42534 Federal Register / Vol. 63, No. 152 / Friday, August 7, 1998 / Notices

ENVIRONMENTAL PROTECTION

AGENCY

[WH–FRL–6135–8]

Modification of the National Pollutant

Discharge Elimination System

(NPDES) Storm Water Multi-Sector

General Permit for Industrial Activities

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final modification of NPDES

general permits; notice of interpretation.

SUMMARY: Today’s action clarifies an

interpretation of the technology-based

effluent limitations applicable to point

sources of ‘‘mine drainage’’ at active ore

mining and dressing operations, which

was contained in a recently-issued

NPDES general permit for storm water

associated with industrial activity. With

this notice, EPA provides a more

definitive interpretation of the

applicability of those recently-issued

general permits, specifically, as they

apply to certain storm water discharges

at active ore mining and dressing

operations. To incorporate today’s

interpretation, EPA modifies the NPDES

general permits issued by EPA Regions

1, 6, 9 and 10 because the Agency is the

permit issuance authority in States in

those Regions. EPA intends, however,

that the interpretation apply nationwide

in all EPA Regions.

DATES: These permit modifications shall

be effective on September 8, 1998.

ADDRESSES: The complete

administrative record for today’s permit

modification is available for public

review the Water Docket MC–4101, U.S.

Environmental Protection Agency, 401

M Street, SW, Washington, DC, 20460.

FOR FURTHER INFORMATION CONTACT: For

further information, contact Bryan

Rittenhouse, Office of Wastewater

Management, Office of Water at (202)

260–0592 or the appropriate EPA

Regional Office. For EPA Region 1,

covering discharges in the State of

Maine and Federal Indian reservations

in Maine, in the Commonwealth of

Massachusetts and Federal Indian

reservations in Massachusetts, in the

State of New Hampshire and Federal

Indian reservations in New Hampshire,

as well as Federal Indian reservations in

the States of Vermont, Connecticut, and

Rhode Island, and Federal facilities in

Vermont, contact Thelma Hamilton at

(617) 565–3569. For EPA Region 6,

covering discharges in the State of Texas

and Federal Indian reservations in

Texas, in the State of New Mexico and

Federal Indian reservations in New

Mexico (except Navajo Reservation

lands, which are covered by EPA Region

9 and Ute Reservation lands, which are

covered by EPA Region 8 and were not

covered by the Multi-Sector General

Permit), as well as Federal Indian

reservations in Oklahoma and

Louisiana, contact Brian Burgess at

(214) 665–7534. For EPA Region 9,

covering the State of Arizona and

Federal Indian reservations in Arizona,

and Federal Indian reservations in

California (except the Hoopa Valley

Tribe) and Nevada, as well as the Duck

Valley, Fort McDermitt, Goshute

Reservations and Navajo Reservations,

each of which cross State boundaries,

contact Eugene Bromley at (415) 744–

1906. For EPA Region 10, covering the

State of Alaska and Federal Indian

reservations in Alaska, the State of

Idaho and Federal Indian reservations in

Idaho (except the Duck Valley

Reservation, which is covered by EPA

Region 9), Federal Indian reservations in

Washington and Oregon (except the Fort

McDermitt Reservation, which is

covered by EPA Region 9), as well as

Federal facilities in Washington, contact

Joe Wallace at (206) 553–6645.

SUPPLEMENTARY INFORMATION:

Authority: EPA issues NPDES permits

under the authority of CWA section 402, 33

U.S.C. section 1342. Today’s modification is

based on an interpretation of rules published

under the authority of CWA sections 301,

304, 308, 402, and 501(a), 33 U.S.C. sections

1311, 1314, 1318, 1342, and 1361(a). Today’s

action modifies a table that was initially

published in conjunction with NPDES

permits for storm water associated with

industrial activity issued pursuant to CWA

section 402, 33 U.S.C. section 1342.

In today’s notice, EPA announces its

interpretation of the technology-based

effluent limitations applicable to point

sources of ‘‘mine drainage’’ at ore

mining and dressing operations under

the Clean Water Act (‘‘CWA’’). 33 U.S.C.

§ 1251 et seq. This interpretation

updates and replaces an earlier

interpretation published in the fact

sheet for the final National Pollutant

Discharge Elimination System

(‘‘NPDES’’) Storm Water Multi-Sector

General Permit for Industrial Activities

at 60 FR 50804 (Sept. 29, 1995)(‘‘MultiSector Permit’’). The interpretation in

today’s notice replaces EPA’s

interpretation in Table G–4 of the MultiSector Permit regarding the applicability

of the ‘‘mine drainage’’ provisions of

regulations found at 40 CFR Part 440. 60

FR at 50897. Today’s notice also

supersedes and clarifies the

interpretation that the Agency proposed

at 62 FR 54950 (Oct. 22, 1997).

EPA reviewed the administrative

record supporting the Part 440

regulations, as well as Agency

statements made during the course of

litigation over those regulations, and

revises Table G–4 accordingly. In

litigation challenging the Multi-Sector

Permit, National Mining Association v.

EPA, No. 95–3519 (8th Cir.), the

National Mining Association (NMA)

argued that the regulatory interpretation

contained in Table G–4 was overly

expansive and not supported by

appropriate economic and technological

evaluation. To support its argument,

NMA cited Agency statements made

during the course of litigation

approximately twenty years earlier.

These statements were not raised and

presented to the Agency during the

public comment period of the permit. In

response to NMA’s arguments in the

current litigation, EPA has re-evaluated

the underlying record supporting the

Part 440 regulations and is

supplementing its interpretation of the

‘‘mine drainage’’ provisions contained

in Table G–4. Today’s action supersedes

the Agency interpretation contained in

the Fact Sheet to the Multi-Sector

Permit, as originally issued.

Upon review of those documents, the

Agency believes the documents

(including judicial case law) speak for

themselves. Therefore, the Agency is

proposing to withdraw portions of the

Table that discuss applicability of the

Part 440 regulations; i.e., those portions

of the Table that do not specify

applicability of the Multi-Sector permit.

By today’s action, EPA also expands the

applicability of the Multi-Sector permit

consistent with the interpretation in

today’s notice.

I. Effluent Guidelines for Ore Dressing

and Mining Point Source Category

A. Background

Congress enacted the Clean Water Act

to establish a comprehensive program to

‘‘restore and maintain the chemical,

physical and biological integrity of the

Nation’s waters’ through the reduction,

and eventual elimination, of the

discharge of pollutants into those

waters. CWA § 101(a); 33 U.S.C.

§ 1251(a). To achieve its objective, the

CWA provides for a permit program to

control ‘‘point source’’ pollution. The

CWA point source permitting program

is known as the National Pollutant

Discharge Elimination System

(‘‘NPDES’’), under which EPA or

authorized States issue permits for point

source discharges. Except in accordance

with an NPDES permit, a point source

discharge of a pollutant is unlawful.

CWA § 301(a); 33 U.S.C. § 1311(a). All

NPDES permits must, at a minimum,

contain technology-based effluent

limitations established in effluent

guidelines or standards or, if no such
Federal Register / Vol. 63, No. 152 / Friday, August 7, 1998 / Notices 42535

1Water quality based effluent limitations are

included in permits when necessary to assure

compliance with water quality standards.

2 If no such guidelines have been established,

technology-based limits are developed on a case-bycase basis based on the best professional judgment

of the permit writer.

3The definitions of and discussion of these terms

in this notice are within the use of these terms

under the NPDES program and the Clean Water Act.

These definitions are not specifically applicable to

the use of these terms under other federal

environmental laws, including under the Resources

Conservation and Recovery Act, 42 U.S.C. §§ 6901,

et seq. (RCRA) and its implementing regulations.

guidelines have been established,

limitations derived on the basis of best

professional judgment.

Individual NPDES permits contain

substantive restrictions, called ‘‘effluent

limitations,’’ which are aimed at

controlling the level of pollutants in

point source discharges. CWA § 402(a);

33 U.S.C. § 1342(a). Effluent limitations

may be ‘‘technology-based’’ or ‘‘water

quality-based.’’1 For some industrial

point source categories, EPA has

published technology-based effluent

limitations that apply on a nationwide

basis, pursuant to CWA §§ 304(b) and

306(b)(1)(B); 33 U.S.C. §§ 1314(b) and

1316(b)(1)(B).2 These limitations are

called national effluent limitations

guidelines or standards. EPA has

published best practicable control

technology currently available (‘‘BPT’’),

best conventional pollutant control

technology (‘‘BCT’’), best available

technology economically achievable

(‘‘BAT’’) effluent guidelines, and new

source performance standards (‘‘NSPS’’)

for point sources in over fifty different

industrial categories. Among the

effluent guidelines and standards which

EPA has established are those

applicable to the ore mining and

dressing industry. These guidelines are

known as the ‘‘Effluent Guidelines for

the Ore Mining and Dressing Point

Source Category’’ (hereinafter referred to

as the ‘‘Guidelines’’). The Guidelines are

published at 40 CFR Part 440.

EPA first published the Guidelines on

an interim final basis on November 6,

1975. 40 FR 51722. On July 11, 1978,

after substantially expanding the data

base supporting the Guidelines, and

after considering comments submitted

since initial promulgation, EPA

republished the Guidelines in modified

form. 43 FR 29771 (July 11, 1978). Both

the initial and republished Guidelines

established BPT effluent limitations for

discharges for ore mining and dressing

operations.

B. Storm Water Regulation Under the

Guidelines 3

The Guidelines establish industrywide effluent limitations for two types

of mine discharges: (1) mill discharges

and (2) mine drainage. ‘‘Mine drainage’’

means ‘‘any water drained, pumped, or

siphoned from a mine.’’ 40 CFR

440.132(h). A ‘‘mine,’’ in turn, is

defined as:

An active mining area, including all

land and property placed under, or

above the surface of such land, used in

or resulting from the work of extracting

metal ore or minerals from their natural

deposits by any means or method,

including secondary recovery of metal

ore from refuse or other storage piles,

wastes, or rock dumps and mine tailings

derived from the mining, cleaning, or

concentration of metal ores. 40 CFR

440.132(g)(emphasis added). An ‘‘active

mining area,’’ in turn, is defined as: A

place where work or other activity

related to the extraction, removal, or

recovery of metal ore is being

conducted, except, with respect to

surface mines, any area of land on or in

which grading has been completed to

return the earth to desired contour and

reclamation work has begun. 40 CFR

440.132(a).

1. Petition for Reconsideration

After EPA promulgated the

Guidelines on July 11, 1978, a number

of mining companies filed petitions for

judicial review challenging the

Guidelines. [The judicial challenges are

discussed below.] During the pendency

of its judicial challenge, one of those

companies, Kennecott Copper

Corporation (‘‘Kennecott’’) filed an

administrative petition with EPA (dated

September 26, 1978) requesting that the

Agency reconsider and clarify the

Guidelines. Kennecott amended its

petition on November 9, 1978.

Kennecott identified five areas of

alleged deficiencies and concerns with

the Guidelines. One of these issues

related to the storm water runoff

provisions of the Guidelines.

Kennecott objected to the storm water

runoff provisions, which it argued were

overly vague and capable of being

interpreted in a manner that would

violate applicable law. Among other

things, Kennecott was particularly

concerned about applicability of the

Guidelines to what it referred to as

‘‘non-process’’ areas at mining

operations. Kennecott further argued

that the Guidelines, if applied in the

manner suggested by Kennecott, would

entail exorbitant costs not considered

during the rule making. Kennecott

presented EPA with cost estimates that

Kennecott believed it would have to

incur to comply with the Guidelines.

Kennecott estimated costs to control

storm water drainage flows from what

Kennecott referred to as the ‘‘process’’

and ‘‘non-process’’ areas at two

Kennecott mining operations, the Ray

Mine and the Chino Mine. As discussed

more fully below, the Agency’s decision

on Kennecott’s petition is at the core of

the NMA litigation over the MultiSector Permit.

In partial response to the Kennecott

petition, EPA published a notice in the

Federal Register that clarified the scope

of the Guidelines’ applicability to storm

water runoff. 44 FR 7953–54 (Feb. 8,

1979). That Notice of Clarification

explained that the Guidelines applied

only to point sources in the active

mining area. The Notice clarified EPA’s

interpretation that the ‘‘mine drainage’’

provisions applied to ‘‘water which

contacts an active mining area and flows

into a point source.’’ Id. EPA further

explained that mining operations are

not required to ‘‘collect and contain

diffuse storm [water] runoff which

would not otherwise be collected in or

does not otherwise drain into a point

source.’’ Id. at 7954. In other words,

diffuse storm water (from an active

mining area) that was collected or

contained in, or that naturally flowed

into, a point source was subject to the

Guidelines. Other storm water drainage

flows were not subject to the

Guidelines.

EPA denied Kennecott’s petition on

February 21, 1979. In doing so, EPA

relied in part on the Notice of

Clarification. The decision on the

reconsideration petition discussed the

applicability of the Guidelines to

Kennecott’s Ray Mine. For storm water

drainage flows from what Kennecott

called ‘‘non-process’’ areas at the Ray

Mine, EPA concluded that Kennecott

would incur no additional costs.

Kennecott had, for the purposes of its

petition, defined ‘‘non-process’’ area to

mean ‘‘overburden dumps, material too

low in mineral content even to leach,

and exposed benches at the mine.’’

Citing to the Notice of Clarification, EPA

concluded that the definition of ‘‘mine

drainage’’ did not include diffuse storm

water runoff from overburden dumps

and material too low in mineral content

to leach. As that Notice of Clarification

explained, ‘‘[a]ll water which contacts

an ‘active mining area * * *’ and either

does not flow, or is not channeled by

the operator, to a point source, is

considered runoff, and it is not the

regulations’ intent to require the mine

operator to collect and treat such

runoff.’’ 44 FR at 7954. On the matter of

storm water contacting the exposed

benches, EPA could not determine

whether such discharges would

constitute point source discharges and

thus, concluded that the issue would

best be addressed by the permitting
42536 Federal Register / Vol. 63, No. 152 / Friday, August 7, 1998 / Notices

4 ‘‘Point source’’ is defined at Clean Water Act

§ 502(14) to mean ‘‘any discernible, confined, and

discrete conveyance, including but not limited to

any pipe, ditch, channel, tunnel, conduit, well,

discrete fissure, container, rolling stock,

concentrated animal feeding operation, or vessel or

other floating craft, from which pollutants are or

may be discharged. See also 40 CFR 122.2.

5 In litigation over the Multi-Sector Permit, NMA

now suggests that the 10th Circuit relied on the

Agency statements concerning the status of storm

water drainage flows at the Ray Mine to uphold the

Guidelines and that the Agency cannot now

conclude that the court independently found the

storm water runoff provisions of the Guidelines

acceptable. EPA disagrees. The court’s decision

never cites or discusses any of these statements.

authority in the context of a permit

proceeding.

2. Judicial Challenge

The Guidelines rule was ultimately

upheld by the U.S. Court of Appeals for

the Tenth Circuit. Kennecott Copper

Corp. v. EPA, 612 F.2d 1232 (10th Cir.

1979). In affirming the Guidelines, the

Tenth Circuit relied on the language of

the Notice of Clarification and

considered moot the Petitioner’s

challenges to storm water runoff

provisions, which were based on the

argument that the Guidelines were

overly board and included ‘‘nonpoint’’

as well as ‘‘point sources.’’ Kennecott

Copper Corp., 612 F.2d at 1242. The

court further found that ‘‘* * * EPA is

entirely within its authority in

regulating [discharges of] storm runoff

that falls within [the definition of] a

‘point source.’ ’’ Id. at 1243.

Additionally, the court reasoned that

the determination of whether a

particular discharge constitutes a point

source is best made in the context of

permit proceedings, guided by the broad

definition of ‘‘point source’’ provided in

the CWA.4 The Court recognized that it

is ‘‘unrealistic, if not altogether

impossible’’ to provide an ‘‘absolute and

unequivocal’’ definition of ‘‘point

source’’ and rule of applicability, further

supporting case-by-case or site-specific

determinations on applicability of the

Guidelines.

Congress has purposefully phrased

this definition broadly. This is as it

should be given its contemplated

applicability to literally thousands of

pollution sources. To cast such

definitions in absolute, unequivocal

terms would be unrealistic, if not

altogether impossible. As we observed

in American Petroleum Institute, 540

F.2d at 1032: ‘‘On the road to attainment

of the no discharge objective some

flexibility is needed.’’ 612 F.2d at 1243.

The court did not say anything further

in response to Kennecott’s arguments

complaining that the Guidelines would

improperly regulate nonpoint source

discharges at mine sites. The court did

not rely on or cite to any other

references in the administrative record

before it. In response to any remaining

arguments before it, the court simply

noted that ‘‘careful examination of

petitioner’s remaining arguments has

persuaded us that they are without

merit.’’ Id. at 1243. Thus, the court

either summarily rejected Kennecott’s

arguments that the Guidelines were

vague and overly board, or affirmatively

upheld the regulations against

Kennecott’s challenges based on reasons

explained in the decision.5

While, over the course of the

intervening years, the federal courts

have refined their interpretations of

‘‘point source,’’ EPA’s conclusions

about point sources at mining

operations has remained constant. In

upholding the Guidelines in Kennecott

Copper Corp., the Tenth Circuit

specifically cited to one of the seminal

cases upon which courts rely for the

proposition that the term ‘‘point source’’

should be interpreted broadly, United

States v. Earth Sciences, Inc., 599 F.2d

368 (10th Cir. 1979). 612 F.2d at 1241,

1243.

3. Subsequent Agency Action

Apart from the Agency statements

made during the course of the Kennecott

Copper Corp. litigation, EPA staff has

not been able to locate evidence of

subsequent Agency action referring to

those statements. Since that time, EPA

and authorized NPDES States have

issued permits to a significant number

of ore mining and dressing operations.

Until the instant litigation, no party

identified or presented any of the

Agency litigation statements from the

Kennecott Copper Corp. case to Agency

personnel working with NPDES permits.

A subsequent judicial case, which

EPA cited in the 1990 storm water

regulations, further clarifies that storm

water associated with industrial activity

at mining sites may result in point

source discharges. See Sierra Club v.

Abston Construction Co., Inc., 620 F.2d

41 (5th Cir. 1980); 55 FR at 47997. In

that case, the court determined that

whether a point source discharge was

present due to rainfall causing sediment

basin overflow and erosion of piles of

discarded material, even without direct

action by coal miners, was a question of

fact. 620 F.2d at 45. The ultimate

question was whether the discharge is

from a ‘‘discernible, confined, discrete

conveyance,’’ whether by gravitational

or non-gravitational means. Id. It was

irrelevant that operators did not

construct the conveyances, so long as

those conveyances were reasonably

likely to be the means by which

pollutants were ultimately deposited

into a navigable body of water. Id.

Conveyances of pollution formed either

as a result of natural erosion or by

material means may fit the statutory

definition of point source. Id.

II. NPDES Storm Water General MultiSector Permit for Industrial Activities

A. Background

In 1987, Congress amended the CWA

by adding, among other things, several

provisions concerning the control of

point source discharges composed

entirely of storm water. In the 1987

amendments, Congress directed EPA to

publish permit application regulations

for ‘‘discharges of storm water

associated with industrial activity.’’

CWA § 402(p)(4)(A), 33 U.S.C.

§ 1342(p)(4)(A). On November 16, 1990,

EPA published those regulations. In

doing so, EPA defined ‘‘storm water’’ as

storm water runoff, snow melt runoff,

and surface runoff and drainage. It also

defined ‘‘[s]torm water discharge

associated with industrial activity’’ to

mean the discharge of pollutants from

any conveyance which is used for

collecting and conveying storm water

and which is directly related to

manufacturing, processing, or raw

materials storage areas at an industrial

plant. See 40 CFR 122.26(b)(14).

Included among these discharges were

discharges from conveyances at mining

facilities, including from active and

inactive mining operations that

discharge storm water contaminated by

contact with or that has come into

contact with overburden. 40 CFR

122.26(b)(14)(iii). In the course of that

rule making, in order to reconcile those

application regulations with a statutory

exemption from CWA section 402(l)(2),

EPA noted that ‘‘a permit application

will be required when discharges of

storm water runoff from mining

operations come into contact with any

overburden. * * * ’’ 55 FR 47990,

48032. Today’s interpretation and

permit modification implements those

provisions.

Upon challenge, this part of the

regulations was upheld by the U.S.

Court of Appeals for the Ninth Circuit.

American Mining Congress v. EPA, 965

F.2d 759 (9th Cir. 1992) (regulations

upheld against industry challenge that

the rules, among other things, imposed

retroactive liability for storm water

discharges from existing mine sites).

The issues in that case are related to, but

different from, the issues addressed in

today’s action. That case involved

inactive mines; today’s action involves

active mining operations.
Federal Register / Vol. 63, No. 152 / Friday, August 7, 1998 / Notices 42537

The NPDES regulations for storm

water describe three mechanisms by

which dischargers of storm water

associated with industrial activity could

apply for permits. 40 CFR 122.26(c)(1).

First, dischargers can apply for

‘‘individual permits.’’ Second, (prior to

1992) dischargers could apply for

permits through a ‘‘group application.’’

Third, dischargers can apply for

coverage under an ‘‘EPA promulgated

storm water general permit.’’

Dischargers from numerous industries

applied for permits through the group

application process. Among them were

dischargers from the ore mining and

dressing industry.

On March 10, 1993, EPA accepted

group applications from ore mining and

dressing industry applicants and began

processing those group applications. On

November 19, 1993, EPA proposed to

issue a single ‘‘general’’ permit (for each

State where EPA issues permits) based

on all of the group applications

accepted and received from group

applicants in various covered

industries. 58 FR 61146, 61236–61251

(November 19, 1993). EPA issued that

set of general permits on September 29,

1995, and took subsequent action

concerning these general permits on

February 9, 1996, February 20, 1996 and

September 24, 1996. These general

permits are entitled the NPDES Storm

Water Multi-Sector General Permits for

Industrial Activities (hereinafter

referred to in the singular as the ‘‘MultiSector Permit’’). The Multi-Sector

Permit applies in most States,

Territories, and Indian Country where

EPA administers the NPDES permitting

program.

The Multi-Sector Permit contains

requirements that are specifically

tailored to the types of industrial

activity occurring at facilities

represented by various industry groups

applicants. Unlike much of the Ore

Mining and Dressing Guidelines, the

Multi-Sector Permit incorporates

narrative effluent limitations for storm

water discharges. These narrative

effluent limitations are referred to as

‘‘best management practices’’ (‘‘BMPs’’).

BMPs are designed to represent the

pollution reductions achievable through

application of BAT and BCT. Permits

include BMPs to control or abate the

discharge of pollutants when, for

example, numeric effluent limitations

are infeasible. 40 CFR 122.44(k).

In addition to the narrative BMPs, the

Multi-Sector Permit includes eligibility

restrictions. Multi-Sector Permit Part

I.B.3.(a)–(h), 60 FR at 51112. Discharges

that do not comply with the eligibility

restrictions are not authorized by the

permit. For example, storm water

discharges that the Agency has

determined to be or may reasonably be

expected to be contributing to a

violation of a water quality standard are

not authorized by the Multi-Sector

Permit. Multi-Sector Permit Part I.B.3.f.

B. Multi-Sector Permit Coverage of

Mining Activity

By its terms, the Multi-Sector Permit

provides authorization for some storm

water discharges from ore (metal)

mining and dressing facilities.

Authorization initially was limited,

however, to storm water discharges from

or off of: topsoil piles; offsite haul/

access roads outside the active mining

area; onsite haul roads if not

constructed of waste rock or spent ore

(except if mine drainage is used for dust

control); runoff from tailings dams/dikes

when not constructed of waste rock/

tailings and no process fluids are

present; concentration buildings, if no

contact with material piles; mill sites, if

no contact with material piles; chemical

storage areas; docking facilities, if no

excessive contact with waste product;

explosive storage areas; reclaimed areas

released from reclamation bonds prior

to December 17, 1990; and partially/

inadequately reclaimed areas or areas

not released from reclamation bonds.

The Multi-Sector Permit covers

discharges composed of entirely storm

water flows, as well as certain allowable

non-storm water discharges. 60 FR at

51114; Part III.A. The Multi-Sector

Permit does not authorize point source

dry weather discharges, such as from

mine adits, tunnels, or contaminated

springs or seeps, which are not storm

water. Id.; Part III.A.2.a.; 60 FR at 51155.

Note that such dry weather discharges

are not affected by today’s clarification.

Under the Multi-Sector Permit at Part

I.B.3.g., permit coverage is available for

storm water discharges covered by

some, but not all, of the various effluent

guidelines that address storm water,

including, for example, some of the

storm water discharges under the

Mineral Mining and Processing

Guidelines at 40 CFR Part 436. 60 FR at

51112. The Multi-Sector Permit does

not, however, cover storm water

discharges from point sources that are

subject to the Ore Mining and Dressing

Guidelines. 60 FR at 51155; Part

XI.G.1.a.

Table G–4 of the Multi-Sector Permit,

entitled ‘‘Applicability of 40 CFR Part

440 Effluent Limitations Guidelines to

Storm Water,’’ identified various

discharge sources associated with ore

mining and dressing operations. The

Table indicated EPA’s view at that time

concerning standards of regulatory

control for those discharges. The

different standards of regulatory control

include: ‘‘mine drainage’’ effluent

limitations guidelines, found in the

Guidelines; ‘‘mill discharge process

water’’ effluent limitations guidelines,

also found in the Guidelines; ‘‘storm

water,’’ which could, for example, be

found in the Multi-Sector Permit; and

‘‘unclassified,’’ indicating discharges

not regulated under the Guidelines or

the Multi-Sector Permit.

As EPA said in adopting the MultiSector Permit: ‘‘Table G–4 clarifies the

applicability of the Effluent Limitations

Guidelines found in 40 CFR Part 440.

This Table does not expand or redefine

these Effluent Limitations Guidelines.’’

60 FR at 50897 (emphasis added). EPA’s

intent in publishing Table G–4,

therefore, was merely to reiterate the

interpretation that EPA issued when it

promulgated the Guidelines.

III. Legal Challenge Concerning Table

G–4

On October 10, 1995, the National

Mining Association (hereinafter referred

to as ‘‘NMA’’ or the ‘‘Petitioners’’)

petitioned the U.S. Court of Appeals for

the Eighth Circuit for judicial review of

the Multi-Sector Permit. Specifically,

Petitioners challenged EPA’s

determination that storm water runoff

from a number of ancillary mine sources

identified in Table G–4 of the MultiSector Permit would constitute sources

of ‘‘mine drainage’’ under the

Guidelines. The particular mining

activities of concern include overburden

piles, haul roads made of overburden

and other ancillary mine areas. As noted

above, EPA excluded storm water runoff

from these sources from coverage under

the Multi-Sector Permit. The Petitioners

contended that this determination

reflects a new, more expansive

interpretation of the Guidelines.

NMA presented documents from the

prior Kennecott litigation, namely:

EPA’s 1979 decision responding to

Kennecott’s petition for reconsideration

of the Guidelines; a letter of EPA

counsel which was attached to a

decision responding to the Kennecott

petition for reconsideration of the

Guidelines; and a brief that EPA filed

before the Tenth Circuit. NMA cited

these documents to support its

argument that EPA’s interpretation prior

to publishing the Multi-Sector Permit

was that ‘‘overburden’’ (‘‘waste rock/

overburden piles’’) and ancillary areas

at mining operations would be outside

the scope of the Guidelines. NMA

asserted that certain entries in Table G–

4 were incorrect to the extent that the

table categorically identified discharges

from such sources as covered by the

Guidelines. NMA argued that, based on
42538 Federal Register / Vol. 63, No. 152 / Friday, August 7, 1998 / Notices

EPA statements made during the course

of the Kennecott litigation, no

overburden-related areas are covered by

the Guidelines.

EPA has reviewed the Agency

statements made during the 1979

litigation challenging the Guidelines

rule making. While disagreeing with

NMA’s categorical conclusion that no

overburden-related areas are covered by

the Guidelines, EPA believes the earlier

Agency statements reflect an EPA

interpretation that a storm water

discharge from a waste rock or

overburden piles would not be subject

to the Guidelines unless: (1) it naturally

drains (or is intentionally diverted) to a

point source; and (2) combines with

‘‘mine drainage’’ that is otherwise

regulated under the Part 440

regulations. Such a discharge would be

subject to the Part 440 regulations if,

however, it combined with either

process waters (i.e., mill drainage) or

other mine drainage. This clarification

was not obvious from the face of Table

G–4 as presented in the Multi-Sector

Permit.

NMA’s challenge to the Multi-Sector

Permit is currently under the

advisement of the Eighth Circuit. Both

parties have submitted briefs. A

coalition of citizens’ interest groups, the

Western Mining Action Project and

Sierra Club Legal Defense Fund, also

filed an amicus curiae brief with the

Court. On March 10, 1997, the Eighth

Circuit heard oral argument in National

Mining Association v. EPA, No. 95–

3519. At that time, counsel for EPA

represented to the court that EPA

intended to prepare a clarification of the

Agency’s interpretation of the

technology-based effluent limitations

applicable to point source discharges

from various areas at ore mining and

dressing operations. Today’s notice

provides that clarification and would

revise the Table so that it reflects only

sources to which the Permit would

apply.

IV. Interpretation

Upon fuller review of the underlying

record, EPA now believes that, in 1978–

79, the Agency did not consider certain

point source discharges of storm water

associated with ‘‘waste rock and

overburden’’ to be subject to the Ore

Mining and Dressing Guidelines.

Specifically, EPA did not conduct a

complete economic and technological

assessment of diverting drainage flows

from ‘‘waste rock or overburden’’

outside the active mining area into the

active mining area. Therefore, the

Agency did not consider such

discharges to be sources of mine

drainage. First, discharges from waste

rock and/or overburden piles would be

outside the scope of the Guidelines if

they consist ‘‘entirely of diffuse runoff

which contacts overburden piles, which

did not either normally flow to, or by

design drain to a point source.’’ Such

diffuse runoff would not even be subject

to the NPDES permit program if it was

not added to waters of the United States

through a discrete, confined,

discernable conveyance. See 44 FR 7953

(Feb. 8, 1979). Second, such discharges

would be outside the scope of the

Guidelines if storm water runoff from

waste rock and/or overburden-related

sources does not combine with mine

drainage otherwise subject to the Part

440 regulations. In light of the above,

EPA believes that, to the extent that a

reader could misinterpret the Table as

categorically including all ‘‘waste rock/

overburden’’ sources to be within the

‘‘active mining area,’’ Table G–4 did not

accurately reflect the scope of the

applicability of the Guidelines.

Today’s action does not change in any

way EPA’s interpretation of the coverage

of the Guidelines set forth in the 1979

Notice of Clarification, which provides

that the Guidelines ‘‘are not intended to

require the operator to collect and

contain diffuse storm water runoff

which would not otherwise be collected

in or does not otherwise drain into a

point source.’’ Today’s notice articulates

the 1979 interpretation to the fact

situation contained in Table G–4 of the

Multi-Sector Permit.

Discharges from overburden-related

sources that do not combine with ‘‘mine

drainage’’ otherwise subject to the Part

440 regulations are not covered by the

Guidelines. Like all ‘‘point source’’

discharges, however, these discharges

require NPDES permit authorization to

be in compliance with the CWA. If these

discharges are entirely composed of

storm water (and are not covered by the

Guidelines), then they may be

authorized under an EPA general permit

for storm water (if it otherwise meets the

eligibility provisions), or an individual

permit with BPJ-based controls, which

may include either numeric limitations

and/or narrative limitations (in the form

of BMPs).

Discharges from haul roads

constructed of waste rock or spent ore

are subject to the Guidelines only if the

discharge combines with ‘‘mine

drainage’’ otherwise subject to the Part

440 regulations and the resulting storm

water flows drain into a point source.

Point source discharges consisting

entirely of storm water from haul roadrelated sources would be addressed in

the same manner as ‘‘waste rock and

overburden’’ (see above). As noted

above, such discharges would be

outside the scope of the NPDES program

if they consist entirely of diffuse runoff

which does not flow to a point source.

EPA notes that NPDES permit

coverage is still required when runoff

from waste rock and overburden piles is

channeled or drains to a point source.

Under today’s clarification,

determinations about whether numeric

effluent limitations similar to those in

the Ore Mining and Dressing Guidelines

should apply to discharges from

overburden piles and haul roads are

ones to be made on a site-by-site basis

based on the ‘‘best professional

judgment’’ of the permit writer

(according to regulations at 40 CFR

125.3(d)). Such permits might include

effluent limitations similar to the

effluent limitations for ‘‘mine drainage’’

under the Guidelines. If determined

feasible, EPA acknowledges that

compliance with such limits may

necessitate diversion of flows from such

sources for treatment purposes. EPA

provides additional guidance below.

V. Guidance To Permit Applicants and

Permit Writers

Based on the foregoing discussion,

EPA is revising Table G–4 today. In its

earlier form, Table G–4 could have been

misinterpreted. Consistent with earlier

EPA statements made in the preamble to

the Guidelines, the Notice of

Clarification and other documents

discussed above, the Table G–4

references to discharges from ‘‘waste

rock/overburden’’ and ‘‘onsite haul

roads constructed of waste rock or spent

ore’’ at active ore mining and dressing

sites are hereby modified. The Agency

does not consider those discharges to be

subject to the Guidelines unless they

combine with ‘‘mine drainage’’

otherwise subject to the Part 440

regulations and the resulting storm

water flows drain into a point source.

Although not compelled by the

Guidelines, numeric effluent limitations

may be appropriate for these discharges

if the permit writer so determines on a

BPJ basis or if the discharge would

cause or contribute to a violation of

water quality standards.

The term ‘‘active mining area’’ should

be interpreted in accordance with the

plain language of the regulations;

however, application of the definition

may vary from mine to mine. As the

Tenth Circuit recognized in the

Kennecott Corp. case, ‘‘to cast such

definitions in absolute, unequivocal

terms would be unrealistic, if not

altogether impossible.’’ 612 F.2d at

1243. The regulations define ‘‘active

mining area’’ as ‘‘a place where work or

other activity related to the extraction,

removal, or recovery of metal ore is
Federal Register / Vol. 63, No. 152 / Friday, August 7, 1998 / Notices 42539

being conducted, except, with respect to

surface mines, any area of land on or in

which grading has been completed to

return the earth to desired contour and

reclamation work has begun.’’ 40 CFR

440.132(a).

Today’s interpretation and guidance

describe a distinct class of discharges

that was not apparent from the face of

Table G–4 when the Agency published

the Multi-Sector Permit. Specifically,

today’s interpretation identifies some

discharges that could have been

interpreted to be ‘‘mine drainage’’ under

the plain language of the Guidelines

and, therefore, within the applicability

of the Guidelines and ineligible for

coverage under the ore mining and

dressing portion of the Multi-Sector

General Permit (and under Table G–4)

even though the Agency did not

evaluate the technological feasibility

and cost impacts of diverting drainage

from those sources into the active

mining area when it developed the Ore

Mining and Dressing Guidelines. Based

on today’s clarification, such an

interpretation would be inaccurate

because EPA did not require diversion

of flows from outside the active mining

area into the active mining area for

treatment. For this class of discharges

described by today’s notice, i.e., those

from overburden and/or waste rock

sources that do not combine with mine

drainage otherwise subject to the Part

440 regulations, authorization under a

EPA general permit for storm water may

be available subject to the eligibility

restriction against storm water

discharges that the Agency has

determined to be or may reasonably be

expected to be contributing to a

violation of a water quality standard.

Note that the permit applicant bears

the initial responsibility to determine

whether its discharges are eligible for

coverage under an EPA-issued general

permit. Discharges of ‘‘mine drainage’’

from the ‘‘active mining area’’ are not

eligible for authorization under either

the NPDES Baseline General permit or

the Multi-Sector Permit because such

discharges are subject to the Guidelines.

For this reason, EPA encourages permit

applicants to contact the NPDES permit

issuance authority if there is any doubt

regarding the nature and scope of the

‘‘active mining area’’ at the site of their

operations. In many cases,

modifications to individual permits may

be more appropriate for longer-term

authorization of the storm discharges in

question. Of course, as indicated in the

Table, there may be other such point

sources of drainage from within the

active mining area that would not be

‘‘mine drainage.’’ Such discharges may

be appropriately regulated under EPA

general permits for storm water.

EPA also recommends that permit

applicants contact the relevant NPDES

authority for assistance in determining

the appropriate permitting vehicle to

address the class of discharges

described in today’s notice. At the time

of reissuance, individual permits

provide the best opportunity to evaluate

all discharges at a mining operation,

determine appropriate technology-based

and water quality-based limitations, and

tailor controls appropriate for the

discharge, for example, through the use

of best professional judgment (BPJ)

according to 40 CFR § 125.3(d) or

analogous State law, and where

necessary to assure compliance with

water quality standards.

NPDES permitting authorities should

consider the following pollutants of

concern when determining appropriate

permit limitations:

—pH, Acidity, and Alkalinity. The term

pH is a measure of relative acidity or

alkalinity of water. Acidity is

produced by substances that yield

hydrogen ions upon hydrolysis and

alkalinity is produced by substances

that yield hydroxyl ions. The

concentration of hydrogen ions is

termed ‘‘pH.’’ At a pH of 7, the water

is neutral; lower pH values indicate

acidity and higher values indicate

alkalinity. Mine waste water is

generally acidic as a result of the

oxidation of minerals. Extremes in pH

or rapid pH changes can exert stress

conditions on aquatic biota, even to

the point of killing aquatic life. The

relative toxicity to aquatic life of other

pollutants often is related to pH. For

example, metalocyanide complexes

can increase a thousand-fold in

toxicity with a decline of 1.5 pH

units. pH also affects the availability

of nutrients utilized by aquatic life.

—Total Suspended Solids (‘‘TSS’’).

Suspended solids adversely affect

fisheries by covering the bottoms of

streams and lakes, destroying the

bottom dwelling fish and spawning

grounds. Solids in suspension

increase water turbidity, reduce light

penetration and impair photo

synthetic activity. When solids settle

to the bottom, they are often more

damaging to aquatic life. TSS

composed of organic matter may

deplete available oxygen supplies

necessary for maintaining aquatic

ecosystems. High TSS concentrations

are prevalent in discharges from

mining operations as a result of the

mining process itself.

—Copper. In relatively low doses,

copper can cause systems of

gastroenteritis in humans, with

nausea and intestinal irritations.

Copper concentrations of less than

one milligram per liter can be toxic to

many kinds of fish and aquatic biota.

—Zinc. Concentrations of zinc ranging

from 0.01 to 0.1 milligrams per liter

are lethal to fish. Zinc may be

rendered more toxic in the presence

of copper.

If the NPDES permitting authority has

data, for example, which indicate that

discharges outside the active mining

area only present pollution concerns

associated with solids (e.g., settleable

solids or total suspended solids), the

permit requirements for those

discharges may be limited to controlling

those solids. However, if discharges

contain heavy metals, the permitting

authority, using BPJ, may establish

appropriate technology-based metals

effluent limitations. Further, if the

permitting authority has data to indicate

a reasonable potential to cause or

contribute to an excursion of water

quality standards for other pollutants,

including pH and/or heavy metals, then

the permit must include those more

stringent requirements to assure

compliance with water quality

standards. EPA recommends ongoing

monitoring for both pH and metals

because the complex geochemistry at

many mine sites presents difficulty in

predicting the quality of storm water

into the future.

In making BPJ determinations to

require, for example, diversion of

contaminated storm water flows for

treatment, permitting authorities need to

consider: the age of the equipment and

facilities involved; process employed;

the engineering aspects of the

application of various types of control

techniques; process changes; the costs of

achieving effluent reduction; and nonwater quality environmental impacts

(including energy requirements). Such

considerations should be documented

in permit fact sheets.

In cases where there is a dry weather

discharge outside the scope of the

Guidelines, EPA strongly recommends

that the permitting authority issue an

individual NPDES permit using BPJ to

establish appropriate technology-based

limits or more stringent limitations

necessary to assure compliance with

water quality standards. The permitting

authority should consider the degree of

pollutant discharges (especially,

whether the discharge contains heavy

metal pollutants) and must consider the

impact on the receiving water when

establishing appropriate water qualitybased controls on the discharge.

Finally, the Agency cautions that

today’s interpretation should not be
42540 Federal Register / Vol. 63, No. 152 / Friday, August 7, 1998 / Notices

read as a license for mine operators to

convert point source discharges into

‘‘nonpoint’’ sources in order to avoid

regulation under the NPDES permit

program. If a mining operation has a

discernable, confined, discrete

conveyance, any attempt to avoid

regulation by intentional ‘‘diffusion’’ of

that waste water stream, for example by

spraying it over a hill side or inserting

diffusing devices at the ends of drainage

culverts, would still constitute a point

source discharge if the waste water

ultimately enters waters of the United

States (as opposed to appropriate land

application of such waste waters). While

such diffusion may beneficially reduce

the potential for erosion and instream

sedimentation, it would not eliminate

the need for treatment where necessary,

for example, where the discharge

contains metals contributing to a

violation of State water quality

standards.

VI. Monitoring Requirements for Waste

Rock and/or Overburden Sources

Eligible for Authorization Under

Today’s Modification

Subject to the eligibility limitations in

the Multi-Sector Permit, storm water

discharges from waste rock and

overburden sources are eligible for

general permit authorization according

to the terms and conditions of the

permit. For the most part, permittees

will control such discharges in the same

manner as other storm water discharges

associated with the operation that were

already eligible for permit coverage. In

response to comments that extending

Multi-Sector Permit coverage to this

category of discharges is inappropriate,

however, today’s permit modifications

impose requirements for analytic

monitoring of storm water discharges

from these waste rock and/or

overburden sources.

By authorizing storm water discharges

from waste rock and/or overburden

sources, today’s modifications to the

Multi-Sector Permit will assure

identification of and pollutant reduction

at waste rock and/or overburden sources

that might otherwise have remained

unregulated until EPA (or State)

regulatory personnel conduct

individual, mine-by-mine, source-bysource evaluations. Under the

monitoring requirements in today’s

modification, permittees (at all types of

mines) will sample and measure at least

once for a variety of mining-related

pollutants. In addition, depending on

the type of ore mined, permittees will

also sample and measure twice annually

for a list of pollutants specified for

specific types of ore mining categories.

The Multi-Sector Permit, as modified,

expires in September 2000. Thus, the

authorization provided by today’s

permit modification will be of limited

duration. Given the limitations in the

data set from which EPA derived the

requirements in the Multi-Sector Permit,

the Agency believes that monitoring

over time (until September 2000) is

necessary, both to appropriately control

storm water discharges from waste rock

and overburden until September 2000,

and to determine the appropriate

control measures upon reissuance of the

Multi-Sector Permit. As such, the

monitoring is both ‘‘regulatory,’’ in that

it will identify sources of particular

concern, as well as ‘‘evaluative,’’ in that

it will provide data to describe and

evaluate storm water discharges from

waste rock and overburden sources in a

comprehensive fashion.

For storm water discharges from

waste rock and overburden piles,

permittees will sample and analyze at

least once for the following metals:

antimony, arsenic, beryllium, cadmium,

copper, iron, lead, manganese, mercury,

nickel, selenium, silver, zinc. Each of

these metals can be measured using the

same analytic test procedure. The

original Multi-Sector Permit also

included ‘‘parameter benchmark

values’’ for each of these metals. See 60

FR at 50826 (Table 5). Consistent with

the identification of pollutants in the

benchmark values table, permittees will

measure for total ‘‘recoverable’’ metals.

Though the Agency has expressed a

policy preference for measurement of

total dissolved metals in describing

ambient water quality, the monitoring

for total metals to characterize effluent

discharges under today’s modification is

consistent with NPDES regulations,

which specify that, when a permit

contains a limitation for a metal, the

limit be expressed in terms of total

recoverable metals. See 40 CFR

122.45(c). At the discretion of the

permittee, however, the permittee may

also report information about

‘‘dissolved’’ metal analysis for the

measured samples because EPA will

evaluate all available monitoring

information to determine appropriate

terms and conditions for the MultiSector Permit upon reissuance.

Permittees will also sample and analyze

for pH, hardness, total settleable solids

(TSS) and turbidity in the storm water

discharges from such piles.

For any pollutant occurring above a

benchmark value, the permittee will

sample and analyze twice annually. In

the case of pH monitoring, two annual

samples is required if the measured pH

falls outside the range listed in Table 5.

Hardness does not have a benchmark

value; twice annual measurement of

hardness would accompany

measurement for any hardness

dependent metals (cadmium, copper,

lead, nickel, silver, and zinc) required to

be measured twice annually based on

this initial measurement.

The permit includes this monitoring

‘‘screen’’ based on the geologic

variability of waste rock and overburden

associated with various ore types.

Though a particular site may be mined

only for a particular ore type, other

metals may exist in the overburden

(though not high enough in content to

be of economic value). This initial

monitoring will identify any such

metals of concern. Measurement of such

metals above the identified

‘‘benchmark’’ necessitates continuing

attention through twice annual

monitoring. Measurement of pH will

also identify mine piles of concern for

acidity. Information about hardness is

important in determining bioavailability

of measured metals, which in turn is

useful to predict water quality impact.

Measurement of total settleable solids

and turbidity provides an indication of

the effectiveness of measures to control

erosion and runoff of storm water,

which may impair aquatic life and

aquatic habitat at high levels.

As noted above, permittees are also

automatically required to conduct twice

annual monitoring for specified

pollutants associated with the specific

type of ore mined at the facility. For

certain types of ore mines, the effluent

limitations guidelines (the Part 440

regulations) identified specific

‘‘pollutants of concern.’’ Given the

potential for changes in geochemistry of

waste rock and overburden piles over

time, this categorical monitoring (twice

yearly) is required regardless of the test

results from the initial monitoring

screen. Note that two types of ore

mining operations, iron mining and

uranium/radium/vanadium mining, are

required to measure for dissolved iron

and dissolved radium, respectively.

The permit requires two monitoring

events per year (once between January

and June, and once between July and

December) in order to assure that

collected samples reliably ‘‘represent’’

expected discharges over the course of

the year and to account for the

significant potential difficulty (and

potential for resulting error) in

sampling. Given the opportunity for a

sampling waiver under certain

temporally-dependent conditions, the

twice annual monitoring requirement

will provide a meaningful

representation of discharges, including

seasonal variability.
Federal Register / Vol. 63, No. 152 / Friday, August 7, 1998 / Notices 42541

The analytic monitoring requirements

only apply to storm water discharges

from piles of waste rock and overburden

piles, not to haul roads and access roads

constructed from waste rock or

overburden. While the Agency is aware

of the potential for water quality

problems associated with acid rock

drainage from piles of waste rock and/

or overburden, the Agency is not aware

of the same threat from drainage from

access roads and haul roads. Given the

relative flow per discharge source

compared to piles, visual discharge

monitoring and inspection should be

adequate for haul roads and access

roads.

Monitoring is required only at

representative outfalls. Consistent with

the existing Multi-Sector Permit,

permittees are only required to sample

and analyze discharges from the

representative outfalls, which in turn,

are to be identified in pollution

prevention plans (i.e., in the

topographic maps identifying drainage

patterns). The pollution prevention plan

also must explain why the discharges

are expected to be substantially

identical, estimate the drainage area and

runoff coefficient. See generally, the

explanation in the Multi-Sector Permit

at 60 FR at 51160, col. 3

(‘‘Representative Discharge’’).

Similar to the reporting requirements

in the Multi-Sector Permit, permittees

need to submit monitoring results in

Discharge Monitoring Reports on an

annual basis. Because the Multi-Sector

Permit will expire in September 2000,

this requirement will result in

essentially two reports for each mining

operation. The first report will provide

important information upon which the

Agency can begin the process to reissue

the Multi-Sector Permit; the second

report will confirm (or refute)

preliminary decisions with sufficient

time for the Agency to evaluate the

information prior to proposing

reissuance.

The permit modification (and

monitoring requirements) apply to both

‘‘active’’ piles, as well as ‘‘inactive’’

piles, though only at ‘‘active’’ mining

and dressing operations. Permittees

have discretion to sample discharges at

any convenient point prior to discharge

to waters of the United States, including

a sampling point after application of the

best management practice. Consistent

with the analytic monitoring

requirements for discharges from active

copper mines (in the existing MultiSector Permit), permittees may collect

substitute samples when adverse

weather conditions create dangerous

conditions for personnel or otherwise

make the collection of a sample

impracticable.

VII. Summary of Responses to Public

Comments

EPA has prepared a comprehensive

response to public comments received

on the proposal and that document is

available in the administrative record

for today’s action. Some of those

comments and responses are included

below.

Comment. EPA’s 1978 and 1982

Development Documents reveal that

EPA has never analyzed the technical

and economic feasibility of subjecting

storm water runoff from vast overburden

piles, haul roads and similar ancillary

areas to the strict Part 440 effluent

limitations. EPA wrongly still presumes

that the ‘‘active mining area’’ should be

interpreted broadly. The purported

definition of the term ‘‘mine’’ [from the

1975 preamble and 1978 Development

Document] is inconsistent with (and far

broader than) the subsequentlypromulgated regulatory definition of the

term ‘‘mine’’ for the purposes of 40 CFR

§ 440.132. That definition does not

include such things as ‘‘haul roads’’ or

‘‘all lands affected by the construction

of new roads or the improvements or

use of existing roads to gain access to

the site,’’ nor does it include

‘‘overburden piles’’ or ‘‘storage areas’’

(except to the extent that such piles or

areas are currently being used for the

‘‘secondary recovery of metal ore’’).

Thus, the proposed modification is

inconsistent on its face with the existing

regulation and should be eliminated. All

references to the scope of the term

‘‘mine’’ (or the ‘‘active mining area’’)

should be limited to the regulatory

definitions which speak for themselves.

Response. The commenter presents

forceful arguments supporting revision

of the interpretation of ‘‘the’’ definition

as proposed, but some of its

assumptions understate and confuse the

nature of the Agency’s actions in

developing and promulgating the Part

440 regulations. By today’s action, EPA

explains its interpretation.

The definition of ‘‘mine’’ at 40 CFR

440.132(g) includes ‘‘an active mining

area, including all land and property

placed under, or above the surface of

such land, used in or resulting from the

work of extracting metal ore or minerals

from their natural deposits by any

means or method, including secondary

recovery of metal ore from refuse or

other storage piles, wastes, or rock

dumps and mill tailings derived from

the mining, cleaning, or concentration

of metal ores.’’ An ‘‘active mining area’’

is ‘‘a place where work or other activity

related to the extraction of, removal, or

recovery of metal ore is being

conducted, except, with respect to

surface mines, any area of land on or in

which grading has been completed to

return the earth to desired contour and

reclamation work has begun.’’ 40 CFR

440.132(a)(emphasis added). The plain

meaning of the words ‘‘other activity

related to * * *’’ could be interpreted

to include overburden-related sources

(in that disposal of mining waste is

‘‘related to’’ and, in fact integral to,

mining) and haul roads (in that access

to and from mining sites is ‘‘related to’’

and, in fact, integral to mining). Under

today’s interpretation, however,

overburden-related sources would not

be categorically subject to the Part 440

regulations unless otherwise sited in the

active mining area. Likewise, waste rock

and overburden-related sources are not

categorically excluded from

applicability of the Part 440 regulations

because some such sources may be sited

in the active mining area and combine

with mine drainage otherwise regulated

under the Part 440 regulations.

The definitions of the term ‘‘mine’’

from the 1975 preamble and 1978

Development Document differ from the

definition of the term ‘‘mine’’ published

at 40 CFR § 440.132. Descriptions in the

1975 preamble and 1978 Development

Document were developed and used by

Agency personnel gathering information

at existing mining operations. EPA

presumes that some of the sources

identified in the 1975 preamble and

1978 Development Document did drain

to existing treatment systems at some

facilities. EPA acknowledges, however,

that the location of such sources does

not necessarily and categorically define

the geographic scope of active mining

area. EPA notes that the definition of

‘‘mine’’ in the 1982 Development

Document more closely paraphrases the

regulatory definitions.

To respond to this comment and

avoid further confusion, however, EPA

has removed references to the 1975 and

1978 developmental definitions in the

interpretation published today. By

today’s action, a discharge associated

with the disposal of waste rock or

overburden source would not be subject

to regulation under the Part 440

regulations unless it: (1) naturally drains

(or is intentionally diverted) to a point

source; and (2) combines with ‘‘mine

drainage’’ that is otherwise regulated

under the Part 440 regulations. As such,

EPA has modified the provisions of the

Multi-Sector permit to include

monitoring provisions that should

effectively identify any waste rock and

overburden sources of environmental

concern.
42542 Federal Register / Vol. 63, No. 152 / Friday, August 7, 1998 / Notices

Comment. The newly proposed

version of Table G–4 omits certain

sources of storm water discharges that

were listed in the prior version and as

to which the multi-sector general permit

should be applicable, specifically,

crusher areas, ore piles, and spent ore

piles. The commenter believes these

areas are outside the active mining area.

Response. The published

interpretation no longer attempts to

enumerate various areas at mining

operations for the purposes of indicating

those for which the Part 440 regulations

apply. By deciding not to list those

areas, EPA specifically does not expand

permit coverage to include those areas.

In the group applications from the

mining industry, group applicants did

not specifically seek permit

authorization for such areas. EPA

therefore lacks sufficient information to

address these areas today.

Comment. Mines are subject to state

and federal regulations pertaining to

dust. Nevada encourages the use of

pumped groundwater for dust control in

order to conserve water. To subject haul

roads to numeric effluent limitations

because they use pumped groundwater

to limit dust in order to comply with

other regulations seems

counterproductive and shortsighted.

Any statement that would subject these

roads to such limitations should be

deleted. In Nevada, groundwater is

typically pumped from an underground

aquifer to a holding tank for dust control

usage. Groundwater used for dust

control is not normally applied to roads

during storm events, thus, there would

be no commingling of storm water and

ground water.

Response. EPA did not intend to

identify all waters used for dust control

as sources of mine drainage. EPA

recognizes that groundwater is used for

dust control in some areas of the

country. EPA does not necessarily

consider groundwater to be mine

drainage, especially uncontaminated

groundwater. When mine water, which

might otherwise constitute mine

drainage, is used for dust control,

however, then such dust control waters

would remain mine drainage.

Comment. The proposed modification

should not be limited to EPA Regions 1,

6, 9, and 10. EPA Region 8 has relied on

Table G–4 from the original MultiSector Permit to dictate to States with

EPA-approved NPDES permit programs

how 40 CFR Part 440 must be

interpreted. EPA has provided the 1995

Multi-Sector Permit to authorized States

as a model. Because authorized States

must have requirements that are at least

as stringent as the federal program, EPA

should confirm that any revised

interpretation of 40 CFR Part 440 is

applicable to all States with ore mining

and dressing facilities. EPA’s

interpretation in Table G–4 is applicable

to all States, not just EPA, including for

the purposes of withdrawal of

authorized State NPDES programs. EPA

has not provided a reasoned and viable

basis for regional distinctions in

applicability of the interpretation in the

proposed modification.

Response. EPA agrees that the

Agency’s interpretation of the Part 440

regulations should apply on a national

basis. States authorized to administer

the NPDES permitting program are to

include effluent limitations in permits

that are at least as stringent as the

limitations that EPA would include in

NPDES permits. Because the

interpretation in today’s action is just

that—an interpretation—and because

the primary action EPA takes in today’s

action is to modify EPA-issued NPDES

general permits for storm water

associated with industrial activity (the

Multi-Sector Permit), only the EPA

Regional Administrators who issue the

Multi-Sector Permit sign today’s notice.

EPA does intend, however, that the

interpretation associated with the

modification to the Multi-Sector Permit

apply on a nationwide basis.

Comment. EPA should address the

situation where an overburden pile is

physically separated from and does not

naturally drain to an open pit.

Response. EPA generally

acknowledges that some mining

operations and some States authorized

to administer the NPDES program have

not historically interpreted the term

‘‘active mining area’’ in the same

manner as the Agency would have

interpreted that term reflected in the

1995 version of Table G–4. Upon fuller

review of the underlying administrative

record to the original Part 440 rule

makings, EPA concludes that the

Agency did not conduct a complete

economic and technological assessment

of diversion of drainage flows from

‘‘waste rock or overburden’’ outside the

active mining area into the active

mining area. As such, the Agency agrees

that a waste rock or an overburden pile

that is physically separated from and

does not naturally drain (or has not been

intentionally diverted) to treatment

would not be a source of mine drainage.

In such a case, however, evaluation of

the resulting discharges would be

necessary and appropriate to determine

whether such discharge would cause,

have a reasonable potential to cause, or

contribute to a violation of any water

quality standard.

Comment. EPA should clarify that

water quality treatment of ‘‘mine

drainage’’ necessitated by active mining

(e.g., construction of a waste rock pile)

is part of the ‘‘active mining area’’ and

the ‘‘mine’’ and that such drainage is

subject to the effluent limitations

guidelines for the life of the discharge.

Response. EPA generally agrees that

mining operation point sources from

active mining that represent water

quality concerns remain subject to CWA

control requirements for as long as the

discharge causes or contributes (or has

a reasonable potential to contribute) to

a violation of a water quality standard.

EPA presumes that treatment to protect

water quality may be necessary, for

example, for discharges from a waste

rock pile with mineral content high

enough to leach metals under normal

environmental conditions. EPA does

not, however, conclude that all

regulation of point sources to protect

water quality necessarily means that

such point sources are subject to

regulation under the national effluent

limitations guidelines. Any more

stringent water quality based effluent

limitations are necessary when

technology-based limitations are

insufficient to assure compliance with

water quality standards. The imposition

of a water quality based effluent

limitation does not necessarily expand

the applicability of technology-based

limitations. Such water quality-based

limitations may regulate different or

fewer (or more) pollutants than

applicable technology-based limitations.

Comment. EPA should interpret the

Neuman letter to exempt only releases

from ‘‘areas * * * where work or other

activity related to the extraction,

removal or recovery of metal ore is not

being conducted.’’ EPA should clarify

that an active waste dump is clearly

within an area where such work is being

conducted. The proposed modification

correctly notes the distinction between

discharges from active waste rock

dumps and inactive dumps. The former

are subject to the effluent limitations

guidelines and the latter are not.

Response. EPA believes that, as a

practical matter, it would be difficult to

differentiate discharges from newly

placed overburden and existing

overburden, especially when placement

of overburden is being conducted at

existing piles. Importantly, the mere

placement of such ‘‘new’’ overburden to

an existing overburden pile does not

automatically make the pile part of the

active mining area under the Part 440

regulations.

Comment. The Administrator’s

decision of February 21, 1979, did not

exempt active waste rock dumps that do

drain to a point source.
Federal Register / Vol. 63, No. 152 / Friday, August 7, 1998 / Notices 42543

Response. As noted previously, EPA

has struggled to provide meaning to the

Administrator’s February 21, 1979

decision in light of the appended letter

from Mr. Neuman. EPA agrees that the

Administrator’s decision, to the extent it

addresses drainage to a point source,

clearly does not provide any basis to

presume any exemption from NPDES

permit requirements. The Agency does

not, however, endorse the negative

inference that the commenter draws

from the Administrator’s decision.

Under today’s clarification, a discharge

associated with the disposal of waste

rock and/or overburden would not be

subject to regulation under the Part 440

regulations unless it: (1) drains naturally

(or is intentionally diverted) to a point

source; and (2) combines with ‘‘mine

drainage’’ that is otherwise regulated

under the Part 440 regulations.

VIII. Regulation Assessment

Requirements

A. Executive Order 12866

Under Executive Order 12866 (58 FR

51735; October 4, 1993), the Agency

must determine whether the regulatory

action is ‘‘significant’’ and therefore

subject to OMB review and the

requirements of the Executive Order.

The Order defines ‘‘significant

regulatory action’’ as one that is likely

to result in a rule that may:

(1) Have an annual effect on the

economy of $100 million or more, or

adversely affect in a material way the

economy, a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety, or

State, local, or tribal governments or

communities;

(2) Create a serious inconsistency or

otherwise interfere with an action taken

or planned by another agency;

(3) Materially alter the budgetary

impact of entitlements, grants, user fees,

or loan programs or the rights and

obligations of recipients thereof; or

(4) Raise novel legal or policy issues

arising out of legal mandates, the

President’s priorities, or the principles

set forth in the Executive Order.

Because the Agency takes the position

that NPDES general permits are not

‘‘rules’’ or ‘‘regulations’’ subject to the

rule making requirements of

Administrative Procedure Act section

553, it has been determined that this

rule is not a ‘‘significant regulatory

action’’ under the terms of Executive

Order 12866 and is therefore not subject

to OMB review.

B. Regulatory Flexibility Act

The Agency has determined that the

permit modification being published

today is not subject to the Regulatory

Flexibility Act (‘‘RFA’’), which

generally requires an agency to conduct

a regulatory flexibility analysis of any

significant impact the rule will have on

a substantial number of small entities.

By its terms, the RFA only applies to

rules subject to notice-and-comment

rule making requirements under the

Administrative Procedure Act (‘‘APA’’)

or any other statute. Today’s permit

modification is not subject to notice and

comment requirements under the APA

or any other statute because the APA

defines ‘‘rules’’ in a manner that

excludes permits. See APA section 551

(4), (6), and (8).

APA section 553 does not require

public notice and opportunity for

comment for interpretative rules or

general statements of policy. In addition

to modifying the general permit, today’s

action repeats an interpretation of

existing regulations promulgated almost

twenty years ago. The action would

impose no new or additional

requirements.

C. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA), P.L. 104–

4, establishes requirements for Federal

agencies to assess the effects of their

regulatory actions on State, local, and

tribal governments and the private

sector. Under section 202 of the UMRA,

EPA generally must prepare a written

statement, including a cost-benefit

analysis, for proposed and final rules

with ‘‘Federal mandates’’ that may

result in expenditures to State, local,

and tribal governments, in the aggregate,

or to the private sector, of $100 million

or more in any one year.

For reasons explained in the

discussion regarding the Regulatory

Flexibility Act, the UMRA only applies

to rules subject to notice-and-comment

rule making requirements under the

APA or any other statute. Today’s

permit modification is not subject to

notice and comment requirements

under the APA or any other statute

because the APA defines ‘‘rules’’ in a

manner that excludes permits. See APA

section 551 (4), (6), and (8).

Today’s permit modification contains

no Federal mandates (under the

regulatory provisions of Title II of the

UMRA) for State, local, or tribal

governments or the private sector.

Today’s modification merely announces

an Agency interpretation of existing

regulations. EPA has determined that

this permit modification does not

contain any Federal mandate that may

result in expenditures of $100 million or

more for State, local, and tribal

governments, in the aggregate, or the

private sector in any one year.

Therefore, today’s permit modification

is not subject to the requirements of

section 202 of the UMRA.

Before EPA establishes any regulatory

requirements that may significantly or

uniquely affect small governments,

including tribal governments, it must

have developed under section 203 of the

UMRA a small government agency plan.

The plan must provide for notifying

potentially affected small governments,

enabling officials of affected small

governments to have meaningful and

timely input in the development of EPA

regulatory proposals with significant

Federal intergovernmental mandates,

and informing, educating, and advising

small governments on compliance with

the regulatory requirements. Because

today’s modification is based on an

interpretation of existing regulations

and because EPA anticipates that

extremely few, if any, small

governments operate mining operations,

EPA has determined that this action

contains no regulatory requirements that

might significantly or uniquely affect

small governments.

D. Paperwork Reduction Act

The permit modification contains no

requests for information and

consequently is not subject to the

Paperwork Reduction Act, 44 U.S.C.

§§ 3501 et seq.

Official Signatures

Accordingly, I hereby find consistent

with the provisions of the Regulatory

Flexibility Act, that these final permit

modifications will not have a significant

impact on a substantial number of small

entities.

Authority: Clean Water Act, 33 U.S.C. 1251

et seq.

Dated: July 29, 1998.

Mindy Lubber,

Acting Regional Administrator, Region 1.

Dated: July 29, 1998.

Gregg A. Cooke,

Regional Administrator, Region 6.

Dated: July 18, 1998.

Laura Yoshii,

Acting Regional Administrator, Region 9.

Dated: July 21, 1998.

Chuck Clarke,

Regional Administrator, Region 10.

Final Permit Modification

This permit modification shall

become effective on September 8, 1998.
42544 Federal Register / Vol. 63, No. 152 / Friday, August 7, 1998 / Notices

Region 1

Signed and issued this 24th day of July,

1998.

Linda M. Murphy,

Director, Office of Ecosystem Protection.

Areas of coverage Permit No.

Connecticut Indian Country .. CTR05*##F

Maine .................................... MER05*###

Maine Indian Country ........... MER05*##F

Massachusetts ...................... MAR05*###

Massachusetts Indian Country.MAR05*##F

New Hampshire .................... NHR05*###

Rhode Island Indian Country RIR05*##F

Vermont Federal Facilities ... VTR05*##F

Region VI

Signed this 29th of July, 1998.

William B. Hathaway,

Water Quality Protection Division Director.

Areas of coverage Permit No.

Louisiana Indian country ...... LAR05*##F

New Mexico .......................... NMR05*###

Indian country (except

Navajo and Ute Mountain Reservation lands).

NMR05*##F

Oklahoma:

Indian country ................... OKR05*##F

Areas of coverage Permit No.

Oil and gas exploration

and production related

industries and pipeline

industries that are regulated by the Oklahoma

Corporation Commission.

OKR05*###

Texas .................................... TXR05*###

.

Indian country ................... TXR05*##F

Region IX

Signed this 24th of July, 1998.

Alexis Strauss,

Acting Director, Water Division.

Areas of coverage Permit No.

Arizona ................................. AZR05*###

Indian country ................... AZR05*##F

Federal Facilities ............... AZR05*##F

California:

Indian country (Not including Hoopa Valley Tribe).CAR05*##F

Idaho:

Duck Valley Reservation .. NVR05*##F

Nevada Indian country ......... NVR05*##F

New Mexico:

Navajo Reservation .......... AZR05*##F

Areas of coverage Permit No.

Oregon:

Fort McDermitt Reservation.NVR05*##F

Utah

Goshute Reservation ........ NVR05*##F

Navajo Reservation .......... AZR05*##F

Region X

Signed this 21st of July, 1998.

Philip G. Millam,

Director, Office of Water.

Areas of coverage Permit No.

Alaska Indian country ........... AKR05*##F

Idaho: IDR05*###

Federal Facilities ............... IDR05*##F

Indian country (except

Duck Valley Reservation

lands).

IDR05*##F

Oregon Indian country (except for Fort McDermitt

Reservation lands).

ORR05*##F

Washington Indian country ... WAR05*##F

Washington Federal Facilities.WAR05*##F

1. For the reasons set forth in this

preamble, the table published at 60 FR

50897 is modified to read as follows:

TABLE G–4.—APPLICABILITY OF THE MULTI-SECTOR GENERAL PERMIT TO STORM WATER RUNOFF FROM ACTIVE ORE

(METAL) MINING AND DRESSING SITES

Discharge/source of discharge Note/comment

Piles:

Waste rock/overburden ..................................................................... If composed entirely of storm water and not combining with mine drainage. See Note below.

Topsoil.

Roads constructed of waste rock or spent ore:

Onsite haul roads .............................................................................. If composed entirely of storm water and not combining with mine drainage. See Note below.

Offsite haul/access roads.

Roads not constructed of waste rock or spent ore:

Onsite haul roads .............................................................................. Except if ‘‘mine drainage’’ is used for dust control.

Offsite haul/access roads.

Milling/concentrating:

Runoff from tailings dams/dikes when constructed of waste rock/

tailings.

Except if process fluids are present and only if composed entirely of

storm water and not combining with mine drainage. See Note below.

Runoff from tailings dams/dikes when not constructed of waste

rock/tailings.

Except if process fluids are present.

Concentration building ....................................................................... If storm water only and no contact with piles.

Mill site ............................................................................................... If storm water only and no contact with piles.

Ancillary areas:

Office/administrative building and housing ........................................ If mixed with storm water from the industrial area.

Chemical storage area.

Docking facility ................................................................................... Except if excessive contact with waste product that would otherwise

constitute ‘‘mine drainage’’.

Explosive storage

Fuel storage (oil tanks/coal piles)

Vehicle/equipment maintenance area/building

Parking areas .................................................................................... But coverage unnecessary if only employee and visitor-type parking.

Power plant.

Truck wash area ................................................................................ Except when excessive contact with waste product that would otherwise constitute ‘‘mine drainage’’.

Reclamation-related areas:

Any disturbed area (unreclaimed) ..................................................... Only if not in active mining area.
Federal Register / Vol. 63, No. 152 / Friday, August 7, 1998 / Notices 42545

TABLE G–4.—APPLICABILITY OF THE MULTI-SECTOR GENERAL PERMIT TO STORM WATER RUNOFF FROM ACTIVE ORE

(METAL) MINING AND DRESSING SITES—Continued

Discharge/source of discharge Note/comment

Reclaimed areas released from reclamation bonds prior to Dec. 17

1990.

Partially/inadequately reclaimed areas or areas not released from

reclamation bond.

Storm water runoff from these sources

are subject to the NPDES program for

storm water unless mixed with

discharges subject to the 40 CFR Part

440 that are not regulated by another

permit prior to mixing. Non-storm water

discharges from these sources are

subject to NPDES permitting and may be

subject to the effluent limitation

guidelines under 40 CFR Part 440.

Note: Discharges from overburden/waste

rock and overburden/waste rock-related areas

are not subject to 40 CFR Part 440 unless: (1)

it drains naturally (or is intentionally

diverted) to a point source; and (2) combines

with ‘‘mine drainage’’ that is otherwise

regulated under the Part 440 regulations. For

such sources, coverage under this permit

would be available if the discharge is

composed entirely of storm water does not

combine with other sources of mine drainage

that are not subject to 40 CFR Part 440, as

well as meeting other eligibility criteria

contained in Part I.B. of the permit. Permit

applicants bear the initial responsibility for

determining the applicable technology-based

standard for such discharges. EPA

recommends that permit applicants contact

the relevant NPDES permit issuance

authority for assistance to determine the

nature and scope of the ‘‘active mining area’’

on a mine-by-mine basis, as well as to

determine the appropriate permitting

mechanism for authorizing such discharges.

2. The fourth sentence in the first

paragraph in permit eligibility provision

for Storm Water Discharges Associated

with Industrial Activity from Metal

Mining (Ore Mining and Dressing),

Section XI.G.1. (introductory language),

previously published at 60 FR 51155, is

modified and a fifth and sixth sentence

are added to read as follows:

1. Discharges Covered Under This

Section

* * * All storm water discharges

from inactive metal mining facilities

and storm water discharges from the

following areas of active, and

temporarily inactive, metal mining

facilities are the only discharges covered

by this permit: waste rock/overburden

piles if composed entirely of storm

water and not combining with mine

drainage; topsoil piles; offsite haul/

access roads; onsite haul/access roads

constructed of waste rock/overburden if

composed entirely of storm water and

not combining with mine drainage;

onsite haul/access roads not constructed

of waste rock/overburden/spent ore

except if mine drainage is used for dust

control; runoff from tailings dams/dikes

when not constructed of waste rock/

tailings and no process fluids are

present; runoff from tailings dams/dikes

when constructed of waste rock/tailings

and no process fluids are present if

composed entirely of storm water and

not combining with mine drainage;

concentration building if no contact

with material piles; mill site if no

contact with material piles; office/

administrative building and housing if

mixed with storm water from industrial

area; chemical storage area; docking

facility except if excessive contact with

waste product that would otherwise

constitute mine drainage; explosive

storage; fuel storage; vehicle/equipment

maintenance area/building; parking

areas (if necessary); power plant; truck

wash areas except when excessive

contact with waste product that would

otherwise constitute mine drainage;

unreclaimed, disturbed areas outside of

active mining area; reclaimed areas

released from reclamation bonds prior

to December 17, 1990; and partially/

inadequately reclaimed areas or areas

not released from reclamation bond.

Note: Discharges from overburden/waste

rock and overburden/waste rock-related

areas are not subject to 40 CFR Part 440

unless it: (1) Drains naturally (or is

intentionally diverted) to a point source;

and (2) combines with ‘‘mine drainage’’

that is otherwise regulated under the

Part 440 regulations. For such sources,

coverage under this permit is available

if the discharge is composed entirely of

storm water and does not combine with

sources of mine drainage that are subject

to 40 CFR Part 440, as well as meeting

other eligibility criteria contained in

Part I.B. of the permit.

3. The permit is amended to include

a new section d. and Tables G–2 and G–

3, which would have appeared in the

third column of 60 FR 51161, to read as

follows:

d. Additional Monitoring

Requirements for Storm Water

Discharges from Waste Rock and

Overburden Piles.

Beginning July 1, 1998, the operator of

an active ore mining and dressing

facility covered by this permit must

monitor the storm water discharges from

waste rock and/or overburden piles

resulting from mining activities. The

operator must conduct analytic

monitoring as described below at least

twice annually (once between July 1 and

December 31, and once between January

1 and June 30) for the duration of this

permit. Samples shall be collected from

separate storm events a minimum of 3

months apart, except as provided in

paragraphs 5.a.(3) (Sampling Waiver),

5.a.(4) (Representative Discharge), and

5.a.(5) (Alternative Certification). Upon

notification by the Director, permittees

may be required to conduct additional

monitoring as necessary to accurately

characterize the quality and quantity of

pollutants discharged from the waste

rock/overburden pile.

All permittees must conduct analytic

monitoring once for the parameters

listed in Table G–2, and twice annually

for any parameters measured above the

benchmark value listed in Table G–2.

Permittees must also conduct analytic

monitoring twice annually for the

parameters listed Table G–3 for each of

the ore mine categories listed in Table

G–3. The initial sampling conducted of

Table G–2 pollutant parameters satisfies

the requirement for the first sample for

any pollutant measurement required by

Table G–3.

Permittees must report monitoring

results in accordance with paragraph

5.b. (Reporting). In addition to reporting

the monitoring requirements for the

parameters listed in Tables G–2 and G–

3 below, the permittee must report the

date and duration (in hours) of the

storm event(s) sampled; rainfall

measurements or estimates (in inches)

of the storm event that generated the

sampled runoff; the duration between

the storm event sampled and the end of

the previously measurable (greater than

0.1 inch) storm event; and an estimate

of the total volume (in gallons) of the

sampled discharge.
42546 Federal Register / Vol. 63, No. 152 / Friday, August 7, 1998 / Notices

TABLE G–2.—INITIAL MONITORING REQUIREMENTS FOR STORM WATER DISCHARGES FROM WASTE ROCK AND

OVERBURDEN PILES RESULTING FROM MINING ACTIVITY AT ACTIVE ORE MINING OR DRESSING OPERATIONS

Pollutants of concern Benchmark values

Total Suspended Solids (TSS) ................................................................................................................................... 100 mg/L.

Turbidity (NTUs) ......................................................................................................................................................... 5 NTUs above background.

pH ............................................................................................................................................................................... 6.0–9.0 standard units.

Hardness (as CaCO3) ................................................................................................................................................ no benchmark value.

Antimony, Total .......................................................................................................................................................... 0.636 mg/L.

Arsenic, Total ............................................................................................................................................................. 0.16854 mg/L.

Beryllium, Total ........................................................................................................................................................... 0.13 mg/L.

Cadmium, Total (hardness dependent) ..................................................................................................................... 0.0159 mg/L.

Copper, Total (hardness dependent) ......................................................................................................................... 0.0636 mg/L.

Iron, Total ................................................................................................................................................................... 1.0 mg/L.

Lead, Total (hardness dependent) ............................................................................................................................. 0.0816 mg/L.

Manganese, Total ....................................................................................................................................................... 1.0 mg/L.

Mercury, Total ............................................................................................................................................................ 0.0024 mg/L.

Nickel, Total (hardness dependent) ........................................................................................................................... 1.417 mg/L.

Selenium, Total .......................................................................................................................................................... 0.2385 mg/L.

Silver, Total (hardness dependent) ............................................................................................................................ 0.0318 mg/L.

Zinc, Total (hardness dependent) .............................................................................................................................. 0.117 mg/L.

TABLE G–3.—ADDITIONAL MONITORING REQUIREMENTS (TWICE ANNUAL) FOR STORM WATER DISCHARGES FROM WASTE

ROCK AND OVERBURDEN RESULTING FROM MINING ACTIVITY AT ACTIVE MINING OR DRESSING OPERATIONS BASED

ON TYPE OF ORE HANDLED

Type of ore mined

Pollutant/parameter

Total suspended solids (TSS)

pH Metals, total

Tungsten Ore ............................................................................................ X X Arsenic, Cadmium (H), Copper (H), Lead

(H), Zinc (H).

Nickel Ore ................................................................................................. X X Arsenic, Cadmium (H), Copper (H), Lead

(H), Zinc (H).

Aluminum Ore ........................................................................................... X X Aluminum, Iron.

Mercury Ore .............................................................................................. X X Nickel (H), Mercury.

Iron Ore ..................................................................................................... X X Iron (Dissolved).

Platinum Ore ............................................................................................. .................... .................... Cadmium (H), Copper (H), Mercury, Lead

(H), Zinc (H).

Titanium Ore ............................................................................................. X X Iron, Nickel (H), Zinc (H).

Vanadium Ore ........................................................................................... X X Arsenic, Cadmium (H), Copper (H), Lead,

Zinc (H).

Copper, Lead, Zinc, Gold, Silver, and Molybdenum ................................ X X Arsenic, Cadmium (H), Copper (H), Lead

(H), Mercury, Zinc (H).

Uranium, Radium, and Vanadium ............................................................ X X Chemical Oxygen Demand, Arsenic, Radium (Dissolved and Total), Uranium,

Zinc (H).

NOTE: (H) indicates that hardness must also be measured when this pollutant is measured.

4. The permit is amended to include

a new section e., which would have

appeared in the third column of 60 FR

51161, to read as follows:

e. Additional Reporting Requirements

for Storm Water Discharges from Waste

Rock and Overburden Resulting from

Mining Activities.

Permittees with active ore mining and

dressing facilities shall submit

monitoring results for each outfall

discharging storm water discharges from

waste rock and overburden piles

resulting from mining activities, (or a

certification in accordance with

Sections (3)(a), (3)(b), (4), (5) above)

obtained during the reporting period

beginning July 1, 1998, and lasting for

the duration of the permit. Permittees

must submit such monitoring results on

Discharge Monitoring Report (DMR)

Form(s) postmarked no later than March

31 following the calendar year in which

the samples were collected.

5. In addition to the conditions

contained in Parts I–XI of this permit,

the following requirements are

incorporated into Part XII and are

placed on permittees located in the

listed States, Indian country lands

(referred to as ‘‘Federal Indian

Reservations’’ in the original permit), or

Territories to meet applicable Clean

Water Act section 401 or Coastal Zone

Management Act certification

requirements.

Part XII. Coverage Under This Permit

The provisions of this Part provide

modifications or additions to the

applicable conditions of Parts I through

XI of this permit in order to reflect

specific conditions required as part of a

State, Tribal or Territory Clean Water

Act section 401 certification process, or

Coastal Zone Management Act

certification process, or as otherwise

established by the permitting authority.

The additional revisions and

requirements listed below are set forth

in connection with, and only apply to,

the following States, Indian country

lands, and Federal facilities.
Federal Register / Vol. 63, No. 152 / Friday, August 7, 1998 / Notices 42547

Region I

State of Massachusetts, Except Indian

Country Lands (MAR05*###)

The following Massachusetts section

401 certification requirements revise the

permit accordingly:

1. Part II.B.8. is added to the permit

as follows:

Special Permit Eligibility

Requirements for the State of

Massachusetts. Discharges covered by

the Multi-Sector General Permit must

comply with the provisions of 314 CMR

3.00, 314 CMR 4.00, 314 CMR 9.00 and

310 CMR 10.00 and any related policies

promulgated under the authority of the

Massachusetts Clean Waters Act, M.G.L.

c.21, ss.26–53, and Wetlands Protection

Act, M.G.L. c.131, s. 40. Specifically,

new facilities or the redevelopment of

existing facilities subject to this permit

must comply with applicable storm

water performance standards prescribed

by State regulation or policy. A permit

under 314 CMR 3.04 is not required for

existing facilities which meet State

storm water performance standards; an

application for a permit under 314 CMR

3.00 is required only when required

under 314 CMR 3.04(2)(b) (designation

of a discharge on a case-by-case basis)

or is otherwise identified in 314 CMR

3.00 or Department policy as a discharge

requiring a permit application.

Department regulations and policies

may be obtained through the State

House Bookstore (617–727–2834) or on

the Internet at

‘‘www.magnet.state.ma.us/dep’’.

2. Part VI.B.3. is added to the permit

as follows:

Special Reporting Requirement for the

State of Massachusetts. The results of

any quarterly monitoring required by

this permit must be sent to the

appropriate regional office of the

Department listed below when the

monitoring identifies violations of State

Surface Water Quality Standards, 314

CMR 4.00, for any parameter which

requires monitoring under this permit.

Monitoring results must also be

submitted upon request to the

Department.

Western Region

436 Dwight Street—Suite 402,

Springfield, MA 01103, (413) 784–

1100

Central Region

627 Main Street, Worcester, MA 01608,

(508) 792–7650

Southeast Region

Lakeville Hospital—Route 105,

Lakeville, MA 02347, (508) 946–2700

Northeast Region

10 Commerce Way, Woburn, MA 01801,

(781) 932–7677

3. Part IV.B.2.a. is added to the permit

as follows:

Special Storm Water Pollution

Prevention Plan Availability

Requirement for the State of

Massachusetts. The Department may

request a copy of the storm water

pollution prevention plan for any

facility covered by this permit to ensure

compliance with State law

requirements, including State water

quality standards. The Department may

enforce its certification conditions.

4. Part VII.Q.1. is added to the permit

as follows:

Special Inspection Requirements for

the State of Massachusetts. The

Department may conduct an inspection

of any facility covered by this permit to

ensure compliance with State law

requirements, including State water

quality standards. The Department may

enforce its certification conditions.

Region VI

State of New Mexico, except Indian

Country Lands (NMR05*###)

The following State of New Mexico

section 401 certification requirement

revises the permit accordingly:

(a) Part I.B.8(a) is added to the permit

as follows:

Special Water Quality Standard

Requirement for the State of New

Mexico. Storm water discharges

associated with industrial activity that

the New Mexico Environment

Department (NMED)/Surface Water

Quality Bureau has determined to be, or

may reasonably be expected to be,

contributing to a violation of a water

quality standard are not authorized by

this permit. Upon receipt of this

determination, the NMED anticipates

that the EPA will notify the general

permittee within a reasonable period of

time to apply for and obtain an

individual NPDES permit for these

discharges according to 40 CFR

122.28(b)(3).

Federal Indian Country Lands in the

State of New Mexico (NMR05*##F)

1. Pueblo of Isleta The following

Pueblo of Isleta section 401 certification

requirements revise the permit

accordingly:

(a) Part II.C.1. is added to the permit

as follows:

Special NOI Requirement for the

Pueblo of Isleta. Copies of NOIs shall

also be submitted to the Pueblo of

Isleta’s Environment Department, Water

Quality Program, at the following

address concurrently with NOI

submission to EPA: Isleta Environment

Department, Water Quality Program,

Pueblo of Isleta, PO Box 1270, Isleta,

New Mexico 87022, Telephone (505)

869–6333 or 3111.

(b) Part IX.B.1. is added to the permit

as follows:

Special NOT Requirement for the

Pueblo of Isleta. Copies NOTs shall also

be submitted to the Pueblo of Isleta’s

Environment Department, Water Quality

Program, concurrently with NOT

submission to EPA. Copies are to be sent

to the address given in Part II.C.1.

(c) Part IV.F. is added to the permit as

follows:

Special Storm Water Pollution

Prevention Plan Requirement for the

Pueblo of Isleta. Storm water pollution

prevention plans must be submitted to

the Pueblo of Isleta Environment

Department, Water Quality Program,

within 30 days of plan development.

SWPPPs are to be sent to the address

given in Part II.C.1.

2. Pueblo of Pojoaque The following

Pueblo of Pojoaque section 401

certification requirements revise the

permit accordingly:

(a) Part II.C.1. is added to the permit

as follows:

Special NOI Requirement for the

Pueblo of Pojoaque. Copies of NOIs

shall also be submitted to the Pueblo of

Pojoaque Environment Department at

the following address concurrently with

NOI submittal to EPA: Pueblo of

Pojoaque, Environment Department,

Route 11, P.O. Box 208, Santa Fe, New

Mexico 87501, Telephone (505) 455–

2087, Fax (505) 455–2177.

(b) Part IX.B.1. is added to the permit

as follows:

Special NOT Requirement for the

Pueblo of Pojoaque. Copies of NOTs

shall also be submitted to the Pueblo of

Pojoaque Environment Department

concurrently with NOT submittal to

EPA. Copies are to be sent to the address

given in Part II.C.1.

(c) Part IV.F. is added to the permit as

follows:

Special Storm Water Pollution

Prevention Plan Requirement for the

Pueblo of Pojoaque. Storm water

pollution prevention plans must be

submitted to the Pueblo of Pojoaque

Environment Department at least 30

days before a project begins. Case-bycase determinations will be made by the

Department to assure compliance with

the Pueblo of Pojaque Water Quality

Standards. SWPPPs are to be sent to the

address given in Part II.C.1.

3. Pueblo of Sandia The following

Pueblo of Sandia section 401

certification requirements revise the

permit accordingly:
42548 Federal Register / Vol. 63, No. 152 / Friday, August 7, 1998 / Notices

(a) Part II.C.1. is added to the permit

as follows:

Special NOI Requirement for the

Pueblo of Sandia. Copies of NOIs shall

also be submitted to the Pueblo of

Sandia Environment Department at the

following address concurrently with

NOI submittal to EPA: Pueblo of Sandia,

Environment Department, Box 6008,

Bernalillo, New Mexico 87004,

Telephone (505) 867–4533; Fax (505)

867–9235.

(b) Part IX.B.1. is added to the permit

as follows:

Special NOT Requirement for the

Pueblo of Sandia. Copies of NOTs shall

also be submitted to the Pueblo of

Sandia Environment Department

concurrently with NOT submittal to

EPA. Copies are to be sent to the address

given in Part II.C.1.

4. Pueblo of Picuris The following

Pueblo of Picuris section 401

certification requirements revise the

permit accordingly:

(a) Part II.C.1. is added to the permit

as follows:

Special NOI Requirement for the

Pueblo of Picuris. Copies NOIs shall also

be submitted to both the Pueblo of

Picuris Environment Department and

Picuris Governor Manuel Archuleta at

the following address concurrently with

NOI submission to EPA: Pueblo of

Picuris, P.O. Box 127, Penasco, New

Mexico 87553, Telephone (505) 587–

2519.

(b) Part IX.B.1. is added to the permit

as follows:

Special NOT Requirement for the

Pueblo of Picuris. Copies NOTs shall

also be submitted to both the Pueblo of

Picuris Environment Department and

Picuris Governor Manuel Archuleta at

the address given in Part II.C.1.

concurrently with NOT submission to

EPA.

(c) Part IV.F. is added to the permit as

follows:

Special Storm Water Pollution

Prevention Plan Requirement for the

Pueblo of Picuris. Copies of storm water

pollution prevention plans must be

submitted to both the Pueblo of Picuris

Environment Department and Picuris

Governor Manuel Archuleta at the

address given in Part II.C.1.

concurrently with plan submission to

EPA.

Region X

The State of Idaho, except Indian

Country Lands (IDR05* ###)

The following State of Idaho section

401 certification requirement revises the

permit accordingly:

1. Part IV.F. is added to the permit as

follows:

Special Storm Water Pollution

Prevention Plan Requirement for the

State of Idaho. Storm water pollution

prevention plan design and associated

storm water discharge quality shall

demonstrate compliance with

applicable Idaho Water Quality

Standards and Wastewater Treatment

Requirements (IDAPA 16.01.02) through

the selection and use of approved and/

or reasonable Best Management

Practices.

Federal Indian Country Lands in the

State of Washington (WAR05* ##F)

1. Confederated Tribes of the Chehalis

Reservation. The following

Confederated Tribes of the Chehalis

Reservation section 401 certification

requirements revise the permit

accordingly:

(a) Part I.B.8(a) is added to the permit

as follows:

Special Water Quality Standard

Requirement for the Confederated

Tribes of the Chehalis Reservation. The

permittee shall be responsible for

achieving compliance with

Confederated Tribes of Chehalis

Reservation’s Water Quality Standards.

(b) Part I.B.8(b) is added to the permit

as follows:

Special Permit Eligibility Requirement

for the Confederated Tribes of the

Chehalis Reservation. Storm water

pollution prevention plans shall be

submitted to the Chehalis Tribal

Department of Natural Resources at the

following address for review and

approval prior to discharge:

Confederated Tribes of Chehalis

Reservation, Department of Natural

Resources 420 Howanut Road, Oakville,

WA 98568.

2. Puyallup Tribe of Indians. The

following Puyallup Tribe of Indians

section 401 certification requirements

revise the permit accordingly:

(a) Part I.B.8(a) is added to the permit

as follows:

Special Water Quality Standard

Requirement for the Puyallup Tribe of

Indians. The permittee shall be

responsible for achieving compliance

with Puyallup Tribe’s Water Quality

Standards.

(b) Part I.B.8(b) is added to the permit

as follows:

Special Permit Eligibility Requirement

for the Puyallup Tribe of Indians. Storm

water pollution prevention plans shall

be submitted to the Puyallup Tribe

Environmental Department at the

following address for review and

approval prior to discharge: Puyallup

Tribe Environmental Department 2002

East 28th Street, Tacoma, WA 98404.

(c) Part II.C.1. is added to the permit

as follows:

Special NOI Requirement for the

Puyallup Tribe of Indians. Copies of

NOIs shall also be submitted to the

Puyallup Tribe Environmental

Department at the address listed in Part

I.B.8(b) at time of NOI submittal to EPA:

Federal Facilities in the State of

Washington, Except Those Located on

Indian Country Lands (WAR05* ###)

The following State of Washington

section 401 certification requirement

revises the permit accordingly:

(a) Part I.B.8(a) is added to the permit

as follows:

Special Water Quality Standard

Requirement for the State of

Washington. The permittee shall be

responsible for achieving compliance

with the State of Washington’s Water

Quality Standards. These Standards are

found in Chapter 173–201AWAC (Water

Quality Standards for Surface Waters),

Chapter 173–204 WAC (Sediment

Management Standards), and the human

health standards in the National Toxics

Rule (57 FR 60848—60923).

[FR Doc. 98–21025 Filed 8–4–98; 8:45 am]

BILLING CODE 6560–50–P