
underground sources of drinking water (USDW) resulting from the operation of injection wells (See 40
CFR 144.12).  This program establishes minimum requirements for state, tribal, and federal programs
for control of all injection activities and provides mechanisms for implementation and delegation of
primary enforcement authority. Where states and tribal authorities don't seek primacy, EPA
automatically assumes  direct implementation authority.

B.      SDWA Implementation Mechanisms

        Under the EPA UIC program, injection wells are divided into five well  classes for the purpose
of regulations (See 40 CFR 146.5).  Injection wells are divided into five classes. Class III wells are
those used to inject fluids for the recovery of minerals (e.g., solution mining for salts and sulfur and in
situ leaching for uranium, copper, or (experimentally so far) gold. Class V and, for a while, some
Class I wells have mining applications for the disposal of hazardous or nonhazardous wastes, including
using mine wastes to backfill underground mines.   The following is a general description of those

        (1) Class I wells inject hazardous and nonhazardous industrial waste below all USDWs,

        (2) Class II wells inject fluids associated with oil and gas production where primary uses are
           injection for enhanced oil recovery, brine disposal, and  storage  of liquid hydrocarbons,

        (3) Class III wells are used to inject fluids for the recovery of minerals  where some of the
           principal uses are solution mining for the extraction of salts and sulfur and in situ leaching
           used to recover uranium, gold, and copper,
September 1997                              C - 45

                                                       REGULATORY AND NON-REGULATORY TOOLS
        (4) Class IV wells are used to dispose of hazardous or radioactive wastes into or above a
           USDW (EPA has banned the use of these wells)7 and

        (5) Class V wells are wells not included in the other above-mentioned well classes that inject
           largely nonhazardous fluids into or above a USDW. Some Class V wells that inject below
           a USDW may be reclassified to one of the above well classes I - III.

        A USDW is defined as an aquifer or its portion which supplies any public water system or
 contains a sufficient quantity of ground water to supply a public water system, or contains less than
 10,000 milligrams per liter (mg/1) total dissolved solids (TDS) and is not an exempted aquifer.

        The classification system allows for different regulatory schemes for each of the classes such
 that endangerment of USDWs can be prevented. The criteria for defining where a well fits are: (1)
 type of activity, (2) nature of the fluids injected and (3) location of the well to a USDW.

 C.     SDWA Compliance/Enforcement

        Administrative/Compliance Orders: Section 1423(c) provides authority to issue
 administrative compliance orders.

        Civil Penalties: Section 1423 provides for civil penalties of up to $25,000 per day for a

        Criminal Penalties:  Section 1423 provides for criminal penalties of up to $25,000 per day and
 up to 3 years imprisonment for knowingly violating the SDWA.

 D.     SDWA Funding - N/A

 E.     SDWA Natural Resource Restoration Provisions - N/A

 F.     SDWA Good Samaritan Provisions - N/A

 G.     SDWA Tribal Roles/Responsibilities

        EPA may treat an Indian tribe as a state for purposes of the UIC program if the tribe meets the
 criteria defined in 40 CFR 145.52. These criteria include: (1) the tribe is recognized by the Secretary
 of the Interior;  (2) the tribe has a governing body carrying out substantial government duties and
 powers over a defined area; (3) the UIC program to be administered by the tribe is within the borders
 of the Indian reservation; and (4) the tribe is reasonably expected to be capable of administering an
September 1997                             C - 46

                                                      REGULATORY AND NON-REGULATORY TOOLS
effective UIC program by the existence of management and the technical skills necessary to administer
an effective program.

H.     SDWA Advantages and Limitations

       At this time it appears that state and federal UIC programs have adequate regulations in place
to manage Class V injection wells.  The Agency, in the proposed Class V rule {40 FR 44652), felt that
these wells posed very little threat to the environment and determined that additional federal regulation
is not warranted.  The Agency will continue to emphasize the need for owners and operators of these
wells under 40 CFR 144.12 and 144.25 to obtain a permit, and the submittal of information on a case-
by-case basis as needed to protect USDWs under 40 CFR 144.27.

I.     SDWA Integration with Other Statutes

       A proposed RCRA Land Disposal Restriction rulemaking referred to as Phase IV (60 FR
43654) may ban disposal of certain mineral processing wastes currently being disposed in these wells.
The significance of these injection well classes is that they provide  regulation for production of wells
and nonendangerment of wells for USDWs.


A.     Jurisdiction/Applicability/MedialConstituents

       TSCA provides EPA with authorities to regulate the manufacture (including import),
processing, distribution, use, and disposal of chemical substances.  Under TSCA, EPA may require
health and environmental effects testing by  manufacturers, importers and processors of chemical
substances, which include organic and inorganic substances occurring in nature, as well as chemical
elements.  TSCA also authorizes  EPA to:  require record keeping and reporting of information that is
useful for the evaluation of risk, regulate chemical substances that present an unreasonable risk of
injury to health  or the environment, take action to address imminent hazards, require notification to
EPA by prospective manufacturers of new chemicals, and make inspections or issue subpoenas when
needed to implement TSCA authorities. Under TSCA, EPA must exercise these authorities in such a
manner as not to impede unduly or create unnecessary economic barriers to technological innovation.

       In practice, the most useful tool under TSCA has been section 6, PCB Regulations, as codified
at 40 CFR Part 761.  The mining industry has traditionally used high levels of PCBs.  PCBs are most
commonly found as the dielectrics in transformers and capacitors.  These items are commonly found
wherever there is a high electrical power demand. Transformers and capacitors, either single units or
in banks, can be expected in any phase of surface or underground mining operations and the ore
September 1997                              C - 47

                                                     REGULATORY AND NON-REGULATORY TOOLS
 beneficiation process.  PCB equipment has been replaced in many mines and all mines built after the
 ban on production of PCB equipment should not have had PCBs in transformers and capacitors.

 B,      TSCA Implementation Mechanisms

        The PCB regulations require marking, inspections, annual document logs, and proper disposal
 for PCB equipment. Violations of the PCB regulations in the mining industry have been common.
 Increasing the EPA regulatory presence should be considered, especially for underground mines.

        CERCLA has been used in conjunction with TSCA requirements to effect removal of
 transformers from underground mines. Actions taken at the Bunker Hill Mine in Idaho are an example
 where the mining company removed underground transformers prior to flooding of the mine. This
 prevented the future release of PCBs into the ground water system.

 C.      TSCA Compliance/Enforcement

        Reporting and Retention of Information.  Under section 8, EPA can require processors to
 keep records and submit information to EPA including information on the amount of the chemical
 substance processed; on how the material is used and disposed of; the byproducts resulting from
 processing, use, or disposal; health and safety  studies completed; and the duration and frequency of
 exposure and the number of persons exposed in their places of employment.  Section 8 also requires
 EPA notification when information in die hands of manufacturers, processors, and distributors of a
 chemical substance supports the conclusion that a chemical substance presents a substantial risk of
 injury to health or the environment. Under these provisions, EPA could write a rule requiring
 processors to keep records and report information that would detail the risks posed by their operations.

        Citizens' Petitions.   Any person can petition EPA to initiate an action under sections 4, 6, or
 8 of TSCA and EPA must respond within 90 days to the petition. If EPA grants the request, it must
 then promptly commence the necessary rulemaking.

 D.      TSCA Funding - N/A

 E.      TSCA Natural Resource Resoration Provisions -  N/A

 F.      TSCA Good Samaritan Provisions - N/A

 G.      SDWA Tribal Roles/Responsibilities -  N/A

H.      SDWA Advantages/Limitations
September 1997                             C - 48

                                                     REGULATORY AND NON-REGULATORY TOOLS
       In the past, underground PCBs have been overlooked because inspectors have been reluctant to
enter underground mines. MSHA training for EPA inspectors is available at no cost and requires little
time.  EPA inspectors not familiar with underground mines should request that an MSHA inspector
accompany them.

/.      TSCA Integration with Other Statutes

       Section 9 of TSCA states that EPA will coordinate TSCA actions with actions taken under other
federal laws and that TSCA will only be used in cases where other laws are not sufficient to address the
risk, or in cases where the Administrator finds that it is in the public interest to take action under
 September 1997                             C - 49

                                                       REGULATORY AND NON-REGULATORY TOOLS
                           3. OVERVIEW OF NON-REGULATORY TOOLS


        Non-regulatory approaches available to EPA to address environmental challenges posed by
 mining are typically employed to complement existing regulatory programs in addressing mining
 impacts. While recognizing that each non-regulatory effort is unique, there are certain themes that are
 common to the most successful ones, both site specific and non-site specific:

           Active participation by principal stakeholders, including a recognition of the
           environmental problems and a willingness to take on the issues.

        •   Creative use of limited funding resources, promoting coordination and research on
           mining  issues.  These include the University of Montana's Mining Waste Institute, a variety
           of groups comprising  the Mining Information Network, and the Western Governors'
           Association (WGA).  Some programs, such as CWA section 319  funds, have been
           successfully used to fund portions of cleanup projects.

        •   Site specific flexibility in adapting non-regulatory tools to fit the  specifics of the site and
           the interest of the stakeholders.

     -   •   Pollution prevention efforts supported by federal and tate agencies, tribes, and other
           stakeholders, limiting the generation and use of waste materials.

           Prioritization of cleanup projects, often on a watershed basis, as a way of allocating
           limited  resources and  focusing on worst cases first.

           Regulatory discretion as a tool to promote creative problem solving and early
           implementation of cleanup projects.  For example, having a site listed as a Superfund site
           might reduce local involvement.

        •   Key Characteristics of Non-regulatory Tools.  Most non-regulatory approaches contain
           one or more of the following characteristics:

           Financial  Financial  support often comes from a variety of sources when non-regulatory
           approaches are used.  Funds are often leveraged, and budgets are typically tight.  Examples
           include:  EPA staff resources, RCRA 7007 and 8001 grant funds, CWA section 319 funds,
           other federal agency funds, state/local partnerships, and private initiatives.
September 1997                             C - 50

                                                       REGULATORY AND NON-REGULATORY TOOLS
       .   Institutional.  These include Interagency Agreements, regional and national initiatives, and
           outreach in a variety of forms, (e.g., participation in and support of Idaho's Mining
           Advisory Committee).

       .   Technical Assistance and Outreach. This includes technical assistance, standardization of
           analytic methodologies, technology demonstrations, and education and training.


The purposes of this discussion of non-regulatory tools include the following:

       •   Illustrate the key traits of effective non-regulatory tools.  Sometimes these will be based on
           tools that have a regulatory connection, although the emphasis will be on the non-
           enforcement aspects of those authorities.

       •   Using specific case examples, point out areas where these tools have filled gaps in the
           current regulatory framework.

       •   Highlight model policies and approaches that could be the basis  for future regulations or

       •   Point out the main limitations of non-regulatory approaches.


       Non-regulatory tools to manage environmental problems posed  by mining are typically
employed to complement existing regulatory programs in addressing mining impacts. While current
regulatory programs can often be adapted to address the environmental  problems posed by mining, they
can be cumbersome, expensive to administer, and understaffed.  Non-regulatory tools have been
developed to take advantage of the incentives created by a backdrop of enforcement oriented regulatory
programs, or to coordinate these programs to maximize their overall impact. For example, when
cleanups precede active  enforcement of regulatory programs they may be easier  and  less expensive to
implement. While recognizing that each non-regulatory effort is unique, there are certain themes that
are common to the most successful efforts.

       •   Active participation by principal stakeholders, including a recognition of the environmental
           problems and a willingness to take on the issues.  This typically  includes federal, state and
           local governments, tribes, industry, citizens, and affected landowners. Participation does
           not necessarily mean funding, but it does mean cooperation.
September 1997                              C-51

                                                       REGULATORY AND NON-REGULATORY TOOLS
        •  Creative use of funding resources.  While little public money is specifically earmarked for
           mine site cleanup other programs, such as CWA" section 319 funds, have been successfully
           used to fund portions of cleanup projects. State programs, local contributions, and private
           funding by responsible parties have all been tapped for assessment and cleanup projects.
           Technology demonstrations have sometimes been used to get seed money to develop a new
           cleanup approach.

        An important category of non-regulatory tools is based on the principles of geographic based
environmental management.  These geographic approaches often have the following features:

        •  Site specific flexibility. The adaptation of non-regulatory tools needs to fit the specifics of
           the site and the interest of the stakeholders.

        •  Pollution prevention efforts supported by federal and state agencies, tribes, and
           stakeholders, limiting the generation and use of was materials.

        •  Prioritization of cleanup projects, often on a watershed basis, as a way of allocating limited
           resources and focusing on worst cases first.

        •  Regulatory discretion as a tool to promote creative problem solving and early
           implementation of cleanup projects.  Good Samaritan provisions are an example.


        Most non-regulatory approaches contain one or more of the following characteristics.


        Financial support often comes from a variety of sources when non-regulatory approaches are
used.  Funds are often leveraged, and budge.ts are typically lean.

        EPA Staff Resources. Non-regulatory approaches often take  a large amount of staff time and
energy to implement.

        RCRA 7007, 8001 grant funds. Section 7007 funds are grants for a wide range of training
programs, for either states or individuals. Section 8001  funds cover research, training, and other
studies related to solid and hazardous waste.  Funds in both these sections cover potentially a wide
range of projects and have been used extensively to fund mining research and technical assistance
throughout all agency media program offices as well as the Office of Enforcement.  Funding in recent
years has been as high as $2.5 million, in FY 95 it is expected to be $500,000. In FY 89 and FY 90
September 1997                              C - 52

                                                       REGULATORY AND NON-REGULATORY TOOLS
most of the money went to support WGA related activities, now funds used for a variety of media
related projects. Categories of funding typically include research at the Colorado School of Mines on
mine waste, funding to maintain an environmental mining network, and funding to regions on mining
related projects.

       CWA Section 319 Funds. Section 319(h) established a demonstration grant program to assist
states in implementing specific projects to demonstrate effective NFS control projects. Approximately
$1,000,000 per year is spent through this mechanism on inactive mine projects, with  oversight in the
Regional offices.  Types of activities funded include: education, staff development, technical assistance,
project demonstration, and ground water protection.

       Other Federal Agency Funds. These are often used to either supplement EPA funds or to
support specific pieces of a non-regulatory approach or initiative.  In some instances land management
agencies have large budgets devoted to mining related programs. These can be significantly greater
than the EPA funds discussed above.

       State/Local Partnerships. Although usually smaller in size than federal monies, support from
state and local stakeholders can often fill financial holes in geographic based approaches.

       Voluntary Efforts.  Good Samaritan work by private parties can contribute a significant amount
towards clean-up of inactive and abandoned mines (lAMs).


       Interagency Agreements. MOUs, MOAs, and LAGs are all tools that can be used to deal with
the large number of agencies that regulate mining.  When used effectively, they can help clarify roles
and streamline the overall regulatory process.  For example, as part of the Coeur D'Alene Restoration
Project a MOA between EPA, the State of Idaho and the Coeur D'Alene tribe was instrumental in
helping reduce differences among the parties and focusing efforts on restoration goals.

       External/internal teamwork.  At a less formal level, interagency groups are often an effective
means of focusing attention on certain projects or issues.  They provide a way for individuals with
expertise to interact. These coalitions are also an important first step in breaking regulatory impasses.
The WGA  Mine Waste Task Force is such an example.  Within a region, internal teams also help focus
efforts on mining issues,  such as in Regions 8, 9, and 10, where most of the staff participation on
mining teams is voluntary.
       Regional and National Initiatives. These are also a useful way of improving communications
and focusing efforts on addressing mining problems.  The site specific approaches described  in more
detail in this appendix are all examples of such initiatives at the regional level.
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                                                        REGULATORY AND NON-REGULATORY TOOLS
        Outreach. This ranges from detailed outreach to a local community to simply providing on-site
staffing at critical junctures during a remediation. One type of outreach, involving community based
environmental indicators, can provide an important link with strategically significant technical tool,
watershed planning.


        Technical assistance. This would include the dedication of either EPA staff or contractor hours
to providing direct help to a stakeholder. This is often an effective tool in working with other agencies
and states.

        Analytic  methodologies. These can range from predictive tools to well developed monitoring
and testing standards that help make data analyses consistent.  Examples include: resource assessment
and goal setting methods, alternatives development, and cost effectiveness methodologies. One specific.
example of this is the State of Montana, which has developed an HRS type system used for priority

        Technology demonstration.  Technology demonstration efforts have had a couple of roles in
non-regulatory efforts.  One is a traditional means of identifying new and effective treatment
technologies.  Another is that non-regulatory approaches themselves have been able to attempt less
proven methods than more regulatory,  Superfund type approaches to remediation.

        Education and Training. Because of the multimedia nature of mining issues, training  is often
necessary to bring key players up to speed on technical or regulatory issues.  Education efforts on a
more broader scale have been used to highlight and respond to community concerns regarding the
impacts of mining and regulatory activities.

        Standardized analysis and monitoring methods.  Different agencies use different methods for
measurements ranging from simple location data to kinetic testing methodologies. Efforts to
standardize this information make priority setting and monitoring significantly easier.

Other Characteristics

        Compromise/Enforcement Discretion.  Where there is a significant enforcement history in
connection with a non-regulatory initiative, enforcement discretion is often a factor in helping to build a
working coalition amongst a variety of players.
        Institutional  Controls. These include a variety of approaches, such as deed restrictions and
other local regulations, that can be useful as  part of an overall strategy.
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                                                      REGULATORY AND NON-REGVLATORY TOOLS

       Staff resources.  One of the main drawbacks of non-regulatory tools are the large amount of
staff time needed to make them successful. To some extent, though, this may be a matter of perception
only. Although these approaches can require significant staff resources, they can avoid a much higher
resource cost in the future if properly focused.

       Enforcement related issues.  As a result of the regulatory backdrop for many of these
examples, enforcement and liability issues can obstruct or delay non-regulatory, cooperative or Good
Samaritan efforts.


This sections describes several examples where non-regulatory tools were used to address various
aspects of mine sites. Three of the examples are site-specific and the remainder are not site-specific but
are more programmatic in nature.

Site Specific Examples:

       A. Coeur D'Alene Basin Restoration Project
       B. Clear Creek Watershed Project
       C. Arizona Copper Mine Initiative
Non-Site Specific Examples:

       D, RCRA Subtitle  D Strawman Guidelines
       E. Mine Waste Technology Demonstration Project
       F.  Region 8 Nonpoint Source Mining Project
       G. Bubble Trading
       H. Remining
       I.  Wellhead Protection Programs

A.      Coeur D'Alene Basin Reatnration Project

       The Coeur d'Alene Basin in northern Idaho  has been heavily impacted by the effects of over
100 years of hardrock. Water quality has been severely degraded, habitat destruction is widespread,
and extensive depositional areas have been impacted by mine wastes, including the Coeur d'Alene
River and Lake Coeur d'Alene.
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                                                       REGULATORY AND NON-REGULATORY TOOLS
        The Coeur d'Alene Basin Restoration Project (CBRP) brings together many of the tools which
are commonly utilized in non-regulatory approaches to addressing environmental problems caused by
mining.  However, like many other projects that are used as examples of non-regulatory success stories
this project has a strong regulatory basis.

        Against that regulatory backdrop, however, many of the features of the CBRP serve as an
example of ways in which non-regulatory tools can be used to address the environmental problems
posed by mining.

Key features of the project:

        •  MOA between EPA, the State of Idaho and the  Coeur d'Alene Tribe of Idaho to coordinate
           activities and work towards consensus decision  making in addressing environmental
           problems in the Basin.

        •  Establishment of a technical working groups composed of the major stakeholders in the
           Basin (including such federal agencies as the BLM as well as state and local government,
           citizens,  and  industry) to set priorities and develop technical approaches to problem

        •  Establishment of a Citizens Advisory Committee to serve as a point of contact with
           technical working groups and help focus outreach efforts.

        •  Using a mix of resources to get work done on the ground.

Technical approach

        A basin wide analysis of environmental problems (not only problems caused by mining) is
underway. This effort involves a variety of stakeholders and has helped focus public attention on the
project.  Efforts to characterize  the impacts of mining, agriculture, forestry, urban runoff, and
recreational use on the rivers and lakes of the watershed are being used as the basis for a Lake
Management Plan for Lake Coeur d'Alene. Concurrently, the Natural Resource Trustees for the Basin
are studying the environmental impacts caused by historic mining practices and beginning to evaluate
restoration options.

        As an interim approach  to moving cleanup projects  forward while environmental studies are
under way technical work groups have developed Best Management Practices to use in implementing
cleanup projects.  The effectiveness of these projects is being monitored as a guide to planning future
cleanup efforts.  Meanwhile, basin wide priority setting by technical working groups helps focus
cleanup projects in those  areas where the benefits will be the greatest.
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                                                       REGULATORY AND NON-REGULATORY TOOLS
 Institutional Approach

        A MOA between EPA, the State of Idaho, and the Coeur d'Alene Tribe of Idaho established a
 Steering Committee for the project, a Management Advisory Committee (MAC), a Citizens Advisory
 Committee (CAC), and recognized the Coeur d'Alene Basin Interagency Group (CBIG) as a technical
 support group. The three parties to the MOA have all dedicated a staff person to the project.
 Supporting these three staff are a Public Involvement Coordinator and an Executive Secretary (both
 positions will be filled this winter).  Other stakeholders in the CBRP contribute staff time and expertise
. through the MAC of CBIG.

 Financial Considerations

        Money to finance the CBRP has come from a variety of sources.  Internal resources of the
 agencies involved have been used to fund staff and undertake investigations, participate in technical
 workgroups, and work with other stakeholder to set priorities and develop cleanup strategies.

        Funding for cleanup projects has included:

        •   CERCLA Removal Funds
        •   Section 319 of CWA Funds
        •   RCRA Special Project Funds
        •   Idaho Natural Resource Damage Settlement Funds
        •   State Water Pollution Control Funds
        •   Privately funded cleanup projects (industry)
        •   County/local funding and in-kind contributions
        •   Volunteer efforts
        •   Other federal  agencies on federal lands (e.g., BLM)

 Other Characteristics
        Many of the successful aspects of this project fit into the regulatory backdrop of CERCLA,
 CWA, and state and local regulations.  Enforcement discretion has played a major role in moving
 projects forward.  For example, the voluntary cleanup projects undertaken by industry in the Basin
 have been undertaken, in part, because EPA has stated its intention to use CERCLA enforcement
 authority to compel private parties to undertake work at high priority sites if they do not initiate cleanup
 projects on their own. The five million dollars available in the State Natural Resource Damage
 Settlement Fund is the result of settlement of a CERCLA case.  The reliance on the backdrop of
 regulatory programs does not in any way diminish the success of the CBRP.  Development of cleanup
 priorities and implementation approaches by all the Stakeholders in the Basin has sped up projects,
 created incentives to participate by moving aside regulatory constraints, and has demonstrated a
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                                                       REGULATORY AND NON-REGULATORY TOOLS
 willingness by all involved to move the process of restoration of the Coeur d'Alene Basin forward in a
 cooperative fashion.

 B.      Clear Creek Watershed Project

        From the headwaters on the continental divide to the plains near Denver, Clear Creek connects
 small mountain communities with Colorado's largest metropolitan area. Covering  roughly 600 square
 miles, the Clear Creek watershed includes 5 counties and more than 13 communities and provides more
 than 165,000 people with their drinking water supply.  The water and watershed through which it flows
 easily establishes a sense of place for the citizens and a focus for efforts to protect the environment.
 Over 85 percent of the water is used as a drinking water supply for the metro area, therefore the people
 of the lowlands have a special interest in remediation of the impacts of the past mining activities.

        Key  features of the project include:

        •  No one organization initiated the watershed project, per se. It resulted from a critical mass
           of representative groups from industry, agencies, local organizations and private citizens
           that joined together to protect the one thing they all have in common, the waters of Clear

        •  Many of these projects and programs were instigated or facilitated by the two Clear Creek
           Watershed Forums organized and attended by a diverse group of stakeholder interests,
           bottom up.

        •  In 1983 the Clear Creek/Central City site was included on the Superfund National Priorities
           List.  It is one of the largest Superfund study areas in the nation encompassing all of two
           counties in the upper watershed. Prior to the Watershed effort, Superfund activities were
           not welcomed (This is an understatement).

        •  Mining is part of the history and culture of the  area that must be respected. A
           comprehensive approach is the only way that the  locals have been able  to approach the
           facts of mining environmental impacts.


        Technical aspects of the Clear Creek watershed effort are characterized by  complex past
 mining  sources, complex hydrology and complex treatment technology. Joint sampling efforts by the
 full range of stakeholders and training of local personnel has not only established a shared, workable
 water quality baseline but a basis for trust among the stakeholders. In addition, a willingness to risk
 new technologies and bring in the experts if needed is a key component of the project. Demonstrating
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                                                       REGULATORY AND NON-REGULATORY TOOLS
new technologies, such as passive mine treatment, provide a non-threatening form of technical
assistance.  Furthermore, a focus on problem identification and site specific resolution of problems is a
strength of this approach as is the realization that we all live downstream.

Institutional Approach

       Unlike the Coeur D'Alene project, formal arrangements between stakeholders were rejected.
Because the Superfund action and a major lawsuit between parties came first in the process, there was a
great deal of distrust between the stakeholders.  The institutional approach for Clear Creek has been
very flexible.  A local watershed coordinator was key in making the process work. Local stakeholders
wanted reassurance that this effort would not create another layer of government.  The focus first was
on information sharing, then joint identification of the problem.  In the interest of avoiding duplication
of efforts and to avoid arguments about data collection in possible future lawsuits, multiple interests are
now sampling together. Joint project cleanups have been established.  Enforcement actions for 404 and
Superfund administrative orders proceeded unincumbered but possibly facilitated by relationships
developed as part of the watershed effort. More difficult, multiple funding projects were then started.
The local governments have, in some cases^ taken on more responsibilities of environmental protection
by way of ordinances, enforcement and project sponsorship.


       EPA initially identified the upper portion of the watershed as a fund lead Superfund site.
Because of the complexity and adverse local reactions a limited number of operable units were targeted
for remediation. Limited stakes gambling was voted for two small towns in the upper watershed in
resulting in Superfund sites being sold for millions of dollars and giving EPA the opportunity to
negotiate compliance orders with the new owners. Much of the mining waste material in the area was
remined for reprocessing at a nearby heap leach processing facility. EPA funds from nonpoint source
and the Mining Headwaters Initiative were used as seed money for locally identified projects. Making
sure everyone gets credit for participation is an important financial consideration.  There are over 50
different projects involved in this initiative.   Money to finance the watershed efforts has come from a
variety of sources including:

       •   EPA financial support came from:  Superfund, section 319 of CWA funds, Rocky
           Mountain headwaters initiative, and Pollution Prevention funds.

       •   Other federal funds came from USFS, BLM, BOM, USFWS, COE, and the Federal
           Highways Administration.
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                                                       REGULATORY AND NON-REGULATORY TOOLS
        •  State funding came from Department of Health, Department of Minerals and Geology,
           Department of Transportation, and Division of Wildlife. Each of the affected counties also
           provided funds.

        •  Corporate funding came from Gaming Associations, Coors, AMAX, Western Mobil, and
           Cooley Sand &-Gravel.

        •  Environmental groups that contributed include: Clear Creek Land Conservancy, Trout
           Unlimited, Jefferson County Open Space, Canyon Defense Coalition, and the Sierra Club
           Legal Defense Club.

        About 1.0 full time employee (FTE) divided among five individuals is allocated to this project.


        •  Good Samaritan clause for CWA is needed for voluntary efforts to.proceed

        •  Establishing the trust to make this initiative successful took a long time and a lot of effort.

        •  The transition between regulatory efforts and non-regulatory efforts in this watershed
           approach was difficult. Some of the activities that were thought achievable via voluntary
           means ended up as enforcement actions.   In addition, some of the other federal agencies
           have lost their interest in participation as a result of proposed weakened regulations.

 Other Characteristics

        •  Pollutant trading within the watershed
        •  Regulation of nonpoint source impacts by  locals (septic tanks and storm water)

 C.      Arizona Copper Mines Initiative

        The Arizona Copper Mines Initiative was implemented to better characterize the impact of
 active, inactive and abandoned copper mines on surface water and ground water, to develop an
 inventory of Arizona copper mines, and to ensure the  cleanup and remediation of contaminated sites.
 A federal/state Arizona Copper Mines Task Force was formed to implement the Initiative.  Its non-
 enforcement objectives include:

        •  Develop an inventory of active, inactive, and abandoned copper mines in Central and
           Southeast Arizona.
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                                                        REGULATORY AND NON-REGULATORY TOOLS
       •   Assess and characterize the impacts on natural resources from mining operations on the
           major watersheds in central and southeast Arizona including the impacts on surface water,
           ground water, and riparian habitats.

       •   Define methods to minimize and mitigate impacts of copper mines on surface water,
           ground water and riparian habitats.

       •   Conduct outreach to and develop cooperative agreements with the mining industry to enlist
           financial and technical support for demonstration projects, and for cleanup of inactive and
           abandoned mines.

Technical Approach

       Priorities for mine evaluation .were established.  Steps included developing an inventory of
mines (over 7,000), this was put together by the former U.S. Bureau of Mines, USES, Arizona State
Mine Inspector's Office, Arizona Department of Environmental Quality, and EPA Region 9..  This list
was sorted to include sites with reactive type minerals (sulfides, pyrites) because of their higher acid
production potential, and known problem mines.  The list of high potential problem mines was
narrowed to about 700. These mines were then plotted in the GIS according to their longitude and
latitude location and mapped.  Inconsistencies in format on how mines are located were resolved.
Region 9 also developed a standard format for data base structure.  Each agency has its own
environmental evaluation forms and data base. These data bases are being incorporated into one data
base that can be accessed by all participating agencies.  This data base will be maintained by the
Arizona State Lands Department.  The Arizona State Parks Department under contract to the National
Park Service prepared  an Arizona Rivers Assessment Report that received input from various federal
and state resource agencies. This report lists the outstanding waterways within the State of Arizona.
The locations of these priority waterways were overlaid on the problem mines map.  As a next step,
water quality data obtained from the State of Arizona 305(b) report and other sources were analyzed to
detect water quality standards violations.  Water quality standards violations for metals and turbidity
that occurred during the last five years were overlaid on the priority waterways. Those mines located
on impacted priority waterways will  be selected for further investigations.


       Members of Arizona Copper Mines Initiative task force which consists of federal and state
agencies,  work cooperatively without any formal arrangements. The Arizona Mining Association has
also been  invited to provide technical and financial assistance  in the cleanup of abandoned mines.  At
one general meeting of all resource agencies, it was determined their was an overlap of mine inventory
activities and inconsistencies between database structures. A separate subgroup was formed to resolve
inconsistency of database formats between agencies and to reduce the possibility of duplication of
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                                                       REGULATORY AND NON-REGULATORY TOOLS
 inventory activities.  The State of Arizona is involved in cooperative water quality monitoring and
 bioassessment efforts.  Frequent coordination between agencies has been helpful in concluding
 enforcement cases, improving program communication, and in improving cooperation between various


        Little funding has been dedicated to date. One CWA section 319 project to demonstrate
 impacts of inactive and abandoned mines through the collection of water quality data has been funded.
 The next step will be to remediate an abandoned mine. Most of the money to implement the Arizona
 Copper Mines Initiative is coming out of Water Management Division operating  funds. RCRA funds
 were provided by EPA headquarters to  buy equipment for implementation of the initiative.  Additional
 RCRA funds will be used to perform biological assessments on Boulder Creek that will bracket active
 and abandoned mines.


        This has been largely a voluntary effort on the part of Region 9  staff, and consequently is
 limited at times by staff availability and conflicts with other regional priorities. Total staff resources
 are estimated at 1 FTE per year.
 Non-Site Specific Approaches

 D.     RCRA Subtitle D Strawman Guidelines

        Although this strawman was designed as part of the RCRA subtitle D regulatory program, it is
 non-enforcement  in nature, and has many of the characteristics of other  non-regulatory tools.' EPA
 developed a series of non-regulatory alternative mine waste management approaches, Strawman I and
 II, in 1988 and 1990. These approaches addressed extraction and beneficiation wastes. These
 Strawman documents were staff-level trial balloons and were heavily based on approaches developed
 by the WGA Mine Waste Task Force. These approaches embraced the  idea that a RCRA mine waste
 program would have to be tailored to the unique aspects of each state's situation, considering the
 distinct climatic, geological, and ecological characteristics of each mine. Strawman II was developed
 in anticipation of  additional statutory authorities provided by the re-authorization of RCRA. It was
 released  to the public in May 1990 and was designed to solicit comment from interested parties. Its
 non-regulatory characteristics included:

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           State implementation and enforcement of regulatory programs upon approval of Mining
           Waste Management Plans by EPA.  EPA would retain oversight and enforcement
           State plans would be required to provide for coordination with .programs of all state and
           federal agencies, including those of the BLM and the USFS.

           Would not require state programs to be structured so as to mirror federal requirements.
           Instead, would provide broad flexibility to states to design programs and to use existing
           state and federal programs as components of state plans and programs.
           Plans would have to be adequate to ensure that site-specific permits would be protective of
           human health and the environment.

           Would not prohibit mining in any location, but would place more stringent procedural and
           technical requirements in sensitive areas.

           Program would address all media (ground water, air, surface water, soils) using site-r
           specific risk based performance standards. Permits would have to include conditions
           needed to achieve compliance with performance standards.

           Would require states to establish or use existing multi-media performance standards:
           ground and surface water, soils, and air.  Standards could be established on state-wide or
           site-specific basis.

           Would require monitoring and corrective action for all media, closure and post-closure
           care, and financial assurance.

           In 1991, states, industry, and the environmental community approached EPA and requested
           that a forum be created to further discuss mine waste issues.  In 1991 EPA chartered the
           Policy Dialogue Committee (PDC) on Mining under the Federal Advisory Committee Act
           (FACA). Meeting were held through January, 1993.

           The PDC had representatives from the states, the mining industry, the environmental
           community as well as from the major federal agencies (i.e., Department of the Interior
           (DOI), the Department of Agriculture (DOA), and EPA).

           The purpose of the PDC was to inform the various parties of each others positions and
           further the debate on development of a national mine waste program.
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        •  No consensus was reached, however, the basic elements of a mine waste program were
           identified including, reliance on existing state programs, protection of ground water,
           limited federal oversight, and public participation.

E.       Mine Waste Technology Demonstration Programs

        This research demonstration program, administered by EPA's National Risk Management
Research Laboratory in Cincinnati, Ohio focuses on treatment aspects of mining problems in the Butte,
Montana area.  Its non-regulatory features include:


        •  A total of $5 million has been allocated to this program.  These were earmarked


        •  The focus is on the engineering treatment aspects of mine wastes.

        •  Demonstration projects include clay based grouting, biocyanide treatment, sulfate reducing
           bacteria, nitrate removal using a combination of ion exchange and nitrate selective resins.


        •  The project involves interaction between EPA,  DOE and Montana Technical College gets
           some of the money. The project includes such technology transfer features as training on
           abandoned mines.


        •  There are questions as to how applicable these demonstration projects will be on a larger

F.      Region 8 Nonpoint Source Mining Projects

        Several states have identified inactive and abandoned mines as one of the major categories of
nonpoint source pollution within their states. The CWA states in section 319(h)(5) that grant funds are
to be made available to control particularly difficult or serious nonpoint  source pollution problems,
including but not limited to problems resulting from mining activities.
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                                                       REGULATORY AND NON-REGULATORY TOOLS
Key features

       •   The projects under the nonpoint source program have focused on inactive and abandoned
           mines with no viable potentially responsible party.

       •   This program has been able to implement technically innovative demonstration projects that
           are very difficult under other clean-up programs.

       •   Because this is a non-regulatory, voluntary, Good Samaritan dependant program, it is able
           to leverage other funding sources.

      ' •   The projects focus on smaller areas and on low maintenance options.

       •   The projects also tend to focus on environmental rather than human health impacts.

Technical and Institutional Approach

       A state must identify its areas of priority and must develop a management plan including  best
management practices (BMPs). Individual project proponents in high priority areas then submit
proposals for funding of BMP implementation. There is a requirement of 60% match on the projects.
In most states, technical assistance is provided to the project proponents by state and federal experts.
The projects then compete for funding at an EPA regional level.

Financial considerations

       For under one million dollars, Colorado's nonpoint source program has funded thirteen
projects,  ranging in cost from 12k to 250k.  Total clean-up costs for these projects have  often been an
order of magnitude  higher. This, is due in part that the 309 projects are smaller and less complex, and
address control of sources are opposed to remediating past releases.  Typical projects include:

       French Gulch.  The French Gulch project addresses metals loading from the Wellington D'Oro
Mine near Breckenridge.   Concentrations of zinc below the mine have ranged from 1,000  - 10,000 ug/1
with several samples much higher. Stream standards are exceeded in the Blue River during both high
and low flow periods.  Mine drainage  and ground water movement are being characterized and the
shaft of the mine was sealed to isolate  the mine pool  for possible future treatment.  A portion of the
French Gulch stream channel was reconstructed in 1993 through the dredge tailings blockage south of
the Wellington Mine.  The new channel has reduced the flow of ground water through the tailings pile.
Geophysical work done by the former Bureau of Mines indicated that there may be another mine
opening under the waste rock piles that is draining.
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                                                       REGULATORY AND NON-REGULATORY TOOLS
        Peru Creek Pennsylvania Mine.  The Peru Creek Pennsylvania Mine project includes a
limestone feed system to the mine drainage, a settling pond, and a zeolite polishing unit for metals
reduction.  After start up of the project it was discovered that the lime storage and feed mechanism was
not sufficient to deal with the high acidity of the drainage and winter inaccessibility of the site dictated
that the neutralization system be re-engineered.  Laboratory bench testing of other neutralized agents,
zeolite testing, and field testing showed that a bioreactor was possibly the best solution.  Two large
bioreactors (manure, sand and  gravel mix) have been constructed but have not been activated.—

        St. Mary's Glacier.  This project is intended to reduce acid mine drainage from the Alice Mine
adjacent to Silver Creek, which is tributary to Fall River, which is tributary to Clear Creek in Clear
Creek County.  Drainage water from the old glory hole will be treated by a four stage system, which
includes anoxic limestone drain, settling  pond, pond for addition of fireplace ashes from nearby
residences, and a final settling  pond.

        Animas River Targeting. This project was designed to target potential nonpoint source project
areas in one of Colorado's most severely impacted river basins, the Animas Basin. The project
included sampling of selected locations on three major tributaries in the basin in the vicinity of the
Silverton/Ouray mining district in southwest Colorado. Mine drainage from inactive sites is being
sampled, and a biological assessment of aquatic and recreation use potential is also being conducted.
Eleven  field crews are assisting with the  project, including teams from the Bureau of Reclamation,
BLM, USGS, USFS, Sunnyside, Homestake, and Solution Gold mining cqmpanies, and the Colorado
Division of Wildlife.  Sampling has shown that many stations  in the basin have metal concentrations in
excess of state-recommended criteria.  Therefore new standards have been proposed.  Potential for
remediation of some sites is being assessed by the local Animas Basin association with help from the
USFS, BLM, USGS, and Bureau of Reclamation.


        With the use of a CERCLA memorandum of understanding, these projects have been conducted
as removal actions with on-scene coordinators ensuring that requirements under CERCLA are fulfilled.
There is no such provision under the CWA.  Several projects  are on hold because of the fear of third
party lawsuits under CWA based upon a recent ruling by the Supreme court not to hear the California
Penn Mine case.  Good Samaritan language has been drafted for inclusion in the reauthorization of the
CWA in order to continue with mining nonpoint source projects.

C.      Bubble Trading

        A market-based or trading approach seeks to achieve water quality improvements in the most
economically efficient manner  by affording individuals and institutions choices on how to meet
environmental objectives.
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                                                       REGULATORY AND NON-REGULATORY TOOLS
       Trading means establishing upstream controls to compensate for new or increased downstream
sources, resulting in maintained or improved water quality at all points, at all times, and for all
parameters.  Trading may involve point sources, nonpoint sources, or a combination of point and
nonpoint sources.  Although it can take many different forms, effluent trading, in principle, allows
dischargers to allocate discharge reductions (beyond those required by technology-based standards)
according to relative economic efficiency.

        The statutory and legal framework for water quality-based trading can be found in section
303(d) of the CWA regarding Total Maximum Daily Loads (TMDLs). TMDLs are comprehensive in
that they address all sources:  point sources, nonpoint sources, atmospheric and ground water to
evaluate all uses aquatic, domestic water sources, agricultural, and industrial. While using a watershed
in decision-making, TMDLs also identify where the most limiting use is within the watershed as well as
identifying the most limiting season or critical condition.  TMDLs make a clear identification of what
assemblage of regulatory and non-regulatory controls will be used to attain water quality goals and
standards. This linkage between controls and instream standards so often illusive.  The development of
a TMDL affords the stakeholders the opportunity to negotiate what combination of controls are needed
to attain goals as well as explore opportunities between control options.

       It is one thing to collect data to characterize a mining problem but to put the information into a
logical framework identifying what level of controls are  needed to attain and maintain goals is not
always evident.  Consideration of instream standards including numeric criteria,  narrative provisions
including antidegradation criteria and  all physical (flow), chemical and biological standards needed to
support designated uses is embodied within a TMDL.

       The conditions necessary to run an effective point and non-point source trading program

       a.  Identifiable watershed.
       b.  Sufficient point and nonpoint sources.
       c.  Ambient water quality goal.
       d.  Accurate and sufficient data.
       e.  Technology-based discharge requirements met.
       f.  Overall costs less.
       g.  Point source allocations are limiting.
       h.  Institutional structure.
       i.  Compliance incentive and enforcement mechanisms.

       For example, a proposed mine project may be willing to clean up historical sources even if the
cost of implementing the end of pipe technology is less than the nonpoint source cleanup costs,
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                                                       REGULATORY AND NON-REGULATORY TOOLS
 especially if it means the project could proceed more expeditiously. In other words, looking at the full
 financial picture may render incentives that go beyond the treatment cost differential.

 H.     Remining

        A new cost-effective way to reclaim an abandoned mine may be to re-mine it (i.e., re-open the
 mine or re-process old waste to recover any ore left behind when the mine was closed ), then complete
 the reclamation process.

        For example, the typical site was abandoned when the operator deemed the mine no longer
 profitable, often after encountering difficult geologic conditions or low-grade ore. But with today's
 mining technology, many previously mined areas can be re-opened and re-mined at a profit — and have
 been, particularly  during .the boom in the early 1980s.  Re-mining usually means re-opening or
 enlarging an old mine pit to recover the remaining ore.  But it can also involve re-processing old
 tailings piles, or removing old mine waste piles that block access to ore.

        Re-mining has appeal.  It offers a way to reclaim land according to current environmental
 standards, with no need for outside funding. But there are at least three potential problem areas that
 must be considered:  first, reopening of a mine by an someone not familiar with all ramifications due to
 exposing additional discharge areas; second, mining companies will sometimes ignore certain
 previously mined areas to avoid potential legal liability; and finally, an operator may avoid re-mining,
 even though it  is in close proximity to a new mining venture because the mine is still not economical.

 /.      Wellhead Protection Programs

        The purpose of the Wellhead Protection (WHP) Program is to protect ground water-based
 public drinking water supplies from contamination and prevent the need for costly treatment to meet the
 drinking water standards. The WHP program is based on the concept that the development and
 application of pollution prevention land-use controls and other preventive management measures can
 protect ground water.

        The program provides protection from contaminants in the surface and subsurface area
 surrounding a well or wellfield supplying water to a public system.  WHP area boundaries are
 determined by hydrogeologic characteristics having a direct effect on the likelihood and extent of
 contamination including factors such as well pumping rates,  time-of-travel of ground water flow to the
 well, aquifer boundaries, and the degree of confinement.

        EPA approves WHP programs state-by-state, which are administered by the states. As of
 December 31, 1995, 41 states and territories have EPA approved Wellhead Protection Programs (see
 Table 1).   Presumably, hardrock mining activities would be allowed within a WHP area providing
September 1997                              C - 68

                                                       REGULATORY AND NON-REGULATORY TOOLS
. they would not generate sources of contamination which may have any adverse effect on the health of
 persons. The probable causes of contamination of ground water can be difficult to identify, but once
 ground water becomes contaminated, cleanup (if possible) becomes very expensive.  Ground water is
 used by the majority of the people in the United States for drinking water because it is less costly to use
 than surface water as a drinking water source. The higher costs for using surface water are primarily
 due to land acquisition and treatment requirements.
Table 1. States and Territories with Approved Wellhead Protection Programs
New Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Puerto Rico
Rhode Island
Soutii Carolina
South Dakota
West Virginia
  September 1997

             APPENDIX D


                                               OTHER FEDERAL REGULATORY AUTHORITIES
                                   TABLE OF CONTENTS
1.      INTRODUCTION  	 D-l

       Mineral Development and Disposition Statutes	 D-3
       Regulatory Structure on Bureau of Land Management and Forest Service Lands	D-5
       Mining Regulation on National Park Service and Fish and Wildlife Service Lands	 D-7
       Other Related Regulations, Policies, and Issues	 D-8

       Endangered Species Act	D-9
       National Historic Preservation Act	 D-10
       Coastal Zone Management Act	 D-l 1
       Farmland Protection Policy Act	 D-12
       Rivers and Harbors Act of 1899.	,	D-12
       Surface Mining Control and Reclamation Act (SMCRA) 	D-12
       Wild and Scenic Rivers Act	D-12
       Fish and Wildlife Coordination Act	 D-13
       Fish and Wildlife Conservation Act	D-13
       Migratory Bird Protection Treaty Act		... D-13

                                                   OTHER FEDERAL REGULATORY AUTHORITIES

     Besides the EPA authorities described in Appendix C, mining operations are subject to a complex
web of federal, state, and local requirements. Many of these require permits before the mining operations
commence, while many simply require consultations, mandate the submission of various reports, and/or
establish specific prohibitions or performance-based standards.  Among the federal statutes that are
potentially applicable are those shown in Table 1 at the end of this appendix. Also shown are the
agencies with primary responsibility for implementing or administering the statute and the types of
requirements imposed on those subject to various statutory provisions.

     A great deal of effective coordination among federal agencies has taken place in the past, often
based on informal working relationships. However, there are  many instances of conflicting or
overlapping authorities (e.g., Executive Order Number 12580 - Organic Acts) which require resolution.
Overall, federal agencies with responsibilities related to mining activities need to coordinate their efforts
more consistently than has occurred to date. Where appropriate and useful, this framework recommends
that such relationships be formalized, so that appropriate coordination occurs regularly. This increased
coordination is important to streamline the regulatory process. This will likely require some Memoranda
of Understanding between agencies that articulate specific actions and time frames for accomplishment.

     A key element in the consideration of responsibilities of federal agencies is the dual role of many
federal agencies as both  land managers responsible for oversight of various activities on such lands and
as parties that may be regulated by state  agencies or EPA. In  developing specific regulatory actions (e.g.,
developing a general permit for abandoned and inactive mines on federal land),  EPA representatives will
need to be aware of the potentially precedent-setting actions in the exercise of regulatory tools on federal
lands that may have implications for actions taken with respect to private land owners.

     A sizable challenge in working with federal agencies will be addressing the inactive and abandoned
mines on federal lands.  For example, where a comprehensive watershed risk-based approach is used,
federal agencies need to  commit to carry out specific pollution prevention or control measures identified
for particular sites. The Office of Surface Mining Reclamation and Enforcement (OSM) could share
technical expertise gained by administering the Abandoned Mine Land Program to states and tribes.
Under this program, Wyoming has reclaimed more than 20,000 acres of non-coal abandoned mine land;
and Colorado, Montana,  the Navajo Tribe, New Mexico, Utah, and Wyoming have closed more than
2,400 portals and 4,000 shafts. (OSM 1994)

     There are also many specific federal agency coordination issues. For instance, statutory mandates
set different priorities that may limit consolidating priority setting. SMCRA Section 403 priority setting
criteria rank danger and human health higher than environmental factors. Federal agencies other than
EPA may not now issue abatement orders under Section 106 of CERCLA (per a 1996 amendment to
Executive Order 12580). Also, federal agencies other than EPA do have delegated authority to recover
funds for remedial actions on federal lands. Frequently, federal  land managers would like to participate
September 1997                             D-l

                                                   OTHER FEDERAL RFC.UI A TORY AUTHORITIES
in devising remediation at specific sites. EPA may also wish'to explore having federal land managers
undertake some enforcement actions using other authorities.

      Many other agencies are designated as Natural Resources Trustees under CERCLA. The National
Contingency Plan includes some duties of the trustees: assessing damage to natural resources, negotiation
with potentially responsible parties, and seeking compensation from the responsible parties. Land
managing agencies such as the BLAM and tribal chairmen have natural resource trust authority under

      Another specific component of the relationship with other federal agencies involves active mine
plans. It is important that the portions of these plans that indicate how the mine plan will meet applicable
environmental standards are included and contain all appropriate information.  Therefore, a joint,
improved process involving EPA and other appropriate federal agencies is needed. (A similar issue exits
for states.)

      There is also an important partnership dimension to relationships between federal-state agencies in
which the various agencies provide assistance and training to enhance their capability of their partners to
regulate mining activities effectively.  Partnerships in the joint assessment of mine sites are also needed to
most efficiently use limited resource dollars to determine the extent of health and environmental risk at
abandoned sites at a national level.


      There are many statutes and associate regulatory programs that govern federal land management
and the disposition of minerals on federal lands. The Bureau of Land Management (BLM) has issued
regulations that require operations to be conducted so as to prevent unnecessary or undue degradation of
the lands or their resources, including environmental resources and the mineral resources themselves.
The regulations specify that operators are to comply with federal and state environmental laws, including
the Clean Water Act (CWA).  Regulations encourage coordination and cooperation between the BLM
and state regulatory agencies.
      An operator who intends to disturb more than five cumulative acres, or to operate in certain
sensitive areas, must file a plan of operations before commencing operations (lower level disturbances are
subject to different requirements). The plan of operations must identify the site, they type of operations
proposed, and measures to be taken to prevent unnecessary or undue degradation and to meet reclamation
standards. These standards include (but are not limited to) the following:

      •   Taking reasonable measures to prevent or control on- and off-site damage to federal lands

      •   Measures taken to control erosion, landslides, and water runoff

      •   Measures to isolate, remove, or control toxic materials
September 1997                             D-2

                                                  OTHER FEDERAL REGULA TORY AUTHORITIES
     •   Reshaping the disturbed area, replacement of topsoil, and revegetation, where reasonably

     Reclamation standards specifically do not apply to previously disturbed areas on a mining claim;
operators are responsible only for their own disturbances. A reclamation bond is required for plans of
operations, with amounts based on the type of operation and the operator's compliance record,  in
general, BLM does not require duplicate bonds where thee is also a state bonding requirement.

     The Forest Service operates under several statutes that mandate the planning and management of
lands within the National Forest System. These include the Organic Act of 1897, the Multiple Use and
Sustained Yield Act of 1960 (MUSYA) and the National Forest Management Act of 1976 (NFMA). The
Organic Act delegated broad authority over most land use activities within the National Forest System. It
also provides for continued state jurisdiction over National Forest lands. Finally, it declares that forests
shall remain open prospecting, location, and development of minerals under applicable laws, and that
waters within the boundaries of the National Forests may be used for domestic mining and milling,
among other uses. Section 3 of the MUSYA authorizes the Forest Service to cooperate with state and
local governments in managing the National Forests. The NFMA amended the Rangelands and
Renewable Resources Act of 1974 by establishing an extensive system of planning for the National
Forests. Forest Service regulations require that mining rights are exercised in a way that will minimize
adverse environmental impacts  on surface resources.  •

     Forest Service regulations (36 CFR 228) are broad and similar to BLM's in that they impose few
specific technical standards. Regulations require that a proposed plan of operations be prepared unless
there will be no significant disturbance of surface resources. All operators must comply with all
applicable federal and state pollution control laws, including the CWA. Regulations allow for
reclamation bonding conditioned on compliance with the reclamation standards. These standards
(ง122.8(g)) require that, where practicable, operators reclaim sites to prevent on- and off-site damage to
the environment and forests surface resources, including (among others):

     •   Control of erosion and prevention of landslides
     •   Control of water runoff
     •   Isolation, removal, or control of toxic materials
     •   Reshaping and revegetation of disturbed areas, where reasonably practicable.

     The National Environmental Policy Act of 1969 (NEPA) is also a significant influence on federal
Land management and planning on Federal lands. NEPA requires federal agencies to consider the
environmental impacts of their proposed actions, along with alternatives to the proposed actions.  Under
NEPA and applicable regulations of the Council on Environmental Quality, federal agencies must prepare
an environmental assessment (EA and/or and environmental impact statement (EIS) before undertaking
any major federal actions significantly affecting the quality  of the human environment. If the proposed
action will not significantly affect the environment, the agency can issue a finding of no significant
September 1997                              D-3

                                                   OTHER FEDERAL REGULATORY AUTHORITIES
impact (FONSI).  If a FONSI is not appropriate and an EIS is determined to be necessary, it must contain,
among other things, a consideration of alternatives to the proposed decision, a full discussion of
significant environmental impacts, an evaluation of cumulative effects, and a discussion of mitigation

      BLM and the Forest Service generally conduct a NEPA analysis before taking any formal planning
action, issuing any permit or lease, or approving a mining plan of operations or other activity on federal
lands. Those actions considered major and that will have significant environmental impact or public
interest trigger the preparation on an EIS.

Mining Regulation on National Park Service and Fish and Wildlife Service Lands

      The National Park Service has been charged by Congress to manage units of the National Park
System so as to conserve the scenery and the natural and historic objects and wild life therein and to
provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired
for the enjoyment of future generations.  The Fish and Wildlife Service has jurisdiction over a variety of
areas designed primarily for species protection, such as National Fish and Wildlife Refuges.  Although
mineral operations are generally prohibited in these areas, both agencies have some statutory and
regulatory authority for controlling allowed mineral development, including mineral development rights
such as valid mining claims that had vested before designating the lands as protected areas.

      The Mineral Leasing Act of 1920  specifically excludes National Parks and National Monuments
from federal mineral leasing. Subsequent legislation and BLM regulations at 43 CFR 3100.0-2(2) make
clear that, except for three national recreation areas, all units of the National Park Service are closed to
federal mineral leasing. The Mining in the Parks Act of 1976 eliminated the language contained in six
units of the Park System that allowed the location of mining claims within these units. As a result, all
units of the National Park System are now closed to the location of mining claims under the 1872 Mining
Law. The Act also directed the Secretary of the Interior to develop regulations to control all activities
resulting from the exercise of valid existing mineral rights on patented and unpatented mining claims in
any area of the National Park System to  preserve the pristine beauty of these areas.  In 1977, the National
Park Service promulgated the requisite regulations in 36 CFR Part 9, Subpart A.  Section 11 of the Act
provides that a claimant subject to the Act who believes he has suffered a loss by operation of the Act or
by orders or regulations issued pursuant to it may bring a takings claim in U.S. Court of Claims.

      The National Park Service has extensive regulations governing exercise of valid existing mineral
rights (36 CFR Part 9 Subpart A).  The regulations restrict water use, limit access, and require complete
reclamation.  They also require that operators obtain  an access permit and approval of a plan of
operations before beginning any activity. A plan of operations requires specific site and operations
information, and may require the operator to submit a detailed environmental report. Operators must
comply with any applicable  federal, state, and local laws or regulations.
September 1997                             D-4

                                                   OTHER FEDERAL REGULA TORY AUTHORITIES
     The Fish and Wildlife Service (F&WS) manages a disparate group of wildlife refuges, fish
hatcheries, research centers, etc., established either by statute, executive order, or public land order.  Most
F&WS units were either withdrawn from mineral entry when they were established, those few that were
open to such entry have since been withdrawn. The F&WS has brief regulations (50 CFR 29.32)
governing the preexisting mineral rights on lands under its jurisdiction. These regulations state that such
rights shall, to the greatest extent practicable...prevent damage, erosion, pollution, or contamination of the
lands, waters, facilities, and vegetation of the area. Operators must comply with all applicable federal
and state laws and regulations for the protection of wildlife and the  administration of the area. Waste and
contaminating substances must be confined so as to prevent damage to the area, and shall be restored as
nearly as possible to its condition before commencement of mining operations.  However, nothing in the
regulations may be applied in a manner contravening or nullifying vested mineral rights.  As of the early
1990s,  there were no known active mining operations in the F&WS preserve system although there may
have been valid existing rights under the Mining Law in some cases.

Other Related Regulations, Policies, and Issues

VS. Bureau of Indian Affairs. The Indian Mineral Development Act of 1982 is the Bureau of Indian
Affairs' overall planning and management statute for mineral development on tribal lands. Regulations
governing the mining development have been promulgated at 25 CFR 211, Leasing of Tribal Lands, 25
CFR 212, Leasing of Allotted Lands; 25 CFR 213 Leasing of Restricted Lands for Members of the Five
Civilized Tribes, Oklahoma, for Mining; and 25 CFR 225, Oil and Gas, Geothermal, and Solid Mineral
Agreements.  In addition, tribes have many internal policies regarding the protection of Tribal Trust

State/Federal Memoranda of Understanding.  BLM and the Forest Service often reach agreements
(Memoranda of Understanding (MOU)) with the states in which their lands are located. California's
MOUs with the Forest Service (1979) and with BLM (1990) are illustrative. The 1979 MOU for
reclamation insures that lead agencies accept reclamation plans that meet state and federal requirements.
The 1990 MOU also gives the state the opportunity to comment on  environmental assessments, the
reclamation plans, and cooperative enforcement of bond adjustments and releases.

Regulation on Split-Estate Lands. Split-Estate lands are those where one party owns the surface estate,
and another owns some or all of the underlying mineral estate. In the split-estate situation, the mineral
estate is usually considered dominant, unless otherwise provided for by contract. The dominant mineral
estate has the implied right to enter, occupy, and make such use of the surface as is reasonably necessary
to explore, mine, remove, and market the minerals.

     Where the United States owns the mineral estate, but not the surface estate, a lessee of the minerals
must comply with the terms of the BLM leasing regulations (43 CFR Group 3500). Certain categories of
public domain minerals may be located under the Mining Law, even if the surface has been patented.
When allowed, location and development are subject to the Mining Law and BLM, Forest Service,
National Park Service, and F&WS regulations to the same extent as other mining claims. The control the
September 1997                             D-5

                                                   OTHER FEDERAL REGULA TOR Y A UTHORITIES
United States has over the surface estate, which could be owned by a party other than the United States if
it is a split-estate situation, may vary depending upon the applicable law.

      Because the United States can regulate the activity of mineral lessees, operators, permittees, and
mining claimants ono split-estate lands where the United States owns the minerals but not the surface, it
has some level of control over whether those operations comply with federal and other laws, including
environmental laws.  Agencies are more limited in their control of split-estate lands where the United
States owns the surface, but another party owns the mineral estate. This situation often arises when a
federal agency, such as the Forest Service, has acquired the surface estate for a specific purpose, and the
conveyance is subject to a reservation of minerals.  Where this is the case, the surface rights of the United
States may be subject to the rights of the owner of the dominant mineral estate to enter the property and
use the surface for all purposes reasonably necessary for development of the mineral estate. While the
United States as surface owner may have some authority to regulate the surface use, it generally would
not have the right to prohibit completely, use of the surface for development of the underlying minerals,
since the mineral estate is dominant.

Inactive and Abandoned Mines on Federal Lands. None of the authorizing statutes described above
provide for the reclamation of previously abandoned mines on federal land. Until the relatively recent
past, statutory authority for BLM and most other federal agencies did not explicitly provide even for
regulation, including reclamation, of mineral development on most federal lands.  As a result, the residue
of over a century of intense mineral development on federal lands, as well as patented and other private
lands, remains. In recent years, Congress has considered some legislation relevant to mine reclamation.
To date, none of these proposals has become law.


      Other federal statutes may also play a general role in mining regulation.  The following sections
describe the purposes and broad goals of several federal statutes, some of which have been mentioned
above. The discussion for each statute also provides an overview of the requirements and programs
implemented by the respective implementing agencies.

      Endangered Species Act.  The Endangered Species Act (ESA) (16 U.S.C. งง1531-1544) provides
a means whereby ecosystems supporting threatened or endangered species may be conserved and
provides a program for the conservation of such species. Under the ESA, the Secretary of the Interior or
the Secretary of Commerce, depending on their responsibilities pursuant to the provisions of
Reorganization Plan No. 4 of 1970, must determine whether any species is endangered or threatened due
to habitat destruction, overuse, disease, or predation, the inadequacy of existing regulatory mechanisms,
or other natural or artificial factors.  When the Secretary determines that a species is endangered or
threatened, the Secretary must issue regulations deemed necessary and advisable for the conservation of
the  species.  In addition, to the extent prudent and determinable, she or he must designate the critical
habitat of the species.
September 1997                             D-6

                                                    OTHER FEDERAL REGULA TORY A VTHORITIES
     Section 7 of the ESA requires federal agencies to ensure that all federally associated activities
within the United States are not likely to jeopardize the continued existence of threatened or endangered
species or of critical habitat that are important in conserving those species. Agencies undertaking a
federal action must consult with the F&WS which maintains current lists of species designated as
threatened or endangered, to determine the potential impacts a project may have on protected species.
The National Marine Fisheries Service undertakes the consultation function for marine and anadromous
fish species while the F&WS is responsible for terrestrial (and avian), wetland and fresh water species.

     The F&WS has established a system of informal and formal consultation procedures, and these
must be undertaken as appropriate in preparing an EA or EIS. Many states also have programs to identify
and protect threatened or endangered species other than federally listed species. If a federally listed
threatened or endangered species may be located within the project area and/or may be affected by the
project, a detailed endangered species assessment (biological assessment) may be prepared independently
or concurrently with the EIS and included as an appendix. States may have similar requirements for
detailed biological assessments as well.

     National Historic Preservation Act. The National Historic Preservation Act (NHPA) (16 U.S:C.
งง470 et. seq.) establishes federal programs to further the efforts of private agencies and individuals in
preserving the historical and cultural foundations of the nation. The NHPA authorizes the establishment
of the National Register of Historic Places. It establishes an Advisory Council on Historic Preservation
authorized to review  and  comment upon activities licensed by the federal government that have an effect
upon sites listed on the National Register of Historic Places or that are eligible to be listed. The NHPA
establishes a National Trust Fund to administer grants for historic preservation.  It authorizes the
development of regulations to require federal agencies to consider the effects of federally-assisted
activities on properties included in, or eligible for, the National Register of Historic Places. It also
authorizes regulations addressing state historical preservation programs.  State preservations programs
can be approved where they meet minimum specified criteria. Additionally, Native American tribes may
assume the functions of state Historical Preservation officers over tribal lands where the tribes meet
minimum requirements. Under the Act, federal agencies assume the responsibility for preserving
historical properties owned or controlled by the agencies.

     A series of amendments to the NHPA in 1980 codify portions of Executive Order 11593
(Protection and Enhancement of the Cultural Environment-16 U.S.C. ง470). These amendments require
an inventory of federal resources and federal agency programs that protect historic resources, and
authorize federal agencies to charge federal permittees and licensees reasonable costs for protection

     Where mining activities involve a proposed federal action or federally assisted undertaking, or
require a license from a Federal or independent agency, and such activities affect any district,  site,
building, structure, or object include in or eligible for inclusion in the National Register, the agency or
licensee must offer the Advisory Council on Historic Preservation a reasonable opportunity to comment
September 1997                              D-7

                                                   OTHER FEDERAL REGULA TORY AUTHORITIES
with regard to the undertaking. Such agencies or licensees are also obligated to consult with state and
Native American Historic Preservation Officers responsible for implementing approved state programs.

      A special concern in some cases is related to the fact that many proposed mining operations are
located in areas where mining has occurred in the past. Particularly in the west and Alaska, states and
localities are viewing the artifacts of past mining (e.g., headframes, mill buildings, or even waste rock
piles) as valuable evidence of their heritage. Since modem mining operations can obliterate any remnants
of historic operations, care must be taken to identify any valuable cultural resources and mitigate any
unavoidable impacts. Innovative approaches are often called for and implemented. In Cripple Creek,
Colorado, for example, a mining operation wished to recover gold from turn-of-the-century waste rock
piles. As mitigation for removing this evidence of the area's past mining, the operator replaced the piles
with waste rock from their modern pit. In addition, the company provided interpretive signs in the area
for the public.

      Coastal Zone Management Act. The Coastal Zone Management Act (CZMA) (16 U.S.C.
งง1451-1464) seeks to preserve protect, develop, and where possible, restore or enhance the resources of
the Nation's coastal zone for this  and future generations.  To achieve these goals, the Act provides for
financial and technical assistance and federal guidance to states and territories for the conservation and
management of coastal resources.

      Under the CZMA, federal grants are used to encourage coastal states to develop a coastal zone
management program (CMP). The CMPs specify permissible land and water uses and require
participating states to specify how they will implement their management programs. In developing
CMPs, states must consider such  criteria as ecological, cultural, historic, and aesthetic values as well as
economic development needs. Applicants for federal licenses or permits must submit consistency
certifications indicating that their activities comply with CMP requirements. In addition, activities of
federal agencies that directly affect the coastal zone must be consistent with approved  state CMPs to the
maximum extent practicable. The CZMA also establishes the. National Estuarine Reserve System, which
fosters the proper management and continued research of areas designated as national  estuarine reserves.

      To the extent that mining activities are federally licensed or permitted, applicants must certify that
all activities are consistent with applicable CMPs.
      Farmland Protection Policy Act. The Farmland Protection Policy Act (FPPA) (P.L. 97-98) seeks
to minimize the conversion of farmland to non-agricultural uses.  It requires that, to the extent practicable,
federal programs be compatible with agricultural land uses. The Act requires that in conducting agency
actions federal agencies follow established criteria for considering and taking into account any  adverse
effects such actions may have on  farmland. Where adverse effects are anticipated, federal agencies must
consider alternatives that will mitigate any harmful impacts.  Under the Act, the U.S. Natural Resource
Conservation Service (NCRS) is required to be contacted and asked to identify whether a proposed
facility will affect any lands classified as prime or unique farmlands. However, beyond considering
September 1997                             D-8

                                                  OTHER FEDERAL REGULA TORY AUTHORITIES
potential adverse effects and alternatives to agency action, the Act does not provide the basis for actions
challenging federal programs affecting farmlands.

     Rivers and Harbors Act of 1899. The Rivers and Harbors Act (RHA) (33 U.S.C. งง401^13)
was originally enacted to regulate obstructions to navigation and to prohibit the unpermitted dumping or
discharging of any refuse into a navigable water of the United States. The Act also provides authority to
regulate the disposal of dredged material in navigable waters.  The provisions of section 407 fofBid any
discharge of refuse matter other than that flowing from streets and sewers in a liquid state.  Under section
403, a permit is required from the U.S. Army Corps of Engineers for the construction of any structure in
or over navigable waters of the United States.

     Surface Mining Control and Reclamation Act (SMCRA). The Surface Mining Control and
Reclamation Act (SMCRA) Title IV primarily addresses the Abandoned Mined Lands (AML) Program,
under which coal mine sites abandoned before 1977 are reclaimed and, under certain circumstances,
abandoned noncoal mines may be reclaimed. SMCRA provides for delegation of program
implementation authority to states, with state programs overseen by the Office of Surface Mining
Reclamation and Enforcement (OSM) and direct OSM implementation in nondelegated states. To date,
OSM has delegated primacy to 23 states. In addition, three Native American tribes administer their own
AML program.  OSM administers SMCRA requirements in 13 states (most of which have no current coal
production) and on all other Native American lands.

     Under SMCRA,  OSM has established criteria for setting priorities to reclaim AMLs, and these
criteria rank danger and human health issues higher than environmental problems.  Wyoming, the Navajo
Tribe, and Montana are among those states that have successfully applied AML funds to noncoal sites
after reclaiming all priority coal sites [30 U.S.C. 1239].

     Wild and Scenic Rivers Act. The Wild and Scenic Rivers Act of 1968 (16 U.S.C. 1273 et. seq.)
provides that certain selected rivers ...shall be preserved in a free flowing condition, and that they and
their immediate environments shall be protected for the benefit and enjoyment of present and future
generations. Section 7 of the Act prohibits the issuance of a license for construction of any water
resources project that would have a direct effect on rivers (or reaches of rivers) selected because of their
remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values for
the National Wild and Scenic Rivers System.

     The system includes rivers and streams placed in the System by acts of Congress and rivers that
have been studies and deemed suitable for inclusion. Any potential impacts on rivers and streams in the
System must be considered and direct  adverse effects on the values for which the river was selected for
the System must be prevented.

     States also have their own systems for protecting rivers and streams or portions thereof. While
agencies may have no legal requirement to consider state-protected wild and scenic rivers and streams,
any potential impacts to such streams should nevertheless be considered and addressed.
September 1997                             D - 9

                                                   OTHER FEDERAL REGVLA TORY AUTHORITIES
      Fish and Wildlife Coordination Act.  The Fish and Wildlife Coordination Act of 1934 (16 U.S.C.
 661 et. seq., P.L. 85-624) authorizes the Secretary of the Interior to provide assistance to, and cooperate
 with, federal, state, and public or private agencies or organizations in the development, protection,
 rearing, and stocking of all species of wildlife, resources thereof, and their habitat.  Most of the Act is
 associated with the coordination of wildlife conservation and other features of water-resource
 development programs.

      Fish and Wildlife Conservation Act.  The Fish and Wildlife Conservation Act of 1980 (16 U.S.C.
 2901 et. seq.) encourages federal agencies to  conserve and promote conservation of nongame fish and
 wildlife and their habitats to the maximum extent possible within each Agency's statutory
 responsibilities.  The Act places no affirmative requirements on federal agencies.

      Migratory Bird Protection Treaty Act. The Migratory Bird Protection Treaty Act (16 U.S.C.
 703-711) prohibits the killing, capturing, or transporting of protected migratory birds, their nests, and
 eggs.  Consultations  with the F&WS are encouraged if project activities could directly or indirectly harm
 migratory birds.
September 1997                             D-10


Table 1. Other Federal Statutes Generally Applicable to Mining Operations
'Endangered Species Act (16
U.S-.C. งง1531-1544)
National Historic Preservation Act
(16U.S.C. งง470etseq.)
Coastal Zone Management Act (16
U.S.C. งง1451-1464)
Farmland Protection Policy Act
(FPPA) P.L. 97-98)
Rivers and Harbors Act (33 U.S.C.
Surface Mining Control and
Reclamation Act (30 U.S.C.
Mining Law of 1972 (30 U.S.C.
Federal Land Policy Management
Act (43 U.S.C. งง1701-1782)
Fish and Wildlife Service
Advisory Council on Historic
EPA, States
U.S. Soil Conservation Service
U.S. Corps of Engineers
Office of Surface Mining,
Authorized States
Bureau of Land Management,
Federal land managers
Bureau of Land Management
Prohibitions; Consultations
Permits; Standards;
Reporting; Royalties
Notification; Studies;
Requires federal agencies to ensure that all federally associated activities within
the U.S. do not jeopardize the continued existence of threatened or endangered
species r of critical habitat.
Agencies undertaking a federal action must consult with the U.S. fish and Wildlife
Service FWS) or the National Marine Fisheries Service (NMFS) to determine the
potential impacts a project may have on protected species.
Federally licensed mining activities that affect any district, site, building,
structure, or object that is included in or eligible for inclusion in the National
Register, must afford the Advisory Council on Historic Preservation a reasonable
opportunity to comment.
Applicants for federal licenses or permits must submit consistency certifications
indicating that their activities comply with CMP requirements.
In addition, activities of federal agencies that directly affect the coastal zone must
be consistent with approved state CMPs to the maximum extent practicable.
U.S. Natural Resource Conservation Service (NRCs) must be asked to identify
whether a proposed facility will affect any lands classified as prime and unique
The RHA regulates obstructions to navigation and prohibits the unpermitted
dumping or discharging of refuse into a navigable water of the U.S. The Act also
provides authority to regulate the disposal of dredged materials in navigable
waters. Also see ง402 and ง404 of the CWA.
Regulates surface effects of surface and underground coal mining that occurred
afer 1 977. Under certain circumstances, provides funding for reclamation of
abandoned hardrock mines.
Provides rights of free access to unrestricted public lands for purposes of claiming
and recovering most metallic minerals
Provides mechanism for claimants to obtain full title to claimed public lands.
Requires BLM to prevent unnecessary and undue degradation of public lands.
Implementing regulations specify noncompliance with Clean Water Act and other
statutes as "unnecessary and undue" degradation.
Establishes land planning process, including compliance with NEPA.
Regulations impose procedural requirements on mining operations on BLM lands
(e.g., approval of plans of operations), with most technical requirements
determined by managers of BLM units or BLM State offices.



                                    Table 1.  Other Federal Statutes Generally Applicable to Mining Operations (Continued)
National Park System Mining
Regulation Act (Mining in the
Parks Act, or MPA) (16 U.S.C.
Multiple Use and Sustained Yield
Act (16 U.S.C. งง528-531),
National Forest Management Act
Mineral Leasing Act (30 U.S.C.
National Park Service
Forest Service
Bureau of Land Management
Standards; Notification;
Notification; Studies;
Lease (permit); Reporting;
Regulated mining activities within the National Park System.
All mining claims in NPS system made prior to September 1 977 had to be
recorded by that time. No claims allowed after that time.
Protects natural or historic landmarks within the park system by requiring that
person conducting mining operations that threaten such landmarks notify NPS and
the Council on Historic Preservation.
Establishes that the National Forest System is to be managed for outdoor
recreation, range, timber, watershed, and fish and wildlife purposes.
Provides that the renewable surface resources of the national forest are to b
administered for multiple use and sustained yield of products and services.
Establishes land planning process, including compliance with NEPA.
Regulations impose procedural requirements on mining operations on FS lands
(e.g., approval of plans of operations), with most technical requirements
determined by managers of FS units or FS state offices.
Requires leases and royalty payments for mining fuel minerals (including coal and
uranium) on federal lands,. and for mining hardrock minerals on acquired lands.
                      Permits: "License" to undertake an action subject to enforceable standards, reporting requirements, prohibitions, etc:

                      Approvals: Formal approvals by responsible official/agency of specified actions.

                      Standards: Numeric performance- or technology-based standards to limit emissions/releases, or numeric standards for protection of environmental medium.

                      Prohibitions: General restrictions or prohibitions on specified actions or. on causing a particular effect by any action.

                      Studies: Requires studies of site-specific environmental conditions, proposed or existing operations, and/or potential environmental effects of operation.

                      Consultation: Requires consultations with specified officials/agencies prior to undertaking an action.

                      Reporting: Periodic reporting to regulatory agency on compliance.

               APPENDIX E


                                         OVERVIEW OF STATE REGULATORY APPROACHES
                            TABLE OF CONTENTS
 September 1997

                                                   OVERVIEW OF STATE REGULATORY APPROACHES
1.     Overview of Programs

       Many state/tribal agencies have, over the past decade, emerged as-leaders in the area of mining
regulation. An effective EPA approach should build on the exemplary accomplishments of states and
tribes in various media program areas and encourage and facilitate sharing of information and training
procedures between federal, state, and tribal co-regulators. This requires an understanding of relevant
State programs.

       While EPA staff must be, and are, knowledgeable of state programs, this framework will not
develop up-to-date descriptions of each state's mining programs. This appendix provides an overview
of state programs and approaches.  Other sources have compiled this information in greater detail [e.g.,
State Regulation of Mining Waste:  Current State of the Art, Environmental Law Institute (ELI),
November 1992 for Arizona, California, Colorado, Florida, Idaho, Missouri, Montana, Nevada, South
Carolina, and South Dakota; March 1995 survey of Alaska, Arizona, California, Colorado, Idaho,
Montana,  New  Mexico, Oregon, South Dakota, Utah, Washington, and Wyoming; or An Overview of
Metallic Mineral Regulation in Wisconsin, Special Report  13, 1991, Wisconsin Geological and Natural
History Survey, with a 1993 update from 1991 and 1992 legislative sessions]. On Jufy 8, 1992, Greg
Conrad, Interstate Mining Compact, stated that the ELI study presented a "fair and comprehensive
overview of the ten state regulatory programs reviewed."  Examples of state program components in
the subsection that follows come  from the 1992 ELI study, and may not be representative of current

       In developing an EPA mining framework, it is important that EPA identify those areas of
federal environmental law for which the states have lead implementation authority, as well as those
areas in which states have developed programs which do not have a federal analogue. Most states have
active programs that deal with existing and proposed mines, and several states have developed
programs to deal specifically with inactive and abandoned mines (LAMs)..

       Active and Proposed Sites.  States are often authorized to administer several  federally
mandated environmental programs  (e.g., NPDES). A common requirement of such authorizations is
that the state regulations and procedures must be at least as stringent as their federal counterparts.  In
addition, states often have additional features in their regulatory programs that arise from state specific
statutes, regulations,  or policies.  In assessing a particular state's programs for regulating mining
activities,  it is therefore important to understand the authorization status of the program and any state-
specific requirements or practices.  There are a great variety and complexity of state  mine waste
programs.  In terms of this mining  framework, several features of these programs bear mention.  The
Environmental Law Institute's (ELI, 1992), in its evaluation of state programs, noted the following:

       .   Many state regulatory programs are "relatively" new and still evolving.  In most cases
           major regulatory provisions, and sometimes the primary programs, are fewer than ten years
September 1997                               E -1

                                                    OVERVIEW OF STATE REGULATORY APPROACHES
            old.  Examples of major changes include Nevada's zero discharge program and its 1990
            reclamation program, Idaho's cyanidation regulations, Montana's 1990 custom milling and
            reprocessing regulations, and Arizona's and New Mexico's reclamation programs.

            Mining waste is regulated primarily by either a reclamation-based program or a water
            pollution-based program.  Colorado, Idaho  (except for cyanidation facilities), Missouri,
            Montana, and South Dakota rely chiefly on their reclamation programs for most mining
            waste regulation. Arizona, California, Florida,  Idaho, Michigan, Nevada, and South
            Carolina rely primarily on water quality programs. Wisconsin, however, has a multi-media
            regulatory approach that relies heavily on both reclamation and water pollution based

        .   Varying levels of overlap  and coordination occur among the agencies with jurisdiction. In
            most states, there is a division of labor which is  primarily based on the state's governmental
            organization and on when programs were enacted or regulations adopted.  Recently, there
            has been increasing movement toward unification of these regulatory programs. In
            Nevada, for instance, both reclamation and  water quality are located within the same unit
            of the Division of Environmental Protection.

            Under RCRA, the states (except for Missouri) regulate both process units and waste units
            under unified schemes despite the federal regulatory distinction between a  "waste
            management unit" and a "process unit."

        .   Regulation of existing mines is, in many states, proceeding more slowly  than regulation of
            new mines and new units.  This is partly a result of the newness of many of the programs
            or changes to the regulations under these programs (e.g., Arizona's  aquifer protection
            permit program) and the difficulty of overlaying new requirements on units that have been
            operated for years and that have a continuing useful operating life.  It is  also due, to some
            extent, from the result of exemptions for existing operations (which  in turn can be due to
            the difficulty noted here).

        State regulations of active and proposed mining  also have some common technical features  that
are also relevant to EPA's mining framework.  These include:

        .    Standard  setting. All states are required by the  Clean Water Act to adopt water quality
            standards, which set forth  designated uses of the waters within their states and numericc
            and narrative criteria to protect those uses, [states are increasingly utilizing water quality-
            based effluent limits (WQBEL) for permitting].  States having specific design  or
            performance standards tend to be hi such areas as drainage control structures and other
            construction standards, such as those for liners.
September 1997                              E - 2

                                                     OVERVIEW OF STATE REG VLA TOR r APPRO A CUES
       .   Financial assurance.  These vary significantly from state to state.  The kinds of costs that
           can be covered include reclamation, and discharge contingencies. Costs also range from
           actual reclamation costs (e.g., Colorado1 and Nevada), to reclamation plus contingency and
           closure costs (e.g., California).  Other states have specified per-acre amounts.

       .   Closure.  Detoxification is subject to differing standards in those states that specify
           standards.  Water availability also plays a major role in the various detoxification
           approaches.  Some states defer decisions in this area until closure is imminent.  Closure
           plans are usually required as part of the original application, but are often at a conceptual
           level until the end of the mine's life.  Post-closure care of some sort is required in some
           (e.g., AZ, CA, MO, NV) but not all states.

       The following paragraphs  provide some indication of the variability of state programs and

       In some cases, modifying  state mining programs can lead to improvements for new mining
operations, while maintaining less protective practices at older units.  For instance, in Arizona, discrete
heap or dump leach units closed before January 1, 1986, at  mines with other active operations were not
required  to have a permit.  A 1992 draft state guidance identified optimal design systems for some
precious  metal leach pads as a double lining with a leak detection/collection system and run-on controls
to manage a 100-year, 24-hour storm event.  However, the  state will not require retrofitting all existing
impoundments and facilities. On the  other hand, Nevada required mines in existence September  1,
1989, to  receive a water pollution control permit within three years.

       In addition, prescriptiveness of regulations may vary, and some states establish permit-specific
standards based on customary practices. Montana issued regulations for mills, small placer and dredge
miners, and small miner cyanide operations in 1990 and 1991 which are more detailed in siting,
location,  waste characterization, design, and performance than regulations for large operating mines,
which were developed primarily in 1980. Older permits operating within permitted standards could be
subject to modification when field inspections reveal "significant environmental problem situations."
Idaho surface mining regulations specify soil erosion performance (drainage of a 20-year, 24-hour
storm) and reclamation (cross-ditching and revegetation) standards for roads.
   1 The initial $1.3 million reclamation assurances required in 1984 for the Summitville mine considered costs
of surface grading, clay caps, and revegetation. After acquiring the authority to require bonding for water
treatment, the state's Mined Land Reclamation Board increased the surety to $7.2 million in 1992.  Reclamation
costs were estimated to exceed $40 million when the owner filed for bankruptcy at the end of 1992. Note that
water balances derived from using non-site meteorologic data underestimated the actual site water balance.
(Knight Piesold)
September 1997                                E - 3

                                                    OVERVIEW OF STATE REGULATORY APPROACHES
        Wildlife protection practices also differ from state to state. Citizen groups initially opposed
 siting a South Carolina gold mine in a populated area.  The mine agreed to voluntarily supply $10
 million of financial assurance for environmental protection and enhanced technical performance.
 Despite the efforts of a full-time crew intensively hazing with cannons, pyrotechnics, and other
 techniques to prevent bird kills, the mine reported  193 dead birds from 1987 to mid-1990. On the
 other hand, Arizona guidelines for cyanide management for wildlife protection included treatment of
 process solutions to less than 30 mg/1 weak acid dissociable cyanide (or to non-lethality) and netting of
 impoundments, noting that harassment techniques like cannons and rock music have not been effective.
 Nevada law required wildlife permits issued to all existing mines with industrial ponds by April 1,
 1990.  Nevada requires floating covers or nets, neutralization or dilution, but recognizes that hazing
 has not prevented bird deaths.  Nevada requires wildlife mortality reporting and has imposed penalties
 for bird kills.

        Differential treatment and availability of data at new and older operations highlights differences
 in identifying and resolving concerns.  For instance, the California Surface Mining and Reclamation
 Act reclamation requirements do not apply to lands disturbed before January 1, 1976.  Monitoring the
 unsaturated zone became required in California due to 1991 changes in regulations.  Financial
 assurances posted by new and existing operations in California since 1992  include funds needed to
 cover closure, postclosure, and release activities.  Likewise, older Idaho cyanidation processing units
 may not be subject to permitting (and $25,000 to $100,000 financial assurance) until expanded or
 modified.  On the other hand, in 1990, South Dakota law required operators using cyanide leaching
 and other chemical and biological processes to have an additional surety of $25,000 to $500,000 to
 respond to accidental releases to the environment, and the amounts were reassessed in 1992.  South
 Dakota's water pollution control program calls for  monitoring and action after pollutants are  detected in

        The amount of site data required by states can vary widely.  Nevada permit applications have to
 contain hydrogeological information to depths at least 100 feet beneath point sources and historic
 monthly average rainfalls, and size of 24-hour storms for 10-, 25-, and 100-year events. Nevada water
 pollution control permit applications also require reports of ore, overburden, and waste rock  samples
 and evaluations for potential pollutant releases.  Further, compliance with minimum design criteria
 does not shelter the permittee from liability from any ensuing degradation of water.  However, there
 are no financial assurance requirements in Nevada's water pollution control law or regulations.

       Colorado demonstrates administrative flexibility in permit issuance. Passive treatment of mine
 drainage systems through voluntary cleanups of abandoned mines are not subject to the five-year
 Colorado Discharge Permit System  requirements.  Colorado reclamation permits are for the life of the
 mine and contain site-specific design, monitoring, and reclamation requirements to fulfill the narrative
performance standards in the Colorado Mined Land Reclamation Act and regulations.  Detailed
guidance recommends double liners for systems in  contact with cyanide solutions.
September 1997                               E - 4

                                                    OVERVIEW OF STATE REGULATORY APPROACHES
       Florida Department of Environmental Regulation (DER) issues a single permit covering ground
water and surface water when possible.  Local government can administer permit programs if approved
by DER as being no less stringent than the state program and having the necessary enforcement
capabilities and resources.  Nevada is required to send counties notices of permit application.  South
Carolina requires operators to submit their reclamation plans to the local  soil and water conservation

       Missouri's Metallic Minerals Waste Management Act (MMWMA) permits are for the life of
the facility, but the state reviews closure and inspection-maintenance plans every 5 years. Permits are
issued without public participation.  The state has few standards for siting and location, so permits
specify the requirements.  The Financial assurances of $1,000 per acre (but not less than $20,000 per
permit) may not cover all costs of reclamation.

       Post-closure protection and financial assurance requirements vary widely. Idaho mining
programs do not specify post-closure activities. Nevada specifies up to 30 years of post-closure ground
water monitoring,  and submission of final closure plans two years before closure. Financial assurance
in Nevada only covers reclamation costs, not the costs of neutralization and closure  required under the
state water pollution control permits-unless required by a federal land manager.  South Carolina gold
mines are bonded for $190,000 to $2.5 million, based on the amount necessary for reclamation.  In
South Carolina, reclamation plans include closure,  but not postclosure.  Post-closure care extends for
30 years in South Dakota.
 September 1997                               E - 5

           APPENDIX F


                                                                        RANKING METHODS
                                 TABLE OF CONTENTS
       1.1     Overview	F-l
       1.2     Goals of Priority Setting  	F-4
       1.3.     Criteria in Priority Setting  . .  . .	F-4
       1.4     Outputs of Priority Setting  	F-5
       1.5     Multi-Level Priority Setting 	F-6
       1.6     Implementation Issues/Challenges  	F-9

       2.1     Montana Abandoned and Inactive Mines Scoring Systems (AIMSS)  	F-10
       2.2     Bureau of Mines Abandoned Mine Lands Inventory and Hazard Evaluation
              Handbook	F-12
       2.3     Colorado Demonstration Project Program	F-13
       2.4     Rocky Mountain Headwaters Initiative	F-14
       2.5     South Dakota Abandoned Mined Lands Inventory Act	F-15
       2.7     Priority Ranking Under Clean Water ง303(d), TMDLs	F-17
       2.8     Priority Ranking Under the CSO Control Policy	F-17

                                                                              RANKING METHODS
       This appendix addresses prioritizing or ranking mining sites for attention. The first section
presents some principles about ranking inactive and abandoned mine sites (lAMs) in priority order for
EPA consideration.  Although regulatory authority may be sufficient for EPA to consider action at
many mine sites, EPA is not likely to have the resources available to take action at all sites. Thus,
some method of ranking the sites in priority order is advisable. The second section of this appendix
provides some examples of priority ranking systems.


1.1    Overview

       Establishing priorities that will guide remediation efforts leading to environmental improvement
is one of the most important challenges facing regulatory authorities as well as interested stakeholders.
Identifying key considerations in this regard is one of the main objectives of this mining framework.
Given the number of mine sites and potential environmental problems, the lack of a comprehensive data
set to evaluate impacts of all past mining activities, and limited resources, EPA and other federal, state,
and tribal regulatory partners need to "rank" geographic areas and sites for inventory, evaluation, and

       There have been a number of inventory and priority setting mechanisms established to address
the large population of abandoned mine sites. Most of these are well suited to the specific geographic
area(s) they are intended for.  Some of these systems include:

       •   The State of Montana's ranking system.
       •   The National Park Service's ranking system.
       ป   Ranking'systems developed by other federal agencies.

       Given the  large number of sites and the expense of mitigation using existing technologies, the
public and private sectors will realistically probably never have sufficient resources to perform field
inventories or clean up .all mining sites. Therefore, we must develop a process that ensures that our
efforts go to areas and sites that will yield the greatest benefits in the most cost-effective manner.
Cooperation among a wide range of stakeholders (federal agencies, states, tribes, nongovernmental
organizations, and private industry) with different authorities, outlooks, priority-setting processes, and
goals will require sharing of information and resources, and may require some compromise among
different program  objectives.  EPA's numerous authorities and responsibilities for addressing health
and environmental impacts at lAMs require the Agency to work at several different stages of the
priority setting process.

       The principles described here are applicable primarily to inactive and abandoned mines, rather
than  to proposed or active mines. The reason for this distinction is an assumption that proposed or
September 1997                               F - 1

                                                                                RANKING METHODS
active mines will typically be the subject of operating permks or requirements that will be the vehicle
and trigger for gathering necessary information about proposed or active mining operations and any
associated environmental and human health impacts.  However, many of the principles articulated
below are clearly applicable to proposed and active mines as well.  For example, characterization of
priority areas within a watershed will require inventories and information on both active and inactive
mining activities in order to determine the highest priority sites for future actions.

        EPA believes priority setting mechanisms must be established at multiple levels to most
effectively address the range of issues posed by the large universe of mine sites.  The next few pages
describe an approach for setting priorities for action at four different geographic scales:  National,
regional/state/tribal, Mining Area (watershed, mineshed), and Site.  Objectives at each level can

        •   At the national level, to portray accurately the scope of the IAM problem and the
            magnitude of resources needed to address it

        .   At the state level, to identify impacted watersheds that deserve priority attention.

        .   At the tribal level, to be cognizant of Tribal trust responsibilities.
            Within priority areas, to develop effective interagency approaches for prioritizing
            individual mine sites for action.

        ป   At the level of the mine site, to determine which regulatory or non-regulatory mechanisms
            are most effective in addressing the problems of a given site.

        Table F-l presents a summary of key components for setting priorities for action on inactive
and abandoned mines for each of the four scales.  The following set of considerations are reviewed at
each level:

            The major goals to be reached and the specific type of activity associated with meeting the
            overall goal.  This would include consideration of the key public and private parties
            (agencies, states, other stakeholders) who are responsible for the decisions/actions.

       .  The key criteria and specific analyses required to set the priorities  and ensure success in
           meeting the different goals.

           The principal outputs/action that are appropriate for each level, in accordance with goals
           and the criteria/analyses reviewed.
September 1997                                F - 2

                                  Table F-l Setting Priorities for Action on Inactive and Abandoned Mines (lAMs)

State, region or

Historic Mining
Watershed, Land
Area, etc)


Determine nationwide
environmental degradation from

Identify high-priority states.
tribes, agencies and regions for
budget and program action
Identify priority areas by
ranking areas for action and/or
near-term evaluation

Ranking of sites for immediate
action and/or near-term

Mine site mitigation

Environmental improvement via
reduced ecological and human
health risk

Evaluate post-mitigation success
Congressional decisions on
budget and legislative agenda

Federal Agency decisions on
budget, program, research and
regulatory agenda

State/Regional Assessment or
Program Activity such as:
• 305b reports
• Nonpoint source
• NPDES General permit
• CERCLIS site entry
• State/Tribal Groundwater
Protection Programs
• State/Tribal Water Quality
Standards Review
• StateWTribal/Regional
Enforcement priorities
Conduct area investigations such
• Area-wide PA/SI
• Mass loading evaluations
(TMDLs; air)
• NPDES General Permit
• Fed. Land Mgmt. Planning

Design and funding actions such
• RI/FS type studies
• A106 request (Progr. fund.
• NPDES Permit enforcement
Congress, EPA, DOI,
DOA, Governors, '
Tribes, National

Federal land managers
Regional Stakeholders

Federal Land Managers
Tribes .
Regional Stakeholders
Local Stakeholders

All of Above, plus
Specific parties (e.g.
private landowners.

National human health and
ecological impacts

Total Administrative and
Mitigation Costs

Federal Trust Responsibilities
Impaired watersheds, habitat.
groundwater, airsheds, etc.
Location of historic mining

Population centers and most
sensitive individuals

Most sensitive species,
communities, ecosystems

Institutional capabilities

Extent of environmental and
human health risk - all media
Achievable cleanup goals (tech.
feas., cost-effect., total cost)
Enforcement potential
Partnership potential
Funding sources

Tech. Feas. (Design criteria
such as chemical loading; site-
specific data)
Funding source
Enforcement potential

Estimate size and scope of
nationwide mining
problem based on state.
agency and tribal input.

Critical area identification

Mineral district pollution

Geographic overlays of
risk assessment data at the
mineshed, watershed level


Estimate discharge,
transport and risk to

Site identification.
including appropriate size

Regulatory options
assessment and tool box

Evaluation of site
• specific data and
selection of remedy.
• action


                                                                                RANKING METHODS
 1.2    Goals of Priority Setting

        The purpose of the priority setting process in this framework is to help decision-makers
 organize information and make consistent and rational judgments about which strategy of evaluation
 and action to pursue in order to meet both short- and long-term goals of environmental improvement.
 Cross-programmatic cooperation, team building and integration are key  elements of this process.
 Because the type and scope of decisions are fundamentally different at various scales of resolution, the
 process provides a flexible approach that works at all of these different levels. For example, Congress
 is responsible for appropriating federal resources to the entire nation based on the general needs of
 large, multi-state geographic areas, states, tribes and federal agencies and consideration of other
 competing national issues and programs. As we narrow the geographic  scope, the decision-makers
 change from federal to state/tribal, and to local.  The goals, activities, criteria, analyses, strategies and
 priorities become successively more site-specific and complex as we move to the site level.   In
 addition, as priority setting moves closer to the site level, there will likely be a demand for more
 precise data, and for greater coordination and communication among all  involved parties.

 1.3    Criteria in Priority Setting

        In setting priorities for action which will result in mitigation of inactive and abandoned mines
 and environmental improvements, regulatory authorities need to consider a range of specific technical,
 scientific, institutional, and other criteria upon which to base national,  state,  area, and site-specific
 decisions. Further, the precision and type of information used at each different scale of the decision-
 making process will vary.  High precision data can be used at a very small scale while qualitative  data
 may be useful only at larger scales.

        The following criteria need to be considered and evaluated in each level of the priority-setting
 process to determine the priority for action.

        ซ   Extent and type of environmental  and human health risk.
        .   Total administrative and mitigation costs.
        .   Technical feasibility.
        .   Cost-effectiveness of activity.
            Partnership potential.
        .   Availability and type of data/information.
            Enforcement potential.
        •   Source of funds.
        .   Ownership.
        .    Institutional capabilities.
            Tribal Trust Resources.
September 1997                                F - 4

                                                                               RANKING METHODS
1.4    Outputs of Priority Setting

       One of the goals of the framework is to develop, at each geographic scale, a coordinated,
systematic approach to assess and prioritize risks associated with lAMs, and to establish priorities for
mitigation based on environmental and human health risk, as well as other key criteria such as resource
availability and cost-effective technologies.  This will ultimately result in clean-up of abandoned mine
sites in the most efficient and effective manner possible in coordination with all affected and interested

        Cooperative programs such as the Clear Creek Initiative (Colorado) and Montana Ranking
System can provide models for using both national and area-wide approaches, involving parties with
different outlooks and goals and operating under numerous statutory authorities. Possible specific
outputs of the priority ranking system could include:

       .   Establishing priorities for implementing the NPDES storm water comprehensive watershed
           risk-based approach for federal lands pursuant to Clean Water Act Section 402(p) and for
           reviewing multi-sector storm water watershed approaches for the private sector.

       ป   Ranking CWA Nonpoint Source Projects (Section 319) for funding priorities.

       ซ   Prioritizing mine waste control demonstration projects pursuant to CWA Section 107.
       •   Entering sites on private and public lands into CERCLIS and initiating the PA/SI process
           pursuant to CERCLA Section 116.

       •   Prioritizing NEPA reviews for mining that will impact waters of the U.S.

       •   Prioritizing facilities for performing A-106 audits pursuant to Executive Order 12088.

       •   Establishing priorities for action under state Groundwater Protection Programs.

       .   Establishing priorities for mining-related technology and research development initiatives.

       •   Establishing priorities for remediation initiatives.

       This geographic, hierarchical system for prioritization may be entered at any level; and one can
move both up or down in scale within the hierarchy, for example,  from the national scale down to the
site level, based on the resolution of the data.  Once geographic areas of concern are identified, a
number of criteria can be used to further prioritize or categorize sites at this new scale.  Alternatively,
if one had sufficient data to take a response action at a site, evaluating the response action within a
September 1997                                F - 5

                                                                               RANKING METHODS
watershed to determine if goals within the larger area will be advanced by this activity may be

        The area-wide approach directs site investigation and cleanup activities towards the broad scope
of problems affecting an area. Better decisions are made when the cumulative impacts of all mine sites
in the area are considered and addressed.  The basic premise of the framework for addressing mine
sites is to identify and prioritize sites at the same time as known problems are being addressed.  In the
short term, actions can be initiated at many of the most damaged areas and sites while data gaps are
filled for other less-characterized areas. In the long term, better information used in conjunction with
site specific refinement of methods and approaches will result in the most effective cleanups and use of
limited resources.

1.5    Multi-Level Priority Setting

National Level

        Go_al - At the national level, Congress, federal agencies,  states, and tribes should  determine the
magnitude and scope of national environmental degradation resulting from lAMs. Further, they can
cooperatively identity the high priority states and agencies for targeting resource appropriations as well
as program, research, legislative and other future agendas.   One key challenge in priority setting  at
this level is to balance resources devoted to environmental versus safety threats (e.g., open airshafts
and adits, crumbling mill works, dams,  and unstable tailings piles).  Each can be significant but they
are generally addressed under different legal authorities.

        Criteria/Analysis - The key criteria to be used at this national level would include the relative
extent and type of environmental and human health (including safety) impact in each state/tribal or
Federal Land Management (FLM) area, and general estimates of the total public  and private costs of
mitigating LAMs.  Specific information and analyses performed might include identifying  non-coal
mining  activities within the state or tribal area, estimating the total number of mine sites,  identifying
major types of suspected or measured statewide impacts (e.g., number of miles of streams not meeting
designated uses) as well as other indicators that the state or tribe has identified which qualify or
quantify abandoned mines as an environmental problem.

        Outputs - The output would be a large scale, nation-wide map or summary which identifies
states, tribes, regions and/or  federal land areas of highest priority where program, evaluation, budget,
and other activities should be initially focused.  A national approach that ranks individual sites for
mitigation would require an extraordinary commitment, and  would likely not be an efficient use of our
current limited resources.

State, Tribal and/or Federal Land Management Unit Level
September 1997                               F - 6

                                                                               RANKING METHODS
       Goal - At this scale, priority setting should occur at the state, regional or federal land
management level.  The goal here is to identify priority geographic areas (e.g., watersheds, minesheds,
Federal Land Management unit) that are most impaired or threatened by mining activities and target
them for action or near-term evaluation. It is crucial that this identification and ranking be performed
jointly and cooperatively using a team-building and information-sharing approach.  Key parties here
include states, affected federal agencies, tribes, mining interests, environmental groups, local
organizations, and other regional stakeholders.

       Criteria/Analysis - The large number of individual sites makes a geographic, regional
evaluation of mined areas more effective and efficient than a systematic effort of assessing individual
sites. Although mine sites can be isolated, they are more frequently clustered in historic mining
districts.  Consequently, there are often cumulative impacts from multiple sites.  In general, most
information resources, inventories and data collections should be directed to known or easily identified
problem areas.  Therefore, it is suggested that this area evaluation be based upon mineshed-level data
(e.g., geographic watershed areas delineated by the USGS as cataloging units within the Hydrologic
Unit Code system).

       At this level, the approach could develop a list of priority areas by compiling and overlaying
data based on the following key criteria:

        •   Regional/state measures of the extent of actual human health and environmental impacts
            based on regional and/or local assessment reports (e.g., CWA Section 305(b) reports,
            nonpoint source assessments).  Specific components might include impaired surface waters,
            watersheds and groundwaters, degraded habitat, degraded airsheds, disturbed terrestrial
            areas, and open mineshafts.

            Specific population centers and locations of most exposed individuals and critical ecological
            areas containing most sensitive species, communities, and ecosystems.

        .   Location of historic mining districts and estimates of mineral district pollution projections.

        Outputs/Action - This information will be used to generate a list of priority minesheds which
can be targeted for more site-specific evaluation.  The major advantage of using an area-wide approach
is that site investigation and remediation activities can be directed toward the broad problems affecting
an area,  including considering and addressing the cumulative impacts to all resources from all mine
sites in the area.  The ranking derived at this level could lead to different types of program and
evaluative activities, including setting  NPDES permit priorities, or working with state, tribal, or other
federal agencies to develop comprehensive approaches to addressing mine site impacts.

Watershed Level
September 1997                                F - 7

                                                                               RANKING METHODS
        Goal - The purpose of assessment and prioritization-at the watershed level is to evaluate and
rank specific sites causing threats to human health and ecological resources and then rank them for
action and/or near term evaluation. Also key to this site prioritization is the development of an area-
wide plan to assess and prioritize additional sites within the area that are not adequately characterized.
This process directs most resources toward investigating and assessing areas where actual
environmental impacts are  documented while continuing to identify and  characterize additional high-
risk areas.

        Criteria/Analysis - Within the higher ranked geographic areas of concern (watershed, mining
district, or section of a land management area) one of the major criteria  to consider in developing the
ranking system is the extent and magnitude of specific risk to human health and safety and to ecological
resources from all media.  Key indicators include areas  where individuals/wildlife are exposed to
contaminated soil; where drinking water supplies exceed Maximum Contaminant Levels; where acute
or chronic water quality standards are exceeded; or where terrestrial/riparian  habitats are severely
degraded.  In many instances, water quality problems represent a primary indicator of overall
environmental degradation.

        Where more detailed data are available,  a more precise determination of risk can be determined
by estimating discharge transport and exposure pathways in all media or by identifying specific
locations of physical hazards.  At this level, evaluating existing or potential human health and
environmental risks should take into consideration the actual or potential presence of threatened or
endangered species, presence  of critical environmental resources such as wetlands or breeding habitat,
and the specific exposure potential to the receptors of concern. Other variables to consider, if
information is available, include the magnitude of existing or potential damage including concentration,
toxicity, severity of impact, geographic extent, reversibility of damage,  and persistence of pollutants of

        Other important criteria to evaluate and  address in the ranking system at this level include
achievability of cleanup goals (e.g., availability, cost and cost-effectiveness of monitoring and  remedial
techniques), ownership patterns, source of funding for different actions,  and the potential for
partnerships to share  resources and information.

        Outputs/Action - The  analyses performed at this level should determine which priority
watersheds, minesheds or planning areas should have more detailed,  site-specific assessments and
should also identify watersheds and other areas which are of a lower priority and may therefore require
limited or no action.  Information  collected and evaluated at this level could be used, for example, to
develop a CERCLA preliminary assessment and site investigation,  identify priority cleanup actions, or
collect data for various compliance and permit evaluations.

Site Level
September 1997                               F - 8

                                                                               RANKING METHODS
       Goal - At this scale, the purpose is to develop a more comprehensive assessment and
characterization of individual mine sites within targeted minesheds and watersheds, in order to
remediate the sources that are the most damaging to human health, safety and ecological resources.  At
this level, the goal is to use a more refined approach for designing specific mitigation activities.  In
addition, regulatory authorities may need to implement a program to evaluate the success of short- and
long-term remediation efforts.

       Criteria/Analysis - The major factors used to rank individual mine sites/sources within an area
should be based on the impacts observed in and risks associated with the specific area. The ranking of
sites at this level as well as the evaluation and data collection performed will  likely be driven by area-
specific concerns and conditions.  For example, if the major environmental impacts in an individual
watershed are found to be directly related to  lead levels in stream waters and sediments, the high
priority sites targeted for mitigation within that watershed should include those that are discharging lead
to streams.

       Other key criteria for ranking sites for mitigation  include the technical feasibility and specific
cost/effectiveness of remediation methods, Evaluation of "hot spots" will require detailed site
investigation and resource evaluation and should be performed by personnel who have expertise in
mining site remediation and resource assessment.  "Best professional judgement" of qualified personnel
will need to be employed at the various levels of site and resource assessment.  Practical, feasible
technical and scientific approaches should be considered to determine the overall priorities for site

       Outputs - The approach at the  site level  focuses characterization and remediation activities on
areas of greatest human health and ecological concern by  determining which  specific sites would be the
most cost-effective to mitigate and provide the greatest environmental improvements.  For instance, this
approach can prevent situations where an upstream site is remediated while at the same time
downstream problems continue to cause impacts. Typical outputs at this level might include RI/FS type
of studies, NPDES permitting and enforcement actions, or specific program funding requests.

1.6    Implementation Issues/Challenges

       One of the major challenges associated in implementing a multi-level priority  setting system
such as the one described here lies in the fact that there are currently a number of systems in use that
are effective  at addressing certain parts of the problem. In addition to needing to mesh with these
existing systems, a related issue is defining and  agreeing upon the successively smaller boundaries of
areas and then coordinating the activities and resources of all interested parties.  In addition, all
appropriate sources of existing information will, need to be collected and reviewed in order to
characterize geographic areas and mine sites causing ecological  and/or human health problems within
those locations.  It will be critical to develop the most resource-effective approach to integrate data
September 1997                                F - 9

                                                                               RANKING METHODS
 across programs and across media. Team-building, sharing-data and information, and leveraging of
 staff, equipment and funding are critical to the success of this area-wide approach.

        A second major challenge is that the requirements of specific statutes and regulations often
 drive action on a site-specific or media-specific basis, independent of larger area-wide evaluations,
 considerations and conditions.  This may cause some difficulty in applying discretion to the
 development of specific remediation priorities.  A third problem is how to ensure that progress on
 known sites is not delayed because of the time and effort required to establish priorities for action at the
 different levels. Many of these areas, particularly the larger and/or more complicated sites and
 geographic areas, have already been identified and characterized.  It is critical that all parties reach
 agreement at an early stage  about these  high priority sites so that the next appropriate steps that will
 lead to speedy site mitigation and environmental improvements can be identified.
        A fourth challenge lies in the need to develop a comprehensive, cost-effective and successful
 area and site-level ranking system that includes all media and receptors. Currently, many of the
 applied mine site ranking/assessment systems, such as Superfund's Hazard Ranking System (HRS) or
 the federal land managers' systems, are tailored for assessing and categorizing individual  sites. They
 generally do not identify problem areas  or characterize the overall condition of an area (e.g.,
 watershed,  airshed,  or ecosystem). Similarly, the cross media NCAPS is used to rank/prioritize sites
 for RCRA remedial action.  In contrast, the water body assessments required by the Clean Water Act
 (e.g., Section 305(b) reports) cover large areas, yet do not always identify specific sites of concern.
 Further, no current priority system adequately identifies risks to human health and evaluates them along
 with threats to special areas of concern, human safety risks from open shafts or effects to  ecological
 resources at the species, community, and ecosystem level. There is a need to improve the ways in
 which priority ranking systems factor the components of the larger ecosystem level in with the needs
 and efforts at the site-specific level.


        At present there are numerous programs being developed or already underway within states
 and within other federal agencies to identify,  inventory, prioritize, and/or otherwise address mining
 related issues.  Of particular interest are those programs which include explicit methods for prioritizing
 activities from a large population of options, such as ranking methods for sites targeted for possible
 remedial action. Accordingly, this appendix is intended to provide background information on a
 selection of existing programs for ranking sites, starting with several programs designed specifically for
 mine sites and then several applicable to other types of sites..
September 1997                               F - 10

                                                                              RANKING METHODS
2.1    Montana Abandoned and Inactive Mines Scoring Systems (AIMSS)

       Montana's AIMSS is a fully developed and implemented prioritization methodology which has
allowed the state to establish a ranked list of "90 - 95 percent of the worst mines in the State" based on
a previously developed inventory of roughly 6,000 abandoned mine sites and extensive site
characterization data. The AIMSS is based on the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) Hazard Ranking System (MRS) (see section 7 below) with
significant modifications employed to fit mining scenarios. The model's output provides a numeric
score for each site analyzed, enabling relative ranking of the sites, with no absolute measure of risk
implied.  According to state officials, implementation of AIMSS cost $0.9 million for 273 sites in less
than one year, roughly $3,100 per site1.

       The development and implementation of AIMSS has relied on several important phases,
including development of a state-wide inventory of abandoned mines, systematic investigation of all of
the mines to yield comparable data for each, professional land manager surveys to aid in identification
of problem sites, and development of the AIMSS itself.  Further, having developed the priority list of
mines, the state is moving forward with the next phases of its abandoned mine land program.  These
are briefly discussed below.

       Inventory Development.  Having certified that all coal mine reclamation activities have been
completed, Montana is authorized to expend Surface Mining Control and Reclamation Act (SMCRA)
Abandoned Mine Lands fund resources on non-coal  abandoned and inactive mine reclamation.  During
the late 1980s, Montana developed a state-wide inventory of non-coal mine lands.  The process
included use of a five-page site investigation form which required investigators to record observations
beyond those principally related to safety hazards, such as  the presence of discharging adits, low pH or
high conductivity discharges, the presence of a mill at or near the property, acid generation indicator
minerals, the presence of tailings, and so forth.

       Pre-ranking of Inventoried Sites.  The Abandoned Mine Reclamation Bureau conducted a
rough sorting of the mine inventory based on professional land manager surveys as well as analysis o'f
the investigation results for the total mine pool.  The population of mines was searched for a number of
hazard indicators such as tailings, low pH discharges, etc., with those sites not presenting any of the
indicators eliminated from the priority pool. Land managers from the Forest Service, Bureau of Land
Management (BLM), Department of State Lands,  mining districts, and health departments were then
asked to identify any properties within their jurisdiction known or believed to present environmental
      1    Note that in 1993, 273 sites were ranked.  An additional 58 sites were processed in 1994, with
approximately 50 sites from the total pool eliminated based on findings of comparatively low risk, resulting in a
total of around 280 mines On the final inventory of problem sites.  Also note that the estimated cost of
implementation does not include the costs associated with developing the initial AML inventory nor with the
modification of the HRS to yield the actual AIMS system.
September 1997                              F-11

                                                                              RANKING METHODS
hazards. The canvass results and the rough screening results were then compiled to yield a list of 273
mines believed to represent the majority of the worst mines in the state2.

        Site Characterization Investigations. In the next phase of the program, state officials
conducted systematic site characterization investigations at each of the 273 mines previously identified.
These investigations involved visual site inspection as well as sampling and analysis.  Portable sampling
and analysis equipment (i.e., X-ray fluorescence (XRF) units) was employed to guide the number of
samples to be collected as well as to provide additional sampling data points for each site at lower cost
and in less time.  The total cost for site characterization was estimated at $0.9 million, or $3100 per

        Development of AIMSS.  AIMSS was developed based on the HRS, with significant
modification designed to yield a more realistic comparison between mine sites than would be possible
using the actual HRS.  For instance, given the frequency of occurrence of high manganese oxide
concentrations at mine sites, AIMSS does not use manganese concentrations in determining risk.
Moreover, AIMSS was developed to consider multiple constituents of concern at the concentrations
observed in site samples, in contrast to HRS (see section 7), which is based on the contaminant of
concern observed to be present in the highest concentration. Data collected for the priority mine were
then input into the model to yield ordinal ranking according to potential hazard.

        Current and Future Directions.  Once the list of mines presenting environmental hazards was
compiled, the state was faced with the task of determining how best to act upon these data.  One of the
ongoing activities is to identify past and present owners/operators of the identified sites in an effort to
determine whether a viable potentially responsible party (PRP) exists.  Another ongoing effort is to
overlay the 273 sites with geographic information such as watershed boundaries and wetlands to put the
sites in "environmental context." It is hoped that this process will further refine the ranking to identify
sites or areas most worthy of immediate attention.

2.2    Bureau of Mines Abandoned Mine Lands Inventory and Hazard Evaluation  Handbook

        In response to the need for BLM, the Forest Service, and other land managers to develop
inventories of abandoned mines within their jurisdictions, the former Bureau of Mines developed the
Abandoned Mine Lands Inventory and Hazard Evaluation Handbook.  The Handbook was designed to
guide consistent data collection for all mine lands within a geographic area up to the size of a National
Forest and to allow systematic comparison of inventoried mine lands with respect to hazard potential.
        2     Note that the state reports a good match between the list of mines identified on the basis of
profession judgment and those selected according to rough screening of empirical data.  However, there were
also some "surprises," in which sites not known or identified by land managers came to attention through historic
file searches or other means and subsequently were ranked very high in priority.  Similarly, several sites
suspected of presenting high potential hazard were found on closer examination to be relatively benign.
September 1997                              F -12

                                                                              RANKING METHODS
The 4-phase inventory and evaluation process progresses from identification and characterization of all
mine lands within a geographic area based on file and map reviews to detailed site investigation of sites
selected from the resulting inventory on the basis of a rough pre-screening analysis. The final
screening level phase yields a numerical indication of the relative hazard of all sites investigated,  with
no estimation of absolute risk implied.

       To date, no agency has adopted the Handbook to be applied to all of the public lands within its
jurisdiction.  However, both the Forest Service and the BLM have contracted with the Bureau of Mines
to perform inventory and investigation within individual forests and resource districts.
        Forest Service Lands in Washington State.  The Bureau of Mines has conducted an inventory
 and pre-field screening of abandoned mine lands on all Forest Service lands within the State of
 Washington. The inventory effort was initiated as part of the Forest Service's Federal Facility
 Compliance Program.  The methodology closely followed the process for inventory and initial
 characterization of mine lands presented in the Handbook. The pre-field screen was based on
 qualitative indicators of hazard and resulted in identification of 49 "A Category" sites from a pool of
 2,208 sites on Forest Service lands in Washington.  The intent was then to incorporate the inventory
 into a Geographical Information System (GIS) format to facilitate prioritization of investigations based
 on spatial characteristics of the sites:

        BLM Use of Handbook.  BLM is in the process of developing a National Abandoned Mine
 Lands (AML) strategy. As part of the design effort, BLM is evaluating the suitability of the Handbook
 and other inventory and prioritization tools for identifying priority sites on BLM lands throughout the
 country. The Handbook methodology was applied to the Winnemucca District in Nevada.  As with the
 Forest Service  study, the Winnemucca study included only the initial inventory and pre-field screening
 phases of the Handbook approach.  Additionally,  a number of sites from the mine inventory were
 selected at random and visited to allow verification of pre-field screening results.

 2.3    Colorado Demonstration Project Program

        Under the Colorado Demonstration Project (CDP) program, the State of Colorado selects and
 allocates Clean Water Act Section 319 (nonpoint source) grant funds to address inactive and abandoned
 mine  sites in the state.  Through early 1995, 27 individual grants have been awarded for 16 mining
 projects.  The total funding has been over $2 million (approximately $500,000 per year). Site selection
 and grant allocations are approved by EPA Region VIII.  Information on the CDP program was
 obtained from Greg Parsons of the Colorado Department of Public Health and the Environment, who is
 the program coordinator.
September 1997                              F -13

                                                                              RANKING METHODS
        The broad basis for the program is the state's Section 319 water management plan (i.e., the
plan for addressing statewide nonpoint source pollution).  From the management plan and an associated
database, the state identifies watersheds with water quality problems.  This identification serves as the
basis for determining/prioritizing sites for CDP/319 program funds. In making these selections, the
state considers a number of technical, political, and resource factors in determining/prioritizing sites for
CDP/319 program funding. These factors include:
               Which sites will be addressed under other programs (without CDP/319 program

        .       Severity of environmental impacts and risks

        .       Site accessibility, feasibility, and ease of remediation

        ซ       Which sites will serve as good "demonstration" projects for remedial measures.

        Beyond the above factors, the state also recognizes that CDP/319 program funding and other
state resources available for abandoned mine site remediation (the Colorado Division of Minerals and
Geology also participates in the CDP program) are almost always insufficient to complete the projects.
Therefore, an additional factor in the selection process is the ability to form partnerships (i.e., the
potential for obtaining further resources and participation from federal agencies, local governments,
academia, environmental groups, and private industry). Many of the current projects (e.g., French
Gulch and Chalk Creek) represent cooperative efforts among a wide range of diverse interested parties.

        Of specific note,  the program has undertaken several watershed-related projects (as opposed to
individual site-related). Along with the Rocky Mountain Headwaters Initiative (see section 5 below),
the CDP program is providing funding/services to the Animas watershed project (aimed at defining
impacts and performing remediation throughout this watershed).  The CDP program also includes
funding for prioritizing and remediating abandoned mine sites for remediation in the Mosquito Creek

        According to  the state, the most significant difficulty associated with the CDP program is the
potential for assumption of liability (CERCLA and Clean Water Act) by non-state/federal project
participants.  The state avoids CERCLA liability  through an agreement with EPA Region VIII that
provides that projects are clean-up actions.  However, other project participants risk assuming such
liability and this tends to limit "good Samaritan"  actions.  In addition, project involvement can lead to
the need for the state to obtain NPDES permits and ensure compliance with  water quality standards
(which is often not possible).  An additional "difficulty" is that the requirements of the 319 process
focus on remedial actions/best management practices rather than site characterization activities. As a
result, site investigation activities cannot be funded unless there is a clear need for remediation.
September 1997                              F -14

                                                                              RANKING METHODS
Further, the program can lead to remedial measures being undertaken before problems are fully

       Overall, like other similar projects, implementation of the CDP program has been a learning
process.  The state recognizes the site-specific challenges associated with mine site remediation and
virtually every project provides lessons learned.  One major finding has been the advantages of
developing and implementing source controls (i.e., measures that minimize pollution generation),
rather than conventional treatment techniques that require perpetual care.

2.4    Rocky Mountain Headwaters Initiative

       The Rocky Mountain Headwaters Initiative is similar to other major EPA initiatives designed to
address water quality concerns in a  specific geographic area (e.g., the Chesapeake Bay and the Great
Lakes programs).  The Initiative was initially developed to addressed mining-related watershed impacts
in the mineralized Rocky Mountain areas of Region VIII.  However, it was expanded to fund projects
in other Regions.  For FY 1994, 20 projects received approximately $1 million of funding.
Information was obtained from Jim  Dunn, the EPA Region VIII coordinator for the Initiative.

       The goal of the  Rocky Mountains Headwaters Initiative is to fund mining-related demonstration
projects aimed at addressing water quality impacts from inactive and abandoned mining operations that
are not being addressed through other programs.  The Initiative is a nonregulatory tool and funding is
limited to nonprofit entities (other federal agencies, states, universities, local non-profit groups, etc.).
Categories of water management projects include:
       •       Innovative Technology Applications
       •       Scientific Foundations (i.e., applied research projects)
       ซ       Methods and Protocols
       .       Environmental Restoration
               Data Acquisition and Management
       .       Public Involvement/Agency Coordination/Outreach.

       According to the Region, the project selection/prioritization process remains somewhat
subjective (although developing more standardized protocols is a goal for this year).  Site selection and
program oversight are performed by a multi-disciplinary, cross-programmatic team of EPA Region
VIII staff.  One key factor in project selection is an emphasis on partnership building.  Funded
activities tend to be components of cooperative efforts among federal, state, local, public interest, and
private sector groups. In addition, the region recognizes the many site-specific challenges posed by
mine site remediation.  Therefore, projects selected for the Headwaters Initiative are often tailored
towards providing tools to assist in site characterization and remediation.  For example, several projects
focus on development and assessment of methods and protocols for mine site/watershed assessment.
Other funded projects involve evaluation of innovative technologies.  Finally, many of the selected
September 1997                               F - 15

                                                                            RANKING METHODS
projects focus on watershed characterization and remediation, including extensive work in the Upper
Arkansas River, Upper Animas River, and Clear Creek watersheds.  Upper Animas Creek work is also
being funded under grants from the Colorado Demonstration Project program.

       The Region is currently developing a report on the results to date and lessons learned from the
Initiative. This report will include a description of techniques/protocols that have proven to be
particularly successful in characterizing, prioritizing, and remediating inactive and abandoned mine

2.5    South Dakota Abandoned Mined Lands Inventory Act

       In 1993 the South Dakota legislature passed the Abandoned Mined Lands Inventory Act
authorizing the Department of the Environment and Natural  Resources (DENR) to inventory abandoned
mine lands in the Black Hills region of the state.  The Act establishes a fund for the inventory effort
(derived largely from monies raised through a now-discontinued tax on cyanide usage). In addition,
the state  has received a grant from the Western Governors Association (WGA) to fund a "screening"
program in conjunction with the inventory development effort.

       The Act specifies that the inventory effort can not proceed until the DENR executes a
Memorandum of Understanding (MOU) with EPA granting an exemption from CERCLA liability to
the state  and its contractors covering any reclamation activities on abandoned mines. According to
DENR, the MOU is nearing completion. The South Dakota Mining Association and other interested
parties have been included in development of the language of the MOU.

       The screening methodology has not yet been determined. However, DENR indicates that the
tool will  consider both safety and environmental factors, and, given the MOU with EPA, will likely
resemble HRS-type screening tools.

2.6    CERCLA Hazard Ranking System

       Section 105(8)(A) of CERCLA requires that the National Contingency Plan (NCP) include
criteria for determining priorities among releases or threatened releases of hazardous substances,
pollutants and contaminants, throughput the United States for the purpose of taking remedial action.
Appendix A of the NCP (40 CFR, Part 300 Appendix A) contains these in the form of the Hazard
Ranking  System (HRS).

       Section 105(8)(B) of CERCLA requires that the NCP, based on Section 105(8)(A) criteria,
include a list of national priorities among the known or threatened releases throughout the United
States. EPA describes the purpose of this National Priorities List (NPL)  to be a source of information,
to be used by EPA, the states and the public for identifying sites that appear to warrant remedial Action.
September 1997                              F - 16

                                                                              RANKING METHODS
Listing (of a site) does not require any action of any private party, nor does it determine the liability of
any party for the cost of cleanup at the site.  EPA generally uses the NPL as the action list for
evaluating remedial response and enforcement action under CERCLA. The NPL now includes over 60
mining-related sites.

       The revised HRS assesses the relative risk among sites through evaluation of four migration
pathways:  (1) ground water migration; (2) surface water migration (through drinking water and human
and aquatic food chain); (3) soil exposure (through resident population and nearby population); and (4)
air migration. Within each pathway, sites are evaluated based on three factor categories: (1) likelihood
of release (likelihood of exposure for soil exposure pathway); (2) waste characteristics; and (3) targets.
Faraway scores are determined based upon the multiplication of factor category values and
normalization to 100 points.  The total site score (including all relevant pathway scores) is obtained by
combining the pathway  scores using the mathematical technique of root-mean-square. This
mathematical technique results in higher scoring  pathways contributing more  significantly to the total
site score than lower scoring  pathways.

2.7    Priority Ranking Under Clean Water ง303(d), TMDLs

       The Clean Water Act includes numerous provisions requiring prioritization and ranking of
potential actions, either in the statute or in its implementing regulations.  One example is ง303(d),
which directs states to establish Total Daily Maximum Loads (TMDLs) for certain quality-limited
waters.  The TMDL approach attempts to provide a water quality-based mechanism for establishing
point and nonpoint source controls for waters which have not achieved applicable water quality
standards even after implementation of technology-based and other water quality-based controls.

       When establishing its priority ranking for TMDL development, states must take into account
the severity of pollution affecting the waters as well as the relative value  and benefit of the waters to
the state.  Among the criteria listed in TMDL guidance to  assist states in establishing priority  ranking

               Risk to  human health and aquatic life

       .       Degree of public interest and support

               Recreational, economic,  and aesthetic importance of a particular water body

               Vulnerability or fragility of a particular water body as an aquatic  habitat

               Immediate programmatic needs such as wasteload allocations needed for permits that
               are coming up for revision or for new or expanding  discharges, or load allocations
               needed  for BMPs
September 1997                               F -17

                                                                            RANKING METHODS
        •       Court orders and decisions relating to water quality

               National policies and priorities such as those identified in EPA's Annual Operating

        Section 303(d) does not identify an explicit method for ranking waters for TMDL development.
 Rather, the priority setting process is left to the states responsible for the program. States are
 encouraged to use a long-range planning approach to developing TMDLs for quality-limited waters and
 to consider broad geographic approaches to setting TMDLs.  Note also that the  1991  "Guidance for
 Water Quality-Based Decisions: The TMDL Approach"  identifies several approaches that may be
 considered by states in establishing their ranking and targeting systems.  These include the priority
 setting systems applied under nonpoint source and Clean Lakes provisions of the Clean Water Act.

 2.8     Priority Ranking Under the CSO Control Policy

        In April 1994, EPA issued a national Combined Sewer Overflow (CSO) Control Policy
 intended to expedite Combined Sewer System (CSS) compliance with requirements of the Clean Water
 Act.  In effect the policy outlines a process through which NPDES permit requirements and
 management controls may be applied to CSOs on a worst-first basis while continuing to capture the
 remainder of the affected community through a long-term control planning function.

        EPA released Combined Sewer Overflows—Guidance for Screening and Ranking (August, 1995
 available from EPA's Water Resources Center) to help permitting authorities to  identify those CSOs
 most warranting immediate attention. The recommended screening process relies  on the use of existing
 data provided in Clean Water Act sections 303(d), 304(1), and 305(b) documentation and other sources
 to identify CSSs with the greatest likelihood of causing significant adverse impacts. CSSs identified
 through the screening process are then to be ranked according to seven criteria,  with the final total
 scores for the CSSs enabling an ordinal  ranking of all CSSs within a population of regulated entities.

        In general, the criteria  used to rank CSSs under this process depend on the existence of
 ongoing impacts, the potential for impacts to sensitive or protected resources, the size and nature of the
 receiving water affected by a CSO, proximity to drinking water sources, and the suspected presence of
 toxics.  Additionally, the Guidance documentation includes certain default assumptions intended to lead
 to "worst-case" estimation of risks posed by a CSS. For instance,  a CSS score is  to reflect-the
 maximum score attributable to  any CSO within the CSS for each of the criteria.
September 1997                             F - 18


            AND EPA's RESPONSES
               September 1997
       U.S. Environmental Protection Agency
          Hardrock Mining Workgroup

                                         Hardrock Mining Framework: Comments and Responses
As stated in the framework, the purpose of this document is to help EPA implement a multi-media,
multi-statute approach to dealing with the environmental concerns posed by hardrock mining.
Although the framework focuses on understanding and improving the use of existing EPA authorities, it
does so with a clear recognition of the roles of other parties.  Building effective working relationships
with other mining stakeholders is a key element of EPA's efforts to improve the effectiveness of its
own programs. EPA greatly appreciates the time and consideration given by all of those who
participated in the development.

Following the preparation of the draft final Hardrock Mining Framework to April of 1996,  EPA
distributed it widely among stakeholders, including Federal agencies, States, industry, and public
interest groups. Several of the stakeholders then distributed it to other parties.  EPA held a number of
informal meetings with various stakeholders and stakeholder groups, and received thirteen sets of
written comments, some quite extensive. EPA carefully reviewed  all of the comments and made
extensive revisions to the framework.

Commenters are identified in the table below,  and the comments themselves are summarized in the
remainder of this document. Comments are summarized or paraphrased, and the commenter or
commenters are identified parenthetically. TiPA's response, including an indication whether changes
were made to the framework, is then provided in bold-face type.

Comments and responses are presented in subsections below as follows: purpose and need for the
framework,  recommendations, and Appendices A through F.  As described in the Executive Summary
of this framework, EPA has substantially reorganized the materials that were presented the April 1996
draft final framework in order to enhance the framework's usefulness to EPA and other readers. Most
of the descriptive information in the  body of the draft final framework document has now been
incorporated into the various appendices (for example, sections describing the industry and its
operations have been incorporated into Appendix A, Mining Industry Profile, while section describing
EPA's regulatory authorities and other tools have been incorporated into Appendix C, Regulatory and
Non-regulatory Tools Available to EPA). As a result, comments on material that  was  in the body of the
framework document and now is in one or another of the appendices are summarized  in the subsections
on the respective appendices.

EPA greatly appreciates the concern and effort that went into the review of the draft final framework
and the preparation of such thoughtful comments. The Agency looks forward to working with all
stakeholders as we improve the way we do business.
                                            Page 2

Hardrock Mining Framework: Comments and Responses
Commenters on the April 1996 Draft Hardrock Mining Framework
Description of Comment Document
BHP Copper, comments on EPA's April 1996 National Mining Framework, letter
from Norm Greenwald, Norm Greenwald Associates to James Taft, USEPA, July 23,
Brush Wellman Inc., comments on Hardrock Mining Framework, letter from
Donald J. McMillan to Michael B. Cook, USEPA, June 27, 1996.
Coeur d'Alene Mines Corporation, comments on EPA's Draft Hardrock Mining
Framework, letter from Luke J. Russell to James Taft, USEPA, July 8, 1996.
Idaho Geological Survey, comments on the April, 1996 draft of the Hardrock
Mining Framework and. Appendices, letter Dr. Virginia S. Gillerman, Economic
Geologist to Michael B. Cook, USEPA.
National Mining Association Comments on EPA's April 1996 Draft Final Hardrock
Mining Framework and Appendices , submitted with cover letter from Richard L.
Lawson, President, NMA (July 17, 1996).
Newmont Gold Company, comments on EPA's April 1996 Draft Final Hardrock
Mining Framework, letter from Michael S. Giannotto, Shea & Gardner (July 2, 1996)
with attachment from Mary Beth Donnelly, Vice President Government Relations,
Newmont Gold Company (July 2, 1996)
Oregon Independent Miners, comments on Draft Hardrock Mining Framework and
Appendix, letter from Sue Hallett, Executive Director OIM to Michael B. Cook,
USEPA, May 20, 1996 (fax transmittal dated 5/21/96).
Precious Metal Producers, comments on the April 1996 Draft Final Hardrock
Mining Framework, letter (with attachment) from Steven G. Barringer for Singer and
Brown Law Offices on behalf of the Precious Metal Producers, July 12, 1996.
US Department of the Interior Bureau of Land Management, Review of the EPA
Draft Mining Framework, letter from W. Hord Tipton (with attachment), June 8,
US Department of the Interior Office of Environmental Policy and Compliance,
comments on April 1996 Hardrock Mining Framework and appendices, letter from
Willie R. Taylor, Director, Office of Environmental Policy and Compliance, DOI
US Department of the Interior Office of Surface Mining (OSM), Review of the
EPA's Hardrock Mining Framework, letter from Robert J. Uram, Director, Office of
Surface Mining Reclamation and Enforcement, June 24, 1996, 19 pages and fax
transmittal to Mr. Jim Taft from Vijai N. Rai, July 1, 1996, 13 pages.
Colorado Mining Association (CMA), comments on the revised Hardrock Mining
Framework, letter from Stuart A. Sanderson, President to Michael Cook (7/26/96)
  Page 3

Hardrock Mining Framework: Comments and Responses

Western Mining Action Project (WMAP), comments on Draft Final Hardrock
Mining Framework, letter from Roger Flynn, Executive Director, to Nick Ceto,
Region 10 (10/3/96)
    Page 4

                                        Hardrock Mining Framework: Comments and Responses
                           Comments and Responses to Comments
                 on the Purpose and Need for a Hardrock Mining Framework
A number of commenters questioned the need for a new national strategy (3, 5, 6, 8, 12).  Others
welcomed the effort (9, 10, 13).  EPA has described the purpose of and need for the framework in
the Executive Summary.  As stated there, EPA developed the framework to help it implement a
multi-media multi-statute approach to dealing with the environmental concerns posed by
hardrock mining.  There are three major goals of the framework: to protect human health and
the environment through appropriate and timely pollution prevention, control, and remediation;
to foster efficient use of resources and authorities on the highest priority concerns; and to
promote fiscal responsibility in managing environmental concerns at mine sites.

Several commenters were concerned that the mining industry was being singled out for special
attention. As noted throughout the framework, EPA intends to improve the way in which it
addresses mining.  EPA has not "singled out" mining, but notes that many other industries have
been the recipient of various types of attention (for example, the ''sector notebooks" on various
industries prepared by the Office of Enforcement and Compliance Assurance or the industries
selected for the Common Sense Initiative).

Two commenters objected to what they saw as increased oversight and review by EPA of hardrock
mining permits and approvals issued by the States and federal land management agencies. They feared
that this could lead to longer delays and more  paperwork in securing  permits and approvals, more
agency decision making in Washington, D.C.  rather than locally where site conditions are better
known, more "national" performance standards emanating from EPA rather than site-specific
requirements, and a greater chance that operators will be subject to duplicative, and inconsistent,
regulatory obligations (5, 6). Some suspected the framework is a ruse intended to expand EPA's role
(5, 12)  One  objected to the "top down command-and-control" approach they perceived in the
framework (5), and another stated that the site-specific approach needed for mining regulation is not
within the scope of a national framework (3) but supports the view that regulation is better left to states
(5).  EPA has clearly described the reasons this framework is  necessary. Rather than leading to
"increased oversight and review" or more "command-and-control," EPA intends that its current
oversight and review authorities be implemented more effectively and efficiently.  Also, the
framework emphasizes the need to make site-specific decisions wherever possible.

One commenter was suspicious of the framework's emphasis on interagency coordination, believing the
"thinly veiled" purpose was to change the 1872 Mining Law  (12). Another stated the  belief that EPA
neither understood nor appreciated the roles of federal land managers or of state and local authorities
(5).  Other commenters commended die framework's observation that Federal agencies with
responsibilities for mining need close and consistent coordination  (9, 10, 13) One of these suggested
that State NPDES permitting be better integrated with EPA (13).   EPA recognizes that many other
Federal, State, and local agencies have separate responsibilities related to mining and its
environmental impacts.  EPA in no way intends to redefine the roles of these and  other
stakeholders, or to set then- agendas. In developing the recommendations in, this framework, the
workgroup focused primarily on how to fulfill its own responsibilities more effectively, with full
recognition that EPA must work hi partnership with others. The Agency now welcomes the
opportunity to work with stakeholders as we move ahead to implement the framework's
principles and recommendations.

                                         Hardrock Mining Framework: Comments and Responses
One commenter suggested that, since one of the goals of the framework is to increase coordination and
reduce duplicative regulations, EPA should involve States, local authorities, and industry in developing
the framework (5). EPA has provided drafts of the framework to, and has met with,
representatives of the industry, public interest groups, States, and other Federal agencies. EPA is
very appreciative of all comments and emphasizes that all comments were carefully considered.

Two commenters agreed that there are numerous instances of conflicting and overlapping authority, but
noted that all agencies must recognize that there are a number of instances where the existing
legislation and legal precedent preclude the total merging of authority, requirements and objectives.
The commenter stated that these instances create areas of conflict that can not be fully resolved except
by new legislation and that EPA should acknowledge this fact in the Framework and structure the
discussion around (a) how the various agencies can work to avoid unnecessary conflict, (b) how to
achieve goals of mutual interest within the existing constraints, and ฎ how to accommodate those areas
where conflicting authorities cannot be resolved.  (9,10) EPA does not disagree with the commenter,
but notes that the framework is intended to improve the way that EPA does business, primarily
internally but also including coordinating with other agencies. Although it is overly ambitious for
the framework to attempt to resolve these issues, one purpose of the framework is to establish
mechanisms by which they could be addressed.  EPA appreciates the efforts of the  Western
Governors' Association and the Department of the Interior in the formation of the  Interagency
Watershed Cleanup Work Group and the Western Mine Restoration Partnership.  EPA supports
these efforts and is willing to be an active participant.
Several commenters recommended that, instead of developing a new strategy, EPA focus its efforts on
evaluating whether there are in fact any significant gaps in existing regulation at the State and federal
land management agency level, and then seeking to address only those gaps. (6) EPA emphasizes that
identifying "gaps" was one of the purposes of the framework. The  framework emphasizes the
need to 'improve the way EPA does business rather than adding new programs and  authorities.

One commenter stated a belief that the framework clearly foreshadowed a significant increase in EPA
authority, "despite its repeated claims that EPA seeks no new legislative or regulatory authority." As
examples, the commenter pointed to "the enhanced agency role in NEPA," the "revisiting of the Bevill
Amendment regulatory determinations," providing "vision for improved legislation", and the
framework's recommendation of an evaluation of how existing statutes and programs "impede the
accomplishment of the goals of federally administered environmental statutes."  (5) EPA notes that the
initiatives identified  by the commenter have not been undertaken under the auspices of this
framework. Rather, they are described to ensure that all Agency efforts are more  widely known
and adequately coordinated. EPA does not mean that refinements of its authorities or programs
are not appropriate, but rather that wholesale changes to  its authorities are not believed

Commenters asked that EPA define the role that States would play as "partners" (3,8).  EPA does not
believe it proper to define States' roles except for those programs where EPA has clearly defined
requirements to do so (as with the NPDES program, for example).  The framework is intended to
define and  improve the way that EPA does business.

One commenter encouraged EPA to continue to provide sufficient consideration to voluntary,
consensus-driven, non-regulatory approaches to environmental cleanups of areas affected by hardrock
mining.  They were concerned that the Framework might have shown an unnecessary preference for
regulatory,  adversarial approaches.  They were concerned that the framework might  negatively affect
                                           Page 6

                                       Hardrock Mining Framework: Comments and Responses
such voluntary approaches to abandoned mine cleanups as the Department of the Interior's activities in
the Upper Animas Basin in Colorado (10).  Wherever possible, EPA favors nonregulatory
approaches to addressing past and present environmental issues associated with hardrock mining.
EPA in no way intends the framework to impede such initiatives wherever they are making
progress toward environmental cleanup.

One commenter was concerned about the extensive use of "bureaucratic and planning jargon" in the
framework. The commenter also asked for clarification of other terms ("place-based", for example).
(8) The new structure of the framework should resolve the jargon issue: much of the relatively
complex regulatory discussions now appears only in the appendices. EPA also has added
explanatory language for many terms that may be unfamiliar to readers.  Specifically,  "place-
based" means designing environmental protection processes which consider, and are appropriate
for, the geographic places and the people who live in them rather than program-based efforts
solely on a national scale.

One commenter noted that the Framework did not discuss and analyze the emergence of environmental
management systems (EMS) and ISO 14000 (9, 10).  EPA endorses the concept of EMS and ISO
14000, and welcomes the shift toward economic and environmental compatibility.

The Office of Surface Mining Reclamation and Enforcement pointed out its considerable expertise and
experience hi abandoned mine lands and questioned its exclusion from the framework (11).  EPA did
not mean to "exclude"  OSM from the framework and has corrected the oversight by which OSM
was not mentioned. EPA welcomes the opportunity to cooperate with OSM in addressing
abandoned mine lands.

Two commenters suggested that the recommendations include the discussion of their justification.  The
recommendations in the draft final framework were said to stand on their own without any supporting
context or justification from the needs or issues. They believed that readers, even those who focus only
on the recommendations, should be convinced of the need for the recommendations (9, 10).  While
sympathetic to these concerns, EPA also does not want readers to be faced with pages and pages
of data and justification, but rather to have a succinct document that presents EPA's intended
course of action. EPA believes the framework's new structure, with most descriptive information
placed in appendices, accomplishes much of the commenters' concerns.
                                             •          i
Two commenters recommended that recommendations be numbered (9,10).  The recommendations
have been reorganized and numbered.

Many commenters made editorial and organizational suggestions and corrections. EPA is appreciative
of commenters' efforts and has responded wherever possible.

Two commenters recommended that the previous section 1.2 (Why Develop an EPA National Mining
Framework Now) include a reference to acid drainage, the "most significant environmental impact
from abandoned mines" and, "for modem mines, (acid drainage) ... is probably  the most intractable
environmental problem." (9, 10).  EPA agrees with the commenters' characterization of acid
drainage as a significant environmental problem; however, it is not the only problem that needs to
be addressed, as described in Appendix B.

One commenter asked whether EPA meant to suggest, in the section on "Roles and Responsibilities" in
the draft framework, that Federal agencies should be regulated differently or subjected to different

                                         Hardrock Mining Framework: Comments and Responses
standards than private parties? (8) On the contrary, the paragraph was intended to ensure that EPA
remained cognizant of potential precedent-setting as it applied standards to Federal agencies.

One commenter asked whether EPA intended to review active mine plans to evaluate compliance with
environmental standards which it promulgated and which it enforces, or does it intend to monitor and
evaluate the environmental standards for which state and other Federal agencies have responsibility. (8)
 EPA is concerned with the standards for which it is responsible and, in its review capacity under
NEPA, with standards that are described as being applicable. The framework does not advocate
expansion of EPA's statutory obligations.

A commenter asked how (as stated under Regulated Community in section 2.3 of the April 1996 draft)
 "mine siting issues" and "alternatives in mine design" would reduce regulatory burdens (8).  Another
 commenter suggested that these issues were better addressed by State and other Federal agencies, not
 EPA.  This commenter also suggested that mine siting is limited in terms of locations (3). Not
 considering and accounting for some potential  environmental issues (for example,  acid generation
 potential) at the tune mine faculties are sited and designed can lead to more costly problems and
 more intrusive regulation. By properly accounting for future performance early in the planning
 process, future regulatory burdens can be avoided, and that was the purpose of the statement at
 issue. Finally, EPA is aware that mines have to be  located where ore occurs. However, there is
 some control over the location of specific mine  facilities, and this was the intent of the statement.

                                         Hardrock Mining Framework: Comments and Responses

One commenter recommended that Natural Resource Trustees be among those with who EPA will
coordinate and that there be a mechanism to achieve this. (10) EPA appreciates the comment and will
coordinate with natural resource trustees whenever appropriate.

Two commenters emphasized that EPA's NEPA review of mining projects should not be either its
principal, or initial, input to the NEPA process. The commenter's concern was that delaying
meaningful involvement (until the review of a draft EIS) increases prospects for project delays,
increases Federal and industry costs, and diminishes prospects for effective collaboration with sister
agencies. The commenters suggested more frequent and routine cooperating agency status.  (9,10)
EPA agrees that delayed involvement can reduce effectiveness and increase costs.  EPA also
believes that its review role can often better be achieved by active coordination with responsible
agencies much earlier in the process. Accordingly, Implementation Action #9 in section 4.1 of the
final framework states EPA's intent to be actively involved in all major EISs for mining projects,
participating as cooperating agency where appropriate.

One commenter recommended that EPA use its knowledge of water treatment methods and water
protection requirements in its NEPA 309 reviews. The  commenter noted that feasible alternatives have
to be considered in EISs and suggested that EPA expertise (for example, with liners) be used in
decisions regarding alternatives.  (13) EPA currently does review water treatment and protection
issues and intends to continue to do so. EPA notes that it frequently suggests additional
alternatives in its comments on EISs.  The framework's recommendations (for example, #1 and
#3) reflect this consideration.

One commenter made  a number of specific suggestions regarding EPA's review of mining-related EISs
(for example, the use of specific guidelines for predicting acid drainage). (13) EPA believes that this
level of detail goes beyond the purpose of this framework but notes that Recommendation #1
encourages further development of predictive tools. In its review of EISs, EPA often examines
the extent to which the analyses support conclusions regarding acid generation.

One commenter was concerned that the  framework's discussion  of EPA's NEPA role appeared to
encourage EPA to duplicate existing regulatory functions of other agencies, particularly federal land
management agencies responsible for implementing the NEPA process for new mines, and state
bonding authorities.  (4) EPA's goal is not to duplicate  other agencies functions but to improve the
way it does business, including its function of substantive review of environmental impact

A number of commenters were concerned with the proposal that EPA, in its review function under
section 309 of the Clean Air Act, will review financial assurance and closure standards for hardrock
mines (1,3,4,5).  This was said to be beyond EPA's "advisory role" in implementing that statute (3)
and/or to unnecessarily duplicate state and Federal bonding authorities (2,4,5). Another commenter
thought that EPA should take a more active role in the NEPA process, particularly regarding bonding
and financial assurance. (13)  Two other commenters noted that bonding is a separate process with its
own set of requirements and constraints that are independent of the NEPA process. For that reason,
they questioned the recommendation that EPA evaluate the role  of NEPA in developing information on
bonding adequacy.  They suggested that EPA might evaluate NEPA documents to evaluate how impact
and other information may have assisted decisionmaking on bonding levels or to "assess the potential
                                           Page 9

                                         Hardrock Mining Framework: Comments and Responses
for developing environmental consequence components germane to bonding determinations."  They
expressed a belief that cost and financial data that directly supports bonding decisions may not be
appropriate for NEPA documents. (9,10) As described in recommendations 11 in section 3.2 of the
final framework, EPA believes it is important to evaluate the adequacy of EISs in predicting long-
term environmental impacts of mining operations in the review of EISs under section 309 of the
Clean Air Act. EPA also believes that financial assurance mechanisms should be assessed to
ensure funding is available for required long-term environmental controls.  This review is in no
way duplicative of other agencies' authorities.

One commenter expressed a concern that EPA's proposed increased review of bonding and financial
assurance issues might extend to the scope, coverage, amount and even specific reclamation measures,
and stated a belief that EPA has no legitimate basis for such a role in State decision making. (1) EPA
has no intention to prescribe, or proscribe, reclamation measures.  EPA notes, however, that
since the "scope, coverage, amount," and specific reclamation measures affect the long-term
environmental performance of mines, EPA reviews  those measures to assess that performance.

One commenter thought that EPA would  use the MOA process to incorporate in permits issued by
states and federal land management agencies national standards and criteria that EPA believes are most
appropriate. The commenter noted that the purpose of lAs and MOAs is for EPA to coordinate actions
with other federal or state agencies, where both EPA and the other agency possess concurrent
jurisdiction over the same matter, and that EPA could not use MOAs as vehicles to gain jurisdiction to
establish general siting, design, operating, reclamation, or bonding standards or criteria for mines,
since the Congress has entrusted jurisdiction over such matters to others. (6) As stated hi the
framework, EPA is  not seeking to expand its jurisdiction,  merely to improve the way in goes
about accomplishing its duly delegated  authorities.  To accomplish this, EPA believes that it needs
to work closely with its Federal partners to eliminate duplication and inconsistencies in
approaches to many issues.

Two commenters indicated that it may not often be possible (or appropriate) to use NEPA as a basis for
integrating the decisions of several agencies, nor to rely on EISs as documents upon which all
permitting is based.  They note that NEPA is intended as a full disclosure document of the
decisionmaking process, though information from it may be used for regulatory and other purposes.
Further, they note that integration of NEPA with permitting procedures may not be feasible  because of
confidentiality and other statutory, regulatory,  and informational constraints.  (9,10) EPA believes
that NEPA can better be used to integrate intra- and inter-Agency decisionmaking.  Assessments
of potential environmental effects of proposed actions and analyses of feasible alternatives, as
required under NEPA, are crucial to informed decisionmaking and effective permitting or
approvals. When multiple agencies are involved, as cooperating agencies or otherwise, EPA
believes these agencies should coordinate analyses and decisionmaking in order to minimize
inconsistencies and conflicts.

One commenter noted that EPA's NEPA  involvement on public lands is through the Federal land
management agencies that are tasked with administering public lands and that, in contrast, state
agencies deal primarily with private lands where the interests of the government must  be balanced with
those of private land  owners.  The commenter  concluded that, in such cases, EPA has no basis in law
or regulation to involve itself with, State decisions regarding post-mining land use  and the degree of
productivity established on private lands, since the issues are solely within the purview of the owner of
private lands, pursuant to state and/or local land use requirements. (1) EPA notes the comment.
                                            Page 10

                                        Hardrock Mining Framework: Comments and Responses
One commenter noted a reference in the draft final framework to a preliminary review of
bonding/financial assurance conducted by EPA's.Office of Solid Waste and asked if it was available for
review. (8) The participating agencies in the Interagency Agreement on Mining have held several
discussions on whether the group should create a subcommittee to evaluate how each agency
implements its financial assurance regulations.  It was decided not to proceed in this area until the
Bureau of Land Management had completed its bonding rulemaking.  It was agreed that each
Agency would collect its regulations and guidance on bonding and share it with each member. No
preliminary review of bonding was undertaken under this Agreement. It is unclear whether the
participating agencies will again discuss this issue in the future.

One commenter commended the idea of a nationally consistent format for scoping letters associated
with new mine proposals and mine expansions. They thought that this may offer a significant
opportunity to assure better use of NEPA in the federal decisionmaking process, provided the idea
extends to standardization regarding proponents' up-front data requirements sufficient to initiate and
support scoping. Too frequently,  according to the commenter, the NEPA process has been initiated
with insufficient proponent information and data to meet environmental analysis and documentation
requirements of the involved federal agencies.  (10) EPA appreciates the comment and agrees with
the observations.

In response to recommendations regarding bonding, two commenters noted that most agencies, whether
state or federal, do not have the authority to require "contingency" bonds, and that most agencies
require bonds for the monies necessary to perform the reclamation plan as identified in the plan of
operations. The commenters asked if EPA has staff who are technically qualified to review bond
calculations.  (9) EPA recognizes that most agencies have authority to require reclamation bonds
and that they are not explicitly "contingency" bonds within the meaning of the comment. EPA
believes that in some or most cases, available authority is sufficiently broad to allow "full-cost" or
"contingency" bonding, again within the meaning of the comment. EPA does indeed have staff
who are experienced hi estimating the costs of remediating sites.

One commenter recommended that the Office of Surface Mining Reclamation and Enforcement (OSM)
be a party to any agreements related to reclamation of abandoned mines. (11) EPA recognizes OSM's
expertise and appreciates  the interest. EPA will consider including OSM into any appropriate

One commenter agreed with EPA  regarding the advantages of having a workgroup to discuss CERCLA
issues related to state and tribal lands and to mixed ownership.  They noted that there is considerable
confusion in this area, just as there is regarding situations where a viable operator still exists for
operations on federal lands. Further, they noted that the issues are extremely complex and difficult to
address, and was the reason why inactive mining and CERCLA per se were excluded by consensus of
all agencies from the current interagency agreement on mining.   (10)  EPA acknowledges and
appreciates the comment.

Two commenters noted that two recommendations dealt with, respectively, having a "consistent
Federal position" on a radge of issues and "standard methods" for characterizing and analyzing mine
sites.  They suggested that "the regulatory emphasis should rather be on good science" since, as noted
in the framework, "the most significant environmental threats posed  by mine sites are often complex
and highly dependent on site-specific factors".  (9, 10) EPA does not believe that consistency and
good science are mutually exclusive.   EPA emphasizes that it is recommending more or  less
uniform approaches and methods, not uniform solutions.
                                          Page 11

                                         Hardrock Mining Framework: Comments and Responses
One commenter noted a reference in the draft final framework to an EPA work plan for implementing
the mining interagency agreement and asked if it was available for review.  (8) The Agency signed an
Interagency Agreement on Mining with the Bureau of Land Management, the U.S. Forest Service
and the National Park Service in 1995.  The Agreement called for the development of a biennial
operating plan.  At subsequent meetings with the participating agencies it was decided that it was
unnecessary to develop such a plan.

One commenter asked for clarification of the relationship between the interagency agreement and the
hardrock mining framework. (8) The framework is intended to help EPA improve the way hi
which it uses its regulatory and nonregulatory tools applicable to mining and to enhance the
effectiveness of Agency coordination and cooperation with other agencies.  The interagency
agreement is intended "to establish policies, administrative procedures, and practices for the
coordination of actions ... that achieve objectives, interests, and statutory requirements common
to all parties.... Coordination among the agencies will advance environmental and resource
management goals and enhance working relationships.  The relationships established and actions
taken as a result of this agreement will strengthen coordination, improve environmental
compliance, minimize duplication of activities, conserve scarce resources, and provide for greater
efficiencies.  This agreement establishes a multi-media framework within which more specific
program or operational agreements may be developed to address specific objectives, issues, and
activities among the parties as may be necessary."  (Language taken from  section I of the
interagency agreement.)

One commenter stated that the purpose of the interagency agreement is to address potential sources of
conflict, often resulting from the statutory authority and intent of Congress, and to resolve or mitigate
them  to the extent practicable. (10) EPA agrees that this is one of the important goals of the
agreement, but notes the language from the agreement that is given in response to the previous

One commenter was concerned that EPA was blurring the jurisdictional limits  of existing laws
governing federal versus non-federal lands.  As an example, the  commenter noted that the framework
discussed a work plan developed by EPA in conjunction with other federal agencies to develop a
 "consensual position" on such issues as siting criteria,  environmental performance standards, operating
criteria, reclamation/ closure performance standards and approaches for financial assurance
mechanisms and noted that many of those issues are not currently within EPA's jurisdiction. (5)
Another commenter simply expressed a concern about the development of such a "con-sensual
position." (1) The work plan referred to by the commenter is in internal EPA work plan and was
not developed "in conjunction with other federal agencies." As noted in the framework, the work
plan is intended to provide for a  process by which the agencies can "develop positions...."  EPA
acknowledges that while all of the issues are not directly within EPA's jurisdiction, each of them
influences the extent to which operations can comply with standards and with permits/programs
that are within the Agency's jurisdiction.

One commenter stated that the proposed development of an area-wide and site-level ranking method
which would have the effect of injecting EPA into currently non-EPA jurisdictional areas and would
infringe on historically state issues. (5)  EPA is not clear what the commenter's concern is,  since
the framework clear emphasizes  working toward a consensus of parties, not a unilateral method
imposed on others.  Similarly, EPA is not clear how this could be considered a "non-EPA
jurisdictional area" and an "historically state issue."
                                           Page 12

                                        Hardrock Mining Framework: Comments and Responses
One commenter thought the proposed interagency review of existing statutory programs might lead to a
tremendous amount of regulatory duplication and overlapping jurisdiction, and that for EPA to review
every BLM and USFS bonding decision would be unwarranted. (7) Another saw a thinly veiled
reference to how the Mining Law of 1872 might "impede" environmental "goals", and thus require
modification.  This commenter objected that there was no recognition of the legitimacy of any goals
other than those of "federally administered environmental statutes." (5)  As stated in the framework,
evaluation would form the basis for discussion among EPA and other agencies regarding
improvements in interagency coordination to help minimize any impediments that might exist to
accomplishing the goals of the nation's environmental statutes. Also, EPA does not propose to
review every bonding decision, only to review NEPA  documents to assess bonding and financial
assurance. Finally, EPA's acknowledges that there are legitimate goals other than those within its
jurisdiction but emphasizes that the Agency can only  fulfill its own mandate, not those of other
agencies and entities.

One commenter requested that EPA clarify what it means by developing siting and operating criteria.
(8) As noted above, EPA is not seeking consistency hi results (i.e., that mines be located only in
one or another kind of location or that they operate the same way) but rather hi processes or
methods (for example, in the way that EPA evaluates the effects of mine location on
environmental performance)

One commenter objected to the notion that EPA might impose its own ."siting criteria." (1) EPA
emphasizes that it does not intend to impose any such criteria.

One commenter questioned whether EPA's proposed agreements with Federal land management
agencies regarding environmental performance standards will result in modifications to these agencies'
existing MOUs with various  states.  The commenter noted that the MOUs typically allow the federal
land manager to defer to State rules and permits for imposition of environmental performance
standards. The  commenter was concerned that a different set of environmental performance standards
on public lands than those applicable to  all other land within a given State would be confusing and
inappropriate, and would seriously undermine the credibility of a state's environmental program. (1)
EPA has no intention of upsetting any pre-existing agreement or, even absent such agreements, of
applying different standards to lands under different jurisdictions. EPA merely wishes to ensure
that environmental performance standards meet statutory and regulatory requirements and are
sufficiently protective of human health and the environment.

One commenter was concerned with the notion of a consistent set of "operating criteria."  The
commenter stated that land management agencies (pursuant to a "consensual position" developed with
EPA) should "refrain from imposing a federally mandated design or other such operating criteria." (1)
EPA has no intention of imposing specific design or operating criteria, but does believe that there
should be some consistent procedures  to evaluate designs and operations.

One commenter suggested that any recommendation that EPA work with regulatory partners and
members of the  regulated on priority-setting should recognize work already underway by USGS for
Colorado and Montana. The commenter noted that USGS has produced two maps that assess the
geographic-environmental risks of the State's geology and historic mining districts.  (10) EPA is aware
of this work and commends the impressive interagency coordination and cooperation that led to
the effort.
                                          Page 13

                                         Hardrock Mining Framework: Comments and Responses
One commenter asked about EPA's authority to undertake a "major new ranking of mines for
regulatory action" and asked about the basis o'f the ranking system.  (8)  The commenter needs to
recognize that EPA's interest in prioritization and remediation is not necessarily tied to
"authorities," and neither does there have to be any "regulatory action" involved. The basis of
the ranking system would be as discussed in the framework and as developed by the individuals
and organizations responsible.

One commenter supported the recommendation that, as part of or even separate from the priority
setting process, interested agencies and members of industry attempt to develop a realistic hazard
ranking system that can fairly gauge whether a  particular mine site poses a significant health or
environmental danger, and therefore needs to be addressed. The commenter expressed the view that
the current CERCLA hazard ranking system  (MRS) overstates the risks from mining facilities as
compared to, for example, chemical manufacturing facilities. (6) While EPA does not entirely agree
with the commenters' view regarding the HRS, the Agency emphasizes that it has used the HRS
very flexibly in assessing mining sites. EPA welcomes constructive suggestions for, and
participation in, efforts to rank or prioritize  sites.

One commenter was concerned that, since mining is so site-specific, designation of EPA regional
coordinators would simply add more administrative personnel "to the top of the program," with
consequent negative effects on "on the ground" surveillance.  The commenter noted that BLM and the
Forest Service could do a "more than adequate job" given adequate money in their mineral programs.
(7) EPA's purpose in this recommendation is not to add administrative layers, but rather to
coordinate efforts within EPA Regions.  This should enhance "on-the-ground" efforts.  EPA does
not question the ability of BLM and the Forest Service to do a "more than adequate job."

One-commenter expressed a wish for "sufficient funding and administration of the [programs] we
have", not additional programs and regional coordinators. (7) EPA agrees that there should be
sufficient funding and  administration of programs, and emphasizes that the framework is not
calling for new programs, only more  efficient and cost-effective efforts under existing ones.

One commenter supported the idea of identifying a network of technical experts within EPA, stating
that it would be beneficial to Federal and State  agencies, and the general public.   The commenter
noted that making such  information available on-line via the World Wide Web would facilitate
communication among technical experts, and would assist those  seeking technical information.  (10)
EPA appreciates this comment.  Region VIII has put together such a list of experts, and this is
available  from the Region. Other Regions may do the same.

One commenter suggested that, instead of providing "training on identifying and preventing the
disposal of non-Bevill waste at mine sites, "EPA should not "prevent disposal of non-Bevill waste at
mine sites,"  since non-Bevill wastes are not necessarily hazardous wastes. (2) EPA agrees that not all
non-Bevill wastes are hazardous wastes, and notes that the framework's recommendation has
been changed. In the final framework, Implementation Action #10 is that EPA should request
comments on "standards of practice for mine waste management in the next RCRA Land
Disposal Restrictions rulemaking...."

One commenter stated that the EPA's distinction between Bevill  and non-Bevill wastes has been
inconsistent and inconclusive.  The commenter noted that this topic is the subject of a proposed
rulemaking, the Phase IV Land Disposal Restrictions for Mineral Processing Wastes, wherein EPA has
suggested  a'system for determining whether or  not certain mining wastes are covered by the Bevill
                                           Page 14

                                         Hardrock Mining Framework: Comments and Responses
Amendment.  The commenter recommended that EPA mention this rulemaking and not begin any
training or enforcement efforts until it finalizes the Phase IV rule. (8) EPA disagrees that it has "done
a poor job ... clarifying what is a Bevill waste." EPA has added mention of the Phase IV
rulemaking,  and does not anticipate any training pending promulgation of the final rule.

Two commenters suggested that storm water and erosion management and related technical concerns
should be of more concern than identifying and managing PCBs and hazardous waste at mine sites,
which was one of the recommendations in the draft final framework. (9,10) EPA agrees that erosion
management is a critical issue and worthy of training but also notes that PCBs and hazardous
wastes at mine sites can pose long-term problems that are not easily remedied and thus also
should be addressed.

One commenter expressed strong support of the framework's goal of encouraging the voluntary
remediation of LAMs by members of the industry.  The commenter thought it imperative that the
Agency to work with industry to remove the current statutory and regulatory obstacles to remining
abandoned hardrock sites.  (6)  Other commenters echoed this sentiment (9, 10) EPA appreciates the
comments and expresses its willingness to work with all stakeholders to address problem sites.

One commenter thought there should be incentives (examples included "tax breaks, lower assurance
bonds, credit against the $100/claim maintenance fee, etc.") for remining for the purpose of
remediation.  (7) EPA appreciates the comment.

Two commenters suggested having land withdrawn for mine-waste repositories, that some of the
Government's mine waste problems should ultimately be managed as a long-term land use.  The
commenters noted that mining companies probably would like to see a long-term solution of this kind
where appropriate and land managers, in return, should be provided with exchange lands that will serve
the general public.  (9,10) EPA notes the comment and has shared it with sister agencies..

One commenter stated the belief that at least one type of administrative settlement agreement, purchaser
agreements, was not a particularly efficient solution to the obstacles that exist since negotiating
individual, site-specific, agreements would be extremely time-consuming and cumbersome.  The
commenter noted that such negotiation of site-specific agreements would be in addition to, and not in
lieu of, the company's need to apply for and obtain State and BLM/Forest Service permits and
approvals to engage in the  operation and as such would be much different from the typical
"prospective purchaser" scenario, where the purchaser will not be engaging in new  industrial
operations at  a purchased site. The commenter noted that the purchaser  is released only from liability
for response  costs  (not for natural resources damages), which are a concern at abandoned mines.  The
commenter also noted that EPA's current prospective purchaser policy is applicable only to sites where
enforcement action has already been taken, is on-going,  or is anticipated by the Agency.  Further, the
commenter pointed out that there may be many sites amenable to remining, where an environmental
benefit would be created by remining, but that do not fall within these categories. Finally, the
commenter noted that it is unclear whether,  under EPA's current prospective purchaser policy, an
applicant is relieved of liability for new releases that are caused by existing conditions at a site. (6)
EPA notes the possible validity of many of these concerns, and reiterates the willingness to discuss
strategies, as noted hi the framework.

One commenter noted that the Framework discusses the possibility of EPA reaching a compromise with
the Corps of Engineers concerning differing definitions of "fill material". The commenter was
                                           Page 15

                                         Hardrock Mining Framework: Comments and Responses
concerned that EPA's idea of a "compromise" was for the Corps to agree to EPA's approach (i.e., to
EPA's "effects test"). (5)  EPA notes the comment.

One commenter was encouraged by the framework's discussion of comprehensive risk-based approach
to dealing with inactive and abandoned mines on Federal and mixed ownership lands. The commenter
was particularly pleased that the  framework emphasized the need for flexibility.  (10) EPA appreciates
the comment.

One commenter viewed favorably EPA's stated commitment to facilitate and encourage the exchange of
technical information among federal, state, and tribal agencies, and the commitment to the development
of a collaborative program for research and technical support in a number of areas related to risk
assessment and development of technology. (10)  EPA appreciates the  comment.

One commenter asked which regulatory  issues EPA may want to "disinvest" in.  (8) EPA believes
that it is premature to speculate at this tune.

One commenter noted that "EPA proposes to issue minimum design and closure standards as guidance
for cyanide heap leaching;" this  commenter and another asked if the Agency had identified any
standards and requirements that were needed. (3, 8) Another found the suggestion of minimum
standards "problematic" (1).  Another stated that "EPA has no jurisdiction to regulate such matters
under any of the statutes it administers"  (6) EPA emphasizes that it did not and does not propose to
issue ... standards (or guidance) or regulations. Instead, the Agency merely suggested the
possibility of guidance, development of which would be undertaken only if there is a perceived
                                           Page 16

                                        Hardrock Mining Framework: Comments and Responses

One commenter emphasized the interaction between economic and environmental concerns.  This
commenter recommended that the framework include a discussion of how EPA's proposals will impact
the mining industry, including indirect losses, such as the payment of taxes and the placement of
durable goods and heavy machinery orders that lead to the creation of jobs  in the support sector. The
commenter noted that regulatory pressures have led to a "forced exodus" to other countries, which
translates into lost jobs, lost tax revenues, and increased costs to the mining industry (5). When
promulgating new regulations, EPA generally has to consider the impacts on the regulated
community and on the economy as a whole. As EPA emphasizes throughout, this framework does
not represent any new regulatory initiative. Indeed, to the extent that  current programs are
better coordinated and made more consistent as a result of the framework, there should be a net
economic benefit to the industry. As a final note, EPA notes that many lending institutions and
many foreign countries require that multinational companies apply home-country or other "first-
world" standards to then* operations overseas. To the extent that mines hi foreign countries
actually have to meet U.S. standards, there should be no economic advantage from moving
exploration and development overseas.

Two commenters found the description of the hardrock mining industries generally  factually accurate,
but overly simplistic, limited in scope, and lacking conclusions. They noted that companies that
produce mineral products from hardrock mines have at best limited control  of price, and that
international trading and production in these commodity products results in  volatile  commodity markets
with highly variable prices over time. Therefore, an objective analysis of the industry cannot be
confined to an arbitrary statistical  year or industry averages,  as has been done in this case. As a result,
such general descriptions s  only serve as snapshots  of the industry within a  given moment of time, and
strategic planning for regulation of the industry can only be based on a sound long term strategic
analysis. (9,10) EPA has added a paragraph that better explains the nature and intent of this
appendix. As noted there, the appendix is not meant to be a thorough analysis, rather it is
intended to be a snapshot; as such, it is necessarily simplistic.

Two commenters emphasized that while metals and other commodities mined by the industry sectors
addressed in the framework may account for less than 1 percent of the GNP, they are more important
in the national economy than this number indicates. (9, 10) Another pointed out that the low percentage
was due to the "highly modernized use of metals and their fabricated products" (4).  EPA agrees that
the importance of the commodities of concern hi the framework beh'es then* relatively low
percentage of GNP and has added a note to that effect.

One commenter notes that several minerals are essential not only "to the operation of a modern,
industrialized society," as stated in the framework,  but also to the national security.  Thus, the
commenter pointed out that increased dependence on foreign mineral sources will have a negative
impact on the United States' ability to produce military hardware, and adversely impact our national
security. (5) EPA is aware of the strategic importance of many minerals and appreciates the

One commenter stated  belief that the draft framework overstated the financial health of the industry.
This commenter noted  that the mining industry is cyclical in nature, operates in a world economy, and
                                          Page 17

                                         Hardrock Mining Framework: Comments and Responses
could encounter a downturn at any time. (5) EPA notes that the "industry profile" is intended to
give a snapshot of the industry at one point hi tune, in this case the early 1990s. EPA is well
aware of the characteristics so well described by the commenter and has noted them hi the

One commenter noted that the draft framework characterized the increase in surface mining as
attributable to the advent of large earth-moving equipment and less expensive energy sources. The
commenter noted that in the gold mining industry, surface mining has become more prevalent because
deposits typically are lower grade and in more dispersed form, thus making underground mining
expensive and impractical (8).  EPA agrees, and notes that without the equipment and low-cost
energy sources,  even surface mining of these deposits could be expensive and unpractical.

One commenter inferred from EPA's language that heap and dump leaching are "extraction" processes,
rather than "beneficiation" processes.  (8)  EPA did not mean to give this impression, and has
modified the language accordingly.

Commenters noted that not all beneficiation techniques are mentioned in the framework, including
beneficiation: autoclaving, roasting, chlorination, calcining, Merrill-Crowe zinc precipitation, and
others. (3, 8) One commenter noted that cyanide has been used for decades (8). EPA has added
mention of some of these types of beneficiation. EPA also has noted the longevity of cyanide

One commenter described its process to remove cyanide from the mine  tailings before they are
deposited in the tailings pond and to recycle the cyanide back into the ore processing circuit. This
process was given as "another example of how modern mining is meeting the challenge of protecting
the environment." (3) EPA applauds and encourages the use of such innovative technology.

One commenter pointed out that language  in the April 1996 draft framework might have given the
impression that leaching operations were the same in the gold and copper sectors, with specific concern
that readers might think that gold heap  leach facilities were not always lined.  (8) EPA has rephrased
this passage, which now appears hi Appendix A, to make clear that  gold heap leach faculties are
always lined.

One commenter noted that gold is just as essential as copper and perhaps more so in the electronics
industry, especially the crucial high technology electronics industry where gold is irreplaceable for its
conductivity and its resistance to corrosion. The commenter also  identified other uses of gold. (8)
Another commenter objected to the draft final framework's statement that gold was essential to the
economy. (13) The revised framework now notes the use of gold in the electronic industry and in

One commenter was concerned that framework implies that the hardrock mining industry is "wasteful"
because "the vast majority" of materials handled by the industry become "waste."  The commenter
made the point that the material called waste occurs due to the nature of mining itself and suggested
that EPA intended to mischaracterize the environmental impacts to imply that only more EPA
regulation will resolve such phantom issues. (5) EPA did not intend to give the impression that the
industry is wasteful, but did want to make the point that most mined materials become wastes,
and that these are generated in large quantities. EPA has added a statement that notes that waste
quantities are largely beyond an operator's control.
                                           Page 18

                                         Hardrock Mining Framework: Comments and Responses
One commenter noted that EPA characterizes "sub-ore" as waste and stated that "sub-ore," also called
subgrade ore, is not discarded and so is not a "waste." Instead, the commenter stated that these are ores
with lower mineral values dian ores being processed when die sub-ores are mined, and as such are
stockpiled for later benefication, not disposal. (8 page 21)  EPA has added a clarifying sentence. It
should be noted, however, that material classified as "sub-ore" is often managed in a way
identical to that of waste; if economic conditions never improve, the sub-ore remains in place and
never is beneficiated.

One commenter suggested replacement language for the description of copper dump leaching solvent
extraction/electrowinning. (1) EPA appreciates the clearer language and has made the substitution.

One commenter indicated that the framework implied in its description of dump leaching that facilities
are intentionally designed so that valuable product solutions are lost to the environment. The
commenter pointed out that limits of technology and the relative economics of facility design and
construction versus the anticipated efficiency of solution recovery are such that some amount of
solution loss is inevitable, but that these facilities are designed for maximum solution recovery within
existing technical and economic constraints. (1) EPA did not mean to suggest that operators design
facilities to leak. EPA recognizes that technology and economics dictate the design of a facility,
and has added a sentence that makes the commenter's point clear.

One commenter reported that the framework suggests that waste volumes can be reduced through better
classifying ore grades and by improving mineral recovery from ore. They noted that, while technically
true, any waste reduction would be quite marginal, since the total amount of the desired metal in all
domestic copper ore (and most other hardrock metals including gold and silver) is well below l$/ton.
They recommended that this should be clarified so as not to leave the impression mat technological
improvements in metal recovery rates can reduce the  volume of waste significantly. (1) EPA has
added a sentence clarifying the limits to classification and recovery; EPA notes, however, that
even very small improvements hi ultimate recovery efficiency can reduce the absolute quantities of
waste by large amounts, even if overall volumes remain high.

One commenter noted that the framework identified "flotation" and  "SX/EW as the predominant
beneficiation methods for copper, but neglected to include  "leaching". (1) This oversight has been


One commenter noted that the draft framework  failed to distinguish  between the impacts of well-
regulated current mining operations as opposed  to those from abandoned mines operated before  the
advent of regulatory controls  and the current environmental ethos. (2) The intent of the appendix is
to show the  potential "Environmental Impacts" of mining activities. EPA acknowledges that
modern well-designed, well-operated, and well-regulated mines should present few if any of the
problems that historic, or poorly operated/ regulated, mines may present. EPA has added a
clarifying paragraph in the appendix.

One commenter thought that the framework did not adequately review many aspects of "mining
pollution." Examples were mobilization of metals at  cyanide heap leach facilities, wildlife impacts of
"pit lakes," effects on aquatic life from dewatering).  (13) EPA acknowledges that there are details
left unreported in the framework, but as noted above and below, EPA did not intend that the
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                                         Hardrock Mining Framework: Comments and Responses
framework cover all topics or details related to potential impacts but instead provide an overview.

Another commenter suggested that the separate discussions of potential environmental impacts and of
regulatory programs gave the erroneous impression that the impacts are not currently addressed in any
way.  (1)  The separation of the discussions was not intended to give the impression cited by the

One commenter noted that the physical disturbance from mining led to impacts no different from those
resulting from any other development activities, such as construction of a large shopping mall. The
commenter noted that upon closure of a mine, the natural environment will eventually be re-
established, but that the housing development or shopping mall will remain indefinitely and the natural
environment that is displaced will never return in any form. (1) EPA recognizes that many of the
impacts from disturbance are similar to those of construction and other land-clearing and -
disturbing activities. There are differences, of course, but many of the impacts are indeed
similar. One important, but as yet not very well understood, difference that the commenter
touches on is that mine proponents usually have to consider land use after mining hi their
planning (and have to  provide at least partial financial assurance to ensure the use is achieved),
but few other development activities are presently required to take such a long view.

One commenter was concerned at EPA's expression of concern that temporary shutdowns may result hi
a reduction in cash flows, which could reduce funds available for environmental controls. The
commenter pointed out  that "most states already address this  issue by detailing how facilities must be
maintained during temporary shutdowns."  (8)  EPA is aware that there are State requirements
related to facility maintenance during temporary shutdowns. EPA's concern is that there have to
be sufficient funds available even during downturns to cover environmental maintenance and
long-term stabilization and closure.

One commenter was concerned at EPA's expression of concern that temporary shutdowns may result in
a reduction in cash flows, which could reduce funds available for environmental controls. The
commenter pointed out  that "most states already address this  issue by detailing how facilities must be
maintained during temporary shutdowns."  (8)  EPA is aware that there are State requirements
related to facility maintenance during temporary shutdowns. EPA's concern is that there are
sufficient funds available even during downturns to cover  environmental maintenance and long-
term  stabilization and  closure.

One commenter claimed that State financial assurance requirements were underestimated as a source of
closure funding.  (2)  EPA is well aware of State, and Federal, bonding and financial assurance
requirements.  As noted elsewhere hi the framework, however, in some cases these funds may be
insufficient for full site closure, particularly when long-term water treatment or other
maintenance is required.

One commenter noted differences between coal and hardrock mining and suggested removing any
reference to coal mining in this hardrock mining framework.  (4)  EPA has examined all mentions of
coal mining in the framework and retained only those that are relevant to hardrock mining.

Several commenters objected to the  framework's perceived overemphasis of the environmental
problems of mining, whether from active or abandoned mines (4,5,6). They believed this undercuts
the goal and believability of the framework (4,5). One commenter noted that the draft framework
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                                         Hardrock Mining Framework: Comments and Responses
failed to distinguish between the impacts of well-regulated current mining operations as opposed to
those from abandoned mines operated before the advent of regulatory controls and the current
environmental ethos.  (2) Several commenters pointed to specific discussions in the draft framework as
overemphasizing potential impacts.  Several commenters, for instance, objected that the framework's
use of NPL sites as "examples" of various environmental impacts was misleading. They note that, in
contrast, little mention is made of the effective application of environmental management techniques
and reclamation practices.  They were concerned that this "skewed presentation" gives a distorted
picture of the environmental impacts of mining and of modern mining practices (2, 6).  One of these
was concerned that "the draft final framework does not attempt to evaluate  whether the identified
theoretical impacts do in fact occur to a significant extent at real world hardrock mining facilities
subject to modern environmental regulation, or whether there have been extensive damage incidents
associated with such facilities (6). This commenter specifically commenter objected to EPA's
"wholesale, nationwide reinvention of the regulatory framework governing the use of cyanide because
of one or a few isolated and aberrational damage incidents." (6)  This commenter also noted that EPA
should not be concerned with long-term gradual releases of cyanide to groundwaters, since Nevada, as
well as the BLM, have in place detailed design, operating, monitoring, corrective  action, closure, and
reclamation requirements to ensure that such releases are minimized, and that those that do occur are
discovered and promptly remediated (6). Another commenter noted that the framework only cited one
example of groundwater impacts at mine sites and asked if EPA thought these kinds of impacts are
widespread at modern mining operations or aberrations? (8)  As noted above, the intent of the
appendix is to show  the potential "Environmental Impacts" of mining activities.  EPA is aware
that modern well-designed, well-operated, and well-regulated mines should present few if any of
the problems that historic, or poorly operated/regulated, mines may present.  EPA added a
discussion of this to  the appendix.

One commenter reported that the framework failed to acknowledge the potential benefits associated
with mining operations, such as wildlife dependence on mining waters and waterways whose flow is
comprised of NPDES-discharged mining waters. (5) EPA acknowledges  the fact  that some
operations create additional wildlife habitat. In addition, EPA is aware  of the  fact that some
operations, as mitigation for  current impacts or simply as "good citizens," clean up or improve
degraded areas. Not dwelling on these cases in the framework is not intended to give the
impression that EPA is either unaware or unappreciative of these efforts.

One commenter asked for clarification of the appendix's statement that "Complicating the effective
environmental control at mining sites is the interrelationship between the extraction, beneficiation, and
processing of the ore  material and the waste materials generated from each of these operations."  (8)
This sentence refers  to the fact that a site may have Bevill and non-Bevill wastes, raw materials,
waste materials, processed materials co-located hi the same drainage area. Similarly, there may
be point source discharges subject to effluent guidelines and to storm  water BMPs and also
nonpoint source discharges, again all in the same drainage.  These distinctions make a  single
regulatory strategy difficult to implement, and the existence or absence  of exemptions from
regulatory requirements for some materials may have a significant effect on management

One commenter stated that pollution from mining is one of the most serious threats to water  quality in
the west. The commenter was concerned that, though abandoned mines cause significant degradation,
the greater risk to watersheds is the "growing number of active and proposed hardrock mines."  (13)
EPA notes the comment.
                                           Page 21

                                          Hardrock Mining Framework: Comments and Responses
 One commenter suggested that EPA identify major factors associated with acid drainage, such as   -
 annual precipitation, site hydrology, and climatology in general (9). Although EPA acknowledges
 that these factor are important to the genesis of acid generation, the framework is not intended to
 be a primer on acid generation. Rather, it simply identifies some of the major problems that can
 occur at mine sites.

 One commenter suggested that the discussion of acid drainage note that States and Federal Land
 Managers have recognized the potential seriousness of acid generation and have imposed extensive
 characterization, prevention and control requirements accordingly. (8)  EPA is aware that its co-
 regulators are at various stages in the development and implementation of requirements related to
 acid generation, and applauds these efforts.

 One commenter objected to EPA's use of "sloughing of tailings to surface water" as a source of
 impacts to surface waters. The commenter noted that discharging  tailings to surface water without an
 NPDES permit is illegal, in most cases would never be permitted, and is unheard of in modern mining
 industry.  Thus, the commenter was  unclear as to why EPA used it as an example.  (8) EPA used this
 as an example for two reasons. First, while not common and not permitted, there have been at
 least a few  instances where tailings washed out or otherwise "sloughed" into surface waters or
 waterways. Second, the framework is intended to help EPA deal with both active and abandoned
 mines, and there are a number of cases where tailings that sloughed or were discharged into
 surface waters have led to long-term impacts from sediment contamination.

 One commenter asked for information where the amount of water necessary to rinse heaps to a required
 standard has been a significant concern (8)  EPA is not aware of any specific instance where this is
 the case. In arid environments, however, any use of water is a "concern" and that is the purpose
 of the reference to the appendix, particularly since the duration of rinsing is seldom known at the
 time of permitting or even at the tune of reclamation planning.

 One commenter was concerned that the discussion on heap leaching did not make clear the distinctions
 between gold  mining and copper mining.  The concern was that the discussion of copper and gold
 together creates the impression that spent gold ores  may be left without treatment to remove residual
 cyanide levels, which is not accurate. (8) EPA is aware that States generally require detoxification
 of gold leach heaps, whether by rinsing or other means.  EPA also notes that, to addition to
 cyanide,  reducing heavy metal loadings to rtosate/leachate can present a problem.

 One commenter noted that Nevada has stringent rules regarding the treatment and monitoring of spent
 ore heaps at closure, belying the Workgroup's assertion that "spent ore is often left in place  (or
 nearby), in  some cases without further treatment."  The commenter took issue with the framework
. statement that the amount of water necessary to rinse heaps  at closure to required standards  may not be
 available  in arid regions with limited water resources. Also, the commenter noted that heaps left in
 place at the end of their lives are situated on pads consisting of engineered liner systems which must
 meet strict containment requirements to prevent any leachate reaching surface water or groundwater.
 The commenter also noted that tailings impoundments,  including those in which cyanide-bearing
 tailings have been contained,  must be stabilized at closure so as to inhibit me migration of any
 contaminant (including cyanide) that has the potential to degrade waters of the State (including
 groundwater).  (6)   Nevada (and many other States) does indeed require rinsing or some other
 means to meet cyanide and other limits, and EPA did not mean to imply otherwise. Similarly,
 closure requirements (or requirements that are imposed based on "guidelines) address tailings
                                            Page 22

                                         Hardrock Mining Framework: Comments and Responses
impoundments. EPA notes that rinsing alone may not suffice to reduce all constituents of concern
(such as selenium, arsenic, and/or other heavy metals) to benign levels.

Two commenters objected to EPA's statements that "closure and reclamation measures are not well
established for cyanide heap leaching operations because of their recent use" and that many cyanide and
gold mining regulations "are non-mandatory guidelines." (3,8)  One of the commenters asked how
EPA could suggest that its own "guidelines" are necessary when it has not thoroughly assessed what
states have already done. (8) Although States do indeed have closure requirements, with some
defined end-points, many of the requirements are indeed in the form of "guidelines" or other
measures that are required on a case-by-case basis. EPA notes  that such non-mandatory
guidelines can be an appropriate means to account for the site-specific nature of mining impacts.
In addition, EPA notes that requirements are evolving as cyanide heap leaching is becoming
better understood.

One commenter thought that EPA had .painted a "dismal portrait" of cyanide operations, and noted that
gold producers have instituted numerous measures to reduce the environmental risks from cyanide use.
The commenter noted that the  industry largely recycles and reuses the cyanide-bearing streams
generated during beneficiation processes. (6)  EPA welcomes and appreciates innovative approaches
to managing process materials and wastestreams,  especially with respect to the destruction of
toxic pollutants.

One commenter noted the appendix's references the use of  "copper, zinc, chromium., and phenolic
compounds" as common reagents used in the mining industry and stated mat these reagents were not
known to be used in the copper or molybdenum mining  industry segments.  The commenter suggested
that EPA identify where these  are used, as, at minimum, the sentence appears to suggest that these are
used throughout the industry rather than in some particular  segment. (1) The offending sentence in the
appendix was grammatically correct but was misleading, as the commenter points out.  EPA has
modified it in response to commenter's concerns.

One commenter asked for an explanation of the apparent contradiction between the framework's
statements that"... other minerals may be present at much higher concentrations (than the desired
mineral or metal)" and that these same metals are found in /'trace levels" (1). EPA has clarified this,
but also notes that the two statements are not mutually exclusive (that is, concentrations may be at
trace levels AND at higher concentrations than target minerals, given the low concentrations
typically found in nature).

One commenter was concerned with the discussion of hydrologic impacts. First, the commenter noted
that the Humboldt River Basin in Nevada, where groundwater drawdown was described, is not
representative of conditions generally found in the US but are truly unique.  For that reason, the
commenter asserted that  EPA could not to draw conclusions about the issue of ground water impacts
generally by looking at Carlin  Trend. (8)  Ground water drawdown is an issue in the Humboldt
River Basin. EPA's discussion does not focus only on problems that are found in every
circumstance, since mining is so extremely site- and area-specific.  EPA has not drawn and  does
not intend to draw "general" conclusions, simply notes that it can be of concern under certain

One commenter pointed out that water pumped for dewatering does not just dissipate, but, Under the
Nevada regulatory framework, is infiltrated or injected back into the subsurface or put to beneficial use
by other users.  EPA acknowledges that most (not all, since some is always lost to evaporation or
                                          Page 23

                                          Hardrock Mining Framework: Comments and Responses
diversion) of the water is returned to the subsurface or diverted for other uses.  As noted
previously, the intent of the appendix is to show the potential "Environmental Impacts" of mining

One commenter corrected EPA's assertion that individual mines in the Carlin Trend are dewatering at
rates up to 70,000 gallons per minute by appointing out that only one of the mines in the area is
permitted to pump more than 60,000 gallons per minute.  (8) This correction has been made.

One commenter noted that, pursuant to existing regulations and policies, the appropriate federal and
State officials were made aware of the potential impacts of dewatering in the Carlin Trend prior to
authorizing ... dewatering operations, and conditioned their authorization on (the operator) undertaking
extensive measures to mitigate all potential significant impacts of this dewatering.  The commenter
pointed out that the operator had in place a plan with local ranchers and BLM to create and improve
nearly 2,000 acres of riparian habitat, 82 miles of stream channels, and over 40,000 acres of upland
watershed. Finally, the commented noted that the operator received the prestigious Nevada Governor's
Reclamation Award for developing and implementing one of the most comprehensive mitigation plans
in Nevada history. (8) EPA appreciates this additional information.

One commenter was concerned about the mention of mine site water and mass balance as site
conditions that are influenced by mine design and siting, and the fact that these can lead to
environmental impacts.  The commenter thought EPA's discussion revealed a bias against hydrologic
impacts generally but did not identify any environmental impacts that justify its bias. (8)  EPA notes
that the purpose of this appendix is to identify potential impacts, not to discuss them in detail or to
comment on whether they are acceptable.  Also, EPA notes that it is indeed "against hydrologic
impacts generally."

 One commenter asserted that the discussion of subsidence is based on facts and statistics to coal
mining, not hardrock mining.  The commenter expressed the opinion that subsidence in the precious
metals industry is a relatively minor issue and certainly not likely to cause or contribute to the kinds of
hydrologic impacts discussed here. (8) EPA acknowledges the commenter's concern and has
modified the discussion of subsidence.

One commenter noted that in the discussion of physical stability, EPA identified what the commenter
considered to be an unrelated concern with toxic, acid forming or reactive materials and then included
an unrelated discussion of seepage from impoundments and acid generation (1). EPA disagrees with
the comments; the purpose here was to link stability with other environmental problems to which
instability can cause or contribute. When a slope is physically unstable, erosion can cause major
problems. The erosion could include the runoff of toxic materials, or expose acid forming and
reactive materials.   In addition, seepage from impoundments may help undermine and contribute
to the failure of embankments.

One commenter opined that it seemed extremely unlikely that the change in wildlife patterns
attributable to a newly established slope at a mine site can result in a such a severe change in wildlife
patterns as to constitute an "environmental problem".  The commenter noted that all development
projects displace wildlife to some degree and emphasized that the localized displacement of a small
number of individual animals (that are not threatened or endangered species) cannot reasonably be
viewed as an environmental problem of national significance. (1)  The comment has been noted.
EPA agrees that such  localized displacement does not necessarily amount to a nationally
significant problem.
                                            Page 24

                                         Hardrock Mining Framework: Comments and Responses
One commenter suggested that the potential environmental impacts discussion in the draft final
framework was overly focussed on potential impacts on human health and underemphasized impacts on
wildlife and biota.  (10) EPA did not mean to neglect the potential impacts to wildlife and biota,
and the discussions related to "alteration of habitat" and "impacts on various media" contained
some mention of impacts on wildlife.

One commenter suggested that EPA's discussion of habitat impacts needed to acknowledge that in
many cases, habitat impacts or even destruction do not significantly impact wildlife populations because
often habitats are not at or near their "carrying capacity" for wildlife populations. (8) EPA
acknowledges the point.

One commenter expressed a concern that EPA's discussion of wildlife protection (specifically cyanide
related wildlife deaths) misses the point that state and Federal Land Manager remedies have been
effective, and this problem, to the extent it remains a problem at all, is under control. (8) Another
commenter provided information from a GAO report on avian mortality (6) The comments has been
noted. EPA is aware that migratory bird deaths have declined significantly since the mid-1980s.
As noted previously, the intent of the appendix is to show the potential "Environmental Impacts"
of mining activities. EPA acknowledges that modern well-regulated mines will present few if any
of the problems that historic, or poorly operated/regulated, mines may present. EPA added a
paragraph to that effect to the appendix.

One commenter noted that, notwithstanding the framework's statement that tailings facilities are
becoming more common in modern design and construction, there are still very few lined
impoundments in any industry segment, and none in the copper industry, including the most recently
constructed major impoundment in the U.S., BHP's Robinson Project in Nevada. (1) Another
commenter stated that waste rock and tailings at typical gold and copper mines are disposed in unlined
facilities. (13) The comments have been noted.

One commenter objected to EPA's statement that fugitive dust may accumulate downwind of an
impoundment in "troubling amounts," recommending that the framework discussion be confined to
whether or not levels are within applicable standards. (1) The comment has been noted and a
change has been made to the appendix.

One commenter noted that  while the risk posed by fugitive dust may depend on the location of
receptors, the inherent toxicity of the material is independent of the location or the presence or absence
of receptors.  The commenter also  notes that "type of ore being mined" must also include a
consideration of the mineral form in which the metal exists.  For example, the bioavailability of
different metal forms of lead or arsenic varies significantly, and therefore so does the risk posed by
ingestion or inhalation of these different species. (1) The comment has been noted and a change has
been made to the appendix.

One commenter thought the example of problems caused by air emissions was inappropriate. The
commenter noted that the Palmerton Smelter started production in the 19th century, and operated for
decades without environmental controls. The commenter thought it had no bearing on current practices
or the need to integrate various regulatory programs to target the mining industry's current impacts. (1)
The Palmerton example was not meant to highlight emissions from modern stacks, but rather, as
the commenter suggested, to illustrate that uncontrolled emissions may contain toxics. Further,
the intent of the appendix is to show the potential "Environmental Impacts"  of mining activities.
EPA acknowledges that modern well-regulated mines will present few if any of the problems that
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                                         Hardrock Mining Framework: Comments and Responses
historic, or poorly operated/regulated, mines may present. EPA added a paragraph to that effect
to the appendix.

One commenter thought that references to impacts from decades of uncontrollable smelter emissions at
Bunker Hill were inappropriate.  The commenter asserted that these types of impacts cannot be used to
justify the need for a focused and integrated program to address currently operating mining and mineral
processing facilities. (1) The intent of the appendix is to show the potential "Environmental
Impacts"  of mining activities. EPA acknowledges that modern well-regulated mines will present
few if any of the problems that historic, or poorly operated/regulated, mines may present. EPA
added a paragraph to that effect to the appendix. Notwithstanding the commenters' concerns,
EPA also notes that a "focused and integrated program" is more cost-effective and efficient than
an unfocused and piecemeal approach and thus is EPA's goal with this framework.

One commenter thought that EPA unnecessarily repeated impact discussions in different sections,
including  references under soil impacts to "cyanide  reaching surface water or groundwater"  and
resulting in fish kills or contamination of drinking water.  Similarly, the commenter was  concerned
about the discussions under erosion focussing on surface water impacts due to sediment transport,
pointing out that they were already included in the section of surface water quality. (1) The comment
has been noted. However, it is important that the commenter understand that once  soils are
contaminated there is the possibility that they may be transported via erosion, or storm water
runoff, which may lead to fish kills and contaminated drinking water. EPA also reiterates that
the intent of the appendix is to show the potential "Environmental Impacts" of mining activities.
EPA acknowledges that modern well-regulated mines will present few if any of the problems that
historic, or poorly operated/regulated, mines may present.
                                           Page 26

                                        Hardrock Mining Framework: Comments and Responses

Comments related to the Comprehensive Environmental Response, Compensation and Liability

Two commenters asked for a more realistic assessment of CERCLA, given its "dismal track record"
and the commenters' asserted likelihood that CERCLA was be substantially amended in the near future
(3,8).  EPA strongly disagrees with the commenters' characterization of CERCLA's record. In
addition, EPA describes the statute and programs as they exist, not as they may be amended at
some time in the future.

Commenters asked about the reference (on page 31 of the draft final framework) to CERCLA's
"positive synergistic effects." (5,8)  EPA has modified the language somewhat to better characterize
these effects.

One commenter thought that, given the large numbers of "polluting mine sites," CERCLA has been
under-utilized." (13) EPA appreciates the comment but disagrees.  As noted throughout the
framework, EPA strongly prefers approaches that prevent impacts and thus make CERCLA a
last resort.

Two commenters noted that Superfund requires a large amount of documentation and study that may
not be appropriate in all cases, and that the Superfund Accelerated Cleanup Model (SACM) has been
utilized to expedite cleanups. (9,10) EPA agrees that not all cases are appropriate for CERCLA,
and appreciates the reference to SACM.

Two commenters pointed out that there had been a number of examples where the CERCLA process
has resulted in recovery of funds were the EPA was not the lead agency. It was noted that most of the
authorities under CERCLA, including cost recovery, are delegated to Department heads such the
Secretary of the Interior. They suggested that other authorities could be used in addition to, or in place
of, enforcement actions. They noted that BLM, for example, has authority to recover funds and
pursue PRPs; it is the "lead agency" authority  on Public Lands, and also has natural resource trust
authority.  The commenters suggested more discussion of the potential for expanding BLM/EPA
partnerships, as well as partnerships with all stakeholders to get the job done. (9,10) EPA has
modified the text (now in Appendix D) to clarify  authorities.  Further, EPA would welcome the
opportunity to discuss interagency and other partnerships.

Another commenter asked what types of actions were contemplated and what authorities would be
used? (8) As noted in  the previous response, EPA has clarified the discussion.

One commenter suggested that a section be added to discuss Natural Resource Damage Assessments
(under CERCLA sections 104(b)(2); 107(a)(4); 107(f); 1220); 301 (c); 113(g); 111(1); and 111(1)) (10)
EPA has added language referring to Natural Resource Damages and Trustees.

One commenter thought that EPA had overemphasized CERCLA's flexibility and, further, had not
taken advantage of what flexibility was offered. (5) Over the past several years, EPA has
incorporated increasing flexibility into the program, and this is reflected in successes achieved in
that tune. EPA continues to seek ways in which to improve the process, and seeks constructive
suggestions on means by which this can be achieved.
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                                        Hardrock Mining Framework: Comments and Responses
One commenter perceived, and objected to, an emphasis on the "deterrent effects" of CERCLA in the
draft final framework.  The commenter thought this was due-to an intent to increase  "federal EPA
control." (5) While EPA did not mean to overemphasize the deterrent effects of CERCLA, the
Agency also does not underestimate the importance of those effects. As noted previously, EPA's
purpose is to improve the effectiveness and efficiency of Agency efforts-related to mining, not to
increase its role beyond its mandate.

One commenter suggested that the framework acknowledge what Were seen as problems with the
Hazard Ranking System ("HRS") as it applies to mining, which were said to contribute to EPA's
exaggeration of mining' s environmental impacts (5).  This level of detail is beyond the scope of this
framework. Also, EPA notes that it has used the HRS quite flexibly in order to  accurately
characterize potential risks posed by mining sites.

Comments related to the Emergency Planning and Community Right-to-Know Act (EPCRA)
One commenter pointed out that mining facilities are not required to report certain data under section
313 of EPCRA. (6) EPA notes that, since the draft final framework was prepared, the Agency has
proposed to include SIC Code 10 (Metal Mining) within the industry categories required to report
to the Toxics Release Inventory under section 313.

A commenter objected to the fact that, as noted in the framework, EPA is investigating the addition of
non-manufacturing industries, including mining, to those required to report under Sections 311 - 312
of EPCRA.  (5) EPA notes the comment.

Comments related to the  Clean Water Act

One commenter noted that the statement in the draft final framework (page 7) that a watershed
approach to water quality protection allowed EPA  to reach the highest number of point sources, and
asked whether EPA should instead be working to reach the sources of most significance. (8) That is
indeed the purpose of the watershed approach, whose advantage is that it allows EPA to  reach the
highest number of significant sources.  EPA appreciates the clarification.

One commenter recommended that the "watershed" (or "bubble") apprtiach to regulating water quality
impacts be used only in narrowly tailored situations.  The commenter stated that, while it might be
appropriate for watersheds affected by abandoned mines, it would not be appropriate when active
mines are involved.  Instead, all discharges from active mines should have to meet effluent standards
(13).  EPA appreciates the comment. EPA notes that the framework discussed watershed
approaches in the context of inactive and abandoned mines.

Two commenters suggested that EPA mention recent lawsuits against EPA, future Total Maximum
Daily Load efforts,  and how these programs  vary state to state and from EPA region to region.  The
commenter also perceived a focus on NPDES program and an insufficient discussion of nonpoint
sources. (9,10) Another commenter echoed the recommendation to discuss TMDLs,  and also
recommended that the Clean Water Act's antidegradation program be discussed (13). EPA focused
on the NPDES program because this is the sources of EPA's authority to implement water quality
standards, TMDL, and antidegradation programs. The framework now includes information on
nonpoint sources, water quality standards, and TMDLs.  EPA notes that TMDLs may or may
not be developed at mining sites.  Each year, States prioritize streams for TMDL development,
typically basing priorities on NPDES reissuance and water quality problems. TMDLs, like water
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                                        Hardrock Mining Framework: Comments and Responses
quality standards, are not enforceable, and implementation requires that the loads be
incorporated into an NPDES permit or included as part of a cleanup activity's goal.

Several commenters noted that the framework referenced Table G-4 on page 50897 in the September
29, 1995 Federal Register (60 FR 50804). They pointed out that this table and the regulatory program
of which it is a part is in litigation, and recommended that this be noted in the framework (5,6,8).
EPA has added a notation to that effect. (EPA notes that these commenters made other assertions
and recommendations concerning the legal defensibility of the table and the relationship to the
framework. EPA does not address these here pending the outcome of the litigation.)

One commenter recommended that the framework clarify EPA authority to regulate mine drainage
from waste rock piles and other point sources.  (13) EPA appreciates the comment but believes the
framework provides a clear summary of EPA's authority.  A comprehensive explanation of the
Agency's regulatory authority is beyond the scope of the framework.

One commenter noted that one passage (page 28 of the April 1996  draft final framework, discussion on
CWA 404 program, paragraph beginning "Where applicable, the 404 program..,.") seemed to  assume
that issues related to the 404 program are ignored by other agencies involved in mine permitting.  The
commenter stated that issues related to  waste dump placement and  "filling" of existing drainageways
may be critical issues during the permitting process. (10) EPA did not mean to give that impression,
and agrees that these may indeed be critical issues.

Comments related to the National Environmental Policy Act (NEPA)

A commenter objected to what it  considered "EPA's suggestions regarding its role in implementing
NEPA." This commenter characterized EPA's role under NEPA as "entirely  procedural" and
"advisory".  (8) Another commenter was concerned with EPA's discussion regarding the integration of
NEPA with permitting procedures and the use of NEPA to integrated decision-making under various
Federal statutes.  This commenter noted that NEPA fosters interagency collaboration on the
development of an EIS and provides information on the adverse impacts of the project, other
alternatives,  and possible mitigating measures, but that it is not intended as a basis for integrating the
decisions of several agencies, nor as a document upon which permitting is based. (9) Another
commenter (8) made much the same point about integrated decisionmaking.  EPA continues to
believe that NEPA can better be used to integrate ultra- and inter-Agency decisionmaking. An
assessment of potential environmental effects of proposed actions and analyses of feasible
alternatives, as required under  NEPA, are crucial to informed decisionmaking and effective
permitting or approvals. When multiple agencies are involved as cooperating agencies, similarly,
EPA believes these agencies should ensure close coordination of analyses and decisionmaking in
order to minimize inconsistencies and conflicts.

One commenter noted that the description of NEPA could be improved by noting the intent of NEPA to
eliminate Federal duplication as opposed to "integrate decision making under various Federal Statutes,"
as stated (on page 23) in the draft final  framework (9, 10). EPA has noted hi the framework (now in
Appendix C) the Latent of NEPA to eliminate Federal duplication.

One commenter stated a belief that the description of NEPA (on page 23) was too focused on the EIS
associated with NEPA and not the goal of better decision-making. (9, 10) EPA agrees with the
commenter about the goal of NEPA, and has modified the language to make this explicit.
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                                        Hardrock Mining Framework: Comments and Responses
One commenter described its "disappointing experiences with EPA in the NEPA process," and another
echoed this concern.  It was noted that EPA has declined to submit comments on some occasions in the
past, and on others has only become involved at the last minute.  As a result, EPA was encouraged to
become involved early and to stay involved during the process, an invitation EPA was said to have
declined in some cases. Thus, it was recommended that EPA correct its own "considerable
deficiencies....before proposing a broader strategy for mining."  (8,5) EPA intends, as noted in the
framework, to improve the way it does business. One of the goals of the framework is to establish
a means by which EPA can identify and prioritize its involvement under NEPA.

It was suggested that the discussion of NEPA include  an indication that the Council on Environmental
Quality has "ultimate oversight responsibility for implementing NEPA" as well as stating (as in the
draft final framework) that EPA has a unique role....  (9,10)   Another commenter suggested other
language (replace "EPA has a unique role" with "EPA has responsibility....") EPA has modified
the language.

One commenter suggested that EPA discuss more fully how EPA would use NEPA to identify "permit
conditions including those needed to avoid or minimize impacts or to mitigate for unavoidable impacts"
(which was mentioned on page 23, fourth paragraph,  fourth sentence). (8) EPA is not clear what the
commenter is asking. This section provided a  description of NEPA, and the use of NEPA for this
purpose is relatively common.

One commenter noted that the NEPA process affords  EPA the ability to comment on and lend its
expertise to other agencies in connection with specific projects that must be approved by other federal
agencies, but that it is not  a mechanism for EPA  to engage in general rulemaking to establish national
standards or  "guidelines."  (6) EPA agrees with the commenter.

One commenter suggested that the framework contemplated the use of MOAs and MOUs with other
agencies as a means by.which EPA would expand its jurisdiction and authorities (6).  Another
suggested that EPA intended to use its role under NEPA to do the same (5).  EPA's jurisdiction is
limited by its statutory and regulatory authorities and cannot be expanded as the commenters

Comments related to RCRA

One commenter stated that RCRA Subtitle C hazardous waste rules and interpretations "thwarted"
environmentally beneficial remining and waste management. The commenter suggested that "active
management" of an historic waste should not result in the generation of a non-exempt waste (unlike the
position taken by EPA in the framework) (5).  EPA clarified its position on active management in
61 FR 2353 where the Agency stated"...that removal of waste from such a unit does not constitute
"disposal" for purposes of triggering Subtitle C regulation, and the language of the 1989
preamble, although somewhat unclear, should be read to be consistent With EPA's statements in
the NCP preamble on this point.  The Agency  does not therefore believe that the proposed
regulatory approach would discourage remining.

One commenter was "stunned" the framework suggested that the 1986 regulatory determination simply
be revisited.  (6) Another stated that the alternative, RCRA Subtitle C, would be "particularly
inappropriate." (5) The Agency has been collecting information on the environmental impacts of
mining since 1980.  As a result of court-ordered rulemaking on mineral processing, the Agency
has collected additional information on the generation, and management of Bevffl wastes.  The
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                                        Hardrock Mining Framework: Comments and Responses
Agency is, at this time, seeking public input on whether a revisiting of how the. Bevill exclusion is
implemented is warranted. The Agency has not made any decision whether any changes to the
Bevill exclusion are needed. Based on public comment, the Agency will then determine if any
further actions are needed.

Two commenters stated that, contrary to the framework's assertion, the Strawman was not drafted "in
cooperation with States, industry and other interest groups" but was drafted by EPA staff. These
commenters also stated that the items on which the framework appears to claim consensus were never
entirely resolved to all parties' satisfaction (1,5). The Agency acknowledges that consensus was not
reached during the meetings held by the Policy Dialogue Committee on Mining.  The Agency did
work closely with the states, industry, and environmental groups during its preparation of
Strawman 1 and 2. The interested parties did prepare  separate and distinct counterproposal to
Strawman 1 and 2. The Agency found this process extremely useful in identifying different
approaches to effectively managing mining wastes.

One commenter suggested that the framework acknowledge that a very small percentage of Bevill-
exempt beneficiation wastes exhibit any hazardous waste characteristics (1).  The 1985 Report to
Congress found that extraction and beneficiation wastes did exhibit hazardous characteristics.
The Agency stated in the 1986 Regulatory Determination that extraction and beneficiation wastes
did exhibit hazardous characteristics and had caused environmental damage.

One commenter noted that RCRA corrective action authorities are available to address releases from
"units containing Bevill wastes"  only if hazardous  wastes are managed therein (1,8).  One of the
commenters was unaware of a single gold mine where this is true (8). The Agency has the authority
to utilize its RCRA corrective action authorities when hazardous wastes threaten human health
and the environment. If hazardous wastes are improperly generated, stored, handled or disposed
of at a mine site, such actions may be subject to RCRA authority.

Two commenters questioned the draft final  framework's reference (on page 25) to "several RCRA
provisions that are potentially applicable to mining situations but which have not been historically
applied." (1,5)  One noted that prior regulatory determinations made their application inappropriate (1).
Another commenter inferred from the statement that  EPA intended to expand its regulatory authorities
and asserted that the framework presented an inaccurate view of the relevance of these sections. (5)
The Agency does not contemplate any expansion of its current authorities.

Comments related to Toxic Substances Control Act (TSCA)

One commenter suggested that the framework acknowledge that PCB equipment has been replaced in
many mines and that all mine built after the ban on production of PCB equipment have not had PBS in
transformers and capacitors. (2) EPA has added language to this effect.

Comments related to Nonregulatory tools

One commenter noted that BLM has been involved in two  of the site-specific examples given in
Appendix C of the draft framework (the Coeur D1 Alene Basin Restoration Project has the BLM in the
Pine Creek Area effort and the Clear Creek Watershed Project has the BLM in the Boodle Mill Effort.
(9) EPA has added a note to that effect to the appendix.
                                          Page 31

                                        Hardrock Mining Framework: Comments and Responses
One commenter suggested that the statement in Appendix C, when discussing the Clear Creek
Watershed project, that "Mining is part of the history and culture of the area that must be respected,"
should be emphasized throughout the Framework about EPA's regions. (4) EPA appreciates the

One commenter noted that the U. S. Bureau of Mines (USBM), which was defunded by Congress
during FY 96. The U.S. Geological Survey assumed some of its responsibilities and references to the
Bureau should be changed accordingly.  (10) EPA has changed the references.

One commenter asked  about the University of Montana's Mining Waste Institute (9).

One commenter commended that the Idaho Joint Review process as a model that the Framework should
seriously review as a successful example of state lead programs that efficiently and effectively regulate
mining. (3) EPA has observed the IJRP with interest, and believes that it shows great promise in
promoting the early involvement of all stakeholders, allowing areas of common interest and
disagreement to be identified and addressed.
                                           Page 32

                                         Hardrock Mining Framework: Comments and Responses

One commenter recommended that the framework indicate that SMCRA can be used as a regulatory
device for restoration of hardrock mine sites. (1) EPA has added a statement to this effect.

Several commenters found the discussion on the number of claimants under the general mining law
misleading.  One noted that an implication that there had been 2,700,000 claims since  1976 when the
BLM started accepting claims was in error, since this is the number of claims that the BLM has records
of from all sources since the beginning of the Mining Law of 1872, as amended. (5,9,10) EPA has
modified the language accordingly.

One commenter noted that the framework's mention that there were over 1,100,000 unpatented claims
on Federal lands is misleading, since the number of claims has been significantly reduced since the
government imposed a $100 rental/claim maintenance fee starting in 1993.  The commenter
recommended a clarification. (10) EPA has added language that captures the commenter's point.

One commenter recommended that the discussion of the General Mining Law and mining claims should
be deleted in its entirety, stating that the numbers of total claims recorded, abandoned, etc., is
irrelevant to the purposes of the framework. (5) The purpose of this discussion is to  give an idea of
the magnitude (and importance) of the mining claim system.  For  that reason, the discussion has
been retained in the appendix.

Another commenter noted that claim validity is hardly ever questioned, but that "proper discussion of
bonding costs would enable agencies and the public to properly ascertain if the claim was indeed
valid." (13)  EPA notes the comment. EPA also notes that claim validity is not within the
Agency's purview.

Two commenters pointed out that, contrary to a statement in Appendix D, uranium is a locatable
mineral. (5,9) EPA made this correction.

One commenter recommended that the discussion of legislative vehicles affecting the Mining Law
should simply acknowledge that congressional Mining Law reform efforts now include support by all
interests for creation of an abandoned mine lands fund, and not provide detail of various proposals. (5)
EPA has modified the language accordingly.

One commenter suggested a number of corrections to the Mineral Development and Disposition
Statutes section  (9). Another noted that unpatented mining claims, if valid, are only possessory
interests as against the US Government, subject to the 5th amendment (10). EPA has made the
recommended corrections.

One commenter noted that the Forest Service requires a bond for all plans of operations.   (5) The
description of Forest Service regulations notes that bonds may be  required.

One commenter recommended changes to the discussion of the Mining in the Parks Act of 1976.  The
commenter recommended that the report be modified to explicitly track the statutory language. (10)
EPA has modified the language accordingly.

One commenter recommended that EPA pare back the section on Inactive and Abandoned Mines on
Federal Lands, since congressional activity had slowed. They also recommended that, in the first
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                                         Hardrock Mining Framework: Comments and Responses
sentence of this section, the word "explicitly" should be included before'the word "provide." (10) EPA
has made the recommended changes.

One commenter recommended change to the table's reference to the Endangered Species Act in
"Overview"), characterizing the description of the requirements imposed upon Federal agencies as
"overbroad." (10) EPA has made the recommended change.

One commenter recommended changes to language in the body of the framework that implied that
FLPMA directs BLM to take actions which impair peoples' rights. The commenter suggested that
language in Appendix D that describes BLM's responsibilities under ง 302(b) of FLPMA be
substituted, because "the language in Appendix D makes clear that FLPMA protects persons' rights,
with certain limited exceptions."  (10) EPA has made the substitution.

One commenter pointed to EPA's observation that there are "few specific technical standards" among
the broad requirements imposed by the BLM or Fish and Wildlife regulations, and noted that this is not
necessarily a weakness in those requirements. (2) EPA did not mean to imply that this is a
shortcoming of the regulations, but was simply making the point to provide background for the

One commenter noted that the Forest Service is responsible for surface management administration of
mineral resources on Forest Service lands, and  that Bureau of Land Management has the primary
responsibility for administering the laws and regulations regarding disposition of locatable minerals
from all federally-managed lands. (5) EPA appreciates the clarification and has modified the
language accordingly.

One commenter noted that the framework is misleading in that it leaves the impression that lands under
Fish and Wildlife Service (F&WS) management are available for mineral entry. The commenter noted
that most F&WS units, when established, were  withdrawn from mineral entry and that those few that
were open to such entry have since been withdrawn. Further, while there may some valid existing
rights under the Mining Law, the commenter knew  of no active mining operations in the F&WS
preserve system. (5) EPA appreciates the clarification and has modified language in the appendix

One commenter suggested an opening sentence on the (then-page 22) description of National Park
Service responsibilities: "The National Park Service has been charged by Congress to manage units of
the National Park System so as "to conserve the scenery and the natural and historic objects and wild
life therein and to provide for the enjoyment of the same in such manner and by such means as will
leave them unimpaired for the enjoyment of future generations."" (10) EPA has modified the

A commenter clarified the operation of the Mineral Leasing Act on National Park Service lands. The
commenter provided language. (10) EPA has adopted this language.


One commenter notes the framework's statement  that State and federal regulatory authorities have in
fact "established broad regulatory requirements that generally address all phases of mine operations."
The commenter found this militated strongly against the need for more EPA involvement or input into
                                           Page 34

the decisions of these agencies. (6) The comment has been noted. EPA emphasizes the purpose of
the Framework, which is to improve EPA's effectiveness.

One commenter clarified EPA's statement that implied environmental requirements were only recently
imposed on mining operations in Arizona and New Mexico. The commenter noted that Arizona and
New Mexico recently adopted formal reclamation requirements, but environmental laws, both Federal
and State, have been in place for years, in some cases decades. (8) EPA has changed the language to
clarify that it refers to reclamation requirements.
One commenter recommended that the framework point out that coal producing states have used the
Surface Mining Control and Reclamation Act (SMCRA) authority and Abandoned Mine Lands (AML)
program grants to reclaim hardrock mine sites, either through  SMCRA Section 409 or, as Wyoming
has, through section 411. (11) EPA has added a statement to this effect.

One commenter suggested the need for increased cooperation between States and EPA on State-issued
NPDES permits.  The commenter expressed a belief that this  would lead to fewer cases where EPA is
"forced to exert" its authorities over the State.  (13) EPA appreciates the comment and intends to
work close with the States that are partners in the NPDES permitting process.

One commenter noted that EPA's mention of a new component of Montana's regulatory regime implied
that the entire Montana program was new. (9) EPA has added a statement clarifying the point.

One commenter suggested that the Environmental Law Institute study referenced in the text may not be
an accurate portrayal  of state programs and  suggested that EPA take a  closer look at the state programs
and how they work (8). EPA believes the ELI study was an  accurate snapshot of state programs.
EPA also notes that Appendix E contains  another review of state programs that comes to a
favorable conclusion of state programs.

One commenter noted that the framework's  discussion of  state financial assurance requirements was
very brief and suggested a more comprehensive description (2).  EPA  is  aware of the many different
types of financial assurance and bonding programs. The framework, however, is not intended to
be a compendium of state practices but simply provides information on state and Federal
programs as background for the reader.

One commenter asked why states impose different standards for detoxification of spent leach heaps,
other than based on water quality standards. (8) EPA notes that most cyanide detoxification
standards are based to some degree on drinking water  values, and  standards for other pollutants
are usually based on surface water standards. EPA also notes that the distinction between free,
total, and weak acid dissociable cyanide is not always clear in detoxification standards.

One commenter suggested that EPA's "disclaimer" in Appendix E calls its accuracy into question and
this contributed to the overall impression that message that the environmental impacts of the mining
industry are not currently being addressed through regulation.  (1) This disclaimer was not intended to
call the accuracy of the information into question but simply to disclose that the descriptions and
any conclusions were those of the authors and not  necessarily those of EPA.  As noted above,  EPA
acknowledges that modern well-regulated mines will present few if any of the problems that
historic, or poorly operated/regulated, mines may  present and has  added a paragraph to that
effect in Appendix B. EPA also has moved information that was previously presented in the body
of the framework to this appendix.
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                                        Hardrock Mining Framework: Comments and Responses
One commenter stated that the conclusion of the study in Appendix E (State regulation), that the
"alleged gaps in state authority do not exist" is buried in the appendix, rather than emphasized in the
framework text. (4) EPA has now reorganized the document so that the entire discussion is in the
appendix. However, EPA notes that Appendix E in the draft final framework was neither
prepared nor endorsed by EPA, but was simply presented, as stated hi the Appendix, "for
informational purposes."

One commenter was concerned that there was "no real attempt in ... to evaluate the scope and depth of
those state programs" (5). It was not EPA's hitent to evaluate the "scope and depth" of State
programs, merely to provide some information on State programs.
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                                         Hardrock Mining Framework: Comments and Responses

One commenter expressed a willingness to work with EPA in evaluating alternative site ranking
methodologies, including (but not limited to) those discussed in the framework.  (5) EPA appreciates
the offer, and hopes the opportunity arises.

One commenter pointed out that section 403 of SMCRA offers a list of priorities for AML sites that
has been proven effective over the years and could easily be adapted as a guide for this Hardrock
Mining Framework.  The commenter noted  that, under SMCRA, sites that pose the most severe and
immediate danger to the public should be considered the highest priority. (11)   EPA appreciates the

Some commenters noted that dealing with abandoned sites, from prioritization and remediation, is a
multi-agency and multi-government planning process, and that the fact that the framework deals only
with EPA is a major impediment. The commenter was concerned that EPA has developed a 13 system
unilaterally, and recommended a wider involvement. (8) Another recommended that industry's
expertise and experience be brought into the process (6). EPA appreciates this point and emphasizes
its willingness and intent to work with other agencies and stakeholders.

One commenter recommended that the framework clearly encourage remining (3).  EPA appreciates
the comment.  In the final framework, Recommendation #13 explicitly calls for ''reprocessing of
historic mine wastes..." and Implementation Action #8 calls for "...identifying...recommendations
for promoting...reprocessing/remining of inactive and abandoned mines."

One commenter asked if it was an unfunded mandate that EPA plans to direct states to identify
impacted watersheds that deserve priority attention. (7) Should EPA require such a system, the
Agency would consider the financial implications.

One commenter noted the suggestion that EPA be involved in evaluating the balancing of resources
between environmental and  safety threats, and objected that "safety" is not within EPA's jurisdiction.
(5) EPA  appreciates this comment, but would like to point out that environmental threats can
present issues of safety.

One commenter noted that the U.S.  Geological Survey has developed a GIS technique that was quite
useful in  assisting the states  of Colorado and Montana and the Federal land management agencies in
establishing watershed priorities  for remediation.  We believe that it would be useful to EPA to identify
in the Framework document the  USGS's unique capabilities in this area.  (10] EPA has included a
reference to USGS GIS capabilities.

One commenter was concerned that the multi-level priority setting was missing a key step: watershed
characterization.   The commenter was concerned that the subsection on "Watershed Level" only
covers the analysis performed to determine which watersheds require detailed characterization (the  term
used in the document is assessment). After watershed prioritization and before site-level tasks,
however, watersheds  must be characterized through water quality analysis, synoptic sampling, flow
monitoring, identification of natural and man-made pollution sources, identification of geochemical
processes, sediment sampling, biologic assessments of aquatic and riparian zones, and related studies
(10). EPA agrees that scientific and other factual data at a watershed level is necessary to making
decisions on priorities.  In  general, the quality and amount of good information is directly related
to the ease of decisionmaking.
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