[Federal Register Volume 63, Number 208 (Wednesday, October 28, 1998)]
[Notices]
[Pages 57684-57686]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-28869]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-6180-9]


Final Second Modification of General NPDES Permit (GP) for 
Alaskan Mechanical Placer Miners (Permit Number AKG-37-0000)

AGENCY: Environmental Protection Agency (EPA).


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ACTION: Notice of proposed second modification of a general permit.

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SUMMARY: The Director, Office of Water, EPA Region 10 is issuing a 
modified General NPDES permit for mechanical placer mining in the state 
of Alaska. The modified general permit contains a new effluent 
limitation for arsenic which was based on the ``Withdrawal of Federal 
Regulations of the Applicability to Alaska's Waters of Human Health 
Criteria'' published in the Federal Register on March 2, 1998 (63 FR 
10140) and effective on April 1, 1998. A Response to Comments was 
prepared and is included in this notice.

DATES: The modified general permit will become effective on November 
27, 1998 and will expire on June 30, 1999.

FOR FURTHER INFORMATION CONTACT: Copies of the final general NPDES 
permit, response to comments, and today's publication will be provided 
upon request by EPA Region 10, Public Information Office, at (800) 424-
4372 or (206) 553-1200 or upon request to Cindi Godsey at (907) 271-
6561. Requests may also be electronically mailed to: 
[email protected]. Copies of the final permit and response 
to comments can be found by visiting the Region 10 website at 
www.epa.gov/r10earth/offices/water/npdes.htm.

SUPPLEMENTARY INFORMATION: The Office of Management and Budget has 
exempted this action from the review requirements of Executive Order 
12866 pursuant to section 6 of that order.
    The state of Alaska, Department of Environmental Conservation 
(ADEC), has certified that the subject discharges comply with the 
applicable provisions of sections 208(e), 301, 302, 306 and 307 of the 
Clean Water Act.
    The state of Alaska, Office of Management and Budget, Division of 
Governmental Coordination (DGC), has determined that this permitting 
action did not warrant a formal review for consistency with the Alaska 
Coastal Management Program (ACMP).
    Regulatory Flexibility Act: Under the Regulatory Flexibility Act 
(RFA), 5 U.S.C. 601 et seq., a Federal agency must prepare an initial 
regulatory flexibility analysis ``for any proposed rule'' for which the 
agency ``is required by section 553 of the [Administrative Procedure 
Act (APA)], or any other law, to publish general notice of proposed 
rulemaking.'' The RFA exempts from this requirement any rule that the 
issuing agency certifies ``will not, if promulgated, have a significant 
economic impact on a substantial number of small entities.'' EPA has 
concluded that NPDES general permits are permits under the APA and thus 
not subject to APA rulemaking requirements or the RFA. Notwithstanding 
that general permits are not subject to the RFA, EPA has determined 
that this general permit, if issued, will not have a significant 
economic impact on a substantial number of small entities.
    Dated: October 20, 1998.
Philip G. Millam,
Director, Office of Water, Region 10.

Response to Comments

    EPA received comments on the Second Modification of the General 
Permit for Alaskan Mechanical Placer Miners AKG-37-0000 from the Alaska 
Miners Association (AMA) and Earthjustice Legal Defense Fund 
(Earthjustice) on behalf of the Trustees for Alaska, Northern Alaska 
Environmental Center, Southeast Alaska Conservation Council, Sitka 
Conservation Society, and the Juneau Chapter of the Audubon Society.
    On September 10, 1998, the Division of Governmental Coordination 
(DGC) determined that this action did not warrant a formal review for 
consistency with the Alaska Coastal Management Program (ACMP).
    On October 5, 1998, the Alaska Department of Environmental 
Conservation (ADEC) issued a Certificate of Reasonable Assurance for 
proposed discharges from Alaskan Mechanical Placer Mines.
    1. Comment: AMA requests that the permit averaging period be 
adjusted to reflect the manner in which the criteria were derived. AMA 
states that the arsenic criteria are based upon regulating long-term 
human exposure to this pollutant to avoid potential adverse systemic 
and carcinogenic human health impacts.
    Response: On March 2, 1998, EPA published the ``Withdrawal from 
Federal Regulations of the Applicability to Alaska's Waters of Arsenic 
Human Health Criteria'' (63 FR 10140). This rule became effective on 
April 1, 1998, and removed the applicability to Alaska's waters of the 
federal human health criteria for arsenic. If the criteria being 
applied were based on long-term human health criteria, EPA would base 
the arsenic limitations on such a standard. However, the criteria is a 
Drinking Water Maximum Contaminant Level (MCL) which, according to 40 
CFR 142.2 is a ``maximum permissible level of a contaminant.'' 
Therefore, the standard must be based on an immediate limit. ADEC has 
indicated in their 401 Certification of this GP that this is the proper 
use of a Drinking Water Standard as a permit effluent limitation.
    2. Comment: AMA suggests that the instantaneous maximum limitation 
is inappropriate for use as a permit limitation and recommends that it 
should be replaced with an appropriate 30-day average and daily maximum 
limitation, as is required in 40 CFR 122.45(d)(1). AMA suggests an 
average monthly discharge rate of 50 g/L and maximum daily 
rate of 131 g/L.
    Response: 40 CFR 122.45(d)(1) applies only to continuous 
discharges. During EPA's metals study, EPA observed only one mine at 
which discharges were continuous. Furthermore, even after site visits 
in July 1998, when three more sites were included in the metals study, 
it was found that none of these additional sample sites discharged each 
week of the study. Therefore, EPA will not apply regulations for 
continuous discharges to Placer Mines. Instead, 40 CFR 122.45(e) is 
applicable to non-continuous discharges. That provision contains four 
considerations in setting appropriate effluent limitations. 40 CFR 
122.45(e)(4) best describes how the arsenic limit was determined for 
the GP. It states:

    Prohibition or limitation of specified pollutants by mass, 
concentration, or other appropriate measure (for example, shall not 
contain at any time more than 0.1 mg/L zinc or more than 250 grams 
(\1/4\ kilogram) of zinc in any discharge).

    The regulations give EPA the authority to set effluent limitations 
in terms of rates not to be exceeded. When this regulation is combined 
with the use of an MCL, a ``maximum permissible level of a 
contaminant,'' the limit in the permit is permissible.
    3. Comment: Earthjustice states that the use of the revised Water 
Quality Standard (WQS) of 50 g/L is unjustified and unlawful 
as was the initial change to the WQS.
    Response: The withdrawal of the human health criteria for arsenic 
was public noticed in the Federal Register (62 FR 27707) on May 21, 
1997, and published final on March 2, 1998, (63 FR 10140) with an 
effective date of April 1, 1998. The withdrawal has not been 
challenged. Therefore, the WQS no longer contain a human health 
criteria for arsenic. However, this permit does contain a section on 
site specific criteria for arsenic making it possible for an affected 
person or community to request from the state of Alaska, a more 
stringent criteria for arsenic.
    4. Comment: Earthjustice also attached a copy of the comment letter 
they submitted on the withdrawal of the human health criteria.
    Response: These issues were addressed in the Response to Comments

[[Page 57686]]

for the withdrawal of the human health criteria for arsenic and were 
published in the Federal Register on March 2, 1998. EPA will not 
reiterate the responses in this document.

[FR Doc. 98-28869 Filed 10-27-98; 8:45 am]
BILLING CODE 6560-50-P