54950 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Notices

ENVIRONMENTAL PROTECTION

AGENCY

[WH–FRL–5912–3]

Proposed Modification of National

Pollutant Discharge Elimination

System (NPDES) Storm Water MultiSector General Permit for Industrial

Activities

AGENCY: Environmental Protection

Agency.

ACTION: Notice of proposed modification

of NPDES general permits; notice of

interpretation.

SUMMARY: Today’s action proposes

clarification of an interpretation of the

technology-based effluent limitations

applicable to point sources of ‘‘mine

drainage’’ at ore mining and dressing

operations, which was contained in a

recently-issued NPDES general permit

for storm water associated with

industrial activity. With this notice,

EPA intends to provide a more

definitive interpretation of the

applicability of those recently-issued

general permits, specifically, as they

apply to certain storm water discharges

at ore mining and dressing operations.

To incorporate today’s proposed

interpretation, EPA only proposes to

modify the NPDES general permits

issued by EPA Regions 1, 6, 9 and 10

because the Agency does not anticipate

that the mining-related storm water

discharges at issue occur in the other

States where EPA is the NPDES permit

issuance authority. The Agency,

however, would take final action to

modify the general permits applicable in

the other States where EPA issues

permits if public comments demonstrate

the need to do so.

DATES: Comments on today’s proposed

interpretation and proposed

modification must be received or postmarked by midnight no later than

December 8, 1997.

ADDRESSES: Send written comments to:

W–97–13, Comment Clerk, Water

Docket (MC–4101), U.S. EPA, 401 M

Street, SW, Washington, DC 20460.

Please submit the original and three

copies of your comments and enclosures

(including references).

Commenters who want EPA to

acknowledge receipt of their comments

should enclose a self-addressed stamped

envelope. No facsimiles (faxes) will be

accepted. Comments may also be

submitted electronically to: owdocket@epamail.epa.gov. Electronic

comments must be submitted as an

ASCII file avoiding the use of special

characters and forms of encryption.

Electronic comments must be identified

by the docket number W–97–13.

Comments and data will also be

accepted on disks in WordPerfect 5.1

format or ASCII file format. Electronic

comments on this notice may be filed

online at many Federal Depository

Libraries.

The record for this action has been

established under docket number W–

97–13, and includes supporting

documentation as well as printed paper

versions of elctronic comments. The

record is available for inspection from 9

a.m. to 4 p.m., Monday through Friday,

excluding legal holidays at the Water

Docket, Room M2616, U.S. EPA, 401 M

Street SW, Washington, DC 20460. For

access to docket materials, please call

202–260–3027 to schedule an

appointment. A reasonable fee may be

charged for copying.

FOR FURTHER INFORMATION CONTACT: For

further information, contact Gary

Hudiburgh, Office of Wastewater

Management, Office of Water at (202)

260–4926 or the appropriate EPA

Regional Office. For EPA Region 1,

covering discharges in the State of

Maine and Federal Indian reservations

in Maine, in the Commonwealth of

Massachusetts and Federal Indian

reservations in Massachusetts, in the

State of New Hampshire and Federal

Indian reservations in New Hampshire,

as well as Federal Indian reservations in

the States of Vermont, Connecticut, and

Rhode Island, and Federal facilities in

Vermont, contact Thelma Hamilton at

(617) 565–3569. For EPA Region 6,

covering discharges in the State of Texas

and Federal Indian reservations in

Texas, in the State of New Mexico and

Federal Indian reservations in New

Mexico (except Navajo Reservation

lands, which are covered by EPA Region

9 and Ute Reservation lands, which are

covered by EPA Region 8 and were not

covered by the Multi-Sector General

Permit), as well as Federal Indian

reservations in Oklahoma and

Louisiana, contact Fred Humke at (214)

665–7503. For EPA Region 9, covering

the State of Arizona and Federal Indian

reservations in Arizona, and Federal

Indian reservations in California and

Nevada, as well as the Duck Valley, Fort

McDermitt, Goshute Reservations and

Navajo Reservations, each of which

cross State boundaries, contact Eugene

Bromley at (415) 744–1906. For EPA

Region 10, covering the State of Alaska

and Federal Indian reservations in

Alaska, the State of Idaho and Federal

Indian reservations in Idaho (except the

Duck Valley Reservation, which is

covered by EPA Region 9), Federal

Indian reservations in Washington and

Oregon (except the Fort McDermitt

Reservation, which is covered by EPA

Region 9), as well as Federal facilities in

Washington, contact Steven Bubnick at

(206) 553–5171.

SUPPLEMENTARY INFORMATION:

Authority

EPA issues NPDES permits under the

authority of CWA section 402, 33 U.S.C.

section 1342. Today’s proposed

modification would be based on an

interpretation of rules published under

the authority of CWA sections 301, 304,

and 501(a), 33 U.S.C. sections 1311,

1314, and 1361(a). Today’s action would

modify a table that was initially

published in conjunction with NPDES

permits for storm water associated with

industrial activity issued pursuant to

CWA section 402, 33 U.S.C. section

1342.

In today’s notice, EPA announces and

invites public comment on its

interpretation of the technology-based

effluent limitations applicable to point

sources of ‘‘mine drainage’’ at ore

mining and dressing operations under

the Clean Water Act (‘‘CWA’’). 33 U.S.C.

1251 et seq. This interpretation updates

and replaces an earlier interpretation

published in the fact sheet for the final

National Pollutant Discharge

Elimination System (‘‘NPDES’’) Storm

Water Multi-Sector General Permit for

Industrial Activities at 60 FR 50804

(Sept. 29, 1995)(‘‘Multi-Sector Permit’’).

The interpretation in today’s notice

supplements EPA’s interpretation in

Table G–4 of the Multi-Sector Permit

regarding the applicability of the ‘‘mine

drainage’’ provisions of regulations

found at 40 CFR part 440. 60 FR at

50897.

EPA has reviewed the administrative

record supporting the Part 440

regulations, as well as Agency

statements made during the course of

litigation over those regulations, and is

revising Table G–4 accordingly. In

litigation challenging the Multi-Sector

Permit, National Mining Association v.

EPA, No. 95–3519 (8th Cir.), the

National Mining Association (NMA) has

argued that the regulatory interpretation

contained in Table G–4 was overly

expansive and not supported by

appropriate economic and technological

evaluation. To support its argument,

NMA cited Agency statements made

during the course of litigation

approximately twenty years earlier.

These statements were not raised and

presented to the Agency during the

public comment period of the permit. In

response to NMA’s arguments in the

current litigation, EPA has re-evaluated

the underlying record supporting the

Part 440 regulations and is
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Notices 54951

1Water quality based effluent limitations are

included in permits when necessary to assure

compliance with water quality standards.

2 If no such guidelines have been established,

technology-based limits are developed on a case-bycase basis based on the best professional judgment

of the permit writer.

3The definitions of and discussion of these terms

in this notice are within the use of these terms

under the NPDES program and the Clean Water Act.

These definitions are not specifically applicable to

the use of these terms under other federal

environmental laws, including under the Resources

Conservation and Recovery Act, 42 U.S.C. 6901, et

seq. (RCRA) and its implementing regulations.

supplementing its interpretation of the

‘‘mine drainage’’ provisions contained

in Table G–4. Today’s action supersedes

the Agency interpretation contained in

the Fact Sheet to the Multi-Sector

Permit, as original issued.

Upon review of those documents, the

Agency believes the documents

(including judicial caselaw) speak for

themselves. Therefore, the Agency is

proposing to withdraw portions of the

Table that discuss applicability of the

part 440 regulations—i.e., those portions

of the Table that do not specify

applicability of the Multi-Sector permit.

By today’s action, EPA also proposes a

slight expansion of the applicability of

the Multi-Sector permit (consistent with

the interpretation in today’s notice) and,

therefore, invites public comment.

The interpretation in today’s notice

provides clarification regarding the

scope of the effluent guidelines initially

promulgated in 1978. As explained

more fully below, however, the

Agency’s communication of its 1978

intention was not fully clarified through

publication in the Federal Register or

other readily available documents. In

addition to 1978 preamble statements in

the Federal Register explaining the

scope of the effluent guidelines, the

Agency prepared other documents

explaining the guideline’s scope that

were not published in the Federal

Register. These other documents

(including parts of the administrative

record, the denial of an administrative

petition for reconsideration, the

Agency’s litigation brief, and a guidance

document for permit writers) contain

statements about the applicability of the

guidelines that NMA argued were

inconsistent with Table G–4. Today’s

notice proposes to modify Table G–4

consistent with those statements and

now would only address applicability of

the Multi-Sector Permits.

I. Effluent Guidelines for Ore Dressing

and Mining Point Source Category

A. Background

Congress enacted the Clean Water Act

to establish a comprehensive program to

‘‘restore and maintain the chemical,

physical and biological integrity of the

Nation’s waters’’ through the reduction,

and eventual elimination, of the

discharge of pollutants into those

waters. CWA Section 101(a); 33 U.S.C.

1251(a). To achieve its objective, the

CWA provides for a permit program to

control ‘‘point source’’ pollution. The

CWA point source permitting program

is known as the National Pollutant

Discharge Elimination System

(‘‘NPDES’’), under which EPA or

authorized States issue permits for point

source discharges. Except in accordance

with an NPDES permit, a point source

discharge of a pollutant is unlawful.

CWA Section 301(a); 33 U.S.C. 1311(a).

All NPDES permits must, at a minimum,

contain technology-based effluent

limitations established in effluent

guidelines or standards or, if no such

guidelines have been established,

limitations derived on the basis of best

professional judgment.

Individual NPDES permits contain

substantive restrictions, called ‘‘effluent

limitations,’’ which are aimed at

controlling the level of pollutants in

point source discharges. CWA 402(a); 33

U.S.C. 1342(a). Effluent limitations may

be ‘‘technology-based’’ or ‘‘water

quality-based.’’ 1 For some industrial

point source categories, EPA has

published technology-based effluent

limitations that apply on a nationwide

basis, pursuant to CWA Sections 304(b)

and 306(b)(1)(B); 33 U.S.C. 1314(b) and

1316(b)(1)(B). 2 These limitations are

called national effluent limitations

guidelines or standards. EPA has

published best practicable control

technology currently available (‘‘BPT’’),

best conventional pollutant control

technology (‘‘BCT’’), best available

technology economically achievable

(‘‘BAT’’) effluent guidelines, and new

source performance standards (‘‘NSPS’’)

for point sources in over fifty different

industrial categories. Among the

effluent guidelines and standards which

EPA has established are those

applicable to the ore mining and

dressing industry. These guidelines are

known as the ‘‘Effluent Guidelines for

the Ore Mining and Dressing Point

Source Category’’ (hereinafter referred to

as the ‘‘Guidelines’’). The Guidelines are

published at 40 CFR part 440.

EPA first published the Guidelines on

an interim final basis on November 6,

1975. 40 FR 51722. On July 11, 1978,

after substantially expanding the data

base supporting the Guidelines, and

after considering comments submitted

since initial promulgation, EPA

republished the Guidelines in modified

form. 43 FR 29771 (July 11, 1978). Both

the initial and republished Guidelines

established BPT effluent limitations for

discharges for ore mining and dressing

operations.

B. Storm Water Regulation Under the

Guidelines 3

The Guidelines establish industrywide effluent limitations for two types

of mine discharges: (1) Mill discharges

and (2) mine drainage. ‘‘Mine drainage’’

means ‘‘any water drained, pumped, or

siphoned from a mine.’’ 40 CFR

440.132(h). A ‘‘mine,’’ in turn, is

defined as:

an active mining area, including all land and

property placed under, or above the surface

of such land, used in or resulting from the

work of extracting metal ore or minerals from

their natural deposits by any means or

method, including secondary recovery of

metal ore from refuse or other storage piles,

wastes, or rock dumps and mine tailings

derived from the mining, cleaning, or

concentration of metal ores.

40 CFR 440.132(g) (emphasis added).

An ‘‘active mining area,’’ in turn, is

defined as:

a place where work or other activity related

to the extraction, removal, or recovery of

metal ore is being conducted, except, with

respect to surface mines, any area of land on

or in which grading has been completed to

return the earth to desired contour and

reclamation work has begun.

40 CFR 440.132(a).

In statements in the administrative

record supporting the Guidelines, EPA

indicated an intent to include a broad

range of discharges within the scope of

the Guidelines. The 1975 Preamble to

the Interim Final Guidelines expressly

indicated that the Guidelines definition

of the term ‘‘mine’’ was intended to be

sufficiently broad ‘‘to cover all point

source pollution resulting from all the

activities related to the operation of the

mine including drainage tunnels, haul

roads, storage piles, etc.’’ 40 FR 51727.

Consistent with this, in the 1978

Development Document (prepared by

EPA before the Guidelines were

republished in 1978), EPA stated that:

A mine is an area of land upon which or

under which minerals or metal ores are

extracted from natural deposits in the earth

by any means or methods. A mine includes

the total area upon which such activities

occur or where such activities disturb the

natural land surface. A mine shall also

include land affected by such ancillary

operations which disturb the natural land

surface, and any adjacent land the use of

which is incidental to such activities; all

lands affected by the construction of new

roads or the improvements or use of existing

roads to gain access to the site of such
54952 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Notices

activities and for haulage and excavations,

workings, impoundments, dams, ventilation

shafts, drainage tunnels, entryways, refuse

banks, dumps, stockpiles, overburden piles,

spoil banks, culmbanks, tailings, holes or

depressions, repair areas, storage areas and

other areas upon which are site structures,

facilities, or other property or materials

resulting from or incident to such activities.

1978 Development Document at 146.

1. Petition for Reconsideration

After EPA promulgated the

Guidelines on July 11, 1978, a number

of mining companies filed petitions for

judicial review challenging the

Guidelines. (The judicial challenges are

discussed below.) During the pendency

of its judicial challenge, one of those

companies, Kennecott Copper

Corporation (‘‘Kennecott’’) filed an

administrative petition with EPA (dated

September 26, 1978) requesting that the

Agency reconsider and clarify the

Guidelines. Kennecott amended its

petition on November 9, 1978.

Kennecott identified five areas of

alleged deficiencies and concerns with

the Guidelines. One of these issues

related to the storm water runoff

provisions of the Guidelines.

Kennecott objected to the storm water

runoff provisions, which it argued were

overly vague and capable of being

interpreted in a manner that would

violate applicable law. Among other

things, Kennecott was particularly

concerned about applicability of the

Guidelines to what it referred to as

‘‘non-process’’ areas at mining

operations. Kennecott further argued

that the Guidelines, if applied in the

manner suggested by Kennecott, would

entail exorbitant costs not considered

during the rulemaking. Kennecott

presented EPA with cost estimates that

Kennecott believed it would have to

incur to comply with the Guidelines.

Kennecott estimated costs to control

storm water drainage flows from what

Kennecott referred to as the ‘‘process’’

and ‘‘non-process’’ areas at two

Kennecott mining operations, the Ray

Mine and the Chino Mine. As discussed

more fully below, the Agency’s decision

on Kennecott’s petition is at the core of

the NMA litigation over the MultiSector Permit.

In partial response to the Kennecott

petition, EPA published a notice in the

Federal Register that clarified the scope

of the Guidelines’ applicability to storm

water runoff. 44 FR 7953–7954 (Feb. 8,

1979). That notice of clarification

explained that the Guidelines applied

only to point sources in the active

mining area. The Notice clarified EPA’s

interpretation that the ‘‘mine drainage’’

provisions applied to ‘‘water which

contacts an active mining area and flows

into a point source.’’ Id. EPA further

explained that mining operations are

not required to ‘‘collect and contain

diffuse storm [water] runoff which

would not otherwise be collected in or

does not otherwise drain into a point

source.’’ Id. at 7954. In other words,

diffuse storm water (from an active

mining area) that was collected or

contained in, or that naturally flowed

into, a point source was subject to the

Guidelines. Other storm water drainage

flows were not subject to the

Guidelines.

EPA denied Kennecott’s petition on

February 21, 1979. In doing so, EPA

relied in part on the notice of

clarification. The decision on the

reconsideration petition discussed the

applicability of the Guidelines to

Kennecott’s Ray Mine. For storm water

drainage flows from what Kennecott

called ‘‘non-process’’ areas at the Ray

Mine, EPA concluded that Kennecott

would incur no additional costs.

Kennecott had, for the purposes of its

petition, defined ‘‘non-process’’ area to

mean ‘‘overburden dumps, material too

low in mineral content even to leach,

and exposed benches at the mine.’’

Citing to the notice of clarification, EPA

concluded that the definition of ‘‘mine

drainage’’ did not include diffuse storm

water runoff from overburden dumps

and material too low in mineral content

to leach. As that notice of clarification

explained, ‘‘[a]ll water which contacts

an ‘active mining area * * *’ and either

does not flow, or is not channeled by

the operator, to a point source, is

considered runoff, and it is not the

regulations’ intent to require the mine

operator to collect and treat such

runoff.’’ 44 FR at 7954. On the matter of

storm water contacting the exposed

benches, EPA could not determine

whether such discharges would

constitute point source discharges and

thus, concluded that the issue would

best be addressed by the permitting

authority in the context of a permit

proceeding.

After comprehensive review of these

documents, there are several matters

that are clear. EPA did not grant any

portion of Kennecott’s petition for

reconsideration. In fact, EPA denied the

petition and in so doing the Agency

rejected Kennecott’s cost estimates for

what Kennecott called ‘‘non-process’’

areas because, based on the Ray Mine

data submitted by Kennecott, EPA

found that the Ray Mine would incur no

costs with respect to runoff from those

areas. Therefore, the Agency did not

adopt or incorporate Kennecott’s

proposed distinction between ‘‘process’’

and ‘‘non-process’’ areas at mine sites.

This conclusion alone, however, does

not fully resolve all possible questions

about applicability of the guidelines.

In responding to the portions of

Kennecott’s petition related to the Ray

Mine, the Agency did not explain why

the diffuse storm water runoff from

‘‘overburden dumps and material which

is too low [] to leach and other areas of

the Ray Mine property where work or

other activity related to the the [sic]

extraction, removal or recovery of of

[sic] metal ore is not being conducted’’

was not subject to the Guidelines. These

Agency statements merely repeated

phraseology used in Kennecott’s

petition. Upon review of these

statements, as well as re-review of

Kennecott’s original administrative

petition, the Agency cannot determine

with certainty, for example, whether the

statement means that runoff was not

subject to the Guidelines (1) because it

was ‘‘diffuse’’ (i.e., nonpoint source), (2)

because the drainage was already being

contained at Ray Mine, (3) because the

overburden at Ray Mine was outside of

Ray Mine’s active mining area, (4)

because no activity related to the

extraction, removal or recovery of metal

ore was currently (or recently) being

conducted at the Ray Mine site at that

time as identified by Kennecott in its

petition for reconsideration. The

statements certainly, however, do not

indicate that water which contacts

overburden dumps in active mining

areas is not subject to the Guidelines nor

does any other subsequent Agency

statement vacillate on this question.

Runoff from overburden dumps within

the active mining area is mine drainage

subject to Guidelines.

2. Judicial Challenge

The Guidelines rule was ultimately

upheld by the U.S. Court of Appeals for

the Tenth Circuit. Kennecott Copper

Corp. v. EPA, 612 F.2d 1232 (10th Cir.

1979). In affirming the Guidelines, the

Tenth Circuit relied on the language of

the Notice of Clarification and

considered moot the Petitioner’s

challenges to storm water runoff

provisions, which were based on the

argument that the Guidelines were

overbroad and included ‘‘nonpoint’’ as

well as ‘‘point sources.’’ Kennecott

Copper Corp., 612 F.2d at 1242. The

court further found that ‘‘* * * EPA is

entirely within its authority in

regulating [discharges of] storm runoff

that falls within [the definition of] a

‘point source.’ ’’ Id. at 1243.

Additionally, the court reasoned that

the determination of whether a

particular discharge constitutes a point

source is best made in the context of

permit proceedings, guided by the broad
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Notices 54953

4 ‘‘Point source’’ is defined at Clean Water Act

§ 502(14) to mean ‘‘any discernible, confined, and

discrete conveyance, including but not limited to

any pipe, ditch, channel, tunnel, conduit, well,

discrete fissure, container, rolling stock,

concentrated animal feeding operation, or vessel or

other floating craft, from which pollutants are or

may be discharged. See also 40 CFR 122.2.

5 In litigation over the Multi-Sector Permit, NMA

now suggests that the 10th Circuit relied on the

Agency statements concerning the status of storm

water drainage flows at the Ray Mine to uphold the

Guidelines and that the Agency cannot now

conclude that the court independently found the

storm water runoff provisions of the Guidelines

acceptable. EPA disagrees. The court’s decision

never cites or discusses any of these statements.

definition of ‘‘point source’’ provided in

the CWA.4 The Court recognized that it

is ‘‘unrealistic, if not altogether

impossible’’ to provide an ‘‘absolute and

unequivocal’’ definition of ‘‘point

source’’ and rule of applicability, further

supporting case-by-case or site-specific

determinations on applicability of the

Guidelines.

Congress has purposefully phrased this

definition broadly. This is as it should be

given its contemplated applicability to

literally thousands of pollution sources. To

cast such definitions in absolute,

unequivocal terms would be unrealistic, if

not altogether impossible. As we observed in

American Petroleum Institute, 540 F.2d at

1032: ‘‘On the road to attainment of the no

discharge objective some flexibility is

needed.’’

612 F.2d at 1243.

The court did not say anything further

in response to Kennecott’s arguments

complaining that the Guidelines would

improperly regulate nonpoint source

discharges at mine sites. The court did

not rely on or cite to any other

references in the administrative record

before it. In response to any remaining

arguments before it, the court simply

noted that ‘‘careful examination of

petitioner’s remaining arguments has

persuaded us that they are without

merit.’’ Id. at 1243. Thus, the court

either summarily rejected Kennecott’s

arguments that the guidelines were

vague and overbroad, or affirmatively

upheld the regulations against

Kennecott’s challenges based on reasons

explained in the decision.5

While, over the course of the

intervening years, the federal courts

have refined their interpretations of

‘‘point source,’’ EPA’s conclusions

about point sources at mining

operations has remained constant. In

upholding the Guidelines in Kennecott

Copper Corp., the Tenth Circuit

specifically cited to one of the seminal

cases upon which courts rely for the

proposition that the term ‘‘point source’’

should be interpreted broadly, United

States v. Earth Sciences, Inc., 599 F.2d

368 (10th Cir. 1979). 612 F.2d at 1241,

1243. In the Earth Sciences case, the

Tenth Circuit concluded that

uncollected surface runoff was a point

source, specifically, groundwater seeps

from under a combination of sumps,

ditches, hoses, and pumps in a closed

‘‘heap leach’’ gold mining operation.

Earth Sciences, 599 F.2d at 374.

Therefore, the court recognized that

even seemingly ‘‘uncollected runoff’’

from point sources were and could be

regulated under the CWA and subject to

the Guidelines limitations.

3. Subsequent Agency Action

Apart from the Agency statements

made during the course of the Kennecott

Copper Corp. litigation, EPA staff has

not been able to locate evidence of

subsequent Agency action referring to

those statements. In an undated

guidance package (circa early 1980’s)

prepared by EPA Headquarters for EPA

and State NPDES permit writers, the

Agency interpreted the term ‘‘active

mining area’’ broadly to exclude only

areas unaffected by mining or milling.

The document also identified parts of

the ‘‘active mining area’’ to include the

excavations of deep mines and surface

mines; leach areas; refuse, middling,

and tailings areas; tailings ponds,

holding and settling basins; and other

ancillary areas to a mine or mill.

Additionally, that document also

explains that an ‘‘active mining area’’

can include mine areas where there is

actually no extraction, removal, or

recovery of metal ore, including where

mine drainage is removed from a deep

mine to protect present and future

working areas, pumping out and

rehabilitation of a closed mine prior to

reentry, and pumping of an adjacent

mine to protect present and future

workings in an active mining area. This

document suggests that

contemporaneous Agency intent was to

include certain areas, such as waste rock

piles, within the scope of the active

mining area.

Since that time, EPA and authorized

NPDES States have issued permits to a

significant number of ore mining and

dressing operations. No party has ever

identified or presented any of the

Agency litigation statements from the

Kennecott Copper Corp. case as

evidence that the Agency does not

interpret the term ‘‘mine drainage’’ very

broadly.

A subsequent judicial case, which

EPA cited in the 1990 storm water

regulations, further clarifies that storm

water associated with industrial activity

at mining sites may result in point

source discharges. See Sierra Club v.

Abston Construction Co., Inc., 620 F.2d

41 (5th Cir. 1980); 55 FR at 47997. In

that case, the court determined that

whether a point source discharge was

present due to rainfall causing sediment

basin overflow and erosion of piles of

discarded material, even without direct

action by coal miners, was a question of

fact. 620 F.2d at 45. The ultimate

question was whether the discharge is

from a ‘‘discernible, confined, discrete

conveyance,’’ whether by gravitational

or non-gravitational means. Id. It was

irrelevant that operators did not

construct the conveyances, so long as

those conveyances were reasonably

likely to be the means by which

pollutants were ultimately deposited

into a navigable body of water. Id.

Conveyances of pollution formed either

as a result of natural erosion or by

material means may fit the statutory

definition of point source. Id.

II. NPDES Storm Water General MultiSector Permit for Industrial Activities

A. Background

In 1987, Congress amended the CWA

by adding, among other things, several

provisions concerning the control of

point source discharges composed

entirely of storm water. In the 1987

amendments, Congress directed EPA to

publish permit application regulations

for ‘‘discharges of storm water

associated with industrial activity.’’

CWA section 402(p)(4)(A), 33 U.S.C.

1342(p)(4)(A). On November 16, 1990,

EPA published those regulations. In

doing so, EPA defined ‘‘storm water’’ as

storm water runoff, snow melt runoff,

and surface runoff and drainage. It also

defined ‘‘[s]torm water discharge

associated with industrial activity’’ to

mean the discharge of pollutants from

any conveyance which is used for

collecting and conveying storm water

and which is directly related to

manufacturing, processing, or raw

materials storage areas at an industrial

plant. See 40 CFR 122.26(b)(14).

Included among these discharges were

discharges from conveyances at mining

facilities. 40 CFR 122.26(b)(14)(iii).

Upon challenge, this part of the

regulations was upheld by the U.S.

Court of Appeals for the Ninth Circuit.

American Mining Congress v. EPA, 965

F.2d 759 (9th Cir. 1992) (regulations

upheld against industry challenge that

the rules, among other things, imposed

retroactive liability for storm water

discharges from existing mine sites).

The issues in that case are related to, but

different from, the issues addressed in

today’s action. That case involved

inactive mines; today’s action involves

active mining operations.

The NPDES regulations for storm

water describe three mechanisms by

which dischargers of storm water
54954 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Notices

associated with industrial activity could

apply for permits. 40 CFR 122.26(c)(1).

First, dischargers can apply for

‘‘individual permits.’’ Second (prior to

1992), dischargers could apply for

permits through a ‘‘group application.’’

Third, dischargers can apply for

coverage under an ‘‘EPA promulgated

storm water general permit.’’

Dischargers from numerous industries

applied for permits through the group

application process. Among them were

dischargers from the ore mining and

dressing industry.

On March 10, 1993, EPA accepted

group applications from ore mining and

dressing industry applicants and began

processing those group applications. On

November 19, 1993, EPA proposed to

issue a single ‘‘general’’ permit (for each

State where EPA issues permits) based

on all of the group applications

accepted and received from group

applicants in various covered

industries. 58 FR 61146, 61236–61251

(November 19, 1993). EPA issued that

set of general permits on September 29,

1995, and took subsequent action

concerning these general permits on

February 9, 1996, February 20, 1996 and

September 24, 1996. These general

permits are entitled the NPDES Storm

Water Multi-Sector General Permits for

Industrial Activities (hereinafter

referred to in the singular as the ‘‘MultiSector Permit’’). The Multi-Sector

Permit applies in most States,

Territories, and Indian Country where

EPA administers the NPDES permitting

program.

The Multi-Sector Permit contains

requirements that are specifically

tailored to the types of industrial

activity occurring at facilities

represented by various industry groups

applicants. Unlike much of the Ore

Mining and Dressing Guidelines, the

Multi-Sector Permit incorporates

narrative effluent limitations for storm

water discharges. These narrative

effluent limitations are referred to as

‘‘best management practices’’ (‘‘BMPs’’).

BMPs are designed to represent the

pollution reductions achievable through

application of BAT and BCT. Permits

include BMPs to control or abate the

discharge of pollutants when, for

example, numeric effluent limitations

are infeasible. 40 CFR 122.44(k).

B. Multi-Sector Permit Coverage of

Mining Activity

By its terms, the Multi-Sector Permit

provides authorization for some storm

water discharges from ore (metal)

mining and dressing facilities.

Authorization is limited, however, to

storm water discharges from or off of:

topsoil piles; offsite haul/access roads

outside the active mining area; onsite

haul roads if not constructed of waste

rock or spent ore (except if mine

drainage is used for dust control); runoff

from tailings dams/dikes when not

constructed of waste rock/tailings and

no process fluids are present;

concentration buildings, if no contact

with material piles; mill sites, if no

contact with material piles; chemical

storage areas; docking facilities, if no

excessive contact with waste product;

explosive storage areas; reclaimed areas

released from reclamation bonds prior

to December 17, 1990; and partially/

inadequately reclaimed areas or areas

not released from reclamation bonds.

The Multi-Sector Permit covers

discharges composed of entirely storm

water flows, as well as certain allowable

non-storm water discharges. 60 FR at

51114; Part III.A. The Multi-Sector

Permit does not authorize point source

dry weather discharges, such as from

mine adits, tunnels, or contaminated

springs or seeps, which are not storm

water. Id.; Part III.A.2.a.; 60 FR at 51155.

Note that such dry weather discharges

are not affected by today’s clarification.

Under the Multi-Sector Permit at Part

I.B.3.g., permit coverage is available for

storm water discharges covered by

some, but not all, of the various effluent

guidelines that address storm water,

including, for example, some of the

storm water discharges under the

Mineral Mining and Processing

Guidelines at 40 CFR part 436. 60 FR at

51112. The Multi-Sector Permit does

not, however, cover storm water

discharges from point sources that are

subject to the Ore Mining and Dressing

Guidelines. 60 FR at 51155; Part

XI.G.1.a.

Table G–4 of the Multi-Sector Permit,

entitled ‘‘Applicability of 40 CFR Part

440 Effluent Limitations Guidelines to

Storm Water,’’ identifies various

discharge sources associated with ore

mining and dressing operations. The

Table then indicated EPA’s view

concerning standards of regulatory

control for those discharges. The

different standards of regulatory control

include: ‘‘mine drainage’’ effluent

limitations guidelines, found in the

Guidelines; ‘‘mill discharge process

water’’ effluent limitations guidelines,

also found in the Guidelines; ‘‘storm

water,’’ which could, for example, be

found in the Multi-Sector Permit; and

‘‘unclassified,’’ indicating discharges

not regulated under the Guidelines or

the Multi-Sector Permit.

As EPA said in adopting the MultiSector Permit: ‘‘Table G–4 clarifies the

applicability of the Effluent Limitations

Guidelines found in 40 CFR part 440.

This Table does not expand or redefine

these Effluent Limitations Guidelines.’’

60 FR at 50897 (emphasis added). EPAs

intent in publishing Table G–4,

therefore, was merely to reiterate the

interpretation that EPA issued when it

promulgated the Guidelines.

III. Legal Challenge Concerning Table

G–4

On October 10, 1995, the National

Mining Association (hereinafter referred

to as ‘‘NMA’’ or the ‘‘Petitioners’’)

petitioned the U.S. Court of Appeals for

the Eighth Circuit for judicial review of

the Multi-Sector Permit. Specifically,

Petitioners challenged EPAs

determination that storm water runoff

from a number of ancillary mine sources

identified in Table G–4 of the MultiSector Permit would constitute sources

of ‘‘mine drainage’’ under the

Guidelines. The particular mining

activities of concern include overburden

piles, haul roads made of overburden

and other ancillary mine areas that fall

within the Guidelines definition of

‘‘mine drainage,’’ or drainage from the

active ‘‘mining area.’’ As noted above,

EPA excluded storm water runoff from

these sources from coverage under the

Multi-Sector Permit. The Petitioners

contended that this determination

reflects a new, more expansive

interpretation of the Guidelines.

NMA presented documents from the

prior Kennecott litigation, namely: EPAs

1979 decision responding to Kennecott’s

petition for reconsideration of the

Guidelines; a letter of EPA counsel

which was attached to a decision

responding to the Kennecott petition for

reconsideration of the Guidelines; and a

brief that EPA filed before the Tenth

Circuit. NMA cited these documents to

support its argument that EPA’s

interpretation prior to publishing the

Multi-Sector Permit was that

‘‘overburden’’ (‘‘waste rock/overburden

piles’’) would be outside the scope of

the Guidelines. NMA asserted that

certain entries in Table G–4 were

incorrect to the extent that the table

categorically identified discharges from

overburden-related sources as covered

by the Guidelines. NMA argued that,

based on EPA statements made during

the course of the Kennecott litigation, no

overburden-related areas are covered by

the Guidelines.

EPA has reviewed the Agency

statements made during the 1979

litigation challenging the Guidelines

rulemaking. While disagreeing with

NMAs categorical conclusion that no

overburden-related areas are covered by

the Guidelines, EPA believes the earlier

Agency statements reflect an EPA

interpretation that storm water

discharges from ‘‘waste rock/overburden
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Notices 54955

piles’’ would be subject to the

Guidelines only if the ‘‘waste rock/

overburden piles’’ are within the ‘‘active

mining area’’ and the resulting storm

water flows drain into a point source.

This may include, but would not be

limited to, such flows that combine with

either process waters (i.e., mill drainage)

or other mine drainage. This

clarification was not obvious from the

face of Table G–4 as presented in the

Multi-Sector Permit.

NMAs challenge to the Multi-Sector

Permit is currently under the

advisement of the Eighth Circuit. Both

parties have submitted briefs. A

coalition of citizens interest groups, the

Western Mining Action Project and

Sierra Club Legal Defense Fund, also

filed an amicus curiae brief with the

Court. On March 10, 1997, the Eighth

Circuit heard oral argument in National

Mining Association v. EPA, No. 95–

3519. At that time, counsel for EPA

represented to the court that EPA

intended to prepare a clarification of the

Agencys interpretation of the

technology-based effluent limitations

applicable to point source discharges

from various areas at ore mining and

dressing operations. Todays notice

provides that clarification and would

revise the Table so that it reflects only

sources to which the Permit would

apply.

IV. Interpretation

Upon fuller review of the underlying

record, EPA now believes that, in 1978–

79, the Agency did not consider certain

point source discharges of storm water

associated with ‘‘waste rock and

overburden’’ to be subject to the Ore

Mining and Dressing Guidelines.

Specifically, EPA did not conduct a

complete economic and technological

assessment of diverting drainage flows

from ‘‘waste rock or overburden’’

outside the active mining area into the

active mining area. Therefore, the

Agency did not consider such

discharges to be sources of mine

drainage. First, discharges from ‘‘waste

rock/overburden piles’’ would be

outside the scope of the Guidelines if

they consist ‘‘entirely of diffuse runoff

which contacts overburden piles, which

did not either normally flow to, or by

design drain to a point source.’’ Such

diffuse runoff would not even be subject

to the NPDES permit program if it was

not added to waters of the United States

through a discrete, confined,

discernable conveyance. See 44 FR 7953

(Feb. 8, 1979). Second, such discharges

would be outside the scope of the

Guidelines if storm water runoff from

overburden-related sources was not

within the ‘‘active mine area.’’ In light

of the above, EPA believes that, to the

extent that a reader could misinterpret

the Table as categorically including all

‘‘waste rock/overburden’’ sources to be

within the ‘‘active mining area,’’ Table

G–4 did not accurately reflect the scope

of the applicability of the Guidelines.

Todays action does not change in any

way EPAs interpretation of the coverage

of the Guidelines set forth in the 1979

Notice of Clarification, which provides

that the Guidelines ‘‘are not intended to

require the operator to collect and

contain diffuse storm water runoff

which would not otherwise be collected

in or does not otherwise drain into a

point source.’’ Todays notice articulates

the 1979 interpretation to the fact

situation contained in Table G–4 of the

Multi-Sector Permit.

Discharges from overburden-related

sources that are outside of the ‘‘active

mining area’’ are not covered by the

Guidelines. Like all ‘‘point source’’

discharges, however, these discharges

require NPDES permit authorization to

be in compliance with the CWA. If these

discharges are entirely composed of

storm water (and are not covered by the

Guidelines), then they may be

authorized under an EPA general permit

for storm water (if it otherwise meets the

eligibility provisions), or an individual

permit with BPJ-based controls, which

may include either numeric limitations

and/or narrative limitations (in the form

of BMPs).

Discharges from haul roads

constructed of waste rock or spent ore

are subject to the Guidelines only if the

haul roads so constructed are within the

‘‘active mining area’’ and the resulting

storm water flows drain into a point

source. Such discharges would be

outside the scope of the Guidelines if

they are outside the ‘‘active mining

area.’’ Point source discharges

consisting entirely of storm water from

haul road-related sources outside the

active mining area would be addressed

in the same manner as ‘‘waste rock and

overburden’’ outside the active mining

area (see above). As noted above, such

discharges would be outside the scope

of the NPDES program if they consist

entirely of diffuse runoff which does not

flow to a point source.

Though EPA notes that overburden

piles (thus, runoff from overburden) are

sometimes outside the ‘‘active mining

area,’’ NPDES permit coverage is still

required when such flows are channeled

or drain to a point source. Under todays

clarification, determinations about

whether numeric effluent limitations

similar to those in the Ore Mining and

Dressing Guidelines should apply to

discharges from overburden piles and

haul roads outside the active mining

area are ones to be made on a site-bysite basis based on the ‘‘best

professional judgment’’ of the permit

writer (according to regulations at 40

CFR § 125.3(d)). Such permits might

include effluent limitations similar to

the effluent limitations for ‘‘mine

drainage’’ under the Guidelines. If

determined feasible, EPA acknowledges

that compliance with such limits may

necessitate diversion of flows from such

sources into the active mining area for

treatment. EPA provides additional

guidance below.

V. Guidance to Permit Applicants and

Permit Writers

Based on the foregoing discussion,

EPA is proposing Table G–4 in a revised

form today. In its earlier form, Table G4 could have been misinterpreted.

Consistent with earlier EPA statements

made in the preamble to the Guidelines,

the Development Document, the Notice

of Clarification and other documents

discussed above, the Table G–4

references to discharges from ‘‘waste

rock/overburden’’ and ‘‘onsite haul

roads constructed of waste rock or spent

ore’’ at active ore mining and dressing

sites are hereby modified. The Agency

does not consider those discharges to be

subject to the Guidelines on a

categorical basis unless they are within

the ‘‘active mining area’’ and the

resulting storm water flows drain into a

point source. Although not compelled

by the Guidelines, numeric effluent

limitations may be appropriate for these

discharges (i.e., point source drainage

from outside the active mining area) if

the permit writer so determines on a BPJ

basis or if the discharge would cause or

contribute to a violation of water quality

standards.

The Agency still presumes that

‘‘active mining area’’ should be

interpreted as broadly as the plain

language of the regulations suggests;

however, application of the definition

may vary from mine to mine. As the

Tenth Circuit recognized in the

Kennecott Corp. case, ‘‘to cast such

definitions in absolute, unequivocal

terms would be unrealistic, if not

altogether impossible.’’ 612 F.2d at

1243. The regulations define ‘‘active

mining area’’ as ‘‘a place where work or

other activity related to the extraction,

removal, or recovery of metal ore is

being conducted, except, with respect to

surface mines, any area of land on or in

which grading has been completed to

return the earth to desired contour and

reclamation work has begun.’’ 40 CFR

440.132(a). The Agency continues to

reject any distinction between ‘‘process’’

and ‘‘nonprocess’’ areas at mining

operations to determine the nature and
54956 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Notices

scope of the active mining area. Many

areas that some might consider to be

‘‘nonprocess’’ areas do constitute part of

the active mining area provided that

work or other activity related to

extraction, removal, or recovery of metal

ore is being conducted (until the mining

operation finishes recontouring and

begins reclamation).

Today’s proposed interpretation and

guidance describe a distinct class of

discharges that was not distinct from the

face of Table G–4 when the Agency

published the Multi-Sector Permit.

Specifically, today’s proposed

interpretation identifies some

discharges that could have been

interpreted to be ‘‘mine drainage’’ under

the plain language of the Guidelines

and, therefore, within the applicability

of the Guidelines and ineligible for

coverage under the ore mining and

dressing portion of the Multi-Sector

General Permit (and under Table G–4)

even though the Agency did not

evaluate the technological feasibility

and cost impacts of diverting drainage

from those sources into the active

mining area when it developed the Ore

Mining and Dressing Guidelines. Based

on today’s proposed clarification, such

an interpretation would be inaccurate

because EPA did not require diversion

of flows from outside the active mining

area into the active mining area for

treatment. For this distinct and limited

class of discharges described by today’s

notice, i.e., those overburden/waste rock

sources outside the active mining area,

authorization under an EPA general

permit for storm water may be available.

Note that the permit applicant bears

the initial responsibility to determine

whether its discharges are eligible for

coverage under an EPA-issued general

permit. Discharges of ‘‘mine drainage’’

from the ‘‘active mining area’’ are not

eligible for authorization under either

the NPDES Baseline General permit or

the Multi-Sector Permit because such

discharges are subject to the Guidelines.

For this reason, EPA encourages permit

applicants to contact the NPDES permit

issuance authority if there is any doubt

regarding the nature and scope of the

‘‘active mining area’’ at the site of their

operations. In many cases,

modifications to individual permits may

be more appropriate for longer-term

authorization of the storm discharges in

question. Of course, as indicated in the

Table, there may be other such point

sources of drainage from within the

active mining area that would not be

‘‘mine drainage.’’ Such discharges may

be appropriately regulated under EPA

general permits for storm water.

EPA also recommends that permit

applicants contact the relevant NPDES

authority for assistance in determining

the appropriate permitting vehicle to

address the class of discharges

described in today’s notice. Individual

permits provide the opportunity to

tailor controls appropriate for the

discharge, for example, through the use

of best professional judgment (BPJ)

according to 40 CFR 125.3(d) or

analogous State law, and where

necessary to assure compliance with

water quality standards. If the NPDES

permitting authority has data, for

example, which indicate that discharges

outside the active mining area only

present pollution concerns associated

with solids (e.g., settleable solids or

total suspended solids), the permit

requirements for those discharges may

be limited to controlling those solids.

However, if discharges contain heavy

metals, the permitting authority, using

BPJ, should establish appropriate

technology-based metals effluent

limitations. Further, if the permitting

authority has data to indicate a

reasonable potential to cause or

contribute to an excursion of water

quality standards for other pollutants,

including pH and/or heavy metals, then

the permit must include those more

stringent requirements to assure

compliance with water quality

standards. EPA recommends ongoing

monitoring for both pH and metals

because the complex geochemistry at

many mine sites presents difficulty in

predicting the quality of storm water

into the future.

In cases where there is a dry weather

discharge outside the scope of the

Guidelines, EPA strongly recommends

that the permitting authority issue an

individual NPDES permit using BPJ to

establish appropriate technology-based

limits or more stringent limitations

necessary to assure compliance with

water quality standards. The permitting

authority should consider the degree of

pollutant discharges (especially,

whether the discharge contains heavy

metal pollutants) and must consider the

impact on the receiving water when

establishing appropriate water qualitybased controls on the discharge.

Finally, the Agency cautions that

today’s interpretation should not be

read as a license for mine operators to

convert point source discharges into

‘‘nonpoint’’ sources in order to avoid

regulation under the NPDES permit

program. If a mining operation has a

discernable, confined, discrete

conveyance, any attempt to avoid

regulation by intentional ‘‘diffusion’’ of

that waste water stream, for example by

spraying it over a hill side or inserting

diffusing devices at the ends of drainage

culverts, would still constitute a point

source discharge if the waste water

ultimately enters waters of the United

States (as opposed to appropriate land

application of such waste waters). While

such diffusion may beneficially reduce

the potential for erosion and instream

sedimentation, it would not eliminate

the need for treatment where necessary,

for example, where the discharge

contains metals contributing to a

violation of State water quality

standards.

VI. Regulation Assessment

Requirements

A. Executive Order 12866

Under Executive Order 12866 (58 FR

51735; October 4, 1993), the Agency

must determine whether the regulatory

action is ‘‘significant’’ and therefore

subject to OMB review and the

requirements of the Executive Order.

The Order defines ‘‘significant

regulatory action’’ as one that is likely

to result in a rule that may:

(1) Have an annual effect on the

economy of $100 million or more, or

adversely affect in a material way the

economy, a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety, or

State, local, or tribal governments or

communities;

(2) Create a serious inconsistency or

otherwise interfere with an action taken

or planned by another agency;

(3) Materially alter the budgetary

impact of entitlements, grants, user fees,

or loan programs or the rights and

obligations of recipients thereof; or

(4) Raise novel legal or policy issues

arising out of legal mandates, the

President’s priorities, or the principles

set forth in the Executive Order.

Because the Agency takes the position

that NPDES general permits are not

‘‘rules’’ or ‘‘regulations’’ subject to the

rulemaking requirements of

Administrative Procedure Act section

553, it has been determined that this

rule is not a ‘‘significant regulatory

action’’ under the terms of Executive

Order 12866 and is therefore not subject

to OMB review.

B. Regulatory Flexibility Act

The Agency has determined that the

permit modification being published

today is not subject to the Regulatory

Flexibility Act (‘‘RFA’’), which

generally requires an agency to conduct

a regulatory flexibility analysis of any

significant impact the rule will have on

a substantial number of small entities.

By its terms, the RFA only applies to

rules subject to notice-and-comment

rulemaking requirements under the

Administrative Procedure Act (‘‘APA’’)
Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Notices 54957

or any other statute. Today’s permit

modification is not subject to notice and

comment requirements under the APA

or any other statute because the APA

defines ‘‘rules’’ in a manner that

excludes permits. See APA section 551

(4), (6), and (8).

APA section 553 does not require

public notice and opportunity for

comment for interpretative rules or

general statements of policy. In addition

to proposing modification of the general

permit, today’s action repeats an

interpretation of existing regulations

promulgated almost twenty years ago.

The action would impose no new or

additional requirements.

C. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA), P.L. 104–

4, establishes requirements for Federal

agencies to assess the effects of their

regulatory actions on State, local, and

tribal governments and the private

sector. Under section 202 of the UMRA,

EPA generally must prepare a written

statement, including a cost-benefit

analysis, for proposed and final rules

with ‘‘Federal mandates’’ that may

result in expenditures to State, local,

and tribal governments, in the aggregate,

or to the private sector, of $100 million

or more in any one year.

For reasons explained in the

discussion regarding the Regulatory

Flexibility Act, the UMRA only applies

to rules subject to notice-and-comment

rulemaking requirements under the

APA or any other statute. Today’s

permit modification is not subject to

notice and comment requirements

under the APA or any other statute

because the APA defines ‘‘rules’’ in a

manner that excludes permits. See APA

section 551 (4), (6), and (8).

Today’s proposed permit modification

contains no Federal mandates (under

the regulatory provisions of Title II of

the UMRA) for State, local, or tribal

governments or the private sector.

Today’s proposed modification merely

announces an Agency interpretation of

existing regulations. EPA has

determined that this permit

modification does not contain any

Federal mandate that may result in

expenditures of $100 million or more

for State, local, and tribal governments,

in the aggregate, or the private sector in

any one year. Therefore, today’s

proposed permit modification is not

subject to the requirements of section

202 of the UMRA.

Before EPA establishes any regulatory

requirements that may significantly or

uniquely affect small governments,

including tribal governments, it must

have developed under section 203 of the

UMRA a small government agency plan.

The plan must provide for notifying

potentially affected small governments,

enabling officials of affected small

governments to have meaningful and

timely input in the development of EPA

regulatory proposals with significant

Federal intergovernmental mandates,

and informing, educating, and advising

small governments on compliance with

the regulatory requirements. Because

today’s proposed modification is based

on an interpretation of existing

regulations and because EPA anticipates

that extremely few, if any, small

governments operate mining operations,

EPA has determined that this action

contains no regulatory requirements that

might significantly or uniquely affect

small governments.

D. Paperwork Reduction Act

The proposed permit modification

contains no requests for information and

consequently is not subject to the

Paperwork Reduction Act, 44 U.S.C.

3501 et seq.

Signed this 26th day of September, 1997.

Patricia L. Meany,

Acting Regional Administrator, Region 1.

Signed this 26th day of September, 1997.

Jerry Clifford,

Acting Regional Administrator, Region 6.

Signed this 25th day of September, 1997.

Deborah Jordan,

Acting Regional Administrator, Region 9.

Signed this 25th day of September, 1997.

Philip S. Millam,

Acting Regional Administrator, Region 10.

1. For the reasons set forth in this

preamble, the table published on

September 29, 1995, at 60 FR 50897

would be modified to read as follows:

TABLE G–4.—APPLICABILITY OF THE MULTI-SECTOR GENERAL PERMIT TO STORM WATER RUNOFF FROM ACTIVE ORE

(METAL) MINING AND DRESSING SITES

Discharge/source of discharge Note/comment

Piles (seepage and/or runoff):

Waste rock/overburden ..................................................................... If not in active mining area and composed entirely of storm water. See

Note below.

Topsoil

Roads constructed of waste rock or spent ore:

Onsite haul roads .............................................................................. If not in active mining area and composed entirely of storm water. See

Note below.

Offsite haul/access roads .................................................................. If outside of the active mining area.

Roads not constructed of waste rock or spent ore:

Onsite haul roads .............................................................................. Except if ‘‘mine drainage’’ is used for dust control.

Offsite haul/access roads

Milling/concentrating:

Runoff from tailings dams/dikes when constructed of waste rock/

tailings.

Except if process fluids are present and only if not in active mining

area and composed entirely of storm water. See Note below.

Runoff from tailings dams/dikes when not constructed of waste

rock/tailings.

Except if process fluids are present.

Concentration building ....................................................................... If storm water only and no contact with piles.

Mill site ............................................................................................... If storm water only and no contact with piles.

Ancillary areas:

Office/administrative building and housing ........................................ If mixed with storm water from the industrial area.

Chemical storage area

Docking facility ................................................................................... Except if excessive contact with waste product that would otherwise

constitute ‘‘mine drainage.’’

Explosive storage

Fuel storage (oil tanks/coal piles)

Vehicle/equipment maintenance area/building

Parking areas .................................................................................... But coverage unnecessary if only employee and visitor-type parking.
54958 Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / Notices

TABLE G–4.—APPLICABILITY OF THE MULTI-SECTOR GENERAL PERMIT TO STORM WATER RUNOFF FROM ACTIVE ORE

(METAL) MINING AND DRESSING SITES—Continued

Discharge/source of discharge Note/comment

Power plant

Truck wash area ................................................................................ Except when excessive contact with waste product that would otherwise constitute ‘‘mine drainage.’’

Reclamation-related areas:

Any disturbed area (unreclaimed) ..................................................... Only if not in active mining area.

Reclaimed areas released from reclamation bonds prior to Dec.

17, 1990

Partially/inadequately reclaimed areas or areas not released from

reclamation bond

Storm water runoff from these sources are subject to the NPDES program for storm water unless mixed with discharges subject to the 440

CFR Part 440 that are not regulated by another permit prior to mixing. Non-storm water discharges from these sources are subject to NPDES

permitting and may be subject to the effluent limitation guidelines under 40 CFR Part 440.

Note: Discharges from overburden/waste rock and overburden/waste rock-related areas are subject to 40 CFR part 440 if the source of the

drainage flows is within the ‘‘active mining area’’ and the resulting storm water flows drain to a point source. For such sources outside the active

mining area, coverage under this permit would be available if the discharge is composed entirely of storm water and not subject to 40 CFR Part

440, as well as meeting other eligibility criteria contained in Part I.B. of the permit. Permit applicants bear the initial responsibility for determining

the applicable technology-based standard for such discharges. EPA recommends that permit applicants contact the relevant NPDES permit issuance authority for assistance to determine the nature and scope of the ‘‘active mining area’’ on a mine-by-mine basis, as well as to determine the

appropriate permitting mechanism for authorizing such discharges.

2. The third sentence in the first

paragraph in permit eligibility provision

for Storm Water Discharges Associated

with Industrial Activity from Metal

Mining (Ore Mining and Dressing),

Section XI.G.1. (introductory language),

previously published on September 29,

1995, at 60 FR 51155, would be

modified and a fourth and fifth sentence

would be added to read as follows:

1. Discharges Covered Under This

Section

* * * All storm water discharges

from inactive metal mining facilities

and storm water discharges from the

following areas of active, and

temporarily inactive, metal mining

facilities are the only discharges covered

by this permit: waste rock/overburden

piles outside the active mining area;

topsoil piles; offsite haul/access roads if

outside of the active mining area; haul/

access roads constructed of waste rock/

overburden if outside of the active

mining area; onsite haul/access roads

not constructed of waste rock/

overburden/ spent ore except if mine

water is used for dust control; runoff

from tailings dams/dikes when not

constructed of waste rock/tailings and

no process fluids are present; runoff

from tailings dams/dikes when

constructed of waste rock/tailings and

no process fluids are present if outside

the active mining area; concentration

building if no contact with material

piles; mill site if no contact with

material piles; office/administrative

building and housing if mixed with

storm water from industrial area;

chemical storage area; docking facility

except if excessive contact with waste

product; explosive storage; fuel storage;

vehicle/equipment maintenance area/

building; parking areas (if necessary);

power plant; truck wash areas except

when excessive contact with waste

product; unreclaimed, disturbed areas

outside of active mining area; reclaimed

areas released from reclamation bonds

prior to December 17, 1990; and

partially/inadequately reclaimed areas

or areas not released from reclamation

bond. Note: Discharges from

overburden/waste rock and overburden/

waste rock-related areas are subject to

40 CFR part 440 if the source of the

drainage flows is within the ‘‘active

mining area’’ and the resulting storm

water flows drain to a point source. For

such sources outside the active mining

area, coverage under this permit would

be available if the discharge is

composed entirely of storm water and

not subject to 40 CFR part 440, as well

as meeting other eligibility criteria

contained in Part I.B. of the permit.

[FR Doc. 97–27854 Filed 10–21–97; 8:45 am]

BILLING CODE 6560–50–P