April 10, 2014

Connie Bosma, Municipal Branch Chief

Bryan W. Rittenhouse, Industrial Stormwater Program

Water Permits Division

Office of Water

U.S. Environmental Protection Agency

1200 Pennsylvania Avenue, N.W.

Washington, D.C. 20460

Attention Docket ID No. EPA-HQ-OW-2012-0803

Re: Proposed National Pollutant Discharge Elimination System (NPDES) 

General Permit for Stormwater Discharges From Industrial Activities, 

78 Fed. Reg. 59672 (Sept. 27, 2013)

Dear Ms. Bosma and Mr. Rittenhouse: 

On behalf of the National Mining Association (“NMA”) and its members, I thank you and 

your staff for meeting with me and other NMA representatives on February 5, 2014 to 

discuss the above referenced draft NPDES Multi-Sector General Permit for Stormwater 

Discharges Associated with Industrial Activity (“MSGP”). I believe that we had a 

constructive discussion, and I appreciate EPA’s continued willingness to discuss issues 

that concern NMA and its members. I am writing to follow up on some of the major 

issues addressed at the meeting, and to provide additional detail concerning the written 

comments that NMA submitted on December 23, 2013.

Incorporation of Construction General Permit Requirements

NMA acknowledges the need to regulate stormwater discharges related to mining 

exploration and construction activities, but such regulation must be done in a way that 

recognizes existing requirements and the unique characteristics of the mining industry. 

The proposed MSGP fails to do so by proposing to incorporate and cross reference 

provisions from the 2012 Construction General Permit (“2012 CGP”) with no attempt to 

tailor them to reflect the realities of modern mining operations, as NMA explained in its

December 2013 comments and at the February 2014 meeting with EPA. 

EPA developed the 2012 CGP—and the 2009 Effluent Limitations Guidelines and 

Standards for the Construction and Development Point Source Category (“Construction 

and Development ELGs”) that the 2012 CGP implements—without taking into account 
2

the unique nature of mining operations. For example, the mining sectors were not 

included in the Construction and Development ELGs background study. It would thus 

be inappropriate to impose requirements from those documents on the mining sectors

by incorporating them wholesale into the MSGP years later. This is particularly true 

because EPA has not offered any explanation of whether or how the requirements for 

exploration and construction in Parts 8.G, 8.H, and 8.J of the 2008 MSGP are in any 

way inadequate. Accordingly, NMA urges EPA to use the existing requirements in 

those parts as the baseline and to provide justifications, as appropriate, for increasing 

any of those requirements. If, however, EPA insists instead on incorporating 

requirements from the 2012 CGP, it must first tailor any such requirements to the mining 

sectors.

When commenting on prior proposals pertaining to stormwater regulation, NMA has 

consistently brought to EPA’s attention how the unique nature of mining operations 

warrants a unique regulatory approach. Mine sites can span tens of thousands of 

acres, while typical construction sector (NAICS Code 23) sites are orders of magnitude

smaller. By way of example, one NMA member company operates a mine located in 

the semi-arid western U.S. that is more than 98 square miles. 

Furthermore, it is very difficult to delineate between the exploration and construction 

phases of mining, on the one hand, and active mining phases on the other. This is 

because mining operations often span many years (or decades), with construction 

occurring at various places within the mine site and at various times throughout the life 

of the operations. It is common for mining operations to move in and out of construction 

phases, which makes it impractical (if not impossible) to impose the 2012 CGP 

requirements wholesale upon the mining industry.

EPA recognized this impracticality back in 2008, when it wisely abandoned its previous 

attempt to impose a bifurcated permitting scheme for the mining sectors, under which

mining companies had to obtain coverage under both the MSGP and the CGP. 

Apparently recognizing that the bifurcated scheme was senseless, EPA developed 

mining-specific requirements for exploration and construction activities and included 

them in the 2008 MSGP. In so doing, EPA did not broadly incorporate by reference 

entire sections of the CGP in existence at that time, as it proposes to do now. Rather, 

EPA developed construction-related requirements that were tailored to the mining 

industry. For example, in response to NMA concerns, EPA modified the final 

stabilization requirements for the mining sectors by eliminating the 70 percent 

vegetative cover requirement and by referencing the implementation of applicable 

Federal and State reclamation requirements within the definition of “final stabilization.” 

It is significant that the mining sectors were the only sectors subject to the 2008 MSGP 

for which EPA set forth detailed construction-related requirements in Part 8 of the 

MSGP. This confirms that mining is truly distinct and that exploration and construction 

activities within mining operations warrant a unique regulatory approach.

EPA does not appear to dispute that the mining industry was beyond the scope of the 

Agency’s analyses when it developed the 2012 CGP and the Construction and 

Development ELGs. In fact, EPA did not take into consideration key differences 
3

between mine sites and typical construction sites in the development of the 2012 CGP, 

such as requirements related to sediment basins, natural buffers, topsoil regulations, 

and soil stabilization. This is not at all surprising, as all activities at mine sites were 

clearly covered exclusively by the 2008 MSGP and the mining effluent limitations 

guidelines. Nor is it surprising that NMA deemed it unnecessary to submit robust

technical comments on either the 2012 CGP or the Construction and Development 

ELGs. Rather, when commenting on those proposals, NMA simply pointed out that: (i) 

neither of those regulatory proposals apply to the mining industry, nor did EPA develop 

them with mining in consideration; (ii) the mining industry’s construction-related 

requirements for stormwater instead stem from the MSGP; and (iii) to the extent EPA 

believes that the general construction stormwater requirements apply to the mining 

industry, NMA would like the opportunity to provide more detailed comments.1 NMA’s

prior comment letters reflect that NMA did not “waive” its ability to comment on the 2012 

CGP requirements to the extent EPA proposes to incorporate them into Parts 8.G, 8.H, 

and 8.J of the MSGP. On the contrary, NMA has long believed that the appropriate time 

to comment on proposed revisions to stormwater regulatory requirements for 

exploration and construction activities for the mining industry is in the context of MSGP 

renewal proceedings, and that is precisely what NMA is doing now.2

Finally, as discussed in NMA’s April 19, 2010 and February 5, 2014 meetings with EPA, 

it important to bear in mind that federal and state authorities have established separate 

laws, regulations and regulatory programs unique to the mining industry. Notably, one 

such law is the Surface Mining Control and Reclamation Act of 1977 (“SMCRA”), which 

is administered by the U.S. Department of Interior’s Office of Surface Mining 

Reclamation and Enforcement and state primacy agencies. SMCRA imposes strict 

enforceable requirements for erosion and sediment control, including: 1) permitting 

requirements; 2) environmental protection performance standards; 3) required agency 

 

1 See, e.g., Letter from K. Bennett, NMA, to J. Hanlon, U.S. EPA (Feb. 26, 2009); Letter 

from K.Bennett, NMA, to J. Hanlon, U.S. EPA (Jan. 12, 2010); Letter from K. Bennett, 

NMA, to L. Jackson, U.S. EPA (July 11, 2011). NMA provided electronic copies of 

these comment letters to Peter Ford (OGC) and Bryan Rittenhouse (OW) by email on 

February 5, 2014.

2 At our February 2014 meeting, EPA representatives seemed concerned with the 

possibility that entities from other sectors might try to reopen comment on the 2012 

CGP and/or Construction and Development ELGs if EPA shows willingness to revise 

the requirements incorporated by reference into Parts 8.G, 8.H, and 8.J. NMA believes 

there is no such risk of reopening. None of those other sectors are subject to detailed 

construction-related requirements in the MSGP itself. To the extent those sectors 

must obtain coverage under the 2012 CGP, they are not in the same position as the 

mining sectors. For the mining sectors, and no other sectors, this comment process 

(i.e., for the proposed MSGP) is the sole opportunity to address construction-related 

requirements for stormwater discharges.
4

monthly inspections; and 4) enforcement provisions.3 In light of this overlapping set of 

regulatory programs, it is especially important that the requirements of the MSGP be 

tailored for mining operations to avoid duplication and conflicts. The requirements of 

the 2008 MSGP strike an appropriate balance between overlapping regulatory 

programs, and NMA requests that the 2013 MSGP be promulgated with the same goal

in mind. 

The following section of these comments provides numerous examples where the 

proposed MSGP language does not provide the needed flexibility required by the 

unique nature of mining operations. NMA requests that EPA carefully review these 

examples to better understand why certain proposed requirements, such as those 

pertaining to stormwater controls, site stabilization, natural buffers and topsoil, among 

others, are not appropriate for mining operations. 

Specific Concerns with Proposed Revisions to Part 8 Requirements

If EPA continues to insist on importing requirements from the 2012 CGP and imposing 

them on the mining industry, it must rationally harmonize any such requirements with 

the realities of mining operations, just as it did in the 2008 MSGP. As NMA has 

previously explained to EPA, most of those requirements do not make sense for the 

mining industry and some likely cannot be satisfied. NMA offers the following points for 

EPA’s consideration to supplement the concerns raised in our earlier written comments:

§§ 8.G.3.3, 8.H.3.3, 8.J.3.3. Definition of “Construction Phase”: EPA wrongly defines 

“construction phase” to include removal of overburden and waste rock. Such activities 

are part of active mining operations, as NMA representatives explained during the 

February 2014 meeting. Even NAICS Code 238910 (Site Preparation), which EPA has 

cited as a basis for imposing the 2012 CGP requirements on the mining industry, 

provides that overburden removal is not construction; rather, it falls within NAICS Code 

23 (Mining).4

§§ 8.G.4.1.1, 8.H.4.1.1, & 8.J.4.1.1. Installing Stormwater Controls Prior to Initial 

Disturbance: For many mining operations, the construction of access roads will be the 

initial disturbance. While silt fences and straw bales may suffice and may realistically 

be installed prior to initial land disturbances associated with even very large residential 

or commercial land developments that typically occur in relatively flat and accessible 

areas, such requirements are unrealistic and infeasible for initial land disturbances 

associated with mining operations. This is due to logistical difficulties posed by the 

scale of mining projects, access problems posed by remote location, vegetation, and 

topography, and the types of controls required to effectively manage stormwater from 

 

3 See, e.g., 30 CFR Part 715 (General Performance Standards) and 30 CFR Part 816 

(Permanent Program Performance Standards – Surface Mining Activities).

4 See http://www.naics.com/naics-code-description/?code=238910.
5

these construction activities (i.e., berms, ditches to divert run-on, rock check dams, 

temporary sedimentation basins, etc.). These provisions should be deleted or, at a 

minimum, significantly revised (e.g., include an appropriate caveat like “where 

practicable” or “if feasible”).

§§ 8.G.4.1.1, 8.H.4.1.1, & 8.J.4.1.1. Perimeter Controls5: Requirements like this may be 

largely feasible for even large residential and commercial construction development 

sites, but imposing this requirement on all mining facilities without regard to topography, 

proximity and location of receiving streams, regional climatology, or scale of the land 

disturbance will significantly burden mine operators. Imposition of this requirement 

would be inappropriate, particularly in the absence of any indication that it is reasonably 

necessary to ensure water quality protection. These provisions should be deleted or, at 

a minimum, be significantly revised.6 

§§ 8.G.4.1.2, 8.H.4.1.2, & 8.J.4.1.2. Maintenance Deadlines: Again, while these 

requirements may be feasible for even large residential and commercial developments, 

the proposed deadlines (i.e., initiate “immediately” and complete “by end of the next 

work day”) are impracticable and infeasible for mining facilities that span tens or 

thousands of acres and that may entail the use of many construction and engineering 

contractors. Often, even when a simple stormwater control like silt fencing is identified 

as being in disrepair, the repair or replacement of that control may be delayed because 

materials are located many miles away and such work is conducted by contractors who 

must be given sufficient lead time to receive and respond to the notice from the mining 

operator. More problematic, however, is the fact that many stormwater controls 

associated with mining activities require heavy machinery (i.e., improving or repairing 

berms, ditches, road embankments, and other land contouring work) or engineering 

input (i.e., modifying slopes, inlet or outlet structures, energy dissipation devices, etc.), 

not just simple hand tools. This requirement further ignores the reality that storm events 

that significantly damage stormwater controls may also render the site inaccessible or 

unsafe for mining staff even in relatively light all-terrain vehicles. Finally, by not 

providing flexibility during climatic conditions which may preclude discharges, these 

requirements impose a significant burden upon mining operators to respond to 

structural control problems that may not pose any risk to water quality for many days, 

weeks, or even months. These provisions should be deleted or, at a minimum, be 

significantly revised (e.g., include appropriate caveats like “as soon as is practicable 

and considering site specific conditions”).

 

5 See also §§ 8.G.4.1.4, 8.H.4.1.4 & 8.J.4.1.4.

6

For example, the North Dakota NPDES permit for Mining Activities requires sediment 

controls at “down slope boundaries of the disturbance area and for those side slope 

boundaries as may be appropriate for site conditions,” rather than along the entire site 

perimeter. NDR32-0000 § II.C.3.e.1.
6

§§ 8.G.4.1.3, 8.H.4.1.3 & 8.J.4.1.3. 50’ Natural Buffer Requirement: Regardless of 

whether this requirement may provide adequate protection for water quality from even 

large residential or commercial development activities, it provides little benefit to water 

quality for discharges from mining operations. Mining sites typically require large water 

management structures and complex plans which provide better protection than mere 

natural buffers provide. In addition to providing the sediment loading reduction function 

offered by a 50’ natural buffer, water management structures like small sedimentation 

ponds and larger basins are used to manage on-site (sometimes indefinitely) waters 

that are impacted by certain chemicals of concern associated with mining. These 

structures are designed in light of local conditions which may in some situations argue 

against the use of natural buffers (i.e., sparse vegetation, karst).7

It is also important to note that, in many places in the arid west, natural buffer areas are 

unvegetated and would not constitute appropriate Best Management Practices for 

construction-related projects at mine sites. Indeed, the requirement that a site introduce 

sediment controls that achieve the same load reduction as a 50’ buffer may make very 

little sense in an arid, low vegetation region where those “buffer” areas are largely 

ineffective in controlling sediment runoff. Furthermore, there are often topographic 

constraints at mine sites (e.g., very limited drainage areas) that would preclude 

implementation of mandatory buffer requirements. As such, these provisions should be 

deleted or, at a minimum, be significantly revised (e.g., include appropriate caveats like 

“when not counter-indicated by local considerations” and “if needed to provide water 

quality protection not otherwise afforded by other stormwater controls”). BMPs should 

be site-specific and designed to be as close to the disturbance footprint as practicable 

as identified in the project-specific SWPPP provisions. 

Finally, this section of the proposal does not expressly include two important exceptions 

found at 2.1.2.1 and Appendix G of the GCP:

 An exception for “linear construction projects” (CGP 2.1.2.1.e.iii). Just as 

roads and highways used by the public are exempt from these requirements, 

access and haul roads at mines should also be exempt. They have the same 

construction characteristics and will intersect and cross drainages and waters 

in the same manner as other roads (using culverts and bridges, etc.). 

Limitations and restrictions on disturbance outside the construction zone by 

mine permitting authorities, including mining permit boundaries, are 

 

7

It is unclear what function the “no stormwater discharge” exception in §§ 8.G.4.1.3.1, 

8.H.4.1.3.1 and 8.J.4.1.3.4 serves. If there are no stormwater discharges from 

construction disturbances to waters of the U.S. for a particular mining operation, the 

mining operator would not be required to obtain NPDES permit coverage. In addition, 

the operational flexibility provided under the 2012 CGP, e.g., allowing permittees to use 

the natural buffer function provided by land not under its control, is not clearly provided 

for mine operators. See 2012 CGP § 2.1.2.1 Note, & § 2.1.2.1.e.iii.
7

analogous to limits imposed on public roads by rights-of-way boundaries. 

Surface coal mining regulations, as well as other stormwater standards, 

address mine roads in the same manner as public roads. Therefore, it should 

be made clear that “linear construction projects” on coal mines are exempt 

from the buffer zone requirements.

 An exception for construction approved under a Clean Water Act Section 404 

permit (CGP 2.1.2.1.e.v). In addition to surface coal mining permits issued 

under SMCRA, coal mines are also required to obtain Clean Water Act 

Section 404 permits for the discharge of any fill material into a jurisdictional

water. Under the 2012 CGP, it was determined that Section 404 permits 

included environmental protection requirements sufficient to waive the natural 

buffer requirements, and the same should be done in the MSGP, particularly 

since coal mining operators also operate pursuant to SMCRA requirements. 

Therefore, it should be made clear that “construction approved under a Clean 

Water Act Section 404 permit” on mines is exempt. 

§§ 8.G.4.1.4, 8.H.4.1.4 & 8.J.4.1.4. Sediment Track-Out: The proposed requirements 

are obviously designed for vehicles and locations typical of residential and commercial 

construction sites, which ignores the reality that most, if not all, of the heavy machinery 

used in mining operations does not leave the site during the life of the operation. 

Moreover, EPA overlooks that many mining sites are accessible only from already 

strictly controlled access points that are not in close proximity to public streets or storm 

sewer inlets. These provisions should be deleted or, at a minimum, be significantly 

revised.8 

§§ 8.G.4.1.4, 8.H.4.1.4 & 8.J.4.1.4. Soil or Sediment Stockpiles: These proposed 

provisions are obviously designed with relatively small soil or sediment stockpiles typical 

of residential and commercial development in mind, rather than the scale and timeframe 

under which soil and sediment stockpiles are created in mining operations. While the

latter stockpiles are typically protected from stormwater run-on from adjacent areas, 

they are typically too large to be covered with temporary barriers. In addition, requiring 

covers or barriers for stockpiles that do not present a risk to water quality imposes 

undue burdens on mine operators without any indication that such measures are

reasonably necessary to ensure water quality protection. The design and construction 

of covers for stockpiles of topsoil and/or overburden would present a significant 

expense which was not assessed during the economic impact evaluation of the 2012 

 

8

For example, the sediment track-out provision in the North Dakota NPDES permit for 

mining activities applies to off-site tracking “onto paved surfaces” and requires removal 

of sediment from those surfaces “as soon as practicable, or if applicable, within a 

shorter time specified by local authorities.” As an alternative, sediment track out 

provisions could only be mandated where there is potential to track sediment onto 

public roads.
8

CGP conditions. These provisions should be deleted or, at a minimum, significantly 

revised (e.g., include an appropriate caveat like “where practicable”).9 

The requirement to locate stockpiles outside the natural buffer areas should not apply if 

those buffer areas are not appropriate BMPs. Rather, the stockpiles should be located 

wherever it makes sense topographically, operationally, and as identified consistent with 

the site BMPs. Furthermore, many mine site construction-related activities are already 

governed by mine reclamation or dust control requirements. To the extent the 

construction provisions of the proposed MSGP address management of soil or sediment 

stockpiles at those sites, they should yield in the face of other pertinent federal, state 

and local land and environmental management requirements. For example, SMCRA 

regulations extensively regulate topsoil removal, storage and placement at 30 CFR §

816.22.

§§ 8.J.4.1.4, 8.J.4.1.4 & 8.J.4.1.4. Storm Drain Inlets: These provisions are also 

obviously designed with residential and commercial developments in mind, rather than 

heavy industrial settings which occur in locations not served by storm sewers. 

However, most construction-related activities at mine sites do not discharge to storm 

drains or municipal separate storm sewer systems. Many if not all mining projects 

utilize stormwater management systems which serve the same functions as municipal 

storm sewers; however, these water management systems do not require this kind of 

inlet protection as they are dedicated systems designed to handle stormwater 

associated with mining operations. While some water management systems may 

benefit from inlet protection, it is inappropriate to subject all mining operations to this 

requirement. These provisions should be deleted or, at a minimum, significantly 

revised.10 

§§ 8.G.4.1.4, 8.H.4.1.4 & 8.J.4.1.4. Sediment Basins: As discussed in NMA’s meetings 

with EPA, EPA should revise the sediment basin provisions to clarify that they are not 

mandated and are simply another BMP to be considered. As currently written, Part 8 of 

the MSGP could be misinterpreted as imposing such a requirement. Requiring all 

mining operations to install sediment basins ignores the reality that physical constraints 

in some locations preclude the use of sediment basins of any significant capacity. 11 In 

 

9 North Dakota, for example, provides that “[t]emporary stockpiles without significant silt, 

clay or organic components (e.g., clean aggregate stockpiles, demolition concrete 

stockpiles, sand stockpiles) area exempt” from a requirement for temporary erosion 

protection or permanent cover. See NDR32-0000 Appendix 1 § A.3.

10 See, e.g., NDR32-0000 Appendix 1 § A.9 (“Where appropriate, inlet protection 

devices may be used to reduce the amount of sediment that may enter a storm sewer 

system.”).

11 Including certain erosion and sediment control requirements without the caveats 

included in the 2012 CGP puts mining operations under conditions more onerous than 

those applicable to other construction sites. For example, the 2012 CGP allows site 

(continued...)
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addition, some operations may well be able to use stormwater controls other than 

sediment basis to prevent the discharge of sediment-laden stormwater (e.g., any 

combination of ditches to divert or intercept run-on, diversion dikes, rock check dams or 

other energy dissipation devices, silt filters and fences or other sediment capture 

devices, swales or other stormwater fanning or spreading to upland areas) given site 

specific conditions (e.g., modest rainfall norms, porous soils, soil particle size). These 

provisions should be deleted or, at a minimum, significantly revised (e.g., include an 

appropriate caveat like “where applicable”).12 Moreover, any sediment basin 

provisions must not duplicate or conflict with SMCRA rules at 30 C.F.R. §§ 816.45-

816.47, which describe specific performance standards that must be met by operators 

of surface coal mines related to sediment control measures, siltation structures and 

discharge structures.

§§ 8.G.4.1.4, 8.H.4.1.4 & 8.J.4.1.4. Minimizing Soil Compaction: As with all other 2012 

CGP provisions included in Parts 8.G.4, 8.H.4, and 8.J.4 without any qualification (e.g., 

“if you install,” “as applicable,” “where appropriate,” “where feasible”), the requirement to 

minimize soil compaction fails to take into account the operational norms at mining 

operations. The use of heavy machinery throughout mining sites requires compaction 

of soils to ensure roadway stability and transportation safety. In addition, infiltration is 

not always appropriate as some overburden disposal sites must be compacted, 

covered, and managed to avoid vegetation which can damage engineered covers which 

prevent the release of leachable constituents of concern. These provisions should be 

deleted or, at a minimum, be significantly revised (e.g., include a caveat like “as 

 

(continued)

operators to determine whether or not to install sediment basins; no such flexibility is 

provided in the MSGP. Compare 2012 CGP § 2.1.3.2 (“If you install a sediment basin”) 

with Draft 2013 MSGP §§ 8.G.4.1.4, 8.H.4.1.4 & 8.J.4.1.4 (“Provide storage...”). 

Similarly, the requirement to “[m]inimize steep slope disturbances” in the 2012 CGP is 

qualified by a note in which EPA “recognize[d] that it is not economically achievable to 

avoid the disturbance of steep slopes” where such disturbances are required for a 

project; yet this caveat is not included in the Draft 2013 MSGP. Compare 2012 CGP §

2.1.2.6 with Draft 2013 MSGP §§ 8.G.4.1.4, 8.H.4.1.4 & 8.J.4.1.4. As noted in our prior 

comments, requiring mine operators to refer to the 2012 CGP to determine how MSGP 

requirements may be satisfied is improperly vague and contrary to EPA regulation. 

12 For example, the North Dakota NPDES permit for mining provides that where 

sediment basins are “not practicable due to site limitations or nature of disturbance 

(such as developing a roadway or initial stripping to build sediment pond or diversion) a 

combination of measures must be used within the disturbance area and down slope 

boundaries. In determining whether installing a sediment basin is attainable, the 

Permittee must consider public safety and may consider factors such as site soils, 

slope, and available area on site.” See NDR32-0000 Appendix 1 § A.2.
10

appropriate” or, as noted in proposed sections 8.G.5.2 and 8.J.5.2, “where necessary to 

minimize pollutant discharges”).

§§ 8.G.4.1.5, 8.H.4.1.5 & 8.J.4.1.5. Restrictions on Use of Treated Chemicals: The use 

of biodegradable and non-toxic flocculants should be encouraged but not mandated for 

utilization in SWPPPs consistent with federal, state and local land and internal 

environmental management obligations.

§§ 8.G.4.1.6, 8.H.4.1.6 & 8.J.4.1.6. Site Stabilization: EPA once again seeks to impose 

stabilization requirements that are not workable for the mining industry, including, but 

not limited to, the requirement to cover at least 70 percent of the stabilized area based 

on density of native vegetation. Stabilization was not addressed in the 1995 MSGP or 

2000 MSGP. While proposed in the 2008 MSGP, EPA later correctly recognized that 

this particular requirement is not feasible and thus, it removed it from the 2008 MSGP.13 

EPA should continue to link stabilization to existing applicable federal and state 

reclamation laws and renew the 2008 MSGP provisions on stabilization.14 

There are at least two major problems with incorporating the revised site stabilization 

requirements for construction operations at mine sites. First, it may not be appropriate 

to apply the specific stabilization requirements to a particular region. In contrast, the 

stabilization provisions in the existing MSGP properly encourage site-specific decision 

making.

15 Second, to the extent there are revegetation or other stabilization practices 

being evaluated, those must be assessed on an individual basis. Many constructionrelated activities at mine sites occur in regions controlled by state and local mine land 

reclamation requirements. Those activities are likely subject to specific revegetation 

requirements. For example, reclamation programs relevant to certain arid west regions 

have requirements that identify revegetation as compared to baseline conditions. 

Mandating a 70% cover requirement (as identified in the proposed MSGP), on the other 

hand, is inappropriate when the baseline vegetation condition is far below that 

threshold, as low moisture conditions combined with poor or no soil result in natural 

conditions having significantly less than 70% cover. 

The proposed MSGP’s site stabilization measures should be triggered only when all site 

disturbance ceases, as specified in the existing MSGP and consistent with the time 

periods identified in the provisions addressing temporary and final stabilization of 

disturbed areas. Moreover, those measures must be consistent with applicable state 

 

13 See 2008 MSGP Fact Sheet §§ XII.C XII.F.

14 For example, for Sector H, EPA should require compliance with SMCRA standards on 

revegetation success, as required by 30 CFR § 816.111.

15 Even the final Effluent Limitations Guidelines for the Construction Point Source 

Category (published on Mar. 6, 2014) incorporate exceptions for arid regions and sites 

where the intended function of the specific area necessitates that it remain disturbed. 

See 40 CFR § 450.21(b) (effective May 5, 2014). 
11

and local mine land reclamation obligations. Specifically for Sector H, this means 

requiring compliance with SMCRA-driven revegetation success standards as required 

by 30 CFR § 816.111 and as approved in the facility’s SMCRA permit. 

§§ 8.G.4.2.2, 8.H.4.2.2 & 8.J.4.2.2. Leak-Proof Containers for All Chemicals: In 

contrast with the 2012 CGP requirement, which acknowledges certain storage 

requirements “do not apply to those products, materials, or wastes that are not a source 

of stormwater contamination or that are designed to be exposed to stormwater,” the 

proposed MSGP requires leak-proof containers “for all chemicals.”16 While the use of 

leak-proof containers may be appropriate in certain situations, requiring their use in all 

situations (even where chemicals are located inside protective structures or barriers) 

based on the assumption that stormwater from every location within the confines of a 

mine operation will be discharged ignores the reality that some stormwater cannot and 

will not be discharged. These provisions should be deleted and the 2008 MSGP 

provisions on minimizing the exposure to stormwater of certain industrial materials 

should be retained.17 

§§ 8.G.4.3, 8.H.4.3 & 8.J.4.3. Stricter Requirements for Sensitive Waters: Unlike the 

2012 CGP requirements that modify the stabilization and inspection requirements for 

discharges to impaired or Tier 2 or Tier 2.5 waters given frozen or arid/semi-arid 

conditions, the parallel requirements in the proposed 2013 MSGP do not provide this 

flexibility to mine operators.18 These provisions should be deleted and the 2008 MSGP 

provisions providing this flexibility to mine operators should be retained.19 

 

16 Compare 2012 CGP § 2.3.3.3 with Draft 2013 MSGP §§ 8.G.4.2.2, 8.H.4.2.2 &

8.J.4.2.2. 

17 See, e.g., 2008 MSGP § 2.1.2.1 Note (“Industrial materials do not need to be 

enclosed or covered if stormwater runoff from affected areas will not be discharged...”).

18 Compare 2012 CGP § 2.2.1.3.b (“[a]s soon as practicable, given conditions or 

circumstances on your site, complete all activities necessary...”) with Draft 2013 MSGP 

§§ 8.G.4.3, 8.H.4.3 & 8.J.4.3 (“[c]omplete initial stabilization activities within 7 days...”); 

compare 2012 CGP §§ 4.1.4.2, 4.1.4.3.a & .b (allowing site inspections to be conducted 

once per month and within 24 hours of a qualifying storm event in arid, semi-arid or 

drought stricken areas and during frozen conditions) with 2013 MSGP §§ 8.G.4.3, 

8.H.4.3 & 8.J.4.3 (requiring site inspections “[o]nce every 7 days and within 24 hours” of 

a qualifying storm event). 

Interestingly, although these stricter inspection frequency and stabilization requirements 

are relaxed in the Draft 2013 MSGP for arid, semi-arid and drought stricken areas and 

frozen conditions in the provisions relating to general inspection requirements (at §§ 

8.G.4.4.2, 8.H.4.4.2 & 8.J.4.4.2) and general site stabilization requirements (at §§ 

(continued...)
12

§§ 8.G.4.4.4, 8.H.4.4.4 & 8.J.4.4.4. Visual Assessment of Discharges: By requiring a 

visual assessment of discharges occurring during every site inspection under the 

increased frequencies prescribed in the proposed MSGP, the frequency of visual 

assessment of discharges increases from quarterly (or monthly in certain situations) 

under the current 2008 MSGP to weekly or biweekly.20 In addition, while the 2008 

MSGP ameliorated this burden by allowing all permittees to comply with quarterly 

evaluations by evaluating substantially identical outfalls on a rotating basis throughout 

the permit coverage period, the proposed MSGP requires such an evaluation at each 

outfall during every single inspection. In the Fact Sheet for the 2008 MSGP, EPA 

expressly rejected a suggestion that substantially identical outfalls be monitored 

annually “because the Agency does not believe that it will provide more meaningful data 

or improve the quality of the information received.”21 Despite the fact that the 

“substantially identical outfall” provisions were provided in the 2000 MSGP and the 2008 

MSGP in recognition of the “substantial reduction of the resources required for a facility 

to comply” with monitoring requirements, the proposed MSGP improperly changes 

course. The proposed change adds a far more burdensome visual assessment 

requirement upon mine operators without analyzing the economic impact of compliance 

for the mining industry. This provision should be deleted and the 2008 MSGP 

provisions regarding visual assessments (Part 4.2) should be retained. 

Likewise, the proposal revises inspection frequency to require an inspection within 24 

hours of a storm event of 0.25 inches or greater, as opposed to the 2008 requirement of 

0.5 inches or greater. The current 0.5 inch standard is more than adequate to provide 

site protection, and should not be lowered because the size of many mine sites (some 

well over 50,000 acres) makes it unreasonable to inspect all stormwater sites after small 

precipitation events. EPA has not given any indication that the 0.5 inch threshold was 

too high to provide adequate protection, and the proposal should be changed to retain

the 0.5 inch standard.

Additional Sector H – Specific Concerns: As mentioned previously, EPA has not fully 

considered that Sector H is extensively regulated by the provisions of SMCRA. The 

proposed text of the MSGP does not clearly delineate what is required under SMCRA 

(specifically, 30 CFR §§ 816.41 through 816.49) versus what is required under the 

 

(continued)

8.G.4.1.6, 8.H.4.1.6 & 8.J.4.1.6), they are not relaxed with respect to impaired or Tier 2 

and Tier 2.5 waters. 

19 See 2008 MSGP §§ 8.J.4.2.1, 8.J.4.3.2, 8.J.4.3.3, & 8.J.7.

20 The visual assessment of discharges to be conducted during every site inspection is 

separate from and in addition to the quarterly visual assessments required under Part 

3.2 of the Draft 2013 MSGP.

21 See 2008 MSGP Fact Sheet §§ VIII.B & X.A.1. 
13

Clean Water Act. Below are several concerns that NMA members have with respect to

the interplay between Sector H requirements and SMCRA. 

 First and most importantly, EPA should clarify that the MSGP covers only 

specific areas at coal mines such as haul roads, conveyor belts, rail loops and 

access roads where stormwater may come into contact with the raw product, 

by-product, etc., as described in 40 CFR 122.26. If stormwater does not have 

the potential to come into contact with these products at these locations, then 

the MSGP does not apply. Importantly, SMCRA already provides for 

thorough regulatory review and enforcement of construction activities that are

conducted within a permitted coal mine.

 Second, the SMCRA rules at 30 CFR Part 815 set forth performance 

standards for coal exploration activities, including operation, reclamation and 

revegetation requirements for areas that are disturbed during coal exploration 

activities.22 These requirements include minimizing disturbance to the 

prevailing hydrologic balance.23 Furthermore, the sediment and water control 

plan24 required by the SMCRA authority provides for effective BMPs and 

minimal exposure to potential pollutants to ensure that any stormwater 

coming into contact with the disturbance at the exploration hole site will not 

result in impairment of receiving waters. EPA should therefore justify why the 

new requirements proposed in the MSGP are required, as they are 

duplicative of SMCRA requirements. 

 Third, the proposed permit adds language that Sector-Specific Benchmarks 

apply to both primary industrial activity and any co-located industrial activities. 

However, ambient concentrations of iron, aluminum and TSS are often 

several orders of magnitude higher than the proposed benchmarks in areas 

subject to the MSGP, making the benchmark levels unattainable in many 

areas of the U.S. EPA should therefore consider providing relief to mine 

operators that have clearly demonstrated that levels of these metals in excess 

of the benchmark levels are due to naturally occurring background conditions, 

particularly in the semi-arid western U.S. NMA requests that EPA not apply 

the proposed benchmarks to mines that have already demonstrated naturally 

occurring elevated concentrations of iron, aluminum and TSS. NMA also 

requests that EPA assess the benchmark data that has been submitted 

through previous MSGP permits to determine the usefulness of the proposed 

benchmark levels. 

 

22 See 30 C.F.R. § 815.1 – 815.15.

23 See 30 C.F.R. § 816.41 – 816.49.

24 See 30 C.F.R. § 816.45. 
14

 Fourth, certain inspection and corrective action requirements borrowed from 

the 2012 CGP are redundant with SMCRA requirements, and as noted 

earlier, the 2012 CGP requirements may not be feasible at western U.S. 

operations due to the scope of these operations and the highly variable 

nature of the storms that cause stormwater. Additionally, as noted above, 

CGP requirements could compromise safety and result in significant 

increases in costs if they were to be imported wholesale onto the mining 

industry as proposed. 

* * *

NMA appreciates your consideration of these issues related to our December 2013

comments and springing from our February 5, 2014 dialogue. NMA hereby requests 

that EPA add this letter to the administrative record, along with the materials we 

provided at the February 5, 2014 meeting. NMA would greatly appreciate the 

opportunity to discuss these issues further with EPA staff as you move forward with 

finalizing the MSGP. Please contact me at (202) 463-2646 or AAspatore@nma.org

should you have any questions regarding these additional comments, or to schedule a 

follow-up discussion. 

Respectfully submitted,

Amanda E. Aspatore

Associate General Counsel

National Mining Association