[Federal Register Volume 62, Number 204 (Wednesday, October 22, 1997)]
[Notices]
[Pages 54950-54958]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-27854]



[[Page 54949]]

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Part III





Environmental Protection Agency





_______________________________________________________________________



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

  Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / 
Notices  

[[Page 54950]]



ENVIRONMENTAL PROTECTION AGENCY

[WH-FRL-5912-3]


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

AGENCY: Environmental Protection Agency.

ACTION: Notice of proposed modification of NPDES general permits; 
notice of interpretation.

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SUMMARY: Today's action proposes clarification of an interpretation of 
the technology-based effluent limitations applicable to point sources 
of ``mine drainage'' at 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 intends to 
provide a more definitive interpretation of the applicability of those 
recently-issued general permits, specifically, as they apply to certain 
storm water discharges at ore mining and dressing operations. To 
incorporate today's proposed interpretation, EPA only proposes to 
modify the NPDES general permits issued by EPA Regions 1, 6, 9 and 10 
because the Agency does not anticipate that the mining-related storm 
water discharges at issue occur in the other States where EPA is the 
NPDES permit issuance authority. The Agency, however, would take final 
action to modify the general permits applicable in the other States 
where EPA issues permits if public comments demonstrate the need to do 
so.

DATES: Comments on today's proposed interpretation and proposed 
modification must be received or post-marked by midnight no later than 
December 8, 1997.

ADDRESSES: Send written comments to: W-97-13, Comment Clerk, Water 
Docket (MC-4101), U.S. EPA, 401 M Street, SW, Washington, DC 20460. 
Please submit the original and three copies of your comments and 
enclosures (including references).
    Commenters who want EPA to acknowledge receipt of their comments 
should enclose a self-addressed stamped envelope. No facsimiles (faxes) 
will be accepted. Comments may also be submitted electronically to: ow-
[email protected]. Electronic comments must be submitted as an 
ASCII file avoiding the use of special characters and forms of 
encryption. Electronic comments must be identified by the docket number 
W-97-13. Comments and data will also be accepted on disks in 
WordPerfect 5.1 format or ASCII file format. Electronic comments on 
this notice may be filed online at many Federal Depository Libraries.
    The record for this action has been established under docket number 
W-97-13, and includes supporting documentation as well as printed paper 
versions of elctronic comments. The record is available for inspection 
from 9 a.m. to 4 p.m., Monday through Friday, excluding legal holidays 
at the Water Docket, Room M2616, U.S. EPA, 401 M Street SW, Washington, 
DC 20460. For access to docket materials, please call 202-260-3027 to 
schedule an appointment. A reasonable fee may be charged for copying.

FOR FURTHER INFORMATION CONTACT: For further information, contact Gary 
Hudiburgh, Office of Wastewater Management, Office of Water at (202) 
260-4926 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 Fred Humke at (214) 
665-7503. For EPA Region 9, covering the State of Arizona and Federal 
Indian reservations in Arizona, and Federal Indian reservations in 
California 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 Steven Bubnick at (206) 553-
5171.

SUPPLEMENTARY INFORMATION:

Authority

    EPA issues NPDES permits under the authority of CWA section 402, 33 
U.S.C. section 1342. Today's proposed modification would be based on an 
interpretation of rules published under the authority of CWA sections 
301, 304, and 501(a), 33 U.S.C. sections 1311, 1314, and 1361(a). 
Today's action would modify 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 and invites public comment on its 
interpretation of the technology-based effluent limitations applicable 
to point sources of ``mine drainage'' at ore mining and dressing 
operations under the Clean Water Act (``CWA''). 33 U.S.C. 1251 et seq. 
This interpretation updates and replaces an earlier interpretation 
published in the fact sheet for the final National Pollutant Discharge 
Elimination System (``NPDES'') Storm Water Multi-Sector General Permit 
for Industrial Activities at 60 FR 50804 (Sept. 29, 1995)(``Multi-
Sector Permit''). The interpretation in today's notice supplements 
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.
    EPA has reviewed the administrative record supporting the Part 440 
regulations, as well as Agency statements made during the course of 
litigation over those regulations, and is revising 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) has 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

[[Page 54951]]

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 original issued.
    Upon review of those documents, the Agency believes the documents 
(including judicial caselaw) 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 proposes a slight expansion of the 
applicability of the Multi-Sector permit (consistent with the 
interpretation in today's notice) and, therefore, invites public 
comment.
    The interpretation in today's notice provides clarification 
regarding the scope of the effluent guidelines initially promulgated in 
1978. As explained more fully below, however, the Agency's 
communication of its 1978 intention was not fully clarified through 
publication in the Federal Register or other readily available 
documents. In addition to 1978 preamble statements in the Federal 
Register explaining the scope of the effluent guidelines, the Agency 
prepared other documents explaining the guideline's scope that were not 
published in the Federal Register. These other documents (including 
parts of the administrative record, the denial of an administrative 
petition for reconsideration, the Agency's litigation brief, and a 
guidance document for permit writers) contain statements about the 
applicability of the guidelines that NMA argued were inconsistent with 
Table G-4. Today's notice proposes to modify Table G-4 consistent with 
those statements and now would only address applicability of the Multi-
Sector Permits.

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 
Section 101(a); 33 U.S.C. 1251(a). To achieve its objective, the CWA 
provides for a permit program to control ``point source'' pollution. 
The CWA point source permitting program is known as the National 
Pollutant Discharge Elimination System (``NPDES''), under which EPA or 
authorized States issue permits for point source discharges. Except in 
accordance with an NPDES permit, a point source discharge of a 
pollutant is unlawful. CWA Section 301(a); 33 U.S.C. 1311(a). All NPDES 
permits must, at a minimum, contain technology-based effluent 
limitations established in effluent guidelines or standards or, if no 
such guidelines have been established, limitations derived on the basis 
of best professional judgment.
    Individual NPDES permits contain substantive restrictions, called 
``effluent limitations,'' which are aimed at controlling the level of 
pollutants in point source discharges. CWA 402(a); 33 U.S.C. 1342(a). 
Effluent limitations may be ``technology-based'' or ``water quality-
based.'' 1 For some industrial point source categories, EPA 
has published technology-based effluent limitations that apply on a 
nationwide basis, pursuant to CWA Sections 304(b) and 306(b)(1)(B); 33 
U.S.C. 1314(b) and 1316(b)(1)(B). 2 These limitations are 
called national effluent limitations guidelines or standards. EPA has 
published best practicable control technology currently available 
(``BPT''), best conventional pollutant control technology (``BCT''), 
best available technology economically achievable (``BAT'') effluent 
guidelines, and new source performance standards (``NSPS'') for point 
sources in over fifty different industrial categories. Among the 
effluent guidelines and standards which EPA has established are those 
applicable to the ore mining and dressing industry. These guidelines 
are known as the ``Effluent Guidelines for the Ore Mining and Dressing 
Point Source Category'' (hereinafter referred to as the 
``Guidelines''). The Guidelines are published at 40 CFR part 440.
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    \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.
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    EPA first published the Guidelines on an interim final basis on 
November 6, 1975. 40 FR 51722. On July 11, 1978, after substantially 
expanding the data base supporting the Guidelines, and after 
considering comments submitted since initial promulgation, EPA 
republished the Guidelines in modified form. 43 FR 29771 (July 11, 
1978). Both the initial and republished Guidelines established BPT 
effluent limitations for discharges for ore mining and dressing 
operations.

B. Storm Water Regulation Under the Guidelines 3

    The  Guidelines establish 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:

    \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. 6901, et seq. (RCRA) and its implementing 
regulations.
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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).
    In statements in the administrative record supporting the 
Guidelines, EPA indicated an intent to include a broad range of 
discharges within the scope of the Guidelines. The 1975 Preamble to the 
Interim Final Guidelines expressly indicated that the Guidelines 
definition of the term ``mine'' was intended to be sufficiently broad 
``to cover all point source pollution resulting from all the activities 
related to the operation of the mine including drainage tunnels, haul 
roads, storage piles, etc.'' 40 FR 51727. Consistent with this, in the 
1978 Development Document (prepared by EPA before the Guidelines were 
republished in 1978), EPA stated that:

    A mine is an area of land upon which or under which minerals or 
metal ores are extracted from natural deposits in the earth by any 
means or methods. A mine includes the total area upon which such 
activities occur or where such activities disturb the natural land 
surface. A mine shall also include land affected by such ancillary 
operations which disturb the natural land surface, and any adjacent 
land the use of which is incidental to such activities; all lands 
affected by the construction of new roads or the improvements or use 
of existing roads to gain access to the site of such

[[Page 54952]]

activities and for haulage and excavations, workings, impoundments, 
dams, ventilation shafts, drainage tunnels, entryways, refuse banks, 
dumps, stockpiles, overburden piles, spoil banks, culmbanks, 
tailings, holes or depressions, repair areas, storage areas and 
other areas upon which are site structures, facilities, or other 
property or materials resulting from or incident to such activities.

1978 Development Document at 146.
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 
rulemaking. 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 7953-7954 (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 authority in the 
context of a permit proceeding.
    After comprehensive review of these documents, there are several 
matters that are clear. EPA did not grant any portion of Kennecott's 
petition for reconsideration. In fact, EPA denied the petition and in 
so doing the Agency rejected Kennecott's cost estimates for what 
Kennecott called ``non-process'' areas because, based on the Ray Mine 
data submitted by Kennecott, EPA found that the Ray Mine would incur no 
costs with respect to runoff from those areas. Therefore, the Agency 
did not adopt or incorporate Kennecott's proposed distinction between 
``process'' and ``non-process'' areas at mine sites. This conclusion 
alone, however, does not fully resolve all possible questions about 
applicability of the guidelines.
    In responding to the portions of Kennecott's petition related to 
the Ray Mine, the Agency did not explain why the diffuse storm water 
runoff from ``overburden dumps and material which is too low [] to 
leach and other areas of the Ray Mine property where work or other 
activity related to the the [sic] extraction, removal or recovery of of 
[sic] metal ore is not being conducted'' was not subject to the 
Guidelines. These Agency statements merely repeated phraseology used in 
Kennecott's petition. Upon review of these statements, as well as re-
review of Kennecott's original administrative petition, the Agency 
cannot determine with certainty, for example, whether the statement 
means that runoff was not subject to the Guidelines (1) because it was 
``diffuse'' (i.e., nonpoint source), (2) because the drainage was 
already being contained at Ray Mine, (3) because the overburden at Ray 
Mine was outside of Ray Mine's active mining area, (4) because no 
activity related to the extraction, removal or recovery of metal ore 
was currently (or recently) being conducted at the Ray Mine site at 
that time as identified by Kennecott in its petition for 
reconsideration. The statements certainly, however, do not indicate 
that water which contacts overburden dumps in active mining areas is 
not subject to the Guidelines nor does any other subsequent Agency 
statement vacillate on this question. Runoff from overburden dumps 
within the active mining area is mine drainage subject to Guidelines.
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 overbroad 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

[[Page 54953]]

definition of ``point source'' provided in the CWA.4 The 
Court recognized that it is ``unrealistic, if not altogether 
impossible'' to provide an ``absolute and unequivocal'' definition of 
``point source'' and rule of applicability, further supporting case-by-
case or site-specific determinations on applicability of the 
Guidelines.

    \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.
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    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 overbroad, or affirmatively upheld the 
regulations against Kennecott's challenges based on reasons explained 
in the decision.5
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    \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.
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    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. In the Earth Sciences 
case, the Tenth Circuit concluded that uncollected surface runoff was a 
point source, specifically, groundwater seeps from under a combination 
of sumps, ditches, hoses, and pumps in a closed ``heap leach'' gold 
mining operation. Earth Sciences, 599 F.2d at 374. Therefore, the court 
recognized that even seemingly ``uncollected runoff'' from point 
sources were and could be regulated under the CWA and subject to the 
Guidelines limitations.
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. In an undated guidance package (circa early 1980's) 
prepared by EPA Headquarters for EPA and State NPDES permit writers, 
the Agency interpreted the term ``active mining area'' broadly to 
exclude only areas unaffected by mining or milling. The document also 
identified parts of the ``active mining area'' to include the 
excavations of deep mines and surface mines; leach areas; refuse, 
middling, and tailings areas; tailings ponds, holding and settling 
basins; and other ancillary areas to a mine or mill. Additionally, that 
document also explains that an ``active mining area'' can include mine 
areas where there is actually no extraction, removal, or recovery of 
metal ore, including where mine drainage is removed from a deep mine to 
protect present and future working areas, pumping out and 
rehabilitation of a closed mine prior to reentry, and pumping of an 
adjacent mine to protect present and future workings in an active 
mining area. This document suggests that contemporaneous Agency intent 
was to include certain areas, such as waste rock piles, within the 
scope of the active mining area.
    Since that time, EPA and authorized NPDES States have issued 
permits to a significant number of ore mining and dressing operations. 
No party has ever identified or presented any of the Agency litigation 
statements from the Kennecott Copper Corp. case as evidence that the 
Agency does not interpret the term ``mine drainage'' very broadly.
    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 section 
402(p)(4)(A), 33 U.S.C. 1342(p)(4)(A). On November 16, 1990, EPA 
published those regulations. In doing so, EPA defined ``storm water'' 
as storm water runoff, snow melt runoff, and surface runoff and 
drainage. It also defined ``[s]torm water discharge associated with 
industrial activity'' to mean the discharge of pollutants from any 
conveyance which is used for collecting and conveying storm water and 
which is directly related to manufacturing, processing, or raw 
materials storage areas at an industrial plant. See 40 CFR 
122.26(b)(14). Included among these discharges were discharges from 
conveyances at mining facilities. 40 CFR 122.26(b)(14)(iii). 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.
    The NPDES regulations for storm water describe three mechanisms by 
which dischargers of storm water

[[Page 54954]]

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).

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 is 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,'' 
identifies various discharge sources associated with ore mining and 
dressing operations. The Table then indicated EPA's view 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). 
EPAs 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 EPAs 
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 that fall 
within the Guidelines definition of ``mine drainage,'' or drainage from 
the active ``mining area.'' 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: EPAs 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'') 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 overburden-related sources as covered by the 
Guidelines. NMA argued that, based on 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 rulemaking. While disagreeing 
with NMAs categorical conclusion that no overburden-related areas are 
covered by the Guidelines, EPA believes the earlier Agency statements 
reflect an EPA interpretation that storm water discharges from ``waste 
rock/overburden

[[Page 54955]]

piles'' would be subject to the Guidelines only if the ``waste rock/
overburden piles'' are within the ``active mining area'' and the 
resulting storm water flows drain into a point source. This may 
include, but would not be limited to, such flows that combine 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.
    NMAs 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 Agencys interpretation of the 
technology-based effluent limitations applicable to point source 
discharges from various areas at ore mining and dressing operations. 
Todays 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/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 
overburden-related sources was not within the ``active mine area.'' 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.
    Todays action does not change in any way EPAs 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.'' Todays 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 are outside of the 
``active mining area'' 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 haul roads so constructed are 
within the ``active mining area'' and the resulting storm water flows 
drain into a point source. Such discharges would be outside the scope 
of the Guidelines if they are outside the ``active mining area.'' Point 
source discharges consisting entirely of storm water from haul road-
related sources outside the active mining area would be addressed in 
the same manner as ``waste rock and overburden'' outside the active 
mining area (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.
    Though EPA notes that overburden piles (thus, runoff from 
overburden) are sometimes outside the ``active mining area,'' NPDES 
permit coverage is still required when such flows are channeled or 
drain to a point source. Under todays 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 outside the active mining area 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 
Sec. 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 into the 
active mining area for treatment. EPA provides additional guidance 
below.

V. Guidance to Permit Applicants and Permit Writers

    Based on the foregoing discussion, EPA is proposing Table G-4 in a 
revised form 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 Development Document, 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 on a 
categorical basis unless they are within the ``active mining area'' 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 (i.e., point source drainage from 
outside the active mining area) 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 Agency still presumes that ``active mining area'' should be 
interpreted as broadly as the plain language of the regulations 
suggests; 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 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). 
The Agency continues to reject any distinction between ``process'' and 
``nonprocess'' areas at mining operations to determine the nature and

[[Page 54956]]

scope of the active mining area. Many areas that some might consider to 
be ``nonprocess'' areas do constitute part of the active mining area 
provided that work or other activity related to extraction, removal, or 
recovery of metal ore is being conducted (until the mining operation 
finishes recontouring and begins reclamation).
    Today's proposed interpretation and guidance describe a distinct 
class of discharges that was not distinct from the face of Table G-4 
when the Agency published the Multi-Sector Permit. Specifically, 
today's proposed 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 proposed 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 distinct and limited class of 
discharges described by today's notice, i.e., those overburden/waste 
rock sources outside the active mining area, authorization under an EPA 
general permit for storm water may be available.
    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. Individual permits provide the opportunity to tailor 
controls appropriate for the discharge, for example, through the use of 
best professional judgment (BPJ) according to 40 CFR 125.3(d) or 
analogous State law, and where necessary to assure compliance with 
water quality standards. 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, should 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 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 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. 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 rulemaking 
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 rulemaking requirements 
under the Administrative Procedure Act (``APA'')

[[Page 54957]]

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 proposing modification of 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 rulemaking 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 proposed 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 proposed 
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 
proposed 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 proposed 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 proposed permit modification contains no requests for 
information and consequently is not subject to the Paperwork Reduction 
Act, 44 U.S.C. 3501 et seq.

    Signed this 26th day of September, 1997.
Patricia L. Meany,
Acting Regional Administrator, Region 1.

    Signed this 26th day of September, 1997.
Jerry Clifford,
Acting Regional Administrator, Region 6.

    Signed this 25th day of September, 1997.
Deborah Jordan,
Acting Regional Administrator, Region 9.

    Signed this 25th day of September, 1997.
Philip S. Millam,
Acting Regional Administrator, Region 10.

    1. For the reasons set forth in this preamble, the table published 
on September 29, 1995, at 60 FR 50897 would be 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 (seepage and/or runoff):                                          
    Waste rock/overburden..............  If not in active mining area   
                                          and composed entirely of storm
                                          water. See Note below.        
    Topsoil                                                             
Roads constructed of waste rock or                                      
 spent ore:                                                             
    Onsite haul roads..................  If not in active mining area   
                                          and composed entirely of storm
                                          water. See Note below.        
    Offsite haul/access roads..........  If outside of the active mining
                                          area.                         
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 not in    
     tailings.                            active mining area and        
                                          composed entirely of storm    
                                          water. 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.                      

[[Page 54958]]

                                                                        
    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.                         
    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 440 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 subject to 40 CFR part 440 if the source of the     
  drainage flows is within the ``active mining area'' and the resulting 
  storm water flows drain to a point source. For such sources outside   
  the active mining area, coverage under this permit would be available 
  if the discharge is composed entirely of storm water and 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 third 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 on September 29, 1995, at 
60 FR 51155, would be modified and a fourth and fifth sentence would be 
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 outside 
the active mining area; topsoil piles; offsite haul/access roads if 
outside of the active mining area; haul/access roads constructed of 
waste rock/overburden if outside of the active mining area; onsite 
haul/access roads not constructed of waste rock/overburden/ spent ore 
except if mine water 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 outside the 
active mining area; 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; 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; 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 subject to 40 
CFR part 440 if the source of the drainage flows is within the ``active 
mining area'' and the resulting storm water flows drain to a point 
source. For such sources outside the active mining area, coverage under 
this permit would be available if the discharge is composed entirely of 
storm water and not subject to 40 CFR part 440, as well as meeting 
other eligibility criteria contained in Part I.B. of the permit.

[FR Doc. 97-27854 Filed 10-21-97; 8:45 am]
BILLING CODE 6560-50-P