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 D ocket 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 beha lf 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 As sociated w ith 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 writ ing to follow up on some of th e 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 minin g 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 refere nce 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 devel oped 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 account2

the unique nature of mini ng 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 fi rst tailor any such requi rements to the mining

sectors.

When commenti ng 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

. M ine 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 9 8 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 operation s . It is common for mining operations to move in and out of construction phases, which makes it impractical (if not impossible) to impo se 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 ha d 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 N MA 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 defin ition of “final stabilization.” It is significant that t he 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 develop ed the 2012 CGP and the Co nstruction and Development ELGs. In fact, EPA did not take into consideration key differences3

between mine sites and typical construction sites in the development of the 2012 CGP, such as requirements related to sediment basins, natural buffers, topsoil r egulations,

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 su bmit 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 de velop

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 letter s 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 i n the context of MSGP

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

Finally , as discussed in NMA’s April 19, 2010 and Feb ruary 5, 2014 meetings with EPA, it important to bear in mind that federal and state authorities have established separate laws, regulati ons 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 Enfor cement 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 Rit tenhouse (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 E PA 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 its elf . 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) enf orcement 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 provi de 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 i mporting requirements from the 2012 CGP and imposing

them o n the mini ng industry, it must rationally harmonize any such r equirements 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 “ C onstruction P hase” : EPA wrongly defines “construction ph ase” to include remov al 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 i mpos ing 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 P rior to Initial

Disturban ce : 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 resident ial 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 pose d 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 Controls 5 : R equirements 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 s treams, regional climatology, or scale of the land

disturbance will significant ly 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 q uality 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 de velopments,

the propo se d 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 en gineering contractors. Often, even when a simple stormwater control like silt fencing is identified as being in disrepair, the repair or replacement of th at 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., improv ing 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. T his requirement further ignores th e 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 whic h 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 o r, 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 sl ope 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 requir ement 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

managem ent structures a nd 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 pond s 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 caveat s 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

- s pecific 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 Appendi x 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 c haracteristics 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 mini ng permit boundaries, are

7 It is unclear what function the “no stormwater discharge” exceptio n 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 coverag e. 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 C lean W ater A ct Section 404 permit (CGP 2.1.2.1.e.v). In addition to surface coal mining permits issued

u nder SMCRA, coal mines are also required to obtain C lean W ater A ct
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 req uirements 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 und er a C lean

W ater A ct 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, w hich ignores the reality that most, if not all, of the heavy machinery used in mining operations do es not leave the site during the life of the operation

. Moreover

, EPA overlooks that many mining sites are accessible only from already strictly controlled ac cess 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 provisi ons 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 th e 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 qualit y 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 applica ble, 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

T he 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 s ite 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, mos t 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; how ever, these water management systems do not require this kind of inlet protection as they are dedicated systems designed to handle stormwater

asso ciated with mining operations. While some water management systems may benefit from inlet protection, it is i nappropriate 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 re vise 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 inst all 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 stock piles 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 appro priate, 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 cave ats 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...)9

addition, some operations may well be able to use stormwater controls other than sediment basis to pr event 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 oth er 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 ca veat 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 rel ated 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 cover s 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 flexibilit y 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 i s 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

co mbination 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 a vailable 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 nec essary 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 f ederal, 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, b ut 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 t hat 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 f ederal and s tate 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 contras t, 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 con struction

related 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.

M andating a 70% cover requirement (as identified in the proposed MSGP) , on the other hand, is inappropriate when the baseline vegetation condition is far b elow that threshold, as low moisture conditions combined with poor or no soil result in natural conditions having significantly less than 70% cover.

T he 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 re clamation 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. L eak

- 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 s hould 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 Sensit i ve 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 thi s flexibility to mine operators. 18 T hese 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 affec ted areas will not be discharged...”).

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

ci rcumstances 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 sta bilization 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 co nditions) 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 rela xed 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 oc curring 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 biwe ekly. 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 require s such an evaluation at each outfall during every single inspection. In the Fact Sheet for the 2008 MSG P , EPA expressly rejected a suggestion that substantially identical outfalls be monitored annually “because the Agency does not believe that it will pro vide 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 res ources 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 reta in

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 re quired 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

s eparate 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 i mportantly, 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 d isturbed during coal exp loration

activities. 22 These requirements include minimizing disturbance to the prevailing hydrologic balance. 23 Furthermore, t he sediment and water control plan 24 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 clear ly 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 alrea dy 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 oper ations 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 a s 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 mater ials 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 yo u 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