September 17, 2010

Mail Docket

Office of Water

Mailcode: 2822-T U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, N.W. Washington, D.C. 20460

Attention Docket ID No. EPA-HQ-OW-2010-0606

Re: Comments on Notice Regarding Stakeholder Input; Revisions to Water Quality Standards Regulation

To Whom It May Concern:

The National Mining Association (NMA) appreciates the opportunity to provide comments on the notice regarding Stakeh older Input; Revisions to Water Quality Standards Regulation (notice) that was issued by the U.S. Environmental Protection Agency (EPA) on July 30, 2010 (75 Fed. Reg. 44,930). NMA is a national trade association that includes the producers of most of the nation's coal, metals, industrial and agricultural minerals; the manufacturers of mining and mineral processing machinery, equipment and supp lies; and the engineering and consulting
firms, financial institutions and other firm s serving the mining industry. The issues

discussed in this notice are of extreme importance to NMA’s members, as mining operations nationwide are subject to the regulations promulgated pursuant to the Clean Water Act (CWA) and are directly impacted by both state and federal water quality requirements. Alterations to the existing regulatory scheme will therefore have a significant impact on the mining industry, and as such, NMA’s members will be severely affected by the proposed changes set forth in the notice.

As a general matter, NMA joins in the comments of NMA member Peabody Energy, the Federal Water Quality Coalition and other industry groups arguing that EPA has failed to provide sufficient evidence of an urgent need for undertaking a major revision of the Water Quality Standard (WQS) Regulation. Particularly in a time of economic downturn, there is a pressing n eed for predictability and transparency in all regulatory programs. To justify the changes proposed by EPA to the current WQS Regulation, EPA should provide suppor ting evidence showing that significant issues exist, as well as perform an analysis of the effect of the proposed regulations
on stakeholders. So far, EPA has failed to do either. Furthermore, to the extentPage 2

that EPA does proceed with its proposed rule changes, EPA should ensure that it does not infringe upon the primary role of the states in setting water quality standards under the CWA nor does it unduly restrict the use of available CWA mechanisms necessary for the establis hment of appropriate and attainable standards and permit limits.

In regards to the specific proposed changes to the requirements of the current regulation, NMA would like to make the following comments:

• Antidegradation: The purpose of granting states the authority over water quality standards is to ensure that various environmental factors, land uses and climates can be taken into consideration at regional and local levels. States are clearly best situated to make assessments of local conditions and are already required to ensure that their policies are consistent with the CWA and EPA regulations. To require states to submit their implementation methods to EPA for approval would in effect usurp that authority from the states, placing decisions instead in the hands of federal regulators and adding a superfluous layer of bureaucracy to the regulatory process. Under CWA § 303(c)(2)(A), a “revised or new water quality standard” that must be submitted to EPA for approval “shall consist of the designated uses of the navigable waters involved and the water quality criteria for such waters based upon such uses.” The only place the CWA mentions antidegradation policies is in CWA § 303(d)(4), which states that changes to effluent limitations, water quality standards and permitting standards may be made “only if such revision is subject to and consistent with the antidegradation policy established under this section. ” Current EPA regulations at 40 CFR § 131.12 requires states to “develop and adopt a statewide antidegradation policy and identify the methods for implementing such policy pursuant to this subpart.” At 40 CFR § 131.6 current EPA regulations also require that a water quality standards submission incl ude an antidegradation policy. These existing regulations already apply maximum extent of EPA’s authority over state antidegradation policies under the CWA. The CWA does not specify elements of implementation procedures, and therefore such elements are most properly and efficien tly left to the states.

• Designated Uses: EPA is considering creating a presumption that all designated water uses listed in Section 101(a)(2) of the CWA are attainable unless a state demonstrates otherwise by performing a use attainability analysis (UAA) approved by EPA. This is nothing more than a back-door means to federalizing decisions that Congress intended to be left with the states. EPA should abandon this approach. The proposed approach of creating a blanket presumption and placing the burden on states to prove a negative turns the CWA on its head. Under the CWA, use designations are clearly within the purview of the states and that is because Congress recognized that it is the states that are best equipped to make these decisions. Not only would EPA be upsetting the spirit and structure of the CWA, but EPA would be placing a tremendous burden on states as the cost of disproving EPA’s presumption will come at a particularly poor economic timePage 3

for states. The result will be that in most instances the federal blanket designation will stand, despite its ina ppropriateness, because the states will not have the resources to counter EPA’s blanket designation. EPA should not create a de facto federally imposed “all uses” designation of all state waters, imposing tremendous costs on states and industry. Should EPA move forward with this proposal, EPA must consider the costs imposed on states that must counter EPA’s blanket designati on as well as the cost to industries that will be forced to complete UAA where the states are unable to do so. Clearly, EPA has considered none of these costs.

• Variances: The WQS Regulation allows states to adopt variances as a means of implementing water quality standard s while working with dischargers in a wide variety of circumstances. States are clearly the most knowledgeable authority regarding which actions are appropriate and how variances should be implemented in their area when taki ng into consideration the totality of the local circumstances. Adding requirements to ensure “proper” use by states is both an unnecessary and unjustified proposal and one that will mean that the power to make assessments based on local conditions will be taken away from the states.

• Triennial Review: EPA is proposing to re quire that states solicit and consider public comments in their triennial review of water quality standards, and to perform an evaluation of whether their existing water quality criteria continue to be protective of designated us es as part of their triennial review. While NMA agrees that standards should be reviewed and modified based on sound science, NMA would like to emphasize that all stakeholders should be considered equally, and that during a triennial review it is also appropriate to determine whether existing water quality standards can be achieved in impaired waterbodies or whether a UAA should be performed.

• Definition of Water Quality Standards: EPA is considering revising the definition of “water quality standards” in 40 CFR 131.3 to more clearly define which state or tribal provisions constitute standards requiring EPA review and approval. EPA is basing this revision on an 11 th Circuit Court of Appeals

decision in Florida Public Interest Research Group Citizen Lobby, Inc. v. EPA, 386 F.3d 1070 (11 th Cir. 2004), which required that certain aspects of a state’s process for listing impaired waters be adopted as part of the state’s water quality standards and submitted to EPA for approval. NMA notes that EPA took a different position in the Florida Public case. NMA believes that the

Florida Public case was wrongly decided, and that the decision could be interpreted to require that any part of a state’s 303(d) listing process must be submitted to EPA for approval as a wa ter quality standard if it results in moving any waterbody off the list of impaired waters. Such a result would interfere with the ability of states to make their own decisions regarding the implementation of their water quality standards and the establishment of their criteria as to when a waterbody should be determined not to meet
those standards. Furthermore, while the Florida Public decision may apply in

the 11 th Circuit, there is no justificatio n for EPA to extend it nationallyPage 4

through new requirements for WQS Regulation, particularly in light of the potential uncertainty of the consequences of such an action.

• Compliance Schedules: In addition to the definition of water quality standards, EPA is also considering requiring that authorizing provisions for compliance schedules for implementing effluent limits in NPDES permits be adopted as part of a state’s water qual ity standards, and therefore subject to EPA review. Again, NMA opposes subjecting these state decisions to EPA judgment. EPA supports this proposed requirement by pointing to the case

of Star Kist Caribe , 3 EAD 172 (April 16, 1990). That case, however, does not require that the state put its compliance schedule provisions into the standard itself, but instead can include such provisions in the implementing regulations, which are not required to be submitted for EPA approval.
Furthermore, the Star Kist decision does not go so far as to encompass detailed compliance schedule provisions, and as such EPA has no authority to require that a state submit such provisions for EPA’s approval.

NMA appreciates the opportunity to comment on Revisions to Water Quality Standards Regulation. Any questions regarding these comments can be directed to

me at kbennett@nma.org or (202) 463-3240.

Sincerely,

Karen Bennett, Vice President, Environmental Affairs National Mining Association