[Federal Register Volume 63, Number 152 (Friday, August 7, 1998)]
[Notices]
[Pages 42534-42548]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-21025]



[[Page 42533]]

_______________________________________________________________________

Part III





Environmental Protection Agency





_______________________________________________________________________



National Pollutant Discharge Elimination System (NPDES) Storm Water 
Multi-Sector General Permit Modification for Industrial Activities; 
Notice

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

[[Page 42534]]



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. Sec. 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)(``Multi-Sector Permit''). 
The interpretation in today's notice replaces EPA's interpretation in 
Table G-4 of the Multi-Sector 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 
Sec. 101(a); 33 U.S.C. Sec. 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 Sec. 301(a); 33 U.S.C. Sec. 1311(a). All 
NPDES permits must, at a minimum, contain technology-based effluent 
limitations established in effluent guidelines or standards or, if no 
such

[[Page 42535]]

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 Sec. 402(a); 33 U.S.C. 
Sec. 1342(a). Effluent limitations may be ``technology-based'' or 
``water quality-based.''<SUP>1</SUP> For some industrial point source 
categories, EPA has published technology-based effluent limitations 
that apply on a nationwide basis, pursuant to CWA Secs. 304(b) and 
306(b)(1)(B); 33 U.S.C. Secs. 1314(b) and 1316(b)(1)(B).<SUP>2</SUP> 
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.
---------------------------------------------------------------------------

    \1\ Water 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-by-case basis based on the best 
professional judgment of the permit writer.
---------------------------------------------------------------------------

    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 <SUP>3</SUP>
---------------------------------------------------------------------------

    \3\ The 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. Secs. 6901, et seq. (RCRA) and its 
implementing regulations.
---------------------------------------------------------------------------

    The Guidelines establish industry-wide 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 Multi-Sector 
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

[[Page 42536]]

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.<SUP>4</SUP> 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.
---------------------------------------------------------------------------

    \4\ ``Point source'' is defined at Clean Water Act Sec. 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.
---------------------------------------------------------------------------

    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.<SUP>5</SUP>
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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 Multi-Sector 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 
Sec. 402(p)(4)(A), 33 U.S.C. Sec. 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.

[[Page 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 ``Multi-Sector 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 Multi-Sector 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 Multi-Sector 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

[[Page 42538]]

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 road-related 
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

[[Page 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 Sec. 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 non-water 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 quality-based controls on the discharge.
    Finally, the Agency cautions that today's interpretation should not 
be

[[Page 42540]]

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-by-source 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 
Multi-Sector 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.

[[Page 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 Multi-Sector 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 subsequently-promulgated regulatory 
definition of the term ``mine'' for the purposes of 40 CFR 
Sec. 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 Sec. 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.

[[Page 42542]]

    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 Multi-Sector 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.

[[Page 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. 
Secs. 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.

[[Page 42544]]

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   NMR05*##F                     
   Mountain Reservation lands).                                         
Oklahoma:                                                               
  Indian country........................  OKR05*##F                     
  Oil and gas exploration and production  OKR05*<SUP>###                     
   related industries and pipeline                                      
   industries that are regulated by the                                 
   Oklahoma Corporation Commission.                                     
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     CAR05*##F                     
   Valley Tribe).                                                       
Idaho:                                                                  
  Duck Valley Reservation...............  NVR05*##F                     
Nevada Indian country...................  NVR05*##F                     
New Mexico:                                                             
  Navajo Reservation....................  AZR05*##F                     
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      IDR05*##F                     
   Reservation lands).                                                  
Oregon Indian country (except for Fort    ORR05*##F                     
 McDermitt Reservation lands).                                          
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      Except if process fluids are   
     when constructed of waste rock/      present and only if composed  
     tailings.                            entirely of storm water and   
                                          not combining with mine       
                                          drainage. See Note below.     
    Runoff from tailings dams/dikes      Except if process fluids are   
     when not constructed of waste rock/  present.                      
     tailings.                                                          
    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   If mixed with storm water from 
     housing.                             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.                         

[[Page 42545]]

                                                                        
    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.

[[Page 42546]]



 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 CaCO<INF>3).............  no benchmark value.                   
Antimony, Total.................  0.636 mg/L.                           
Arsenic, Total..................  0.16854 mg/L.                         
Beryllium, Total................  0.13 mg/L.                            
Cadmium, Total (hardness          0.0159 mg/L.                          
 dependent).                                                            
Copper, Total (hardness           0.0636 mg/L.                          
 dependent).                                                            
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           1.417 mg/L.                           
 dependent).                                                            
Selenium, Total.................  0.2385 mg/L.                          
Silver, Total (hardness           0.0318 mg/L.                          
 dependent).                                                            
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 
----------------------------------------------------------------------------------------------------------------
                                                               Pollutant/parameter                              
                               ---------------------------------------------------------------------------------
       Type of ore mined            Total                                                                       
                                  suspended        pH                           Metals, total                   
                                solids (TSS)                                                                    
----------------------------------------------------------------------------------------------------------------
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,                 X             X   Arsenic, Cadmium (H), Copper (H), Lead (H), Mercury,
 Silver, and Molybdenum.                                     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.

[[Page 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-by-case 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:

[[Page 42548]]

    (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