Page 1 of 14

National Mining Association 101 Constitution Avenue, NW | Suite 500 East | Washington, DC 20001 | (202) 463-2600

Kevin Weiss

Acting Chief, Municipal Branch

Office of Wastewater Management, Office of Water

U.S. Environmental Protection Agency – 4203M

1200 Pennsylvania Ave N.W.

Washington, DC 20460

Re: Proposed Multi-Sector General Permit, Docket ID No. EPA-HQ-OW-2012-0803

Dear Mr. Weiss, 

The National Mining Association (NMA) is pleased to have the opportunity on 

Thursday, February 5th to meet with the U.S. Environmental Protection Agency (EPA or 

Agency) and discuss the Clean Water Act (CWA) multi-sector general permit (MSGP) to 

ensure the Agency incorporates appropriate and defensible technology-based effluent 

limitations (TBELs) for stormwater discharges associated with mining operations and 

stormwater discharges associated with construction activity. As NMA has discussed 

with EPA in prior correspondence and in-person meetings, our members have 

significant concerns with the newly added non-numeric TBELs in sections 8.G.4, 8.H.4 

and 8.J.4 of the proposed 2013 MSGP. Specifically, the TBELs proposed by EPA in 

sections 8.G.4, 8.H.4 and 8.J.4 of the MSGP incorrectly incorporate the non-numeric 

TBELs from the Construction & Development Effluent Limitation Guidelines (C&D ELG), 

40 C.F.R. Part 450, through the 2012 Construction General Permit (CGP), and 

inappropriately apply them to stormwater discharges associated with clearing, grading 

and excavation, as well as exploration activities, at mine sites. As discussed in greater 

detail below, this issue involves a complicated interplay between multiple technologybased ELGs, EPA’s industrial stormwater regulations, multiple EPA-issued National 

Pollutant Discharge Elimination System (NPDES) permits, and EPA’s NPDES 

permitting regulations.

This problem is the result of the definitions found in sections 8.G.3, 8.H.3 and 

8.J.3 of both the existing 2008 MSGP and the proposed 2013 MSGP, which are 

contrary to both EPA’s industrial stormwater regulations and the ELGs for the mining 

point source categories. See 40 C.F.R. § 122.26(b)(14)(iii); 40 C.F.R. Parts 434, 436, 

440. That this occurred is not surprising; clearing, grading and excavation activities 

occur at both mine sites and construction sites, and 40 C.F.R. § 122.26(b)(14)(iii) has 

not been clearly reconciled with (b)(14)(x) and (b)(15). As a result of the confusion 

caused by the incorrect definitions, EPA has arbitrarily incorporated the TBELs from the 
Page 2 of 14

National Mining Association 101 Constitution Avenue, NW | Suite 500 East | Washington, DC 20001 | (202) 463-2600

C&D ELG into 8.G.4, 8.H.4 and 8.J.4 for stormwater discharges associated with mining 

operations. Because the scope of the C&D ELG did not include the mining industry and 

EPA’s Office of Science and Technology did not consider the applicable statutory 

factors like economic achievability and technical feasibility as applied to the mining 

industry or mine sites, EPA cannot now apply the TBELs in the C&D ELG to mining 

operations.

Fortunately, there does not appear to be a larger policy disagreement between 

EPA and NMA on how to address stormwater discharges associated with mining 

operations that are regulated under the CWA, and there is a straightforward drafting 

solution to this issue. Specifically, and as discussed in more detail below, NMA 

requests that EPA revise the definitions in sections 8.G.3, 8.H.3 and 8.J.3 of the 

proposed 2013 MSGP.1These revised definitions are in accord with the ELGs and 

EPA’s industrial stormwater regulations, including the delineated scope of mining 

operations found in the Standard Industrial Classification (SIC) System and North 

American Industry Classification System (NAICS). As a result of the revised definitions, 

all stormwater discharges associated with mining operations regulated under the CWA 

will be subject to technology-based effluent limitations from either the applicable ELGs 

or established on a permit-by-permit basis by the permitting authority based on its best 

professional judgment.

I. Background

When EPA implemented CWA § 402(p) and created the industrial stormwater

program, the Agency identified categories of facilities considered to be engaging in 

industrial activity. See 40 C.F.R. § 122.26(b)(14). Stormwater discharges associated 

with industrial activity are required to obtain an NPDES permit. See CWA § 

402(p)(2)(B); 40 C.F.R. § 122.26(a)(1)(ii). To assist in identifying the facilities engaged 

in industrial activity, EPA based the categorization, in part, on the SIC and NAICS 

systems. See 40 C.F.R. § 122.26(b)(14)(ii), (iii), (vi), (viii), and (xi); 55 Fed. Reg. 47,990, 

48010 (Nov. 16, 1990) (SIC and NAICS codes “are commonly used and accepted and 

would provide definitions of facilities involved in industrial activity [and are a] generally 

used and understood form of classification”). Facilities classified by SIC Codes 10-14 

and NAICS Code 21 are identified by EPA as engaged in “mining operations,” and the 

associated stormwater discharges are regulated pursuant to 40 C.F.R. §

122.26(b)(14)(iii). However, for facilities engaged in “construction activity,” classified by 

 

1 NMA’s proposed definitions section, found in Section IV (pgs. 12-13) of this document, 

includes new definitions for “mining operations” and “reclamation activities,” deletes the 

definitions for “exploration phase,” “construction phase,” “reclamation phase,” and “final 

stabilization,” and maintains the definitions for “active phase,” “active mining facility,” 

“inactive mining facility,” and “temporarily inactive mining facility.” 
Page 3 of 14

National Mining Association 101 Constitution Avenue, NW | Suite 500 East | Washington, DC 20001 | (202) 463-2600

SIC Codes 15-17 and NAICS Code 236 (Construction of Buildings) and 237 (Heavy and 

Civil Engineering Construction), the associated stormwater discharges are regulated 

pursuant to 40 C.F.R. § 122.26(b)(14)(x), (15).

For stormwater discharges associated with both “mining operations” and 

“construction activity,” the permitting authority must promulgate, and the permittee must 

comply with, TBELs. See CWA § 402(p)(3)(A). There are three ways for the EPA to 

establish TBELs in the MSGP: (1) “application of EPA-promulgated effluent limitations 

developed under [CWA § 304] to discharges by category,” i.e., ELGs; (2) “on a caseby-case basis under [CWA § 402(a)(1)]...to the extent that EPA-promulgated [ELGs] 

are inapplicable,” otherwise known as on a best-professional judgment (BPJ) basis; and 

(3) a combination of (1) and (2). See 40 C.F.R. § 125.3(a), (c). Whichever way the 

TBELs are established, EPA must give consideration to the relevant statutory factors. 

See CWA § 304(b); 40 C.F.R. § 125.3(d); see also, Weyerhaeuser Company v. Costle, 

590 F.2d 1011, 1020, 1045 (D.C. Cir. 1978)(CWA § 304 “establishes the 

minimum...criteria that EPA must use in developing...industry-specific [technology 

based effluent] limitations”). Specifically, EPA must consider “the total cost of 

application of technology in relation to the effluent reduction benefits” or the “cost of 

achieving such effluent reductions.” CWA §§ 304(b)(1)(B), (2)(B); see also, American 

Iron and Steel v. EPA, 526 F.2d 1027, 1050 (3rd Cir.1975)(“Congress clearly intended

that the Administrator consider costs on a class or category basis”); E.I.du Pont de 

Nemours & Co. v. Train, 430 U.S. 112, 129 (1977) (“EPA may determine the economic 

achievability of an option on the basis of the overall effect of the rule on the industry's 

financial health”). Further, the Agency must consider “the age of the equipment and 

facilities involved, the processes employed, the engineering aspects of the application 

of various types of control techniques, process changes, non-water quality 

environmental impacts (including energy requirements), and such other factors as the 

[EPA] deems appropriate.” CWA §§ 304(b)(1)(B), (2)(B). 

The EPA has long established ELGs for facilities engaged in mining operations 

(Mining ELGs). See 40 C.F.R. Parts 434 (Coal Mining), 436 (Mineral Mining), and 440 

(Ore Mining). The Mining ELGs, in part, address stormwater discharges associated with 

mining operations; see e.g., 40 C.F.R. Part 440, Subpart M (Gold Placer Mining); 40 

C.F.R. Part 436, Subpart D (Industrial Sand Mining). For all other stormwater 

discharges associated with mining operations that are regulated under the CWA, where 

there is no applicable Mining ELG, the permitting authority must establish TBELs on a 

BPJ basis, as EPA correctly did in the 2008 MSGP. In contrast to the Mining ELGs, 

EPA only recently established TBELs for stormwater discharges associated with 

construction activity. In 2009, EPA finalized the C&D ELG, which established nonnumeric TBELs for stormwater discharges from construction sites. See 74 Fed. Reg. 

62,996 (Dec. 1, 2009).
Page 4 of 14

National Mining Association 101 Constitution Avenue, NW | Suite 500 East | Washington, DC 20001 | (202) 463-2600

II. The Definitions in the Proposed MSGP are Contrary to the CWA, EPA 

Regulations, and OSM Regulations 

NMA attributes EPA’s erroneous application of the effluent limitations in the C&D 

ELG to stormwater discharges associated with mining operations to a series of 

incremental missteps. EPA’s regulations require the Office of Water, when it establishes 

permit conditions, to “assure compliance with all applicable requirements of [the] CWA 

and regulations,” and an “applicable requirement” is “a statutory or regulatory 

requirement...which takes effect prior to the issuance of the permit.” 40 C.F.R. § 

122.43(a), (b)(1). Further, “reissued permits” shall incorporate each of the applicable 

requirements referenced in [§ 122.44],” which include “effluent limitations and standards 

promulgated under section 301 of the CWA,” like those in the C&D ELG. See 40 C.F.R. 

§ 122.44(a)(1). The definitions in the MSGP at sections 8.G.3, 8.H.3 and 8.J.3 include 

activities such as “exploration,” “land disturbance,” “building roads,” and “removal of 

overburden” as “exploration” and “construction” activity, outside the scope of “mining 

operations.” The C&D ELG applies to stormwater discharges associated with 

construction activity. See 40 C.F.R. § 450.10. As a result of this interplay, EPA applied 

the effluent limitations in the C&D ELG to stormwater discharges associated with 

“construction activity” and “exploration” as those terms are defined in the MSGP. 

However, the definitions are not in accord with the CWA, EPA’s industrial stormwater 

regulations, the Mining ELGs, or the Office of Surface Mining Reclamation and 

Enforcement’s (OSM) regulations.

A. The Proposed Definitions Conflict With the CWA and EPA’s Stormwater 

Regulations

The definitions in section 8.G.3, 8.H.3 and 8.J.3 conflict with EPA’s stormwater 

regulations at 40 C.F.R. § 122.26(b)(14)(iii), which define the scope of stormwater 

discharges associated with mining operations. EPA’s regulations rely on the SIC and 

NAICS system to categorize stormwater discharges associated with industrial activity. 

See 40 C.F.R. § 122.26(b)(14)(ii), (iii), (vi), (viii), and (xi); 55 Fed. Reg. 47,990, 48010 

(Nov. 16, 1990); see also, Decker v. Northwest Environmental Defense Center, 133 

S.Ct. 1326, 1332 (2013) (industrial categories in EPA’s stormwater regulation are 

defined in accordance with SIC Codes); Ecological Rights Foundation v. Pacific Gas 

and Elec. Co., 713 F.3d 502, 512 (9th Cir. 2013) (SIC codes determine the scope of 

categories of industrial stormwater under 40 C.F.R. §122.26(b)(14)(ii)-(iii),(iv),(viii),(xi)).2

 

2 See also, Brief for the United State as Amicus Curiae, 2012 WL 3864278 (U.S. 

Supreme Court), *6, fn. 2 (“The [Phase I] regulation incorporates by reference the 

enumerated Standard Industrial Classification (SIC) codes.”); *24 (“[t]o identify the 

categories of ‘facilities’ engaged in ‘industrial activity,’ EPA's regulation...incorporates 

by reference Standard Industrial Classification (SIC) codes”).
Page 5 of 14

National Mining Association 101 Constitution Avenue, NW | Suite 500 East | Washington, DC 20001 | (202) 463-2600

The proposed MSGP itself makes clear that the definitions in 8.G.3, 8.H.3 and 8.J.3 “are 

not intended to supersede the definitions...established by 40 CFR 122.26(b)(14)(iii).” 

Further, the proposed MSGP recognizes the role of the SIC and NAICS system in the 

industrial stormwater program; the sector specific TBELs for categories of industrial 

stormwater discharges are identified by SIC Codes. See MSGP at 8.G.1, 8.H.1, 8.J.1; 

Table D-1 of Appendix D of the proposed MSGP.3

The activities of “clearing,” “grading,” “excavation,” “exploration,” “land disturbance,” 

“building roads,” and “removal of overburden and waste rock” are all activities that EPA 

in the proposed MGSP mistakenly excluded from the scope of “mining operations.” For 

example, EPA’s proposed definition of “construction activity” in the MSGP includes the 

“removal of overburden,” meaning the proposed MSGP excludes from the scope of 

“mining operations” those stormwater discharges that come into contact with 

“overburden.” However, both CWA § 402(l)(2) and 40 C.F.R. § 122.26(b)(14)(iii) 

explicitly include “overburden” in the statutory and regulatory NPDES exemption for 

stormwater discharges associated with mining operations, meaning that if stormwater 

contacts overburden it is associated with mining operations, and requires NPDES 

permit authorization. Congress and the EPA both clearly expected that stormwater 

which comes into contact with overburden would be classified as stormwater discharges 

associated with mining operations. Additionally, all of the activities listed above are 

specifically identified as part of the mining industry in SIC Codes 10-14 and NAICS 

Code 21. See also, Appendix N of the proposed MSGP. For example, in SIC Code 10, 

in the major group explanation, included within the scope of mining operations is 

“developing mines,” and “exploring for...minerals.”4 Mining operations also include 

activities that involve clearing, grading, and excavating, and those activities are fully 

reflected within the scope of SIC Codes 10-14 and NAICS Code 21 for the mining 

industry as integral parts of the mining operations. The mining SIC and NAICS codes 

were designed in the context of operating mines, where there are many phases of 

mining, from “exploration” to “removal of overburden” to “reclamation,” including the 

associated “clearing, grading and excavation” activity. 

 

3

This is also in accord with EPA’s actions following the Phase I stormwater regulation, 

55 Fed. Reg. 47,990, where EPA established the Baseline General Industrial 

Stormwater Permit, which included industry-specific information, best management 

practices (BMPs) and monitoring data as defined by the SIC Codes. See 65 Fed. Reg. 

64,746, 64,747 (Oct. 30, 2000) (emphasis added). 

4 See also, e.g., SIC 1081 (Metal Mining Services) (“removal of overburden,” “mine 

exploration and development”); SIC 1241 (Coal Mining Services) (“overburden 

removal”); SIC 14 (Mining and Quarrying of Nonmetallic Minerals) (“developing mines,” 

“exploring for...minerals”); NAICS 212 (Mining) (“[t]he term mining is used in the broad 

sense,” “mine site development”). 
Page 6 of 14

National Mining Association 101 Constitution Avenue, NW | Suite 500 East | Washington, DC 20001 | (202) 463-2600

B. The Proposed Definitions Conflict With the Development of the Mining ELGs

The proposed definitions in the MSGP also conflict with EPA’s development of 

the Mining ELGs. Specifically, when EPA was developing the ELGs for the Ore Mining 

Point Source Category, the Agency broadly interpreted the term “mine.” For example, in 

the context of developing the ELGs, the Agency declared:

“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 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.” Development Document for Interim Final and 

Proposed Effluent Limitations Guidelines and New Source Performance 

Standards for the Ore Mining and Dressing Industry, Point Source Category Vol. 

1, U.S. Environmental Protection Agency (Oct. 1975), at 142 (emphasis added). 

Additionally, the Agency utilized the SIC and NAICS codes to delineate the scope of 

mining operations considered as part of the ELG rulemakings. For example, in the 

context of the ELGs for the Ore Mining Point Source Category, EPA examined and 

assessed the various subcategories of SIC Code 10, which “includes establishments 

primarily engaged in mining, developing mines, or exploring for metallic minerals,” and 

in the development document addressed issues such as “drilling and blasting necessary 

to remove consolidated overburden.”5 Similarly, the “applicability” section of 40 C.F.R. 

Part 434 for the Coal Mining Point Source Category expressly states that it applies to 

“discharges from any coal mine at which the extraction of coal is taking place or is 

planned to be undertaken and to coal preparation plants and associated areas.” 40 

C.F.R. § 434.10. 

It is important to note that stormwater discharges associated with mining 

operations not within the “active mine area” are outside the scope of the Mining ELGs, 

 

5 Development Document for Interim Final and Proposed Effluent Limitations Guidelines 

and New Source Performance Standards for the Ore Mining and Dressing Industry, 

Point Source Category Vol. 1, U.S. Environmental Protection Agency (Oct. 1975), at 32.
Page 7 of 14

National Mining Association 101 Constitution Avenue, NW | Suite 500 East | Washington, DC 20001 | (202) 463-2600

meaning the effluent limitations in the Mining ELGs do not apply to those discharges. 

See 63 Fed. Reg. 42,534, 42,538 (Aug. 7, 1998). However, those discharges outside 

the “active mine area” still fall under SIC Codes 10-14 and NAICS Code 21, discussed 

above, and are part of “mining operations.” Those stormwater discharges, if regulated, 

are still subject to TBELs, but it is up to the permitting authority to establish the effluent 

limitations in an NPDES permit on a BPJ basis, like EPA did in the 2008 MSGP. See 63 

Fed. Reg. at 42,538. All stormwater discharges from mine sites regulated under the 

CWA are subject to TBELs based on either the Mining ELGs, if the discharge is from 

the active mine area, or established on a BPJ basis if the discharge is outside the active 

mine area, which is the structure designed by EPA in the NPDES permitting regulations 

at 40 C.F.R. § 125.3(c). 

C. The Proposed Definitions Conflict With OSM’s Regulations Under SMCRA

EPA’s narrow proposed definition of “mining operations” also conflicts with 

OSM’s Surface Mining Control and Reclamation Act (SMCRA) implementing 

regulations. Specifically, 30 C.F.R. § 700.5 codifies what constitutes a “surface coal 

mining operation” for purposes of regulation, inspection, and enforcement under 

SMCRA. In relevant part, 30 C.F.R. § 700.5 states:

Surface coal mining operations mean—

(a) Activities conducted on the surface of lands in connection with a surface coal 

mine or, subject to the requirements of section 516 of the Act, surface operations 

and surface impacts incident to an underground coal mine, the products of which 

enter commerce or the operations of which directly or indirectly affect interstate 

commerce. Such activities include excavation for the purpose of obtaining coal, 

including such common methods as contour, strip, auger, mountain top removal, 

box cut, open pit, and area mining; the use of explosives and blasting; in situ 

distillation or retorting; leaching or other chemical or physical processing; and the 

cleaning, concentrating, or other processing or preparation of coal. Such 

activities also include the loading of coal for interstate commerce at or near the 

mine site...; and 

(b) The areas upon which the activities described in paragraph (a) of this 

definition occur or where such activities disturb the natural land surface. These 

areas shall also include any adjacent land the use of which is incidental to any 

such activities, all lands affected by the construction of new roads or the 

improvement or use of existing roads to gain access to the site of those activities 

and for haulage and excavation, workings, impoundments, dams, ventilation 

shafts, entryways, refuse banks, dumps, stockpiles, overburden piles, spoil 

banks, culm banks, tailings, holes or depressions, repair areas, storage areas, 

processing areas, shipping areas, and other areas upon which are sited 
Page 8 of 14

National Mining Association 101 Constitution Avenue, NW | Suite 500 East | Washington, DC 20001 | (202) 463-2600

structures, facilities, or other property or material on the surface, resulting from or 

incident to those activities.

Surface coal mining and reclamation operations means surface coal mining 

operations and all activities necessary or incidental to the reclamation of such 

operations. This term includes the term surface coal mining operations.

In multiple contexts, therefore, EPA and OSM, as well as state mining and 

environmental agencies, treat the types of activities at issue as integral parts of the 

mining process. To depart from these established boundaries in the context of the 

MSGP creates needless and unsupported confusion. In light of the need for 

consistency in permitting and field operations, it is particularly important for EPA to use 

an analogous definition in the MSGP.

III. The C&D ELG Does Not Address Clearing, Grading or Excavation 

Associated with Mining Operations

During the C&D ELG rulemaking, NMA submitted comments on the 2008 

proposed rule in part based on NMA’s concern regarding unintended consequences 

from any final regulation. See attached NMA comments, Feb. 2009, Dec., 2010, Jan. 

2010, as well as NMA CGP Feb. 2003 comments; see also, Docket ID No. EPA-HQOW-2008-0465. NMA noted that it understood “that it is not EPA’s intent through this 

new construction ELG rulemaking to regulate the mining industry sectors. However, due 

[to language in the 2008 proposed C&D ELG], there are ambiguities about the scope of 

this rule that may have unintended and harmful impacts on mining activities, which 

already are regulated comprehensively under the [CWA].” NMA Feb., 2009 Comments 

on C&D ELGs at 1. NMA sought confirmation from EPA during the rulemaking; 

however, not only did the EPA not provide confirmation of NMA’s understanding of the 

C&D ELG, it did not respond to any of NMA’s comments as part of the final rule, in the 

preamble or in the associated response to comment document. See Portland Cement 

Ass’n v. Ruckelshaus, 486 F.2d 375, 393-94 (D.C.Cir.1973), cert. denied, 417 U.S. 921 

(1974) (agencies must respond to comments that are material to issues raised in a 

rulemaking proceeding). When EPA promulgated the 2012 Construction General Permit 

(CGP), which incorporated the effluent limitations from the C&D ELG into the permit for 

stormwater discharges associated with construction activity, NMA submitted similar 

comments to the Agency. See NMA July, 2011 CGP Comments, see also, Docket ID 

No. EPA-HQ-OW-2012-0782. NMA was concerned that EPA would incorrectly apply the 

effluent limitations in the C&D ELG to mining operations, notwithstanding its prior 

expressed position and the clear focus of the C&D ELG on construction sites. Again, 

EPA failed to provide a response to NMA’s specific inquiry on the applicability of the 

C&D ELG to stormwater discharges associated with mining operations, and in the 
Page 9 of 14

National Mining Association 101 Constitution Avenue, NW | Suite 500 East | Washington, DC 20001 | (202) 463-2600

proposed 2013 MSGP EPA is doing exactly what NMA has been concerned the Agency 

might do since 2008.

EPA cannot apply the effluent limitations in the C&D ELG to stormwater 

discharges associated with clearing, grading and excavation activity at mine sites, as 

the scope of the C&D ELG did not include the mining industry and EPA’s Office of 

Science and Technology did not consider the applicable statutory factors like economic 

achievability and technical feasibility as applied to the mining industry or mine sites. 

NMA has examined the C&D ELG, NAICS Codes 236 and 237, the associated 

development documents, federal register notices and other supporting documents to the 

C&D ELG, as instructed by the EPA’s NPDES Permit Writer’s Manual for applying ELGs 

into NPDES permits. See U.S. EPA, NPDES Permit Writers Manual, EPA-833-K-10-001 

(Sept. 2010), at 5-23-5-26. As discussed below, the C&D ELG and its administrative 

record clearly demonstrate that EPA was not addressing mine sites, mining operations, 

the mining industry, or any associated clearing, grading, or excavation activity in the 

rulemaking. 

The focus of the C&D ELG has always been on clearing, grading and excavation 

activity at construction sites, and since the beginning of the C&D ELG rulemaking effort 

EPA has been clear that the scope of the regulation “would address storm water runoff 

from construction sites.” 64 Fed. Reg. 15,158 (Mar. 30, 1999) (emphasis added). In the 

final C&D ELG in 2009, EPA stated, “[a]ll construction sites will be required to meet the 

series of non-numeric effluent limitations [which are the TBELs at issue in the proposed 

MGSP].” 74 Fed. Reg. at 62,997. (emphasis added). The regulated entities within the 

scope of the C&D ELG fall under NAICS Codes 236 and 237, which focus on residential 

and nonresidential building construction and utility and transportation construction. See

74 Fed. Reg. at 62,996, 63,003-04, 63,030-31; see also, Economic Analysis of Final 

Effluent Limitation Guidelines and Standards for the Construction and Development 

Industry (Economic Analysis), at 1-3 (November 23, 2009). EPA did not include any 

entities that fall under SIC Codes 10-14 and NAICS Code 21 for mining operations as 

part of the rulemaking.6Further, the C&D ELG explicitly states that it only applies to 

 

6 EPA did mention NAICS Code 238 in the development documents, specifically 

238910 (Site Preparation Contractors), which includes “[e]stablishments primarily 

engaged in...[e]arth moving and land clearing for all types of sites (e.g...mining).” 

Economic Analysis at 1-5. However, EPA made clear that the “establishments included 

under NAICS 238910...are expected to be involved in land disturbance. However, since 

the establishments in this sector are not expected to be the NPDES permitees this 

sector was therefore excluded from this regulatory analysis.” Id. (emphasis added); see 

also, id. at 3-2, 3-3 (facilities within NAICS Code 238 are not “within the scope of the 

final C&D rule” and they “will not be directly affected by the final regulation”).
Page 10 of 14

National Mining Association 101 Constitution Avenue, NW | Suite 500 East | Washington, DC 20001 | (202) 463-2600

stormwater discharges associated with construction activity as defined in 40 C.F.R. § 

122.26(b)(14)(x), (b)(15). See 40 C.F.R. § 450.10; 74 Fed. Reg. at 63,057. As 

discussed above, mining operations include clearing, grading and excavation activity on 

mine sites, and stormwater discharges associated with mining operations are regulated 

pursuant to 40 C.F.R. § 122.26(b)(14)(iii) and any applicable Mining ELGs.

Additionally, EPA did not consider any of the statutory factors required by CWA 

§§ 304(b)(1)(B), (2)(B) for the mining industry when it established the C&D ELG. For 

example, there was no economic evaluation or consideration of the cost of the effluent 

limitations to the mining industry. See generally, Economic Analysis. EPA never 

requested any financial or technical information from the mining industry despite the fact 

that, in accordance with CWA § 304(b)(2), “EPA determines the economic achievability 

on the basis of the total cost to the subcategory and the overall effect of the rule on the 

industry’s financial health” (emphasis added). Development Document for Final Effluent 

Guidelines and Standards for the Construction & Development Category (Development 

Document) (Nov. 2009), at 2-3. The fact that EPA did not consider the costs of 

implementing the TBELs at mine sites or the impact of the C&D ELG on the mining 

industry is evident from the preamble’s description of the economic analysis. For 

example, EPA described the impacted industry as having “a comparatively large 

number of firms, the majority of which are small, that operate on many sites, which are 

temporary and widely dispersed over a broad geographic area,” and stated that “for the 

construction industry, the permitted activity is a temporary project rather than ongoing 

operations at a permanent facility,” and that the “industry [is]...characterized by many 

small firms with a relatively high turnover and low barriers to entry.” 74 Fed. Reg. at 

63,031, 63,035-36. These are clearly not descriptions of the mining industry. Further, 

when EPA performed its economic analysis, it developed model projects to examine the 

firm-level and industry-level impacts of the C&D ELG. Of the 14,688 model projects that 

EPA developed, none were mine sites or mining operations. See 74 Fed Reg. 62,996; 

see also, Economic Analysis at 6-1. 

Additionally, EPA never examined the technical feasibility of the TBELs for 

mining operations, i.e., the “facilities involved, the processes employed, the engineering 

aspects of the application of various types of control techniques.” CWA §§ 304(b)(1)(B), 

(2)(B). Rather, the C&D ELG included effluent limitations that EPA determined “are the 

required controls necessary to minimize, control or prohibit discharges of pollutants from 

construction sites.” 74 Fed Reg. at 63,016 (emphasis added). It has been EPA’s 

position that “while many of the land disturbing operations and subsequent stabilization 

(sic) measures at mining sites are similar to practices and activities at construction sites, 

the Agency notes possible differences between the two classes of activities.” 57 Fed. 

Reg. 41,236, 41,274-75 (Sept. 9, 1992) (emphasis added). Therefore, for example, 

when establishing TBELs for ore mining operations, EPA stated that the “establishment 
Page 11 of 14

National Mining Association 101 Constitution Avenue, NW | Suite 500 East | Washington, DC 20001 | (202) 463-2600

of ELGs [for mining operations]...require[s] a sound understanding and knowledge of 

the ore mining and dressing industry, the mining techniques and milling processes 

involved, the mineralogy of the ore deposits, water use, waste water generation and 

characteristics, and the capabilities of existing control treatment technologies.”7 By 

contrast, in the C&D ELG, EPA never examined the mining industry or considered such 

issues as the size of mine sites; the unique nature of mining operations, including the 

engineering and water management issues that differ from the construction industry; the 

existing mining requirements under both the CWA and other state and federal statutes 

that are inapplicable to the construction industry, including the requirement that mine 

sites be reclaimed pursuant to applicable state and federal mining laws;8or that, as a 

technical matter, mining operations cannot comply with “typical” erosion and sediment 

controls concerning the installation of stormwater controls prior to initial disturbances, 

perimeter controls, maintenance deadlines, 50’ natural buffer requirements, sediment 

track-out, soil or sediment stockpiles, storm drain inlets, sediment basins, minimizing 

soil compaction, visual assessment of discharges, or site stabilization.9 EPA cannot 

simply establish TBELs for a particular industry and then turn around and apply those 

same TBELs to a different industry without giving notice, providing an opportunity to 

comment, justifying the application based on the relevant statutory factors, and 

providing a reasoned explanation for the Agency’s decision when it conflicts with prior 

Agency interpretation of existing EPA regulations.

IV. Proposed Solution 

EPA historically recognized that stormwater discharges associated with clearing, 

grading and excavation activities on mine sites are discharges associated with mining 

operations, as demonstrated by its development of the ELGs and the implementation of 

the industrial stormwater program. In the 2000 MSGP, EPA in part changed course and, 

over NMA’s objections, required mine sites to obtain separate NPDES permit coverage 

under the CGP for clearing, grading and excavation activities on mine sites. In 2008, 

EPA changed course again, and permitted stormwater discharges associated with 

 

7 Development Document for Interim Final and Proposed Effluent Limitations Guidelines 

and New Source Performance Standards for the Ore Mining and Dressing Industry, 

Point Source Category Vol. 1, U.S. Environmental Protection Agency, Oct. 1975 at 13.

8

For example, “exploratory areas,” such as access roads, are often included in federal 

and state mine plans and reclamation plans; therefore, treating those areas the same as 

“construction sites” and including requirements from the C&D ELG, such as final site 

stabilization, may be infeasible for mining operations.

9

For example, there is difficulty treating so-called “exploration phase” and “construction 

phase” of mining as “not part of ‘mining operations,’” when clearing, grading and 

excavation occurs during nearly all stages of mining operations, and when typical 

construction stabilization requirements, including those in the C&D ELG, would 

therefore be required for areas that are intended to be immediately mined.
Page 12 of 14

National Mining Association 101 Constitution Avenue, NW | Suite 500 East | Washington, DC 20001 | (202) 463-2600

clearing, grading and excavation activities associated with mining operations under the 

MSGP. In doing so, however, EPA arbitrarily determined that the Agency “considers 

exploration and construction to be distinct from ‘mining operations’,” as those terms are 

defined in the MSGP. See 2008 MSGP Fact Sheet at 125. As such, while the 2008 

MSGP continued to incorrectly categorize activity on mine sites, all regulated 

stormwater discharges from mine sites could be permitted under one NPDES permit 

and EPA appropriately tailored the “construction” requirements in the MSGP for 

clearing, grading and excavation activities on mine sites to the unique characteristics of 

the mining industry, thereby eliminating any practical implications of the incorrect 

definitions in sections 8.G.3, 8.H.3 and 8.J.3. After the C&D ELG, however, given EPA’s 

apparent interpretation of its applicability, the incorrect definitions in the MSGP now 

have a significant practical impact, as EPA is incorporating the TBELs in the C&D ELG 

to any “clearing, grading and excavation” activity, even activity at mine sites associated 

with mining operations, [40 C.F.R. § 122.26(b)(14)(iii), SIC Codes 10-14 and NAICS 

Code 21], not construction activity [40 C.F.R. § 122.26(b)(14)(x), (b)(15), SIC Codes 15-

17 and NAICS Codes 23, 236-37].

As discussed above, the definitions in the proposed MSGP are contrary to the 

CWA, EPA’s stormwater regulations, which incorporate the SIC and NAICS codes, and 

EPA’s Mining ELGs. Further, any effort by the EPA to apply the C&D ELG to clearing, 

grading and excavation activity associated with mining operations would be arbitrary 

and capricious and otherwise not in accordance with the requirements of the CWA. The 

solution to this problem is for EPA to revise the definitions in sections 8.G.3, 8.H.3 and 

8.J.3; specifically, EPA should delete the current definitions, and instead include the 

following definitions:

Mining operations - Includes exploration, the construction of access roads, the 

development of support services at mine sites, the removal of overburden and 

waste rock to expose mineable minerals, extraction and removal or recovery of 

ore, and reclamation activities. Includes all active and temporarily inactive 

mining facilities. 

Reclamation Activities - Activities undertaken in compliance with applicable 

mined land reclamation requirements intended to return the land to an 

appropriate post-mining land use in order to meet applicable Federal and State 

reclamation requirements. 

Active mining facility - A place where work or other activity related to the

extraction, removal, or recovery of coal, minerals, or metal ore is being 

conducted. For surface mines, this definition does not include any land where 

grading has returned the earth to a desired contour and reclamation has begun. 

This definition is derived from the definitions of “active mining area” found at 40 

C.F.R. 440.132(a) and 40 C.F.R. 434.11(b).
Page 13 of 14

National Mining Association 101 Constitution Avenue, NW | Suite 500 East | Washington, DC 20001 | (202) 463-2600

Inactive mining facility - A site or portion of a site where mining and/or milling 

occurred in the past but is not an active facility as defined above, and where the 

inactive portion is not covered by an active mining permit issued by the 

applicable State or Federal agency. An inactive mining facility has an identifiable 

owner /operator. Sites where mining claims are being maintained prior to 

disturbances associated with the extraction, beneficiation, or processing of mined 

materials and sites where minimal activities are undertaken for the sole purpose 

of maintaining a mining claim are not considered either active or inactive mining 

facilities and do not require an NPDES industrial stormwater permit.

Temporarily inactive mining facility - A site or portion of a site where mining 

and/or milling occurred in the past but currently are not being actively 

undertaken, and the facility is covered by an active mining permit issued by the

applicable State or Federal agency.

This revision to the definitions is in accord with the CWA, the Mining ELGs, the C&D 

ELG, and EPA’s stormwater regulations. In addition, all references to provisions in the 

2012 CGP should be deleted, and all references to the current proposed phases should 

be removed from the corresponding mining sectors. The result of these revisions is that 

regulated stormwater discharges associated with mining operations will be subject to 

either the TBELs in the Mining ELGs or the TBELs established by the EPA in the MSGP 

on a BPJ-basis. When developing the TBELs for any stormwater discharges associated 

with mining operations on a BPJ basis, NMA suggests that EPA use the effluent 

limitations developed for the 2008 MSGP as the basis for the reissued MSGP, and only 

make changes where it is necessary to achieve proper stormwater management, taking 

into account the technical feasibility and economic achievability to the mining industry 

as required by the CWA and EPA’s implementing regulations.10 

Sincerely,

Amanda E. Aspatore

Associate General Counsel

National Mining Association

cc: Deborah G. Nagel, Office of Wastewater Management

Brian Rittenhouse, Office of Wastewater Management

Greg Schaner, Office of Wastewater Management

Erika Farris, Office of Wastewater Management

 

10 See 40 C.F.R. §§ 301, 304(b); 40 C.F.R. §§ 122.44, 125.1, 125.3(c)-(d).
Page 14 of 14

National Mining Association 101 Constitution Avenue, NW | Suite 500 East | Washington, DC 20001 | (202) 463-2600

Janet Goodwin, Office of Science and Technology

Jesse Pritts, Office of Science and Technology

Peter Ford, Office of General Counsel