Federal Register / Vol. 74, No. 143 / Tuesday, July 28, 2009 / Notices 37213 

Certified Product Notification Forms. 

Award applicants are estimated to 

spend an additional 20 hours on average 

to complete the awards application. 

Burden means the total time, effort, or 

financial resources expended by persons 

to generate, maintain, retain, or disclose 

or provide information to or for a 

Federal agency. This includes the time 

needed to review instructions; develop, 

acquire, install, and utilize technology 

and systems for the purposes of 

collecting, validating, and verifying 

information, processing and 

maintaining information, and disclosing 

and providing information; adjust the 

existing ways to comply with any 

previously applicable instructions and 

requirements which have subsequently 

changed; train personnel to be able to 

respond to a collection of information; 

search data sources; complete and 

review the collection of information; 

and transmit or otherwise disclose the 

information. 

The ICR provides a detailed 

explanation of the Agency’s estimate, 

which is only briefly summarized here: 

Estimated Number of Respondents: 

357 state and local government; 1,319 

private sector organizations, and 668 

individuals per year. 

Frequency of Response: Varies. 

Estimated Total Annual Hour Burden: 

57,248 hours. 

Estimated Total Annual Cost: 

$4,665,618, including $1,793,181 in 

operation & maintenance costs. 

Are There Changes in the Estimates 

From the Last Approval? 

The overall burden estimate for this 

collection is 7,167 hours higher than the 

burden estimated under the current ICR 

because the WaterSense program has 

been launched and expanded since the 

current ICR was approved. The change 

in burden reflects the substantial 

increase in the number of products 

certified, new partners joining and 

reporting, and the addition of the New 

Homes portion of the program. EPA also 

has a better understanding of how long 

it takes partners to complete program 

forms, now that the program is 

underway. 

What Is the Next Step in the Process for 

This ICR? 

EPA will consider the comments 

received and amend the ICR as 

appropriate. The final ICR package will 

then be submitted to OMB for review 

and approval pursuant to 5 CFR 

1320.12. At that time, EPA will issue 

another Federal Register notice 

pursuant to 5 CFR 1320.5(a)(1)(iv) to 

announce the submission of the ICR to 

OMB and the opportunity to submit 

additional comments to OMB. If you 

have any questions about this ICR or the 

approval process, please contact the 

technical person listed under FOR

FURTHER INFORMATION CONTACT. 

Dated: July 20, 2009. 

James Hanlon, 

Director, Office of Wastewater Management. 

[FR Doc. E9–17927 Filed 7–27–09; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[EPA–HQ–SFUND–2009–0265; FRL–8931–7] 

RIN 2050–AG56 

Identification of Priority Classes of 

Facilities for Development of CERCLA 

Section 108(b) Financial Responsibility 

Requirements 

AGENCY: Environmental Protection 

Agency (EPA) 

ACTION: Priority notice of action. 

SUMMARY: Section 108(b) of the 

Comprehensive Environmental 

Response, Compensation, and Liability 

Act (CERCLA) of 1980, as amended, 

establishes certain regulatory authorities 

concerning financial responsibility 

requirements. Specifically, the statutory 

language addresses the promulgation of 

regulations that require classes of 

facilities to establish and maintain 

evidence of financial responsibility 

consistent with the degree and duration 

of risk associated with the production, 

transportation, treatment, storage, or 

disposal of hazardous substances. 

CERCLA Section 108(b) also requires 

EPA to publish a notice of the classes 

for which financial responsibility 

requirements will be first developed. To 

fulfill this requirement, EPA is by this 

notice identifying classes of facilities 

within the hardrock mining industry for 

which the Agency will first develop 

financial responsibility requirements 

under CERCLA Section 108(b). For 

purposes of this notice, hardrock mining 

facilities include those which extract, 

beneficiate or process metals (e.g., 

copper, gold, iron, lead, magnesium, 

molybdenum, silver, uranium, and zinc) 

and non-metallic, non-fuel minerals 

(e.g., asbestos, gypsum, phosphate rock, 

and sulfur). 

FOR FURTHER INFORMATION CONTACT: For 

more information on this notice, contact 

Ben Lesser, U.S. Environmental 

Protection Agency, Office of Resource 

Conservation and Recovery, Mail Code 

5302P, 1200 Pennsylvania Ave., NW., 

Washington, DC 20460; telephone (703) 

308–0314; or (e-mail) 

Lesser.Ben@epa.gov; or Elaine Eby, U.S. 

Environmental Protection Agency, 

Office of Resource Conservation and 

Recovery, Mail Code 5304P,1200 

Pennsylvania Ave., NW., Washington, 

DC 20460; telephone (703) 603–844; or 

(e-mail) Eby.Elaine@epa.gov. 

SUPPLEMENTARY INFORMATION: 

A. How Can I Get Copies of This 

Document and Other Related 

Information? 

This Federal Register notice and 

supporting documentation are available 

in a docket EPA has established for this 

action under Docket ID No. EPA–HQ– 

SFUND–2009–0265. All documents in 

the docket are listed on the http:// 

www.regulations.gov Web site. Although 

listed in the index, some information 

may not be publicly available, because 

for example, it may be Confidential 

Business Information (CBI) or other 

information, the disclosure of which is 

restricted by statute. Certain material, 

such as copyrighted material, is not 

placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically through http:// 

www.regulations.gov or in hard copy at 

the RCRA Docket, EPA/DC, EPA West, 

Room 3334, 1301 Constitution Avenue, 

NW., Washington, DC. The Docket 

Facility is open from 8:30 a.m. to 4:30 

p.m., Monday through Friday, excluding 

legal holidays. The telephone number 

for the Public Reading Room is (202) 

566–1744, and the telephone number for 

the Superfund Docket is (202) 566– 

0270. A reasonable fee may be charged 

for copying docket materials. 

B. Table of Contents 

I. Introduction 

II. EPA’s Approach for Identifying Those 

Classes of Facilities for Which 

Requirements Will Be First Developed 

III. Identification of Classes of Facilities in 

Hardrock Mining 

IV. Hardrock Mining—Releases and Exposure 

to Hazardous Substances 

V. Hardrock Mining—Severity of 

Consequences Resulting From Releases 

and Exposure to Hazardous Substances 

VI. EPA’s Consideration of Additional 

Classes of Facilities for Developing 

Financial Responsibility Requirements 

VII. Conclusion 

I. Introduction 

Section 108(b), 42 U.S.C. 9608 of the 

Comprehensive Environmental 

Response, Compensation, and Liability 

Act (CERCLA) of 1980, as amended, 

requires in specified circumstances that 

owners and operators of facilities 

establish evidence of financial 

responsibility. Specifically, it requires 

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37214 Federal Register / Vol. 74, No. 143 / Tuesday, July 28, 2009 / Notices 

1Executive Order 12580 delegates this 

responsibility to the Administrator of the U.S. 

Environmental Protection Agency (‘‘EPA’’ or ‘‘the 

Agency’’) for non-transportation related facilities. 

52 FR 2923, 3 CFR, 1987 Comp., p. 193. 

2 42 U.S.C. 9608 (b)(1). 

3See memorandum to Jim Berlow, USEPA from 

Stephen Hoffman, USEPA and Shahid Mahmud, 

USEPA. Re: Mining Classes Not Included in 

Identified Classes of Hardrock Mining. June 2009. 

4 ‘‘Risk Assessment in the Federal Government: 

Managing the Process.’’ National Research Council. 

National Academy Press, Washington, DC. 1983. 

5Today’s identification of hardrock mining is not 

itself a rule, and does not create any binding duties 

or obligations on any party. Additional research, 

outreach to stakeholders, proposed regulations, 

review of public comments, and finalization of 

those regulations are needed before hardrock 

mining facilities are subject to any financial 

assurance requirements. 

6EPA notes that this notice does not affect the 

current Bevill status of extraction, beneficiation and 

processing wastes as codified in 40 CFR 261.4(b)(7). 

the promulgation of regulations that 

require classes of facilities to establish 

and maintain evidence of financial 

responsibility consistent with the degree 

and duration of risk associated with the 

production, transportation, treatment, 

storage, or disposal of hazardous 

substances. The section also instructs 

that the President: 1

* * * identify those classes for which 

requirements will be first developed and 

publish notice of such identification in the 

Federal Register.2

EPA is publishing this notice to fulfill 

its obligations under CERCLA Section 

108(b) to identify those classes of 

facilities, owners, and operators (herein 

referred to as classes of facilities) for 

which financial responsibility 

requirements will first be developed. 

For the reasons that follow, the 

Agency has identified classes of 

facilities within the hard-rock mining 

industry as its priority for the 

development of financial responsibility 

requirements under CERCLA Section 

108(b). For purposes of this notice only, 

hardrock mining is defined as the 

extraction, beneficiation or processing 

of metals (e.g., copper, gold, iron, lead, 

magnesium, molybdenum, silver, 

uranium, and zinc) and non-metallic, 

non-fuel minerals (e.g., asbestos, 

gypsum, phosphate rock, and sulfur).3

(See Section VI of this notice for a 

discussion of EPA’s consideration of 

additional classes of facilities for 

developing financial responsibility 

requirements under Section 108(b) of 

CERCLA.) 

II. EPA’s Approach for Identifying 

Those Classes of Facilities for Which 

Requirements Will Be First Developed 

In accordance with CERCLA Section 

108(b) EPA worked to determine which 

classes of facilities it should identify as 

its priority. CERCLA Section 108(b) 

directs the President to ‘‘identify those 

classes for which requirements will be 

first developed and publish notice of 

such identification [.]’’ However, this 

simple sentence does not spell out a 

particular methodology by which the 

identification is to be made. While EPA 

views this statutory ambiguity as 

allowing substantial discretion in 

making the identification, EPA looked 

to the rest of CERCLA Section 108(b) to 

inform its exercise of this discretion. 

Examination of CERCLA Section 

108(b) as a whole reveals repeated 

references to the concept of ‘‘risk.’’ The 

first sentence of paragraph (b)(1) refers 

to ‘‘requirements * * * that classes of 

facilities establish and maintain 

evidence of financial responsibility 

consistent with the degree and duration 

of risk’’ and the last sentence states that 

‘‘[p]riority in the development of such 

requirements shall be accorded to those 

classes of facilities * * * which the 

President determines present the 

highest level of risk of injury.’’ 

Paragraph (b)(2) also states that ‘‘[t]he 

level of financial responsibility shall be 

initially established, and, when 

necessary, adjusted to protect against 

the level of risk which the President in 

his discretion believes is appropriate 

* * * .’’ Accordingly, EPA chose to 

look for indicators of risk and its related 

effects to inform its selection of classes 

for which it would first develop 

requirements under CERCLA Section 

108(b). As a practical method of doing 

so, EPA reviewed information contained 

in a number of studies, reports, and 

analyses. This review pointed to 

numerous factors EPA should consider. 

For example, typical elements in 

evaluating risk to human health and the 

environment include: the probability of 

release, exposure, and toxicity.4 While 

some of the considerations reflect these 

basic elements of risk evaluation, others 

relate more closely to the severity of 

consequences that result when those 

risks are realized, such as the releases’ 

duration if not prevented or quickly 

controlled as a result of economic 

factors and the exposures that can 

result. Therefore, EPA has chosen to 

evaluate the following factors: (1) 

Annual amounts of hazardous 

substances released to the environment; 

(2) the number of facilities in active 

operation and production; (3) the 

physical size of the operation; (4) the 

extent of environmental contamination; 

(5) the number of sites on the CERCLA 

site inventory (including both National 

Priority List (NPL) sites and non-NPL 

sites); (6) government expenditures; (7) 

projected clean-up expenditures; and (8) 

corporate structure and bankruptcy 

potential. 

Toxicity is reflected in the 

designation of substances as CERCLA 

hazardous substances. Current releases 

of hazardous substances, number of 

operating facilities, the physical size of 

an operation, the extent of 

environmental contamination, and the 

number of sites on the CERCLA site 

inventory (non-NPL sites and NPL sites) 

are factors that can relate to the 

probability of a release of a hazardous 

substance, as well as the potential for 

exposure. These are discussed in detail, 

in Section IV of this notice. Government 

expenditures, projected clean-up costs, 

and corporate structure and bankruptcy 

potential can relate to the severity of the 

consequences as a result of releases and 

exposure of hazardous substances. 

These are discussed in Section V of this 

notice. 

EPA’s review of all these factors, as 

reflected in the information presented in 

this notice and included in the docket, 

makes it readily apparent that hardrock 

mining facilities present the type of risk 

that, in light of EPA’s current 

assessment, justifies designating such 

facilities as those for which EPA will 

first develop financial responsibility 

requirements pursuant to CERCLA 

Section 108(b).5

III. Identification of Classes of Facilities 

in Hardrock Mining 

For purposes of this notice, EPA has 

included the following classes of 

facilities under the general title of 

hardrock mining: facilities which 

extract, beneficiate or process metals 

(e.g. copper, gold, iron, lead, 

magnesium, molybdenum, silver, 

uranium, and zinc) and non-metallic, 

non-fuel minerals (e.g. asbestos, 

gypsum, phosphate rock, and sulfur).6

As explained below, hardrock mining 

facilities share common characteristics, 

and are thus being identified as a group. 

At the same time, those facilities 

included in the definition above differ 

such that ‘‘hardrock mining facilities’’ 

are properly considered to encompass 

multiple ‘‘classes’’ of facilities. The 

various classes in this notice’s 

definition of hardrock mining are 

involved in two general activities: (1) 

The extraction of an ore or mineral from 

the earth; and (2) using various 

beneficiation activities and processing 

operations to produce a targeted 

material product, such as a metal ingot. 

The operations that comprise hardrock 

mining (i.e., extraction, beneficiation, 

and then processing) are all part of a 

sequential process of converting 

mstockstill on DSKH9S0YB1PROD with NOTICES

Federal Register / Vol. 74, No. 143 / Tuesday, July 28, 2009 / Notices 37215 

7U.S. EPA. 2004. ‘‘Cleaning Up the Nation’s 

Waste Sites: Markets and Technology Trends.’’ EPA 

542–R–04–015. Accessed at: http://www.epa.gov/ 

tio/pubisd.htm. 

8U.S. EPA 2004. ‘‘Nationwide Identification of 

Hardrock Mining Sites.’’ Office of Inspector 

General. Report No. 2004–P–00005. Accessed at: 

http://epa.gov/oig/reports/2004/20040331-2004-p00005.pdf. 9Metal mining industry is defined as NAICS Code 

2122 (Metal Mining). 10U.S. EPA 2009. Toxic Release Inventory, 2007 

Updated Data Releases, as of March 19, 2009. 11TRI estimates include all on-site and off-site 

releases to the land, air and surface water, including 

those disposed of in RCRA Subtitle C hazardous 

waste land disposal units and Safe Drinking Water 

Act (SDWA) permitted underground injection (UIC) 

wells. However, less than one percent of hazardous 

substances are managed in this manner. Thus, the 

data demonstrates the enormous volume of 

hazardous chemical releases reported to TRI by the 

metal mining industry and is an indication of the 

high volume of hazardous substances it manages, 

and the industry’s potential for posing health and 

environmental risk. 

12National Research Council. 2005. Superfund 

and Mining Megasites: Lessons from the Coeur 

d’Alene River Basin. The National Academies Press, 

Washington, DC. Accessed at: http://www.nap.edu/ 

catalog.php?record_id=11359. 

material removed from the earth into 

marketable products, even though the 

intermediate and end products differ. 

Extraction, beneficiation or processing 

of ores and minerals can involve similar 

processes across types of mining, as 

discussed below. 

However, hardrock mining is also 

properly considered to encompass 

multiple ‘‘classes’’ that represent a range 

of activities and marketable products. 

Extraction differs from beneficiation and 

both differ from processing, and 

depending upon the product sought, 

different types of processes are used. 

Extraction, also called mining, is the 

removal of rock and other materials that 

contain the target ore and/or mineral. 

The physical processes used to 

accomplish this vary, but are 

nonetheless often shared across 

different types of mining. These 

physical processes include surface, 

underground, and in-situ solution 

mining. Overburden and waste rock are 

removed during surface and 

underground extraction processes in 

order to gain access to the ore. 

Overburden and waste rock are 

disposed of in dumps near the mine. 

The dumps may or may not be lined or 

covered. In-situ mining involves the 

recovery of the metal from the ore by 

circulating solutions through the ore in 

its undisturbed geologic state and 

recovering those solutions for 

processing. The principal 

environmental protection concern with 

in-situ mining is the control and 

containment of the leach solutions. 

Typically the next step after 

extraction, beneficiation involves 

separating and concentrating the target 

mineral from the ore. There are, 

however, many different ways in which 

beneficiation can occur. Beneficiation 

activities generally do not change the 

mineral values themselves other than by 

reducing (e.g. crushing or grinding) or 

enlarging (pelletizing or briquetting) 

particle size to facilitate processing, but 

can involve the introduction of water, 

other substances, and chemicals 

(including hazardous substances). A 

common beneficiation technique is 

flotation. Froth flotation involves 

adding forced air and chemicals to an 

ore slurry causing the target mineral 

surfaces to become hydrophobic and 

attach to air bubbles that carry the target 

minerals to the top of a floatation vessel. 

The surface froth containing the 

concentrated mineral is removed, and 

thus separated from the other waste 

minerals. The remaining waste minerals 

are called tailings. Leaching, another 

beneficiation technique, involves the 

addition of chemicals to ores or flotation 

concentrates in order to dissolute the 

target metal. For example, solvents, 

such as sulfuric acid are used to leach 

copper and sodium cyanide is used to 

leach gold. Following leaching, the 

leftover waste product is called spent 

ore (in heap leaching) or tailings (in 

other types of leaching). There are 

various other beneficiation techniques 

and intermediate processes that are used 

and not described here. However, 

flotation and leaching are the most 

common techniques used in the mining 

industry. Tailings from beneficiation are 

disposed in a variety of ways, most 

commonly in tailing ponds. Design of 

tailings ponds differ and may or may 

not include liners, seepage control, 

surface water diversions, and final 

covers. Regardless, many tailings ponds 

require long-term management of waste 

and the impoundment dam. 

Processing is the refining of ores or 

mineral concentrates after beneficiation 

to extract the target material. As with 

beneficiation, there are many different 

ways of processing the ores or mineral 

concentrates. For example, mineral 

processing operations can use 

pyrometallurgical techniques (the use of 

higher temperatures as in smelting), to 

produce a metal or high grade metallic 

mixture. Smelting generates a waste 

product called slag. Slag is initially 

placed directly on the ground to cool, 

and is often subsequently managed into 

a wide range of construction materials 

(e.g., road bed or foundation bedding). 

Both because of the ways that the 

facilities covered by this notice fit 

together, and because of the range of 

activities that they cover, EPA believes 

hardrock mining is properly identified 

as a group and considered to include 

multiple classes of facilities. 

IV. Hardrock Mining—Releases and 

Exposure to Hazardous Substances 

As discussed above, evaluations of 

risk typically include considerations of 

the probability of a release, including its 

potential scale and scope, the exposure 

potential and toxicity. EPA research 

indicates that the hardrock mining 

industry typically operates on a large 

scale, with releases to the environment 

and, in some situations, subsequent 

exposure of humans, organisms, and 

ecosystems to hazardous substances on 

a similarly large scale. Indeed, EPA 

estimates that the hardrock mining 

industry is responsible for polluting 

3,400 miles of streams and 440,000 

acres of land.7 The U.S. Forest Service 

(USFS) estimates that approximately 

10,000 miles of rivers and streams may 

have been contaminated by acid mine 

drainage from the metal mining 

industry.8

The Agency examined its 2007 Toxic 

Release Inventory (TRI), and this data 

revealed that the metal mining 

industry 9 (e.g., gold ore mining, lead 

ore and zinc ore mining, and copper ore 

and nickel ore mining) releases 

enormous quantities of toxic chemicals, 

at nearly 1.15 billion pounds or 

approximately 28 percent of the total 

releases by U.S. industry that is required 

to report under the TRI program.10 11

This overall percentage has remained 

relatively stable since 2003, ranging 

from 25 percent (1.07 billion pounds) of 

total releases in 2004 to 29 percent (1.26 

billion pounds) of total releases in 2006. 

In 2007, the majority of releases of 

hazardous substances from the metal 

mining industry were to the land, with 

additional releases to both the air and 

surface waters. Additional releases of 

hazardous substances were reported to 

TRI from metal processing facilities 

(e.g., primary smelting of copper) with 

significant releases to the air and land. 

The potential for releases of and 

exposure to hazardous substances is 

also reflected in the number of active 

facilities operating in the U.S. While 

estimates of the number of active 

mining facilities vary, in 2004, EPA 

estimated that there were 1,000 metal 

and non-metal mineral mines and 

processing facilities in the U.S. 

Furthermore, many mining facilities 

have been in operation for decades and 

can exceed thousands of acres in size.12

Since large mines may be operated for 

decades, this can extend the time frame 

for potential releases and exposure of 

hazardous substances. At individual 

facilities, hardrock mining operations 

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37216 Federal Register / Vol. 74, No. 143 / Tuesday, July 28, 2009 / Notices 

13National Research Council. 1999. Hardrock 

Mining on Federal Lands. National Academies 

Press. Washington, DC. 14U.S. EPA 2004. ‘‘Cleaning Up the Nation’s 

Waste Sites: Markets and Technology Trends.’’ EPA 

542–R–04–015. Accessed at: http://www.epa.gov/ 

tio/pubisd.htm. 15See Memorandum to the Record: Toxic Release 

Inventory (TRI) Releases from Hardrock Mining 

Operations. June 2009. 16National Research Council. 1999. Hardrock 

Mining on Federal Lands. National Academies 

Press. Washington, DC. Also, EPA conducted a 

preliminary review of the Records of Decisions 

(RODs) for a selected group mining NPL sites. These 

substances were found to be common contaminants 

at these sites. Accessed at http://books.nap.edu/ 

catalog.php?record_id=9682. 

17U.S EPA. 2004. ‘‘Cleaning Up the Nation’s 

Waste Sites: Markets and Technology Trends.’’ EPA 

542–R–04–015. Accessed at: http://www.epa.gov/ 

tio/pubisd.htm. 

18U.S. EPA. 1997. ‘‘EPA’s National Hardrock 

Mining Framework.’’ Accessed at: http:// 

www.epa.gov/owm/frame.pdf. 

19U.S. EPA 2009. Accessed at: http:// 

www.epa.gov/nps/acid_mine.html. 

20The conventional approach to treating 

contaminated ground or surface water produced 

through acid drainage involves an expensive, multistep process that pumps polluted water to a 

treatment facility, neutralizes the contaminants in 

the water, and turns these neutralized wastes into 

sludge for disposal. U.S. EPA. Profile of the Metal 

Mining Industry. September 1995. See also: Lind, 

Greg. 2007. Testimony to the Subcommittee on 

Energy and Mineral Resources of the Committee on 

Natural Resources, U.S. House of Representatives, 

One Hundred Tenth Congress. Serial No. 110–46. 

21U.S. EPA. 2004. ‘‘Cleaning Up the Nation’s 

Waste Sites: Markets and Technology Trends.’’ EPA 

542–R–04–015. Accessed at: http://www.epa.gov/ 

tio/pubisd.htm. 

22U.S. EPA. 2004. ‘‘Cleaning Up the Nation’s 

Waste Sites: Markets and Technology Trends.’’ EPA 

542–R–04–015. Accessed at: http://www.epa.gov/ 

tio/pubisd.htm. 

23U.S. EPA. 2007. ‘‘Introduction to the Hazard 

Ranking System (HRS).’’ Accessed at: http:// 

www.epa.gov/superfund/programs/npl_hrs/ 

hrsint.htm. 

24National Research Council. 2005. Superfund 

and Mining Megasites: Lessons from the Coeur 

d’Alene River Basin. The National Academies Press, 

Washington, DC. Accessed at: http://www.nap.edu/ 

catalog.php?record_id=11359. 

25USEPA Administrative Order on Consent for 

Molycorp RI/FS (2001). Molycorp is proposed for 

listing on the NPL. More information is at http:// 

www.epa.gov/region6/6sf/pdffiles/0600806.pdf. 

26U.S. EPA 2004. ‘‘Nationwide Identification of 

Hardrock Mining Sites.’’ Office of Inspector 

General. Report No. 2004–P–00005, Figure 4.2. 

Accessed at: http://epa.gov/oig/reports/2004/ 

20040331-2004-p-00005.pdf. 

may disturb thousands of acres of land 

and impact watersheds including, to 

varying degrees, effects on groundwater, 

surface water, aquatic biota, aquatic and 

terrestrial vegetation, wetlands, wildlife, 

soils, air, cultural resources, and 

humans that use these resources 

recreationally or for subsistence.13

Hardrock mining facilities also 

generate an enormous volume of waste, 

which may increase the risk of releases 

of hazardous substances. Annually, 

hardrock mining facilities generate 

between one to two billion tons of mine 

waste.14 This waste can take a variety of 

forms, including mine water, waste 

rock, overburden, tailings, slag, and flue 

dust and can contain significant 

quantities of hazardous substances. The 

2007 TRI data demonstrate that 

hardrock mining facilities reported large 

releases of many hazardous substances, 

including ammonia, benzene, chlorine, 

hydrogen cyanide, hydrogen fluoride, 

toluene, and xylene, as well as heavy 

metals and their compounds (e.g., 

antimony, arsenic, cadmium, 

chromium, cobalt, copper, lead, 

manganese, mercury, nickel, selenium, 

vanadium and zinc).15 Similarly, the 

National Research Council (NRC) has 

indicated that hazardous substances of 

particular concern include heavy 

metals, ammonia, nitrates, and 

nitrites.16

These releases, in some cases, have 

lead to ground and surface water 

contamination from acid mine drainage 

and metal leachate, and air quality 

issues resulting from heavy metalcontaminated dust or emissions of 

gaseous metals from thermal 

processes.17 Acid mine drainage is the 

formation and movement of acidic water 

which dissolves and transports metals 

into the environment. This acidic water 

forms through the chemical reaction of 

surface water (rainwater, snowmelt, 

pond water) and shallow subsurface 

water with rocks (e.g., waste rock, 

tailings, mine walls) that contain sulfurbearing minerals, resulting in the 

production of sulfuric acid. Metals can 

be leached from rocks that come in 

contact with the acid, a process that 

may be substantially enhanced by 

bacterial action.18 The resulting acidic 

and metal-contaminated fluids may be 

acutely or chronically toxic and, when 

mixed with groundwater, surface water 

and soil, may have harmful effects on 

humans, fish, animals, and plants.19

When acid mine drainage occurs, it is 

extremely difficult and often expensive 

to control and often requires long-term 

management measures.20 Air, land and 

water contamination may also result 

when waste rock dumps, tailings 

disposal facilities and open pits are not 

maintained properly and there are 

releases of hazardous substances to the 

environment.21 Additional risks can 

occur with the use of cyanide in gold 

mining operations, including the 

possible release of cyanide into soil, 

groundwater, and/or surface waters or 

catastrophic cyanide spills.22

Contaminants of concern at uranium 

mines include radionuclides. Due to the 

volume of the hazardous substances 

generated and released and the potential 

for long-term management of acid mine 

drainage, the cause for concern is only 

heightened. 

Other studies and EPA’s analysis of 

NPL data also underscores the risk of 

hardrock mining facilities. The NPL is a 

list of national priorities among the 

known or threatened releases of 

hazardous substances, pollutants or 

contaminants throughout the U.S. The 

Hazard Ranking System (HRS), the 

scoring system EPA uses to assess the 

relative threat associated with a release 

from a site, is the primary method used 

to determine whether a site should be 

placed on the NPL.23 The HRS takes 

into account the three elements of 

environmental and human health risk: 

(1) Probability of release; (2) exposure; 

and (3) toxicity. EPA generally will list 

sites with scores of 28.50 or above. The 

HRS is a proven tool for evaluating and 

prioritizing the releases that may pose 

threats to human health and the 

environment throughout the nation. In 

2005, the NRC noted that at the largest 

mining sites, or mega sites (i.e., those 

with projected cleanup costs exceeding 

$50 million), ‘‘wastes* * * are 

dispersed over a large area and 

deposited in complex hydrogeochemical 

and ecologic systems that often include 

human communities and public natural 

resources.’’ 24 For example, a 

molybdenum mine located near Questa, 

New Mexico, began operations in 1919 

and some underground mining 

operations are still in operation today. 

The mine’s operational capacity is 

reportedly 20,000 tons of ore processed 

at the facility per day, although it does 

not typically operate at capacity. The 

site stretches over approximately three 

square miles of land. Across this large 

area, operations include an 

underground mine, a milling facility, a 

nine-mile long tailings pipeline and a 

tailing disposal facility. There is also an 

open pit and waste rock dumps at the 

mine site, which were created during 

open-pit mining operations. Other 

problems at the site include subsidence 

areas with a surface depression from 

active underground operations.25

In 2004, EPA’s Office of Inspector 

General (OIG) examined 156 hardrock 

mining sites that are part of the CERCLA 

site inventory and concluded that 

ecological and environmental risks are 

often substantial. For the 82 Non-NPL 

sites that were evaluated, 64 percent 

had a current high or medium 

ecological/environmental risk, while the 

percentage of sites that were found to 

have low risk was only 13%. Another 

23% had an unknown level of risk.26

In support of this notice, EPA 

examined not only sites listed on the 

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Federal Register / Vol. 74, No. 143 / Tuesday, July 28, 2009 / Notices 37217 

27A significant number of response actions have 

been taken by several Federal agencies at hardrock 

mining facilities under CERCLA removal and 

emergency response authorities. Those actions were 

not evaluated for purposes of this Notice because 

of the lack of immediately available data. EPA alone 

took non-NPL removal actions at 99 mining sites 

between 1988 and October 2007. Provided to GAO 

for GAO 2008, ‘‘Hardrock Mining: Information on 

Abandoned Mines and Value and Coverage of 

Financial Assurance on BLM Land.’’ GAO–08– 

574T. Other Federal agencies also use non-NPL 

removal authorities to address releases from mining 

sites. Accessed at: http://www.gao.gov/highlights/ 

d08574thigh.pdf. 

28Provided to GAO for GAO 2008, ‘‘Hardrock 

Mining: Information on Abandoned Mines and 

Value and Coverage of Financial Assurance on BLM 

Land.’’ GAO–08–574T. Accessed at: http:// 

www.gao.gov/new.items/d08574t.pdf. and updated 

to reflect sites finalized on the NPL in 2008 and 

2009. The 2008 and 2009 NPL updates can be found 

at: http://www.epa.gov/superfund/sites/npl/ 

status.htm. 

29U.S. Government Accountability Office. 2008. 

‘‘Information on Abandoned Mines and Value and 

Coverage of Financial Assurance on BLM Land. 

GAO–08–574T. Accessed at: http://www.gao.gov/ 

highlights/d08574thigh.pdf. 

30Moreover, EPA’s cost data likely 

underestimates true cleanup costs, because they do 

not include costs borne by the States and 

potentially responsible parties. These costs only 

reflect expenditures to date. To reach construction 

completion, many sites will require additional, 

substantial remediation efforts. In addition, sites 

with acid mine drainage may require water quality 

treatment in perpetuity. Lind, Greg. 2007. 

Testimony to the Subcommittee on Energy and 

Mineral Resources of the Committee on Natural 

Resources, U.S. House of Representatives, One 

Hundred Tenth Congress. Serial No. 110–46. 

31U.S. EPA. 2007. Superfund eFacts Database. 

Accessed: October 24, 2007; U.S. Environmental 

Protection Agency. 2007 Comprehensive 

Environmental Response, Compensation, and 

Liability Information System (CERCLIS). Provided 

to GAO for their report, GAO 2008, ‘‘Hardrock 

Mining: Information on Abandoned Mines and 

Value and Coverage of Financial Assurance on BLM 

Land.’’ GAO–08–574T. Accessed at: http:// 

www.gao.gov/highlights/d08574thigh.pdf. 

32U.S. EPA. 2007. Superfund eFacts Database. 

Accessed: October 24, 2007; U.S. Environmental 

Protection Agency. 2007 Comprehensive 

Environmental Response, Compensation, and 

Liability Information System (CERCLIS). Provided 

to GAO for their report, GAO 2008, ‘‘Hardrock 

Mining: Information on Abandoned Mines and 

Value and Coverage of Financial Assurance on BLM 

Land.’’ GAO–08–574T, http://www.gao.gov/ 

new.items/d08574t.pdf. 33U.S. EPA. 2004. ‘‘Cleaning Up the Nation’s 

Waste Sites: Markets and Technology Trends.’’ EPA 

542–R–04–015. Accessed at: http://www.epa.gov/ 

tio/pubisd.htm. 

34U.S. EPA 2004. ‘‘Nationwide Identification of 

Hardrock Mining Sites.’’ Office of Inspector 

General. Report No. 2004–P–00005. Accessed at: 

http://epa.gov/oig/reports/2004/20040331-2004-p00005.pdf. 

35Appropriation amounts reflect an average of the 

discretionary appropriation amounts in the 

President’s Budget or Operating Plan between 2004 

and 2008. 

36No single source provides information on 

estimated future reclamation and remediation costs 

for hardrock mining facilities. In addition, for those 

estimates that do exist, remediation costs are often 

folded in with other reclamation activities, such as 

correcting safety hazards and landscaping, which 

leaves the amount attributable to remediation 

unknown. See U.S. EPA. 2004. ‘‘Cleaning Up the 

Nation’s Waste Sites: Markets and Technology 

Trends.’’ EPA 542–R–04–015. Accessed at: http:// 

www.epa.gov/tio/pubisd.htm. 

37For example, one mining company’s 2008 SEC 

10–K filing noted that its segments included ‘‘The 

Greens Creek unit, a 100%-owned joint venture 

arrangement, through our subsidiaries Hecla Alaska 

LLC, Hecla Greens Creek Mining Company and 

Hecla Juneau Mining Company. We acquired 70.3% 

of our ownership of Greens Creek in April 2008 

from indirect subsidiaries of Rio Tinto, PLC.’’ From 

this description, it appears that ownership of the 

mine has involved multiple subsidiaries, under 

both its current owner and under the previous 

ownership. 

NPL, but also sites proposed (including 

sites with Superfund alternative 

approach agreements in place) and 

deleted from the NPL.27 As of April, 

2009, approximately 90 hardrock 

mining sites have been listed on the 

NPL, and another 20 facilities have been 

proposed for inclusion on the list.28

V. Hardrock Mining—Severity of 

Consequences Resulting From Releases 

and Exposure to Hazardous Substances 

The severity of the consequences 

impacting human health and the 

environment as a result of releases and 

exposure of hazardous substances is 

evident by analyzing a number of 

factors. Specifically, the past and 

estimated future costs associated with 

protecting public health and the 

environment through what is often 

extensive and long-term reclamation 

and remediation efforts, as well as 

corporate structure and bankruptcy 

potential. This information also plays a 

significant role in leading EPA to 

conclude that classes of facilities 

involved in hardrock mining should be 

the first for which financial assurance 

requirements are developed under 

CERCLA Section 108(b). 

The severity of consequences posed 

by hardrock mining facilities is evident 

in the enormous costs associated with 

past and projected future actions 

necessary to protect public health and 

the environment, after releases from 

hardrock mining facilities occur. In 

other words, the documented 

expenditures reflect efforts to correct the 

realized risks from hardrock mining 

facilities. As noted earlier, these 

facilities release large quantities of 

hazardous substances, often over 

hundreds of square miles and, in some 

instances, have resulted in groundwater 

and surface water contamination that 

requires long-term management and 

treatment. Remediation of these 

hardrock mining facilities has therefore 

been historically costly. EPA’s past 

experience with these sites leads it to 

conclude that hardrock mining facilities 

are likely to continue to present a 

substantial financial burden that could 

be met by financial responsibility 

requirements. These enormous 

expenditures have been documented in 

a United States Government 

Accountability Office (GAO) study, and 

EPA’s own data confirm the large 

amounts of money spent by the Federal 

government alone. The GAO, in its 

report ‘‘Current Government 

Expenditures to Cleanup Hard Rock 

Mining Sites,’’ reported that in total, the 

Federal government spent at least $2.6 

billion to remediate hardrock mine sites 

from 1998 to 2007. EPA spent the largest 

amount at $2.2 billion, with the USFS, 

the Office of Surface Mining, and the 

Bureau of Land Management spending 

$208 million, $198 million, and $50 

million, respectively.29 EPA’s 

expenditure data show that between 

1988 and 2007, for mining sites with 

response actions taken under EPA 

removal and remedial authorities 

(including sites proposed, listed, and 

deleted from the NPL and sites with 

Superfund alternative approach 

agreements in place), approximately 

$2.7 billion was spent.30 31 Of this total, 

$2.4 billion was spent at the 84 sites 

listed as final on the NPL list at that 

time.32

Estimated costs of remediation for all 

hardrock mining facilities from several 

sources have generally been in the range 

of billions of dollars. EPA has estimated 

that the cost of remediating all hardrock 

mining facilities is between $20 and $54 

billion. EPA’s analysis showed that if 

the total Federal, State, and potentially 

responsible party outlays for 

remediation were to continue at existing 

levels ($100 to $150 million annually), 

no more than eight to 20 percent of all 

cleanup work could be completed 

within 30 years.33 In another analysis 

based on a survey of 154 large sites, 

EPA’s OIG projected that the potential 

total hardrock mining remediation costs 

totaled $7 to $24 billion. OIG calculated 

that this amount is over 12 times EPA’s 

total annual Superfund budget of about 

$1.2 billion from 1999 to 2004.34 The 

annual Superfund budget from 2004 

through 2008 remained consistent with 

OIG’s assessment, at approximately 

$1.25 billion.35 36

Common corporate structures and 

interrelated corporate failures within 

the hardrock mining industry increase 

the likelihood of uncontrolled releases 

of hazardous substances being left 

unmanaged, increasing risks. To begin 

with, mine ownership is typically 

complex, with individual mines often 

separately incorporated.37 The existence 

of a parent-subsidiary relationship can 

present several risks. First, corporate 

structures may allow parent 

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37218 Federal Register / Vol. 74, No. 143 / Tuesday, July 28, 2009 / Notices 

38See U.S. v. Bestfoods, 524 U.S. 51, 61 (1998) 

(‘‘[i]t is a general principle of corporate law * * * 

that a parent corporation * * * is not liable for the 

acts of its subsidiaries.’’) 

39U.S. Government Accountability Office. 2005. 

‘‘Environmental Liabilities: EPA Should Do More to 

Ensure That Liable Parties Meet Their Cleanup 

Obligations.’’ Report to Congressional Requesters. 

GAO–05–658, pp. 21–24. Accessed at: http:// 

www.gao.gov/highlights/d05658high.pdf. 

40Environmental Working Group. 2006. ‘‘Who 

Owns the West?’’ Accessed at: http://www.ewg.org/ 

mining/claims/index.php. 

41EPA notes that there are several potential 

explanations for these failures, such as a boom and 

bust cycle in the price of commodities, the finite 

life of a particular ore body or the possibility that 

closure or reclamation obligations exceed the 

remaining value of the operation, in addition to 

factors that can cause bankruptcies in other sectors. 

However, regardless of the cause, the fact remains 

a large number of bankruptcies and abandonments 

have occurred. 

42U.S. Government Accountability Office. 2005. 

Hardrock Mining: BLM Needs to Better Manage 

Financial Assurances to Guarantee Coverage of 

Reclamation Costs. GAO–05–377. Accessed at: 

http://gao.gov/products/GAO-05-377. 

43U.S. Environmental Protection Agency. 2000. 

Liquid Assets 2000: America’s Water Resources at 

a Turning Point. EPA–840–B–00–001. Accessed at: 

http://www.epa.gov/water/liquidassest.pdf. 

44U.S. Environmental Protection Agency. 2007. 

Superfund eFacts Database. Accessed: October 24, 

2007. 

45CDM. 2008. Final Feasibility Study Report for 

the Gilt Edge Superfund Site, Operable Unit 1 

(OU1). Prepared for EPA, Region VIII. May 2008. 

46U.S. EPA 2008. Record of Decision for the Gilt 

Edge Superfund Site Operable Unit 1 (OU1). 

Accessed at: http://www.epa.gov/region8/ 

superfund/sd/giltedge/ 

RODGiltEdgeVolumeOne_Text.pdf. 

47U.S. EPA. 2007. Superfund eFacts Database. 

Accessed: October 24, 2007. 

48U.S. Government Accountability Office. 2005. 

Hardrock Mining: BLM Needs to Better Manage 

Financial Assurances to Guarantee Coverage of 

Reclamation Costs. GAO–05–377. Accessed at: 

http://gao.gov/products/GAO-05-377. 

49Asarco, LLC, et al. U.S. Bankruptcy Court 

Southern District of Texas. May 15, 2009, Case No. 

05–21207, Docket No. 11343. 

corporations to shield themselves from 

liabilities of their subsidiaries.38 In a 

2005 study, the GAO cited mining 

facilities as an example of businesses at 

risk of incurring substantial liability and 

transferring the most valuable assets to 

the parent that could not be reached for 

cleanup.39

Second, many mining interests are 

located outside of the U.S. According to 

one report, six of the top ten mining 

claim owners in the U.S. are multinational corporations with headquarters 

outside the U.S.40 Such multi-national 

corporations can be difficult to hold 

responsible for contamination in the 

U.S. because of the difficulties of 

locating and then obtaining jurisdiction 

over the ultimate parent company. 

This is of particular concern since the 

hardrock mining industry has 

experienced a pattern of failed 

operations, which often require 

significant environmental responses that 

cannot be financed by industry.41 The 

pattern of failed operations has been 

well documented. GAO investigated 48 

hardrock mining operations on U.S. 

Department of Interior (DOI), Bureau of 

Land Management (BLM) Federal lands 

that had ceased operations and not been 

reclaimed by operators since BLM began 

requiring financial assurance under its 

regulations. Of the 48 operations, 30 

cited bankruptcy as the reason for 

completing reclamation activities.42

Numerous other examples exist of 

bankruptcies in the hardrock mining 

industry that resulted in or will likely 

require significant Federal responses, 

such as: 

• When the owner/operator filed for 

bankruptcy in 1992, it left the 

Summitville mine in Colorado with 

serious cyanide contamination and acid 

mine drainage. In 1994, the site was 

listed on the NPL. In 2000, EPA 

estimated that the remediation cost at 

the mine would be $170 million.43 As 

of October 2007, EPA had spent 

approximately $192 million in cleanup 

costs.44

• In 1999, another mining company 

filed for bankruptcy, leaving more than 

100 million gallons of contaminated 

water and millions of cubic yards of 

waste rock at the Gilt Edge Mine in 

South Dakota.45 EPA listed the site on 

the NPL in 2000 and estimated at that 

time the present value remediation costs 

to be $50.3 million.46 Even this 

estimate, however, does not include 

water collection and treatment costs that 

will be handled under additional 

remediation plans. As of October 2007, 

EPA expenditures at this site exceeded 

$56.1 million.47

• In 1998, operators of the Zortman 

Landusky mine in Montana filed for 

bankruptcy. Numerous cyanide releases 

occurred during operations which have 

affected the community drinking water 

supply on a nearby Tribal reservation. 

Acid mine drainage has also permeated 

the ground and surface waters. The 

projected cleanup costs at the site are 

estimated to be approximately $85.2 

million, of which only $57.8 million 

will be paid for by the responsible party. 

State and Federal authorities are 

projected to pay the remaining $27.4 

million for cleanup.48

• A large mining company filed for 

bankruptcy in 2005. The company has 

estimated the total environmental 

claims filed against it to have been in 

excess of $5 billion. Recently approved 

settlements with the U.S. and certain 

State governments involving 

environmental clean-up claims, when 

combined with settlements already 

approved by the bankruptcy court for 

environmental clean-up claims, provide 

for allowed claims and payments in the 

bankruptcy in an amount in excess of 

$1.5 billion and involve in excess of 50 

sites. EPA and DOI estimate their 

combined claims in the bankruptcy at 

the largest of these sites, an NPL site 

located in Idaho and Eastern 

Washington, to be in excess of $2 

billion.49

Taking all this information into 

account, EPA concludes that classes of 

facilities within the hardrock mining 

industry are those for which EPA 

should first develop financial 

responsibility requirements under 

CERCLA Section 108(b), based upon 

those facilities’ sheer size; the enormous 

quantities of waste and other materials 

exposed to the environment; the wide 

range of hazardous substances released 

to the environment; the number of 

active hardrock mining facilities; the 

extent of environmental contamination; 

the number of sites in the CERCLA site 

inventory, government expenditures, 

projected clean-up costs and corporate 

structure and bankruptcy potential. 

VI. EPA’s Consideration of Additional 

Classes of Facilities for Developing 

Financial Responsibility Requirements 

The Agency believes classes of 

facilities outside of the hardrock mining 

industry also may warrant the 

development of financial responsibility 

requirements under CERCLA Section 

108(b). Therefore, the Agency will 

continue to gather and analyze data on 

additional classes of facilities, beyond 

the hardrock mining industry, and will 

consider them for possible development 

of financial responsibility requirements. 

In determining whether to propose 

requirements under CERCLA Section 

108(b) for such additional classes of 

facilities, EPA will consider the risks 

posed and, to do so, may take into 

account factors such as: (1) The amounts 

of hazardous substances released to the 

environment; (2) the toxicity of these 

substances; (3) the existence and 

proximity of potential receptors; (4) 

contamination historically found from 

facilities; (5) whether the causes of this 

contamination still exist; (6) experiences 

from Federal cleanup programs; (7) 

projected costs of Federal cleanup 

programs; and (8) corporate structures 

and bankruptcy potential. EPA also 

intends to consider whether financial 

responsibility requirements under 

CERCLA Section 108(b) will effectively 

reduce these risks. While the Agency 

recognizes that data for some of these 

factors may be unavailable or limited in 

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Federal Register / Vol. 74, No. 143 / Tuesday, July 28, 2009 / Notices 37219 

50As part of developing proposed and final rules 

the Agency will consider whether hardrock mining 

facilities which have a RCRA Part B permit or are 

subject to interim status under RCRA Subtitle C and 

already are subject to RCRA financial assurance and 

facility-wide corrective action requirements need to 

also be subject to the financial responsibility 

requirements under Section 108(b) of CERCLA. In 

addition, EPA is aware and will consider in its 

development of proposed and final rules, that 

mining on Federal land triggers either the Bureau 

of Land Management’s (BLM) Part 3809 regulations 

(43 CFR Part 3809) and the Forest Service’s Part 228 

regulations (36 CFR Part 228), both have financial 

responsibility requirements that cover reclamation 

costs. Many States also have reclamation laws. 

availability, it plans to consider 

whatever data are available. 

As part of the Agency’s evaluation, it 

plans to examine, at a minimum, the 

following classes of facilities: hazardous 

waste generators, hazardous waste 

recyclers, metal finishers, wood 

treatment facilities, and chemical 

manufacturers. This list may be revised 

as the Agency’s evaluation proceeds. 

EPA is currently scheduled to complete 

and publish in the Federal Register a 

notice addressing additional classes of 

facilities the Agency plans to evaluate 

regarding financial responsibility 

requirements under CERCLA Section 

108(b) by December 2009, and, at that 

time, will solicit public comment. 

VII. Conclusion 

Based upon the Agency’s analysis and 

review, it concludes that hardrock 

mining facilities, as defined in this 

notice, are those classes of facilities for 

which EPA should identify and first 

develop requirements pursuant to 

CERCLA Section 108(b). EPA will 

carefully examine specific activities, 

processes, and/or metals and minerals 

in order to determine what proposed 

financial responsibility requirements 

may be appropriate. As part of this 

process, EPA will conduct a close 

examination and review of existing 

Federal and State authorities, policies, 

and practices that currently focus on 

hardrock mining activities.50

Dated: July 10, 2009. 

Lisa P. Jackson, 

Administrator. 

[FR Doc. E9–16819 Filed 7–27–09; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[FRL–8932–9] 

Modification of the 1985 Clean Water 

Act Section 404(c) Final Determination 

for Bayou aux Carpes in Jefferson 

Parish, LA 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice. 

SUMMARY: This is a notice of EPA’s 

Modification of the 1985 Clean Water 

Act Section 404(c) Final Determination 

for Bayou aux Carpes to allow for the 

discharge of dredged or fill material for 

the purpose of the construction of the 

West Closure Complex as part of the 

larger flood protection project for the 

greater New Orleans area. EPA believes 

that this Final Determination for 

modification achieves a balance 

between the national interest in 

reducing overwhelming flood risks to 

the people and critical infrastructure of 

south Louisiana while minimizing any 

damage to the Bayou aux Carpes CWA 

Section 404(c) site to the maximum 

degree possible in order to avoid 

unacceptable adverse effects. 

DATES: Effective Date: The effective date 

of the Final Determination for 

Modification was May 28, 2009. 

ADDRESSES: U.S. Environmental 

Protection Agency, Office of Water, 

Wetlands Division, Mail code 4502T, 

1200 Pennsylvania Ave, NW., 

Washington, DC 20460. The following 

documents used in the Bayou aux 

Carpes modification are listed on the 

EPA Wetlands Division Web site at 

http://www.epa.gov/owow/wetlands/ 

regs/404c.html: New Orleans District of 

the Corps letter dated November 4, 

2008, requesting that EPA modify the 

Bayou aux Carpes CWA Section 404(c) 

designation; Public Notice of Proposed 

Determination to modify the Bayou aux 

Carpes CWA Section 404(c) designation 

published in the Federal Register on 

January 14, 2009; April 2, 2009, 

Recommended Determination (RD) for 

modification of the Bayou aux Carpes 

404(c) action; and the May 28, 2009, 

Modification of the 1985 Clean Water 

Act Section 404(c) Final Determination 

for Bayou aux Carpes. Additional 

documents that are related to the Bayou 

aux Carpes modification can be located 

on the U.S. Army Corps of Engineers 

New Orleans District Web site at 

http://www.nolaenvironmental.gov/ 

projects/usace_levee/IER.aspx?

IERID=12. 

Publicly available document materials 

are available either electronically 

through http://www.regulations.gov or 

in hard copy at the Water Docket, EPA/ 

DC, EPA West, Room 3334, 1301 

Constitution Ave., NW., Washington, 

DC. The Public Reading Room is open 

from 8:30 a.m. to 4:30 p.m., Monday 

through Friday, excluding legal 

holidays. The telephone number for the 

Public Reading Room is (202) 566–1744, 

and the telephone number for the Water 

Docket is (202) 566–2426. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Clay Miller at (202) 566–1365 or by email at miller.clay@epa.gov. Additional 

information and copies of EPA’s Final 

Determination for Modification are 

available at http://www.epa.gov/owow/ 

wetlands/regs/404c.html or http:// 

www.nolaenvironmental.gov/projects/ 

usace_levee/IER.aspx?IERID=12. 

SUPPLEMENTARY INFORMATION: Section 

404(c) of the Clean Water Act (CWA) (33 

U.S.C. 1251 et seq) authorizes EPA to 

prohibit, restrict, or deny the 

specification of any defined area in 

waters of the United States (including 

wetlands) as a disposal site for the 

discharge of dredged or fill material 

whenever it determines, after notice and 

opportunity for public hearing, that 

such discharge into waters of the United 

States will have an unacceptable 

adverse effect on municipal water 

supplies, shellfish beds and fishery 

areas (including spawning and breeding 

areas), wildlife, or recreational areas. 

Congress directed the U.S. Army 

Corps of Engineers (Corps) to enhance 

the existing Lake Pontchartrain and 

Vicinity Hurricane Protection project 

and the West Bank and Vicinity 

Hurricane Protection project to the 100- 

year level of protection. One section of 

this much larger project is within the 

Bayou aux Carpes area that is subject to 

a 1985 EPA CWA Section 404(c) action 

that prohibited the discharge of dredged 

or fill material in the Bayou aux Carpes 

site south of the New Orleans metro 

area. On November 4, 2008, the New 

Orleans District of the Corps requested 

a modification of the Bayou aux Carpes 

CWA Section 404(c) designation to 

accommodate discharges to the Bayou 

aux Carpes wetlands associated with the 

proposed enhanced levee system in 

Jefferson Parish, Louisiana. 

In evaluating the Corps of Engineers 

proposal for modification of the 1985 

Bayou aux Carpes CWA Section 404(c) 

Final Determination, the key elements 

of a Section 404(c) process were 

followed. These include a hearing and 

opportunity for the public to provide 

written comments, preparation and 

submittal of a Recommended 

Determination proposed by EPA Region 

6 to EPA Headquarters, and a Final 

Determination for Modification issued 

by EPA Headquarters. 

Background 

On October 16, 1985, EPA issued a 

Final Determination pursuant to Section 

404(c) of the Clean Water Act restricting 

the discharge of dredged or fill material 

in the Bayou aux Carpes site, Jefferson 

Parish, Louisiana, based on findings that 

the discharges of dredged or fill material 

into that site would have unacceptable 

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