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 Stakeholder 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 supplies; and the engineering and consulting 

firms, financial institutions and other firms 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 need for predictability and transparency in 

all regulatory programs. To justify the changes proposed by EPA to the current 

WQS Regulation, EPA should provide supporting 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 extent 
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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 establishment 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 include 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 efficiently 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 time 
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for states. The result will be that in most instances the federal blanket 

designation will stand, despite its inappropriateness, 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 designation 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 standards 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 taking 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 require 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 uses 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 11th Circuit Court of Appeals 

decision in Florida Public Interest Research Group Citizen Lobby, Inc. v. EPA, 

386 F.3d 1070 (11th 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 water 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 11th Circuit, there is no justification for EPA to extend it nationally 
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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 quality 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