[Federal Register Volume 67, Number 15 (Wednesday, January 23, 2002)]
[Rules and Regulations]
[Pages 3370-3410]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-106]



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Part III





Environmental Protection Agency





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40 CFR Parts 9 and 434



Coal Mining Point Source Category; Amendments to Effluent Limitations 
Guidelines and New Source Performance Standards; Final Rule

  Federal Register / Vol. 67, No. 15 / Wednesday, January 23, 2002 / 
Rules and Regulations  

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 9 and 434

[FRL-7125-4]
RIN 2040-AD24


Coal Mining Point Source Category; Amendments to Effluent 
Limitations Guidelines and New Source Performance Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is amending the current regulations for the Coal Mining 
Point Source Category by adding two new subcategories to the existing 
regulation. EPA is establishing a Coal Remining Subcategory that will 
address pre-existing discharges at coal remining operations. EPA also 
is establishing a Western Alkaline Coal Mining Subcategory that will 
address drainage from coal mining reclamation and non-process areas in 
the arid and semiarid western United States. These amendments do not 
otherwise change the existing regulations.
    The establishment of new subcategories has the potential to create 
significant environmental benefits at little or no additional cost to 
the industry. Establishing the Coal Remining Subcategory will encourage 
remining activities and will reduce hazards associated with abandoned 
mine lands. The new subcategory has the potential to significantly 
improve water quality by reducing the discharge of acidity, iron, 
manganese, and sulfate from abandoned mine lands. EPA projects total 
monetized annual benefits of $0.7 million to $1.2 million due to 
remining. Additionally, EPA expects that this regulation will result in 
significant ecological and public safety benefits that could not be 
quantified and/or monetized. EPA projects that the annual compliance 
cost for this new subcategory will be $0.33 million to $0.76 million.
    EPA estimates that the Western Alkaline Coal Mining Subcategory 
will result in a net cost savings to affected surface mine operators. 
The monetized and non-monetized benefits for this subcategory are a 
result of adopting alternative sediment control technologies for 
reclamation and non-process areas in the arid west. These technologies 
are projected to increase the volume of storm water drainage to arid 
watersheds and avoid the disturbance of approximately 600 acres per 
year, thus reducing severe erosion, sedimentation, hydrologic 
imbalance, and water loss. EPA projects that the subcategory will 
result in annualized monetized benefits of $0.04 to $0.75 million.

DATES: This regulation is effective February 22, 2002.

ADDRESSES: A copy of the supporting documents cited in this document 
are available for review at EPA's Water Docket; Room EB57, 401 M 
Street, SW, Washington, DC 20460. A copy of the record supporting the 
development of the Western Alkaline Coal Mining Subcategory is also 
available for review at the Office of Surface Mining Library, 1999 
Broadway, 34th Floor, Denver, CO. The public record for this rulemaking 
has been established under docket number W-99-13, and includes 
supporting documentation. The public record supporting this rule does 
not include any information claimed as Confidential Business 
Information (CBI). For access to EPA docket materials, please call 
(202) 260-3027 between 9 a.m. and 3:30 p.m Eastern Standard Time, 
Monday through Friday, excluding Federal holidays, to schedule an 
appointment. For access to docket materials at the Office of Surface 
Mining Library, please call (303) 844-1436 between 8 a.m. and 4 p.m. 
Mountain Standard Time to schedule an appointment.

FOR FURTHER INFORMATION CONTACT: For additional technical information 
contact William Telliard at (202) 260-7134 or 
``[email protected]''. For additional economic information 
contact Kristen Strellec at (202) 260-6036 or 
``[email protected]''.

SUPPLEMENTARY INFORMATION: Regulated Entities: Entities potentially 
regulated by this action include:

 
------------------------------------------------------------------------
                                 Examples of
           Category               regulated      SIC codes   NAICS codes
                                   entities
------------------------------------------------------------------------
Industry.....................  Operations              1221       212111
                                engaged in the         1222       212112
                                remining of            1231       212113
                                abandoned
                                surface and
                                underground
                                coal mines and
                                coal refuse
                                piles for
                                remaining coal
                                reserves in
                                areas
                                containing
                                discharges
                                defined as
                                ``pre-
                                existing''
                                Operations
                                engaged in
                                coal mine
                                reclamation
                                activities in
                                the arid and
                                semiarid
                                western coal
                                region..
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that EPA is now aware 
could potentially be regulated by this action. Other types of entities 
not listed in the table could also be regulated. To determine whether 
your facility is regulated by this action, you should carefully examine 
the applicability criteria in 40 CFR part 434. If you have questions 
regarding the applicability of this action to a particular entity, 
consult the person listed for technical information in the preceding 
FOR FURTHER INFORMATION CONTACT section.

Judicial Review

    In accordance with 40 CFR 23.2, this rule will be considered 
promulgated for purposes of judicial review at 1 p.m. Eastern Standard 
Time on February 6, 2002. Under section 509(b)(1) of the Clean Water 
Act, judicial review of this regulation can be obtained only by filing 
a petition for review in the United States Court of Appeals within 120 
days after the regulation is considered promulgated for purposes of 
judicial review. Under section 509(b)(2) of the Clean Water Act, the 
requirements in this regulation may not be challenged later in civil or 
criminal proceedings brought by EPA to enforce these requirements.

Compliance Dates

    Existing direct dischargers must comply with limitations based on 
the Best Practicable Control Technology Currently Available (BPT), Best 
Conventional Pollutant Control Technology (BCT), and Best Available 
Technology Economically Achievable (BAT) as soon as their National 
Pollutant Discharge Elimination System (NPDES) permits include such 
limitations. The compliance date for New Source Performance Standards 
(NSPS) is the date the new source commences discharging.

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Supporting Documentation

    The regulations are supported by several key documents:
    1. ``Coal Remining Best Management Practices Guidance Manual'' (EPA 
821-B-01-010). This document describes abandoned mine land conditions 
and the performance of Best Management Practices (BMPs) that have been 
implemented at remining operations. The BMP Guidance Manual is a 
technical reference document that presents research and data concerning 
the prediction and prevention of acid mine drainage to the waters of 
the United States. There have been minimal changes to the BMP manual 
since proposal.
    2. ``Coal Remining Statistical Support Document'' (EPA 821-B-01-
011). This document describes the statistical methodology for 
establishing and monitoring baseline conditions and setting discharge 
limits at remining sites.
    3. ``Development Document for Final Effluent Limitations Guidelines 
and Standards for the Western Alkaline Coal Mining Subcategory'' (EPA 
821-B-01-012): This document presents EPA's technical conclusions 
concerning the Western Alkaline Coal Mining Subcategory.
    4. ``Economic and Environmental Impact Assessment of Effluent 
Limitations Guidelines and Standards for the Coal Mining Industry: 
Remining and Western Alkaline Subcategories'' (EPA-821-B-01-013): This 
document presents the methodology employed to assess economic and 
environmental impacts of the final rule and the results of the 
analysis.
    5. Statistical Analysis of Abandoned Mine Drainage in the 
Assessment of Pollution Load. (EPA 821-B-01-014) This document 
describes pollutant characteristics of pre-existing discharges at 
abandoned mine lands.

How To Obtain Supporting Documents

    All documents are available from the National Service Center for 
Environmental Publications, 11029 Kenwood Road, Cincinnati, OH 45242, 
(800) 490-9198, http://www.epa.gov/ncepi. Several of these documents 
can also be obtained on the Internet, located at http://www.epa.gov/OST/guide/coal. This website also links to an electronic version of 
today's notice.

Table of Contents

I. Legal Authority

II. Background

A. Statutory Authorities
    1. Clean Water Act
    2. Pollution Prevention Act
B. Regulation of the Coal Mining Point Source Category
    1. EPA Regulations at 40 CFR Part 434
    2. Surface Mining Control and Reclamation Act
    3. Rahall Amendment
C. Proposed Rule

III. Summary of Significant Changes to Proposed Rule

A. Coal Remining Subcategory
B. Western Alkaline Coal Mining Subcategory

IV. Scope of Final Regulation

A. Coal Remining Subcategory
B. Western Alkaline Coal Mining Subcategory

V. Development of Final Effluent Limitations Guidelines

A. Coal Remining Subcategory
    1. Background
    2. Scope of Final Regulation
    3. Pollution Abatement Plan
    4. Pollution Abatement Plan and Passive Treatment
    5. Commingling of Waste Streams
    6. Relocation of Pre-Existing Discharges
    7. BMP-Only Permits
    8. Water Quality Variances
    9. BAT for the Coal Remining Subcategory
    10. BPT for the Coal Remining Subcategory
    11. BCT for the Coal Remining Subcategory
    12. NSPS for the Coal Remining Subcategory
B. Western Alkaline Coal Mining Subcategory
    1. Background
    2. Inspection and Maintenance of BMPs
    3. Affected Areas
    4. SMCRA Requirements
    5. Bond Release
    6. Definition of Alkaline Mine Drainage
    7. BPT for the Western Alkaline Coal Mining Subcategory
    8. BCT for the Western Alkaline Coal Mining Subcategory
    9. BAT for the Western Alkaline Coal Mining Subcategory
    10. NSPS for the Western Alkaline Coal Mining Subcategory

VI. Statistical and Monitoring Procedures for the Coal Remining 
Subcategory

A. Statistical Procedures for the Coal Remining Subcategory
B. Evaluation of Statistical Triggers
C. Sample Collection to Establish Baseline Conditions and to Monitor 
Compliance for the Coal Remining Subcategory
D. Regulated Pollutant Parameters in Pre-Existing Discharges
    1. Acidity
    2. Sulfate
    3. Solids

VII. Non-Water Quality Environmental Impacts of Final Regulations

VIII. Environmental Benefits Analysis

A. Coal Remining Subcategory
B. Western Alkaline Coal Mining Subcategory

IX. Economic Analysis

A. Introduction, Overview, and Sources of Data
B. Method for Estimating Compliance Costs
    1. Coal Remining Subcategory
    2. Western Alkaline Coal Mining Subcategory
C. Costs and Cost Savings of the Final Rule
    1. Coal Remining Subcategory
    2. Western Alkaline Coal Mining Subcategory
D. Economic Impacts of the Final Rule
    1. Economic Impacts for the Coal Remining Subcategory
    2. Economic Impacts for the Western Alkaline Coal Mining 
Subcategory
E. Additional Impacts
    1. Costs to the NPDES Permitting Authority
    2. Community Impacts
    3. Foreign Trade Impacts
F. Cost Effectiveness Analysis
G. Cost Benefit Analysis

X. Regulatory Requirements

A. Executive Order 12866: Regulatory Planning and Review
B. Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)
C. Congressional Review Act
D. Paperwork Reduction Act
E. Unfunded Mandates Reform Act
F. Executive Order 13175: Consultation and Coordination with Indian 
Tribal Governments
G. Executive Order 13132: Federalism
H. National Technology Transfer and Advancement Act
I. Executive Order 13045: Protection of Children from Environmental 
Health Risks and Safety Risks
J. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

XI. Regulatory Implementation

A. Upset and Bypass Provisions
B. Variances and Modifications
    1. Fundamentally Different Factors Variances
    2. Permit Modifications
C. Relationship of Effluent Limitations to NPDES Permits and 
Monitoring Requirements
D. Analytical Methods

XII. Summary of EPA Responses to Significant Comments on Proposal

A. Coal Remining Subcategory
B. Western Alkaline Coal Mining Subcategory
Appendix A: Definitions, Acronyms, and Abbreviations Used in This 
Document

I. Legal Authority

    These regulations are promulgated under the authority of sections 
301, 304, 306, 308, 402, 501, and 502 of the Clean Water Act, 33 U.S.C. 
1311, 1314, 1316, 1318, 1342, 1361, and 1362.

II. Background

A. Statutory Authorities

1. Clean Water Act
    Congress adopted the Clean Water Act (CWA) to ``restore and 
maintain the

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chemical, physical, and biological integrity of the Nation's waters' 
(section 101(a), 33 U.S.C. 1251(a)). To achieve this goal, the CWA 
prohibits the discharge of pollutants into navigable waters except in 
compliance with the statute. The CWA confronts the problem of water 
pollution on a number of different fronts. Its primary reliance, 
however, is in establishing restrictions on the types and amounts of 
pollutants discharged from various industrial, commercial and public 
sources of wastewater.
    Direct dischargers must comply with effluent limitations in 
National Pollutant Discharge Elimination System (``NPDES'') permits; 
indirect dischargers must comply with pretreatment standards. These 
limitations and standards are established by regulation for categories 
of industrial dischargers and are based on the degree of control that 
can be achieved using various levels of pollution control technology.
    a. Best Practicable Control Technology Currently Available (BPT)--
section 304(b)(1) of the CWA. Effluent limitations guidelines based on 
BPT apply to discharges of conventional, toxic, and non-conventional 
pollutants from existing sources. BPT guidelines are generally based on 
the average of the best existing performance in terms of pollution 
control by plants in a particular industrial category or subcategory. 
In establishing BPT, EPA considers the cost of achieving pollution 
reductions in relation to the pollution reduction benefits, the age of 
equipment and facilities, the processes employed, process changes 
required, engineering aspects of the control technologies, non-water 
quality environmental impacts (including energy requirements), and 
other factors the Administrator deems appropriate. Where the pollution 
control performance of existing sources for a category or subcategory 
is uniformly inadequate, EPA may set BPT by transferring technology 
used in a different subcategory or category.
    b. Best Available Technology Economically Achievable (BAT)--section 
304(b)(2) of the CWA. In general, BAT effluent limitations guidelines 
are based on the degree of pollution control achievable by applying the 
best available technology economically achievable for facilities in the 
industrial subcategory or category. The CWA requires BAT for 
controlling the direct discharge of toxic and non-conventional 
pollutants. The factors considered in determining BAT for a category or 
subcategory include the age of the equipment and facilities involved, 
the process employed, potential process changes, engineering aspects of 
the control technologies, non-water quality environmental impacts 
(including energy requirements), and other factors the Administrator 
deems appropriate. EPA retains considerable discretion in assigning the 
weight to be accorded these factors. Generally, economic achievability 
is determined on the basis of total costs to the industrial subcategory 
and their effect on the overall industry's (or subcategory's) financial 
health. As with BPT, where existing performance is uniformly 
inadequate, BAT may be transferred from a different subcategory or 
category. BAT may be based upon process changes or internal controls, 
such as product substitution, even when these technologies are not 
common industry practice. The CWA does not require cost-benefit 
comparison in establishing BAT.
    c. Best Conventional Pollutant Control Technology (BCT)--section 
304(b)(4) of the CWA. The 1977 amendments to the CWA established BCT as 
an additional level of control for discharges of conventional 
pollutants from point sources other than publicly owned treatment 
works. In addition to other factors specified in section 304(b)(4)(B), 
the CWA requires that BCT limitations be established in light of a two 
part ``cost-reasonableness'' test. EPA published a methodology for the 
development of BCT limitations which became effective August 22, 1986 
(51 FR 24974, July 9, 1986).
    Section 304(a)(4) designates the following as conventional 
pollutants: biochemical oxygen demanding pollutants (measured as 
BOD5), total suspended solids (TSS), fecal coliform, pH, and 
any additional pollutants defined by the Administrator as conventional. 
The Administrator designated oil and grease as an additional 
conventional pollutant on July 30, 1979 (44 FR 44501).
    d. New Source Performance Standards (NSPS)--section 306 of the CWA. 
NSPS reflect effluent reductions that are achievable based on the best 
available demonstrated control technology. New facilities have the 
opportunity to install the best and most efficient production processes 
and wastewater treatment technologies. As a result, NSPS should 
represent the most stringent controls attainable through the 
application of the best available control technology for all pollutants 
(i.e., conventional, nonconventional, and priority pollutants). In 
establishing NSPS, EPA is directed to take into consideration the cost 
of achieving the effluent reduction and any non-water quality 
environmental impacts and energy requirements.
    e. Pretreatment Standards for Existing Sources (PSES)--section 
307(b) of the CWA--and Pretreatment Standards for New Sources (PSNS)--
section 307(b) of the CWA.
    Pretreatment standards are designed to prevent the discharge of 
pollutants to a publicly-owned treatment works (POTW) which pass 
through, interfere, or are otherwise incompatible with the operation of 
the POTW. Since none of the facilities to which this rule applies 
discharge to a POTW, pretreatment standards are not part of this 
rulemaking.
    f. CWA section 304(m) Requirements. Section 304(m) of the CWA, 
added by the Water Quality Act of 1987, requires EPA to establish 
schedules for (1) reviewing and revising existing effluent limitations 
guidelines and standards and (2) promulgating new effluent guidelines. 
On January 2, 1990 (55 FR 80), EPA published an Effluent Guidelines 
Plan, which established schedules for developing new and revised 
effluent guidelines for several industry categories. The Natural 
Resources Defense Council, Inc., challenged the Effluent Guidelines 
Plan in a suit filed in the U.S. District Court for the District of 
Columbia (NRDC v. Browner, Civ. No. 89-2980). On January 31, 1992, the 
Court entered a consent decree (the ``304(m) Decree''), which 
established schedules for EPA's proposal of and final action on 
effluent guidelines for a number of point source categories. The 
Effluent Guidelines Plan published in the Federal Register on September 
4, 1998 (63 FR 47285) required, among other things, that EPA propose 
the Coal Mining Effluent Guidelines by December 1999 and take final 
action on the Guidelines by December 2001. On November 19, 1999, the 
Court modified the decree revising the deadline for proposal to March 
31, 2000. The deadline of December 2001 for taking final action on 
these guidelines was not modified.
2. Pollution Prevention Act
    The Pollution Prevention Act of 1990 (PPA) (42 U.S.C. 13101 et 
seq., Public Law 101-508, November 5, 1990) ``declares it to be the 
national policy of the United States that pollution should be prevented 
or reduced whenever feasible; pollution that cannot be prevented should 
be recycled in an environmentally safe manner, whenever feasible; 
pollution that cannot be prevented or recycled should be treated in an 
environmentally safe manner whenever feasible; and disposal or release 
into the environment should be employed only as a last resort * * *'' 
(Sec. 6602; 42 U.S.C. 13101 (b)). In

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short, preventing pollution before it is created is preferable to 
trying to manage, treat or dispose of it after it is created.
    The PPA directs EPA to, among other things, ``review regulations of 
the EPA prior and subsequent to their proposal to determine their 
effect on source reduction'' (Sec. 6604; 42 U.S.C. 13103(b)(2)). Source 
reduction reduces the generation and release of hazardous substances, 
pollutants, wastes, contaminants, or residuals at the source, usually 
within a process. The term source reduction ``includes equipment or 
technology modifications, process or procedure modifications, 
reformulation or redesign of products, substitution of raw materials, 
and improvements in housekeeping, maintenance, training or inventory 
control. * * * The term source `reduction' does not include any 
practice which alters the physical, chemical, or biological 
characteristics or the volume of a hazardous substance, pollutant, or 
contaminant through a process or activity which itself is not integral 
to or necessary for the production of a product or the providing of a 
service'' (42 U.S.C. 13102(5)). In effect, source reduction means 
reducing the amount of a pollutant that enters a waste stream or that 
is otherwise released into the environment prior to out-of-process 
recycling, treatment, or disposal.
    In today's rule, EPA encourages pollution prevention by requiring 
the use of site-specific Best Management Practices (BMPs) that are 
integral to remining operations in abandoned mine lands and to 
reclamation activities in the arid and semiarid western coal regions. 
These BMPs, under each subcategory, are designed and implemented to 
improve existing conditions and to reduce pollutant discharges at the 
source, thereby reducing the need for treatment.

B. Regulation of the Coal Mining Point Source Category

1. EPA Regulations at 40 CFR Part 434
    On October 9, 1985 (50 FR 41296), EPA promulgated effluent 
limitations guidelines and standards that are in effect today under 40 
CFR part 434. Prior to today's rule, there were four subcategories: 
Coal Preparation Plants and Coal Preparation Plant Associated Areas; 
Acid or Ferruginous Mine Drainage; Alkaline Mine Drainage; and Post-
Mining Areas. Additionally, there is a subpart for Miscellaneous 
Provisions. The subcategories include BPT, BAT, and NSPS limitations 
for TSS, pH, iron, manganese, and/or settleable solids (SS).
2. Surface Mining Control and Reclamation Act
    In 1977, Congress enacted the Surface Mining Control and 
Reclamation Act (SMCRA), 30 U.S.C. 1201 et seq, to address the 
environmental problems associated with coal mining on a nationwide 
basis. SMCRA created the Office of Surface Mining Reclamation and 
Enforcement (OSMRE) within the Department of Interior, which is 
responsible for preparing regulations and assisting the States 
financially and technically to carry out regulatory activities.
    Title V of the statute gives OSMRE broad authority to regulate 
specific management practices before, during, and after mining 
operations. OSMRE has promulgated comprehensive regulations to control 
both surface coal mining and the surface effects of underground coal 
mining (30 CFR parts 700 et seq). Implementation of these requirements 
has significantly improved mining practices, control of water 
pollution, and protection of other resources. Title IV of SMCRA 
addresses the problem of presently abandoned coal mines by authorizing 
and funding abandoned mine reclamation projects.
    All mining operations subject to today's regulation must also 
comply with SMCRA requirements. EPA has worked extensively with OSMRE 
in the preparation of this rule in order to ensure that today's 
requirements are consistent with OSMRE requirements.
3. Rahall Amendment
    As part of the 1987 amendments to the CWA, Congress added Section 
301(p), often called the Rahall Amendment, to provide incentives for 
remining abandoned mine lands that pre-date the passage of SMCRA in 
1977. Section 301(p) provides an exemption for remining operations from 
the BAT effluent limits for iron, manganese, and pH for pre-existing 
discharges from abandoned mine lands. Instead, a permit writer may set 
site-specific, numerical BAT limits for pre-existing discharges based 
on Best Professional Judgement (BPJ). The effluent limits may not allow 
discharges to exceed pre-existing ``baseline'' levels of iron, 
manganese, and pH. In addition, the permit applicant must demonstrate 
that the remining operation ``will result in the potential for improved 
water quality from the remining operation.'' The Rahall Amendment 
defines remining as a coal mining operation which began after February 
4, 1987 at a site on which coal mining was conducted before August 3, 
1977, which was the effective date of SMCRA. Thus, the Rahall Amendment 
attempted to encourage remining by no longer requiring operators to 
treat degraded pre-existing discharges to the BAT levels established in 
Subpart C of 40 CFR part 434.
    Despite the statutory authority provided by the Rahall Amendment, 
coal mining companies remained hesitant to pursue remining without 
formal EPA approval and guidelines. Today's regulation establishes 
requirements for determining baseline pollutant loadings in pre-
existing discharges. It also specifies how to determine site-specific 
BAT requirements for remining operations and how to demonstrate the 
potential for environmental improvement from a remining operation. EPA 
is today promulgating a regulation that is consistent with, but not 
identical to, the Rahall Amendment.

C. Proposed Rule

    On April 11, 2000 (65 FR 19440), EPA published proposed amendments 
to effluent limitations guidelines and new source performance standards 
for the coal mining point source category. EPA proposed adding two new 
subparts to the existing regulations at 40 CFR part 434 applicable to 
Coal Remining (subpart G) and Western Alkaline Coal Mining (subpart H).
    In the proposal, EPA solicited comment on 18 specific areas 
identified by the Agency, in addition to a general comment solicitation 
on all aspects of the proposed regulation. During the comment period, 
EPA held public meetings in three locations in the western coal mining 
region (Denver, CO; Gillette, WY; and Flagstaff, AZ) and three public 
meetings in areas affected by remining (Nitro, WV; Frankfort, KY; and 
Zanesville, OH) to explain the proposal and to solicit comment.
    On July 30, 2001 (66 FR 39300), EPA published a Notice of Data 
Availability (NODA) to provide a discussion of options relating to two 
issues raised by commenters on the Coal Remining Subcategory that were 
not presented in the proposal. EPA presented these comments, data 
collected since the proposal, and options being considered for the 
final rulemaking in the notice and solicited comment on: (1) The 
expansion of applicability of the Coal Remining Subcategory to sites 
abandoned after 1977, and (2) alternative effluent limits for solids in 
pre-existing discharges. The majority of comments received supported 
these proposed changes. In Section XII of this document, EPA presents a 
summary of the significant comments received on the proposal and NODA 
and a summary of the Agency's responses. The complete

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set of comments and EPA's detailed responses can be found in the 
``Comment Response Document for the Coal Remining and Western Alkaline 
Coal Mining Subcategories'' (DCN 3056).

III. Summary of Significant Changes to Proposed Rule

    Based on comments received, EPA has made several changes to the 
proposed subcategory applicability, regulated parameters, and 
statistical methodology presented in the April 11, 2000 Federal 
Register notice. EPA has summarized these changes below, and is 
presenting its rationale for these changes in Sections V and VI of this 
document.

A. Coal Remining Subcategory

     At proposal, EPA defined a remining operation as a coal 
mining operation at a site on which coal mining was conducted prior to 
August 3, 1977. EPA has modified the definition of ``remining'' to 
include coal mining operations on sites where coal mining was 
previously conducted and where the site was abandoned or the 
performance bond forfeited after August 3, 1977. The rationale for 
these changes is provided in Section V of this document.
     EPA proposed to establish alternative effluent limitations 
for pH, iron, and manganese. EPA has modified the pollutants to be 
regulated by setting limits for net acidity instead of pH, and by 
establishing alternative limitations for sediment such that solids 
loads cannot be increased over baseline during remining and reclamation 
activities, but must meet standards for post-mining areas prior to bond 
release. The rationale for this decision is described in Section VI.D 
of this document.
     For pre-existing discharges where it is infeasible to 
determine baseline conditions for discharge monitoring, EPA is 
providing an exclusion from numeric standards. In these cases, the coal 
mining operator will be required to implement a pollutant abatement 
plan. The rationale for this decision is described in Section V of this 
document.
     For the calculation and monitoring of numeric limitations 
in pre-existing discharges, EPA has made several changes to the 
statistical methodology. Further information on the statistical 
procedures is described in sections VI.A and VI.B of this document and 
in Appendix B of the final regulation.

B. Western Alkaline Coal Mining Subcategory

     In the proposal, EPA limited the application of the 
Western Alkaline Coal Mining Subcategory requirements to ``reclamation 
areas'' but solicited comment on the possibility of expanding the scope 
of coverage to include other areas. EPA received significant comment on 
the use of alternative sediment controls for non-process runoff at mine 
sites subject to the Western Alkaline Coal Mining Subcategory. Based on 
comments received, EPA has revised the applicability of the subcategory 
to allow the use of alternative sediment controls on runoff from some 
non-process areas of western coal mines. This allowance is discussed in 
Section V.B of this document.
     At proposal, EPA calculated the costs and benefits based 
on a model mine run for conditions present in the desert southwest. 
This model represented the ``worst case'' scenario (in that runoff in 
the desert southwest contains the highest sediment loadings in the 
western alkaline coal regions) in order to demonstrate that alternative 
sediment controls can be used effectively to control sediment to below 
pre-mined, undisturbed conditions in the arid west. For the final 
regulation, EPA incorporated the results for two additional model mines 
representing the ``intermountain'' and ``northern plains'' regions. The 
changes in EPA's estimates of cost savings and benefits are the result 
of using three different model mines to represent three different types 
of conditions present in the arid west. The results of these changes 
are presented in Sections VIII and IX of this document.

IV. Scope of Final Regulation

    Today, EPA is promulgating effluent limitations and performance 
standards for the Coal Remining Subcategory and for the Western 
Alkaline Coal Mining Subcategory. The new subcategories will be added 
to the existing regulations for the Coal Mining Point Source Category 
found at 40 CFR part 434. The new subcategories will create a set of 
standards and requirements for the specific waste streams defined in 
the final regulation. The new subcategories will not otherwise change 
the existing regulations.

A. Coal Remining Subcategory

    The effluent limitations and standards for the Coal Remining 
Subcategory apply to pre-existing discharges that are located within, 
or that are hydrologically connected to, pollution abatement areas of a 
coal remining operation.
    EPA proposed to define coal remining as the mining of surface mine 
lands, underground mine lands, and coal refuse piles that were 
abandoned prior to the enactment of the Surface Mining Reclamation and 
Control Act (August 3, 1977), consistent with the language of the 
Rahall Amendment to the Clean Water Act. However, due to the 
anticipated benefits of the remining subcategory, EPA received comment 
on the proposal requesting that EPA extend the applicability of the 
Remining Subcategory to mine lands that have been abandoned since 
August 3, 1977. In response to this comment, EPA published a Notice of 
Data Availability (NODA) to solicit further comment on the issue, 
including whether to limit applicability to mine lands abandoned before 
the effective date of today's rule. As described in the NODA, it is 
estimated that there are currently 260 bond forfeiture sites producing 
acid mine drainage.
    EPA concluded that remining of abandoned mine lands (AML) has many 
potential benefits, and has decided to extend the applicability of the 
subcategory to mine lands that are abandoned after August 3, 1977. EPA 
also concluded that there is no basis for precluding applicability of 
today's rule to AML abandoned after the effective date of today's rule. 
Based on comments received from regulatory authorities, EPA does not 
believe that this change will create an incentive for future bond 
forfeitures. As noted by commenters, once a coal operator has abandoned 
an active permit and forfeited the performance bond, there are 
safeguards that prevent the operator from being allowed to mine in the 
future. Upon forfeiture of the bond, no portion of the bond would be 
returned until the site meets all the standards of the operator's 
permit, including the applicable effluent limitations. Secondly, SMCRA 
provides an avenue to pursue additional monies and to place additional 
liabilities upon an operator if the bond is insufficient to complete 
total reclamation. This includes barring the operator from receiving 
any other SMCRA permits until reclamation is completed, penalties are 
paid, and any outstanding liabilities are resolved.
    The provisions of this new subpart apply only to pre-existing 
discharges and do not apply to discharges produced or generated in 
active mining areas, which include the active mining areas of remining 
operations. Section 434.11(b) defines active mining area as ``the area, 
on and beneath land, used or disturbed in activity related to the

[[Page 3375]]

extraction, removal, or recovery of coal from its natural deposits. 
This term excludes coal preparation plants, coal preparation plant 
associated areas and post-mining areas.'' Wastewater discharges 
produced or generated by active coal mining operations will remain 
subject to the effluent limitations already established in part 434, 
Subpart C--Acid or Ferruginous Mine Drainage or Subpart D--Alkaline 
Mine Drainage.
    Additionally, in accordance with Sec. 434.61, any waste stream 
subject to this rule that is commingled for treatment or discharge with 
a waste stream subject to another subpart of part 434 will be required 
to meet the most stringent limitations applicable to any component of 
the combined waste stream. However, EPA would like to further clarify 
this statement of applicability for the Coal Remining Subcategory. For 
the reasons discussed in the proposal, a waste stream that is 
intercepted and/or commingled with active mining wastewater during 
remining is subject to the provisions of Sec. 434.61. However, 
Sec. 434.61 applies to the commingled waste stream only during the time 
when the pre-existing discharge is intercepted by active mining or is 
combined with active mine wastewater for treatment or discharge. After 
commingling has ceased, the pre-existing discharge remains subject to 
the provisions established by the Coal Remining Subcategory.

B. Western Alkaline Coal Mining Subcategory

    Today's rule establishes effluent limitations and performance 
standards for the Western Alkaline Coal Mining Subcategory applicable 
to alkaline mine drainage from reclamation areas, brushing and grubbing 
areas, topsoil stockpiling areas, and regraded areas at western coal 
mining operations. ``Western coal mining operation'' is defined as a 
surface or underground coal mining operation located in the interior 
western United States, west of the 100th meridian west longitude, in an 
arid or semiarid environment with an average annual precipitation of 
26.0 inches or less. ``Alkaline mine drainage'' is defined as ``mine 
drainage which, before any treatment, has a pH equal to or greater than 
6.0 and total iron concentration of less than 10 mg/L.'' The Western 
Alkaline Coal Mining Subcategory may also apply to drainage where the 
total iron concentration is greater than 10 mg/L, provided that the 
discharge, before any treatment, has a pH equal to or greater than 6.0, 
and a dissolved iron concentration less than 10 mg/L; and a net 
alkalinity greater than zero.
    The regulation applies to the following areas:
     ``Reclamation area'' is the surface area of a coal mine 
which has been returned to required contour and on which revegetation 
(specifically, seeding or planting) work has commenced.
     ``Brushing and grubbing area'' is the area where woody 
plant materials that would interfere with soil salvage operations have 
been removed or incorporated into the soil that is being salvaged.
     ``Topsoil stockpiling area'' is the area outside the 
mined-out area where topsoil is temporarily stored for use in 
reclamation, including containment berms.
     ``Regraded area'' is the surface area of a coal mine which 
has been returned to required contour.
    The provisions in Subpart D--Alkaline Mine Drainage will continue 
to apply to discharges produced or generated in active mining areas. 
Section 434.11(b) defines active mining area as ``the area, on and 
beneath land, used or disturbed in activity related to the extraction, 
removal, or recovery of coal from its natural deposits. This term 
excludes coal preparation plants, coal preparation plant associated 
areas and post-mining areas.'' Wastewater discharges produced or 
generated by active coal mining operations will not be affected by this 
regulation and will remain subject to the effluent limitations already 
established in part 434.
    Additionally, in accordance with Sec. 434.61, any waste stream 
subject to this rule that is commingled with a waste stream subject to 
another subpart of part 434 will be required to meet the most stringent 
limitations applicable to any component of the combined waste stream. 
Today's new rule simply maintains this regulatory approach.

V. Development of Final Effluent Limitations Guidelines

    In this section, EPA describes the rationale for the development of 
the final limitations and guidelines being promulgated today. For more 
detailed information on the profile of the industry, please see section 
IV, ``Industry profile,'' in the April 11, 2000 proposal. For more 
detailed information on the data gathering efforts used to support this 
regulation, please see section V, ``Summary of data gathering 
efforts,'' in the proposal.

A. Coal Remining Subcategory

1. Background
    Coal remining is the mining of surface mine lands, underground mine 
lands, and coal refuse piles that have been previously mined. Acid mine 
drainage from abandoned coal mines is damaging a significant number of 
waterways in the Appalachian and mid-continent coal regions of the 
eastern United States. Information gathered from the Interstate Mining 
Compact Commission (IMCC) and the Office of Surface Mining and 
Regulatory Enforcement (OSMRE) Abandoned Mine Land Inventory System 
indicates that there are over 1.1 million acres of abandoned coal mine 
lands and over 9,709 miles of streams polluted by acid mine drainage in 
Appalachia alone. As discussed in the proposal, EPA recognizes that one 
of the most successful means for improvement of abandoned mine land is 
for coal mining companies to remine abandoned areas and extract the 
coal reserves that remain. EPA also recognizes that if abandoned mine 
lands are ignored during mining of adjacent areas, a time-critical 
opportunity for reclaiming the abandoned mine land is lost. Once coal 
mining operations have ceased on the adjacent areas, there is little 
incentive for operators to return.
    During remining operations, acid-forming materials are removed with 
the extraction of the coal, pollution abatement Best Management 
Practices (BMPs) are implemented to control acid-forming materials and 
sediment, and the abandoned mine land is reclaimed. During remining, 
many of the problems associated with abandoned mine land, such as 
dangerous highwalls, vertical openings, and abandoned coal refuse piles 
can be corrected without using public funds from OSMRE's Abandoned Mine 
Land Program. Furthermore, implementation of appropriate BMPs during 
remining operations can be effective at improving the water quality of 
pre-existing discharges. For example, implementation of appropriate 
BMPs during 112 remining operations in Pennsylvania has been effective 
in improving or eliminating acidity loading in 45 percent of the pre-
existing discharges, total iron loading in 44 percent of the 
discharges, and total manganese in 42 percent of the discharges. This 
improvement has resulted in reduced annual pollutant loadings of up to 
5.8 million pounds of acidity, 189,000 pounds of iron, 11,400 pounds of 
manganese, and 4.8 million pounds of sulfate. The environmental 
benefits associated with reclamation of abandoned mine lands are 
discussed further in Section VIII of this document.

[[Page 3376]]

    The current regulations at 40 CFR part 434 create a disincentive 
for remining because of their high compliance costs. Moreover, the 
potential of the statutory exemption contained in the Rahall Amendment 
to overcome this disincentive and derive the maximum environmental 
benefits from remining operations has not been fully realized in the 
absence of implementing regulations. If mining companies face 
substantial potential liability or economic loss from remining, they 
will continue to focus on mining virgin areas and ignore abandoned mine 
lands that may contain significant coal resources. Based on information 
collected in support of this regulation, EPA believes that remining 
operations are environmentally preferable to ignoring the coal 
resources in abandoned mine lands.
    As described in Section II of this document, Congress attempted to 
address the problems associated with discharges from abandoned mine 
lands by passing the Rahall Amendment to provide incentives to 
encourage coal remining. The Rahall Amendment (CWA section 301(p)) 
allows permitting authorities to issue NPDES permits for remining sites 
with different requirements than those in the existing regulations for 
some pollutant limits. Specifically, section 301(p) allows permit 
writers to use best professional judgement (BPJ) to set site-specific 
BAT limits determined for pre-existing discharges. These limits may not 
exceed baseline levels of iron, manganese, and pH. The operator must 
also demonstrate that the remining operation will result in the 
potential for improved water quality. The statute does not specify how 
to determine site-specific BAT, baseline pollutant discharge levels, or 
the potential for improved water quality and has left these up to each 
permitting authority to determine.
    Between 1987 (date of enactment of Rahall Amendment) and 1999, 
seven States established formal remining programs that issued 
approximately 330 Rahall permits with numeric limits for pre-existing 
discharges that are less stringent than those in the existing 
regulations. Of these 330 Rahall remining permits, 300 were issued by 
the Commonwealth of Pennsylvania. The remaining thirty Rahall permits 
were issued by Alabama, West Virginia, Kentucky, Virginia, Ohio, and 
Maryland. Under these Rahall permits, remining operations must meet the 
alternate baseline numeric limits specified in the permits and must 
implement site-specific BMPs. These BMPs include special handling of 
acid-producing materials, daylighting of abandoned underground mines, 
control of surface water and ground water, control of sediment, 
addition of alkaline material, and passive treatment. Remining 
operations currently underway have proven to be a viable means of 
remediating the environmental conditions associated with abandoned mine 
lands without imposing a significant cost burden on industry (Skousen, 
Water Quality Changes and Costs of Remining in Pennsylvania and West 
Virginia, 1997).
    A discussion paper released by IMCC, EPA and OSMRE in February 1998 
(Discussion Paper on Water Quality Issues Related to Remining) 
presented an alternative BMP-based remining permit approach where 
implementation of BMPs would be the central focus of permitting. This 
alternative would not impose any numeric limits for pre-existing 
discharges, but would require implementation of selected BMPs. The IMCC 
Remining Task Force believes that BMPs can result in improved water 
quality and, in certain cases, can qualify as BAT for achieving 
standards required by the Clean Water Act. EPA has considered 
conditions under which remining permits based solely on BMP 
implementation in lieu of numeric effluent limits may be appropriate. 
In addition, EPA recently accepted a Coal Remining and Reclamation 
Project XL agreement from the Pennsylvania Department of Environmental 
Protection. Once completed, this pilot project is expected to provide a 
substantial amount of data about remining BMPs in eight different 
watersheds throughout Pennsylvania.
2. Scope of Final Regulation
    EPA is today promulgating a new remining subcategory with effluent 
limitations guidelines based on a combination of numeric limits and 
non-numeric BMP requirements. EPA is also allowing effluent limits 
based on BMP only requirements where numeric monitoring of a baseline 
pre-existing discharge is infeasible. EPA is establishing a 
standardized procedure for determining pollutant loadings for baseline 
and for compliance monitoring. This procedure is described in Appendix 
B of the regulation and in chapter 3 of the Coal Remining Statistical 
Support Document. Example calculations using these procedures and 
further discussion of EPA's determination of these procedures are 
provided in the support document. EPA intends these regulations to 
control pre-existing discharges at remining operations in a manner 
consistent with, but not identical to, requirements under the Rahall 
Amendment. These requirements are effluent limitations guidelines 
authorized under section 304(b) of the CWA, but are also in effect 
implementing regulations for section 301(p), providing EPA's 
interpretation of of the intent of that provision. Section 301(p) 
requires the permit authority to establish BAT on a case-by-case basis, 
using best professional judgment to set specific numeric effluent 
limitations for pH, iron, and manganese in each permit. Section 301(p) 
requires the operator to demonstrate that the coal remining operation 
will result in the potential for improved water quality, and in no 
event may pH, iron, or manganese discharges exceed the levels 
discharged prior to the remining operation.
    Under the final regulations, the permit will contain specific 
numeric and non-numeric requirements, constituting BPT, BCT, BAT and 
NSPS. The numeric requirements will be established on a case-by-case 
basis in compliance with standardized requirements for statistical 
procedures to establish and monitor baseline. The numeric effluent 
limitations set at baseline levels will ensure that the pollutant 
discharges do not exceed the pollutant levels in the discharges prior 
to remining consistent with section 301(p)(2).
    The extent of the non-numeric permit provisions will be established 
using best professional judgement to evaluate the adequacy of the 
selected BMPs contained in a pollution abatement plan to improve 
conditions of the abandoned mine lands. The pollution abatement plan 
must demonstrate that the remining operation has the potential to 
improve water quality, consistent with section 301(p)(2). Together, the 
numeric and non-numeric requirements constitute BPT, BCT, BAT and NSPS.
3. Pollution Abatement Plan
    In the regulatory text, EPA has included a qualitative description 
of the pollutant abatement plan that must be developed. The regulation 
requires an operator to prepare a pollution abatement plan that 
identifies the characteristics of the remining area and the pre-
existing discharges at the site, identifies design specifications for 
selected BMPs, and includes periodic inspection and maintenance 
schedules. The pollution abatement plan must demonstrate that there is 
a potential for water quality improvement. These requirements are 
intended to help the permitting authority evaluate the efficacy of the 
plan in relation to the conditions existing at the site. EPA has 
provided a support document, the Coal Remining BMP Guidance Manual, to 
assist industry and permitting

[[Page 3377]]

authorities in the development and implementation of the pollution 
abatement plan. EPA and OSMRE plan to sponsor guidance workshops for 
the States and Tribes on implementation issues and approaches to 
maximize efficiency and eliminate possible duplication with respect to 
requirements in the final rule and SMCRA permitting requirements. Upon 
review of the permit application, it is within the discretion of the 
regulatory authority to determine whether additional or more intensive 
BMPs than those identified in an applicant's proposed plan are 
required.
    The SMCRA permit application process requires a coal mining 
operator to submit an extensive operation and reclamation plan, 
documentation, and analysis to OSMRE or the primacy permitting 
authority for approval. The requirements for the operation and 
reclamation plan are specified in 30 CFR part 780 for surface mining 
permit applications and part 784 for underground mining permit 
applications. In brief summary, some of the OSMRE requirements that 
directly relate to this CWA regulation include requirements for coal 
mining operators to provide: a description of coal mining operations; a 
plan for reclaiming mined lands; a plan for revegetating mined lands; 
geologic information; hydrologic information including: a description 
of baseline ground water and surface water characteristics under 
seasonal conditions; and an analysis of the hydrologic impacts caused 
by the mining activity. Specifically, the plan must include a 
``probable hydrologic consequences (PHC)'' determination to determine 
the impacts of the mining on existing hydrologic conditions and a 
hydrologic reclamation plan to show measures for reducing impacts and 
to meet water quality laws and regulations. Furthermore, the coal 
mining regulatory authority is required to conduct a cumulative 
hydrologic impact analysis of the proposed operation and all 
anticipated mining on surface water and ground water systems.
    EPA believes that many requirements for the pollution abatement 
plan will be contained in the operations and reclamation sections of an 
approved SMCRA permit. However, EPA or the State NPDES permitting 
authority will retain the authority to require additional or expanded 
BMPs as necessary to ensure that implementation of the identified BMPs 
is consistent with Clean Water Act requirements. The permitting 
authority will evaluate the adequacy of the plan as part of its 
evaluation of whether the permit application is complete, pursuant to 
40 CFR 124.3(c).
    EPA is also requiring that this pollution abatement plan be 
developed to the extent practicable for the entire ``pollution 
abatement area,'' defined as the area that is causing or contributing 
to the baseline pollution load of the pre-existing discharge. The 
pollution abatement area shall include the part of the permit area that 
is causing or contributing to the baseline pollution load of pre-
existing discharges. The pollution abatement area must include, to the 
extent practicable, areas adjacent to and nearby the remining operation 
that also must be affected to reduce the pollution load of the pre-
existing discharges and may include the immediate location of the pre-
existing discharges.
    Commenters suggested that the definition of pollution abatement 
area be modified to include ``adjacent and nearby areas that must be 
affected to reduce pollution load.'' EPA agrees with commenters that 
the additional flexibility afforded by today's rule is needed to 
identify the entire pollution abatement area within which BMPs can 
affect improvement in water quality. EPA believes that this will 
further the intent of today's regulation by focusing on those areas 
that must be affected to achieve improved water quality. In this 
manner, the regulatory authority may require a different or larger 
permit boundary in order to demonstrate the potential for improvement 
in water quality, or to develop a holistic approach for water quality 
improvement in the context of related SMCRA programs such as the Acid 
Mine Drainage Treatment and Abatement Fund or the Title IV Abandoned 
Mine Reclamation Program. This definition reflects the often complex 
hydrologic relationships between discharges within or emanating from a 
permit area and those which originate on adjacent or nearby sites but 
which may affect pollution loadings on the permit site. This is also 
consistent with the definition in Pennsylvania's remining program (25 
Pa. Code section 87.202).
    EPA has defined a pre-existing discharge as ``any discharge 
resulting from mining activities that have been abandoned prior to the 
time of a remining permit application.'' EPA has modified the 
definition of pre-existing discharge from the proposal to address 
issues raised by commenters.
4. Pollution Abatement Plan and Passive Treatment
    EPA received comments from stakeholders concerned that coal mining 
operators may be held perpetually liable for maintaining certain 
passive treatment technologies installed during the remining process. 
As discussed in section 4.0 of the Coal Remining BMP Guidance Manual, 
passive treatment encompasses a series of engineered treatment 
practices that require very little or no maintenance once constructed 
and operational. Passive water treatment generally involves natural 
physical, biochemical, and geochemical actions and reactions, such as 
calcium carbonate dissolution, sulfate/iron reduction, bicarbonate 
alkalinity generation, metals oxidation and hydrolysis, and metals 
precipitation. The systems are commonly powered by existing water 
pressure created by differences in elevation between the discharge 
point and the treatment facilities. Passive treatment technologies 
discussed in the Coal Remining BMP Guidance Manual include: limestone 
drains, constructed wetlands, successive alkalinity-producing systems, 
open limestone channels, Pyrolusite systems, and alkalinity-
producing diversion wells.
    However, passive treatment may not meet the standard definition of 
a BMP. In general, BMPs consist of abatement, remediation, and/or 
prevention techniques that are conducted within the mining area during 
active remining operations.
    Passive treatment, by its nature, is commonly accepted as an end-
of-the-pipe solution to an existing source of acid mine drainage (AMD). 
A passive treatment system is designed to be a self-sustaining system 
that relies on chemical or biological processes that should require no 
external reagents, maintenance, or support to treat AMD. BMPs, on the 
other hand, may be performed as part of the mining or reclamation 
process to eliminate or prevent the formation of AMD. For example, EPA 
considers the application of lime to the overburden to be a BMP and not 
passive treatment.
    Stakeholders expressed concern that the language concerning bond 
release in Sec. 434.71 for remining operations could be debilitating if 
the language is interpreted to mean that any time passive treatment is 
incorporated into the pollution abatement plan, the operator will be 
perpetually liable for the operation and maintenance of the treatment 
facility. EPA recognizes that passive treatment technologies can be 
used as part of the overall abatement plan to reduce pollution loads 
discharging from remining sites and that there are situations where 
passive treatment may be employed to improve water quality above what 
was

[[Page 3378]]

acceptable through the use of BMPs alone.
    Therefore, EPA clarifies that for those remining operations that 
include passive treatment as an inherent portion of an approved 
Pollution Abatement Plan, the passive treatment operation shall be 
treated as part of the Pollution Abatement Plan. Today's regulation 
requires that the Pollution Abatement Plan is incorporated into the 
permit as an effluent limitation and applies until the appropriate 
SMCRA authority has authorized bond release. In this manner, passive 
treatment technologies also can be incorporated into the Pollution 
Abatement Plan along with more traditional BMPs in order to further 
improve water quality. Therefore, coal mining operators are responsible 
for maintaining passive treatment technologies in accordance with the 
Pollution Abatement Plan until the appropriate SMCRA authority has 
authorized bond release.
5. Commingling of Waste Streams
    Today's rule makes it clear that the requirements of this 
subcategory apply only to pre-existing discharges that are not 
commingled with waste streams from active mining areas and that are not 
intercepted by active mining. It is not the intention of this rule or 
of the Rahall Amendment to provide alternative standards for active 
discharges that are generated by mining and remining operations.
    Any pre-existing discharge that is commingled with active mining 
wastewater for treatment or discharge is subject to the most stringent 
limitations applicable to any component of the waste stream. This 
maintains the current regulatory approach at Sec. 434.61 for 
``commingling of waste streams,'' which states that where waste streams 
that are subject to two different effluent limits are commingled for 
treatment or discharge, the combined discharge is subject to the more 
stringent limitation.
    EPA also recognizes that during remining, it may be necessary or 
even preferable for an operator to intercept and/or commingle a pre-
existing discharge with active mining wastewater. Unless the active 
wastewater has been previously treated and discharged, this combined 
wastewater would be required to meet the more stringent applicable 
limitations for active coal mining operations and would not be covered 
by the conditions of the Coal Remining Subcategory. However, in cases 
where a pre-existing discharge is not eliminated by the remining 
activity and remains after remining has been completed, the pre-
existing discharge would no longer be commingled with active mining 
wastewater. A discharge that is no longer commingled with active 
wastewater becomes subject to the Coal Remining Subcategory 
requirements which bar an increase in pollutant loadings from baseline 
conditions.
    In today's rule, a pre-existing discharge that has been intercepted 
by, or commingled with, an active discharge is not required to continue 
to meet the more stringent effluent limitations once commingling has 
ceased. If EPA were to require that these commingled discharges remain 
subject to effluent limitations designed for active mining operations 
once interception or commingling has ceased, EPA believes it would 
create a significant disincentive for remining activities. Based on 
anecdotal and historical evidence of current mining activities, mining 
companies may try to avoid intercepting pre-existing discharges because 
they do not want to assume the liability for future treatment of 
discharges that were not the result of their mining operations. This 
can result in a ``donut hole'' in the permitted area, to which BMPs are 
not applied and from which pre-existing degraded mine drainage 
continues to be discharged. In many cases, EPA believes that the most 
environmentally beneficial approach would be for the coal operation to 
physically intercept this pre-existing discharge, treat the discharge 
to the more stringent standards during active mining and reclamation, 
implement BMPs, and then allow the pre-existing discharge to continue 
discharging at or below baseline pollutant levels. This approach is 
consistent with the approach Pennsylvania has been using to implement 
the Rahall provisions. Another option for a remining operator would be 
to divert the discharge stream away from the active mining area. In 
this case, the pre-existing discharge that has been diverted would be 
subject to the Coal Remining Subcategory effluent limitations, and the 
mine operator would have to implement appropriate BMPs and demonstrate 
that the pollutant loadings of the diverted pre-existing discharge 
stream have not been increased.
6. Relocation of Pre-Existing Discharges
    EPA recognizes that the implementation of certain BMPs, 
particularly hydrologic and sediment control BMPs (e.g., daylighting, 
regrading, revegetation, spoil pile reclamation, and diversion ditches) 
within the pollution abatement area is often intended to redirect 
runoff and infiltration water. In these cases, BMP implementation may 
result in relocation or dispersion of the pre-existing discharges and 
of the infiltration water that contributes to these pre-existing 
discharges. It is the intention of the pollution abatement plan to 
improve both the pollution loading from pre-existing discharges and the 
overall environmental conditions. For this reason, today's regulations 
are also applicable to those pre-existing discharges that have been 
relocated as a result of the implementation of the best management 
practices contained in the Pollution Abatement Plan, and that are not 
commingled with discharges from active mining operations.
7. BMP-Only Permits
    As explained in the preamble to the proposed rule (65 FR 19451), 
EPA interprets the definition of ``effluent limitation'' in section 502 
of the CWA to include non-numeric effluent limitations where it is not 
feasible to establish numeric effluent limitations. This longstanding 
interpretation is implemented in 40 CFR 122.44(k), which provides that 
permits may include BMPs to supplement, or in lieu of, numeric effluent 
limitations when ``numeric effluent limitations are infeasible.''
    In Section VI.A of the preamble to the proposal (65 FR 19449), EPA 
discussed the issue of BMP-only permits for the Coal Remining 
Subcategory. After considering comment on this approach, EPA included a 
limited provision in the final rule for ``BMP-only'' effluent 
limitations where numeric limitations are infeasible. EPA believes that 
in specific and limited cases, permit requirements may be based on 
implementation of an approved BMP plan in lieu of numeric limitations 
based on baseline pollutant levels. EPA has determined that in certain 
specific cases, it is infeasible to calculate and monitor baseline 
pollutant levels in pre-existing discharges. These limited 
circumstances include: a pre-existing discharge that exists as diffuse 
groundwater flow or as base flow to a receiving stream and is therefore 
inaccessible; a pre-existing discharge that is inaccessible due to 
steep or hazardous slopes; a pre-existing discharge that is too large 
to adequately assess via sample collection; or, a number of pre-
existing discharges so extensive that monitoring of individual 
discharges is infeasible.
    In today's final rule, EPA has included a provision for ``BMP-
only'' permits for those cases in which determination and monitoring of 
baseline pollutant loading is infeasible and for which remining will 
result in

[[Page 3379]]

significant improvement that would not otherwise occur.
    EPA considered requiring that the mine operator monitor the 
receiving stream to assess the impact the remining operation is having 
on the receiving stream when there are no numeric limitations on the 
pre-existing discharge. Pennsylvania's approved Coal Remining and 
Reclamation Project XL agreement that uses the BMP-based remining 
permit approach requires the operator to monitor the receiving stream. 
While EPA strongly supports and encourages monitoring the receiving 
stream as part of a BMP-based permit, EPA acknowledges that receiving 
stream monitoring may not be appropriate in all cases (such as a small 
AML discharge into a very large river), and EPA has not included a 
requirement for in-stream monitoring. EPA recommends that the 
regulatory authority review the site-specific factors of the discharge 
site and include in-stream monitoring wherever appropriate and useful.
8. Water Quality Variances
    Section 303(d) of the Clean Water Act provides that States are to 
list waters for which point source technology-based limits do not 
ensure attainment of water quality standards, identify the pollutants 
causing a violation of the standards, and establish total maximum daily 
loads (TMDLs) that will meet water quality standards for each listed 
water. Generally, a TMDL identifies what must be done to meet water 
quality standards in a particular water or watershed. In recent years, 
EPA and the States have increased their emphasis on TMDL activities. 
When water quality impairments are identified and TMDLs are 
established, pollution allocations are determined and implemented. TMDL 
analyses have identified drainage emanating from abandoned mine land as 
the source of pollutants inhibiting attainment of water quality 
standards for thousands of stream miles.
    EPA received comments requesting EPA to categorically allow water 
quality variances for pre-existing discharges at coal remining 
operations. Water quality variances under the Clean Water Act are a 
form of State water quality standards developed on a case-by-case 
basis. Effluent limitations guidelines are national technology-based 
regulations that establish restrictions on the discharge of pollutants 
to surface waters or to publicly owned treatment works by specific 
categories of industries. The requirements are developed by EPA based 
on the application of process or treatment technologies to control 
pollutant discharges. The effluent limitations guidelines promulgated 
under part 434 establish minimum national technology-based effluent 
standards for the coal mining industry. Therefore, EPA has not included 
potential variances on water quality standards in this guideline. Of 
course, a State may submit a proposed variance to EPA under the 
applicable provisions of 40 CFR part 131.
9. BAT for the Coal Remining Subcategory
    Today, EPA promulgates BAT effluent limitations for the Coal 
Remining Subcategory to control identified toxic and non-conventional 
pollutants. EPA is defining BAT for the Coal Remining Subcategory 
through a combination of numeric and non-numeric limitations. 
Specifically, EPA is establishing that the best available technology 
economically achievable for remining operations is implementation of a 
pollution abatement plan that incorporates BMPs designed to improve pH 
(as acidity) and reduce pollutant loadings of iron, manganese and 
sediment, and a requirement that such pollutant levels do not increase 
over baseline conditions. This is essentially the level of treatment 
that is currently required under permits issued in accordance with the 
Rahall Amendment (with the exception of sediment), and that has been 
demonstrated to be currently available by remining facilities included 
in EPA's Coal Remining database (Record section 3.5.1), the Coal 
Remining BMP Guidance Manual and in Pennsylvania's study of 112 closed 
remining sites (Record section 3.5.3). These data support EPA's 
conclusion that site-specific pollution abatement plans have potential 
for significant removals of pollutant loadings compared to pre-existing 
discharge conditions. Based on these data, EPA determined that design 
and implementation of a pollution abatement plan should, in most cases, 
achieve reductions below baseline discharge levels.
    In order to evaluate available technologies to determine BAT, EPA 
relied on data from 41 remining operations in Pennsylvania. These data 
are contained in section 3.2.4 of the regulatory record. All of these 
facilities used abatement plans implementing various combinations of 
BMPs as their pollutant control technology. Section 301(p) allows 
permit writers to use best professional judgment (BPJ) to set site-
specific BAT limits determined for pre-existing discharges. 
Pennsylvania completed this BAT determination for 40 of the 41 remining 
operations. These 40 remining permit modules indicated that the only 
more stringent technology available (other than BMPs) included 
treatment (chemical addition, precipitation, and settling). In all 40 
cases, remining was considered not economically feasible if treatment 
of pre-existing discharges to part 434 subpart C effluent limits was 
required. In the same 40 cases, remining was economically feasible if 
the abatement plan was implemented. Thus, the Pennsylvania remining 
permits issued under Rahall were issued as BAT permits. Congress 
recognized that remining was not being conducted on abandoned mine 
lands because of the cost and liability of requiring treatment to meet 
existing regulations and authorized less stringent requirements for 
remining operations. Therefore, EPA has determined that the 
implementation of a pollution abatement plan represents the BAT level 
of control.
    The problem with setting numeric effluent limitations representing 
the reductions achieved through implementation of a pollution abatement 
plan is that it is difficult to project the results, in terms of 
measured improvements in pre-existing pollutant discharges, that will 
be produced through the application of any given BMP or group of BMPs 
at a particular site. EPA believes that the Coal Remining BMP Guidance 
Manual compiles the best information available on appropriate 
implementation and projected performance of all currently identified 
BMPs applicable to coal remining operations. However, the Coal Remining 
BMP Guidance Manual provides only reasonable estimates of projected 
performance and efficiency. There are numerous variables associated 
with the design, implementation, and effectiveness of a particular BMP 
or group of BMPs at a particular site. Additionally, application of 
these estimates is subject to substantial, site-specific uncertainties. 
In some cases, despite appropriate design and implementation of a BMP 
plan, there is the potential for little improvement over baseline 
discharges. For these reasons, it is not feasible to project the 
expected numeric improvements that will occur for a specific pre-
existing discharge through application of a particular BMP plan. As a 
consequence, EPA is establishing a case-by-case non-numeric requirement 
to implement a pollution abatement plan incorporating BMPs designed to 
reduce the pollutant levels of acidity, iron, manganese, and solids 
(TSS or SS) in pre-existing discharges.
    Although it is not feasible to establish numeric limits based on 
predicting pollutant removal efficiencies, it is possible to calculate 
baseline pollutant

[[Page 3380]]

levels in pre-existing discharges at most remining sites. Moreover, the 
record indicates that application of appropriately designed BMPs should 
be able to prevent any increase in these pollutant loadings. Today, EPA 
promulgates numeric effluent limitations that require that the 
pollutant levels for net acidity, iron, manganese, and solids do not 
exceed baseline levels. EPA is promulgating a uniform methodology to 
use for determining and monitoring these levels. Baseline level 
determination and monitoring procedures are presented in Appendix B of 
the regulation and in the Coal Remining Statistical Support Document.
    EPA expects that these limitations and standards will apply 
primarily to new remining operations. In cases of existing remining 
operations with Rahall-type permits and established BPJ limitations, 
EPA believes that it may not be feasible for a remining operator to re-
establish baseline pollutant levels during active remining because the 
BMPs implemented may have already affected the pre-existing discharge. 
In this case, it would be impossible to require additional baseline 
sampling after the baseline time window has passed. In situations where 
coal remining operations seek reissuance of an existing remining 
permit, the regulatory authority may determine that it is not feasible 
for a remining operator to re-establish baseline pollutant levels in 
accordance with the statistical procedures contained in today's 
rulemaking. Therefore, pre-existing discharges at existing remining 
operations would remain subject to baseline pollutant levels 
established during the original permit application.
    In its determination of BAT, EPA also performs a cost analysis on 
the level of treatment required by the regulation. The cost methodology 
for this assessment was described in Section X.B of the proposal, and 
EPA has made no changes to the cost methodology for this final action. 
EPA projects that the annual compliance cost for this new subcategory 
will be approximately $330,000 to $759,000.
10. BPT for the Coal Remining Subcategory
    As discussed above, EPA concluded that the requirement to design 
and implement a pollution abatement plan represents BAT and that there 
are no more stringent technologies that are economically achievable. 
Furthermore, EPA is aware that permits containing these BMPs are 
currently in place and are being implemented by a large number of 
operators. Thus, EPA determined that pollution abatement plans also 
represent the average of the best technology currently available. The 
pollution abatement plan is required to be designed to control 
conventional, toxic and non-conventional pollutants, and the plan must 
reflect levels of control consistent with BPT for conventional 
pollutants. The Coal Remining BMP Guidance Manual should be consulted 
to determine the adequacy of the plan. As discussed above, EPA 
concluded that it is infeasible to express BAT as a single numeric 
limit. Therefore, EPA has established a combination of site-specific 
numeric and non-numeric effluent limitation guidelines for BPT 
identical to the BAT limitations for net acidity, iron, manganese, and 
TSS.
11. BCT for the Coal Remining Subcategory
    In July 1986, EPA promulgated a methodology for establishing BCT 
effluent limitations. EPA evaluates the reasonableness of BCT candidate 
technologies--those that are technologically feasible--by applying a 
two-part cost test: (1) A POTW test; and (2) an industry cost-
effectiveness test.
    EPA first calculates the cost per pound of conventional pollutant 
removed by industrial dischargers in upgrading from BPT to a BCT 
candidate technology and then compares this cost to the cost per pound 
of conventional pollutants removed in upgrading POTWs from secondary 
treatment. The upgrade cost to industry must be less than the POTW 
benchmark of $0.25 per pound (in 1976 dollars).
    In the industry cost-effectiveness test, the ratio of the 
incremental BPT to BCT cost divided by the BPT cost for the industry 
must be less than 1.29 (i.e., the cost increase must be less than 29 
percent).
    In today's notice, EPA is establishing BCT effluent limitations 
guidelines for TSS equivalent to the BPT guidelines for the Coal 
Remining Subcategory. In developing BCT limits, EPA considered whether 
there are technologies that achieve greater removals of conventional 
pollutants than established for BPT, and whether those technologies are 
cost-reasonable according to the BCT Cost Test. EPA identified no 
technologies that can achieve greater removals of conventional 
pollutants than established for BPT that are also cost-reasonable under 
the BCT Cost Test, and accordingly EPA is establishing BCT effluent 
limitations equal to the established BPT effluent limitations 
guidelines.
12. NSPS for the Coal Remining Subcategory
    In the proposal, EPA did not consider any regulatory options for 
new sources for the Coal Remining Subcategory because pre-existing 
discharges at abandoned mine lands covered by the proposed regulation 
would be by definition in existence prior to permit application. 
Therefore, at proposal EPA defined all pre-existing discharges as 
existing sources. However, as described earlier, EPA requested comment 
in the NODA on applying the effluent limitations for the Remining 
Subcategory to coal mining operations conducted and abandoned after 
August 3, 1977. Based on comments received on the NODA, EPA has 
modified the definition of ``remining'' to include coal mining 
operations on sites where coal mining is conducted and abandoned after 
August 3, 1977. Therefore, despite SMCRA requirements and disincentives 
to bond forfeiture, it is possible that in the future there will be as-
yet unmined sites that will be mined and abandoned for which remining 
permits will be sought. Pre-existing discharges from remining areas 
where active mining commenced after the effective date of today's rule 
and which are subsequently abandoned will be subject to new source 
performance standards. EPA is establishing NSPS equivalent to BPT, BCT, 
and BAT because EPA has not identified any economically achievable 
technology more stringent that BAT.

B. Western Alkaline Coal Mining Subcategory

1. Background
    The effluent limitations and performance standards for the Western 
Alkaline Coal Mining Subcategory apply to alkaline mine drainage from 
reclamation areas, brushing and grubbing areas, topsoil stockpiling 
areas, and regraded areas. This new subcategory is being created 
primarily because of negative impacts caused by the predominant use of 
sedimentation ponds necessary to meet the guidelines for Subpart D--
Alkaline Mine Drainage. Additional information on the rationale for the 
new subcategory are explained in Section VI.B of the proposal.
    Today's final regulation requires that a western coal mine operator 
develop and implement a site-specific sediment control plan for 
applicable areas. The sediment control plan must identify sediment 
control BMPs and present their design, construction, maintenance 
specifications, and their expected effectiveness. The final regulations 
require the operator to demonstrate, using watershed models accepted by 
the

[[Page 3381]]

permitting authority, that implementation of the selected BMPs will not 
increase sediment loads over pre-mined, undisturbed condition sediment 
levels. The permit must then incorporate the site-specific sediment 
control plan and require the operator to implement the plan.
    Sediment control BMPs for the coal mining industry are well known 
and established and include regrading, revegetation, mulching, check 
dams, vegetated channels, straw bales, dikes, silt fences, small sumps 
and berms, contour terracing, sedimentation ponds, and other 
construction practices (e.g., grass filters, serpentines, leaking 
berms, etc). In order to maintain pre-mined, undisturbed conditions on 
reclamation and associated areas, EPA is promulgating non-numeric 
effluent limits based on the design, implementation, and maintenance of 
these BMPs.
    As noted in the proposal, EPA has determined that the predominant 
use of sedimentation ponds in order to meet the Subpart E numeric 
standards for settleable solids have caused negative impacts in arid 
and semiarid environments. This is predominantly due to the large land 
areas and volume of runoff that must be controlled through ponds in 
order to meet a sediment limit that is not appropriate for runoff in 
the arid and semiarid regions of the western United States. EPA notes 
that sedimentation ponds are considered an effective BMP for 
controlling sediment, and that sedimentation ponds may be used in 
conjunction with other BMPs in order to control sediment loads. EPA 
also recognizes that sedimentation ponds do not necessarily cause 
negative environmental impacts in all cases. EPA believes that ponds 
may be necessary in certain circumstances to ensure that sediment 
levels are not increased over pre-mined levels, or may be necessary to 
meet SMCRA requirements or to protect water quality. In certain cases, 
it may also be necessary for the regulatory authority to establish 
numeric limits to protect water quality. EPA notes that ponds are one 
in a suite of BMPs that a mine operator may install in order to meet 
reclamation standards. However, ponds may not be necessary in all 
circumstances and the use of other BMPs such as check dams, vegetation, 
silt fences, and other construction practices can be equally protective 
of the environment. Advantages of using other BMPs in lieu of, or in 
addition to, ponds is that less land is disturbed than for pond 
construction and removal and more water is available to maintain the 
hydrologic balance. EPA believes that the regulation promulgated today 
allows permitting authorities and mining operators sufficient 
flexibility to use the appropriate BMPs necessary to control sediment 
and protect water quality in these regions. EPA has provided 
information on the range and implementation of available BMPs in the 
Development Document for Final Effluent Limitations Guidelines and 
Standards for the Western Alkaline Coal Mining Subcategory.
    Under today's regulation, EPA is establishing a requirement to 
develop and implement site-specific sediment control plans that apply 
in lieu of numeric limits. EPA is requiring that a mine operator 
develop a site-specific sediment control plan for these areas.
    EPA is establishing requirements for site-specific sediment control 
plans based on computer modeling in lieu of nationally applicable 
numeric effluent limitations. As discussed above in section V.A.7, such 
requirements are authorized at 40 CFR 122.4(k) as non-numeric effluent 
limitations where it is infeasible to establish numeric effluent 
limitations.
    EPA believes that determining compliance for settleable solids 
based on a single numeric standard for runoff from BMPs is infeasible 
at western coal mines due to the environmental conditions present. 
Precipitation events are often localized, high-intensity, short-
duration thunderstorms and watersheds often cover vast and isolated 
areas. Rain may fall in one area of a watershed while other areas 
remain dry, making it extremely difficult to evaluate overall 
performance of the BMPs. These factors combine to take it burdensome 
for a permitting authority or mining operator to extract periodic, 
meaningful samples on a timely basis to determine if a facility is 
meeting effluent limitations for settleable solids. The difficulty of 
sample collection is described in the Phase I Report: Technical 
Information Package provided by the Western Coal Mining Work Group 
(Record Section 3.3.1).
    Because it is infeasible in such areas to determine compliance and 
performance of the BMPs in numeric terms, EPA believes that 
establishment of non-numeric effluent limitations for sediment for this 
subcategory is authorized under, and is necessary to carry out the 
purposes and intent, of the CWA.
2. Inspection and Maintenance of BMPs
    EPA believes a key factor in using BMPs is the opportunity for 
continual inspection and maintenance by permitting authorities and coal 
mine personnel to ensure that sediment control measures will continue 
to function as designed. EPA concludes that requirements based on site-
specific control plans will ease the implementation burden of the rule 
and allow a permit authority to determine compliance on a regular 
basis. A permit authority will be able to visit the site and determine 
if BMPs have been implemented according to the site's sediment control 
plan. The permit authority would not have to wait for a significant 
precipitation event to determine compliance.
    EPA believes that regular operation and maintenance inspections of 
BMPs are necessary to ensure compliance with the sediment control plan. 
EPA also recognizes that SMCRA establishes inspection and monitoring 
requirements for both surface coal mining and reclamation operations. 
These requirements include partial inspections at least once per month 
and complete inspections at least once per quarter. The monitoring 
requirements include maintenance of records and monitoring equipment, 
monthly reports to the permitting authority, and provision of other 
information as the permitting authority deems appropriate.
    EPA received several comments on appropriate inspection frequencies 
and monitoring requirements. The State of New Mexico envisions monthly 
inspections during the first three years a watershed is in reclamation 
status and quarterly inspections thereafter. New Mexico believes that 
field notes or forms maintained on file in mine records and available 
for inspection is appropriate documentation of these inspections. Other 
States and mine operators have suggested that self inspections be 
conducted quarterly and after significant precipitation events.
    EPA is not specifying a frequency or procedure for BMP inspections 
because EPA believes that these decisions should be left to discretion 
of the permitting authority and be made on a site-specific basis, in 
accordance with SMCRA and CWA requirements (40 CFR 122.41(i), 122.43, 
122.48).
3. Affected Areas
    In the proposal, EPA described that the Agency also was considering 
the use of alternative sediment controls for non-process areas in 
addition to reclamation areas. Such non-process areas include areas 
that are not directly in contact with the excavation and processing of 
coal materials. EPA received numerous comments on the issue in support 
of expanding the applicability of the final regulation to include these 
additional non-process areas. EPA also received additional data from 
the National

[[Page 3382]]

Mining Association, in a report entitled ``Western Alkaline Coal Mining 
Subcategory Modeling of Pre-mining Activities Supporting Reclamation 
and Performance Cost-Benefit Analysis.''
    As described in the proposal, EPA determined that alternative 
sediment controls were appropriate for reclamation areas for several 
reasons. These reasons included: sediment is a natural component of 
runoff in arid watersheds; sediment is typically the only parameter of 
concern in runoff from western alkaline reclamation areas; BMPs are 
proven to be effective at controlling sediment; and computer modeling 
procedures are able to accurately predict sediment runoff conditions. 
Due to comments received in support of expanding the application of 
alternative sediment controls, EPA evaluated non-process areas in 
addition to reclamation areas under the same set of circumstances. 
Based on this rationale, in addition to comments and data received on 
the proposal, EPA determined that similar circumstances exist for 
runoff from some, but not all, non-process mine areas. Namely, that 
sediment is typically the only parameter of concern; BMPs can be 
implemented to maintain sediment levels below baseline; and modeling 
procedures are accurate for these areas. Therefore, EPA has expanded 
the Western Alkaline Subcategory to include ``brushing and grubbing 
areas,'' ``topsoil stockpiling areas,'' and ``regraded areas.''
     ``Brushing and grubbing area'' is defined to mean ``the 
area where woody plant materials that would interfere with soil salvage 
operations have been removed or incorporated into the soil that is 
being salvaged.'' BMPs modeled and/or utilized for sediment control of 
this area include infiltration berms, silt fences, porous rock check 
dams, and woody plant chipping/rotoclearing surface treatments.
     ``Topsoil stockpiling area'' is defined to mean ``the area 
outside the mined-out area where topsoil is temporarily stored for use 
in reclamation, including containment berms.'' BMPs modeled and/or 
utilized for sediment control of this area include establishing 
vegetation, infiltration berms, and silt fences.
     ``Regraded areas'' are defined to mean ``the surface area 
of a coal mine that has been returned to required contour.'' BMPs 
modeled and/or utilized for sediment control of this area include 
contour furrowing, establishing timely vegetation, silt fences, porous 
rock check dams, and woody plant chipping/rotoclearing surface 
treatments.
    EPA concluded that these areas may be sufficiently consistent in 
slope, vegetative cover, and soil stability such that BMPs can be 
modeled and implemented to maintain sediment levels below pre-mined, 
undisturbed conditions. Due to lack of exposure to potential acid 
forming or toxic materials, EPA does not believe that runoff from these 
areas will cause degredation of water quality. Therefore, EPA believes 
that alternative sediment controls can be effectively used on disturbed 
areas where sediment is typically the only pollutant of concern in 
order to avoid additional land disturbance.
    However, EPA does not believe that alternative sediment controls 
should be applicable to spoil piles. Spoil piles are areas where 
overburden is placed prior to regrading and revegetating. Overburden is 
the material that lies on top of the coal that is removed to gain 
access to the coal seam. First, EPA does not believe that computer 
modeling programs are sufficient to accurately model runoff from a 
highly erodible, unconsolidated land form with steep slopes, such as 
spoil piles. Second, in terms of BMPs that would be available to 
sufficiently control runoff from these areas, EPA notes that many of 
the traditional BMPs, including regrading, revegetating, mulching, 
check dams, vegetated channels, straw bales, dikes, silt fences, small 
sumps and berms, and contour terracing could not be implemented or 
adequate on unconsolidated steep slopes or highly erodible areas. EPA 
notes that the most likely form of sediment control for runoff from 
these areas would be site containment by means of temporary berms, 
ponds, diversion into pit area, and/or commingling with process waters. 
In contrast, the non-process areas where the Agency is allowing 
alternative sediment control structures are amenable to utilization of 
BMPs due to their level surfaces or more stable environment.
    EPA generally considers spoil piles as part of the active mine due 
to the disturbed nature of the materials and the potential for toxic or 
acid forming materials to be present. Additionally, EPA believes there 
exists the potential for exposure to toxic or acid forming materials in 
runoff from spoil piles. EPA notes that, as part of SMCRA requirements, 
the mine operator must conduct an analysis of the potential toxic or 
acid forming materials present in the overburden and take appropriate 
action to prevent the discharge of these materials to surface waters. 
However, the appropriate action (such as covering material) may be 
concurrent with deposition of overburden, and EPA does not believe that 
the Agency has been presented with sufficient evidence that toxic or 
acid forming materials are guaranteed not to be present in runoff from 
spoil piles.
    EPA believes that the exclusion of spoil pile areas from the 
Western Alkaline Subcategory will not significantly detract from the 
benefits of this new subcategory. OSMRE regulations restrict the size 
of the overburden salvaging area and require timely regrading and 
revegetation (SMCRA, Pub. L. 95-87 sections 508 and 515). In a report 
submitted in comments by the National Mining Association, the salvaging 
area was estimated to be 750 feet wide and 5,083 feet long. Although 
the spoil pile area has a fairly large footprint, EPA notes that the 
area generating runoff that EPA considered for inclusion of the Western 
Alkaline Subcategory is limited. EPA notes that the runoff from the 
spoil piles adjacent to the active mine pit will drain directly into 
the mine pit and will be treated as active mine water, regardless of 
EPA's decision. The only area that would be affected by EPA's decision 
is the area containing runoff from the outslope of the last spoil pile, 
and this area is relatively limited. Based on the decision not to 
include spoil piles in the Western Alkaline Coal Mining Subcategory, 
EPA envisions that the runoff from spoil pile areas will be rerouted 
back into the mine pit through temporary berms and dikes and will not 
likely involve construction of additional sedimentation ponds. Such 
spoil piles continue to be covered by existing regulations at subpart 
D--Alkaline Mine Drainage.
4. SMCRA Requirements
    The SMCRA permit application process requires a coal mining 
operator to submit an extensive operation and reclamation plan, 
documentation, and analysis to OSMRE or the primacy permitting 
authority for approval. The requirements for the operation and 
reclamation plan are specified in 30 CFR part 780 for surface mining 
permit applications and part 784 for underground mining permit 
applications. In brief summary, some of the OSMRE requirements that 
directly relate to this CWA regulation include requirements for coal 
mining operators to provide: a description of coal mining operations; a 
plan for reclaiming mined lands; a plan for revegetating mined lands; 
geologic information; hydrologic information including: a description 
of baseline ground water and surface water characteristics under 
seasonal conditions; and an analysis of the

[[Page 3383]]

hydrologic and geologic impacts caused by the reclamation activity. 
Specifically, the plan requires a ``probable hydrologic consequences 
(PHC)'' determination to determine the impacts of the mining on 
existing hydrologic conditions and a hydrologic reclamation plan to 
show measures for reducing impacts and to meet water quality laws and 
regulations. Furthermore, the coal mining regulatory authority is 
required to conduct a cumulative hydrologic impact analysis of the 
proposed operation and all anticipated mining on surface water and 
ground water systems.
    Additionally, SMCRA requires a chemical analysis of potentially 
acid or toxic forming sections of the overburden and chemical analysis 
of the stratum lying immediately underneath the coal (Section 507 
(b)(15)). The mine operator must provide for avoiding acid or other 
toxic mine drainage by such measures as, but not limited to: preventing 
or removing water from contact with toxic producing deposits; treating 
drainage to reduce toxic content which adversely affects downstream 
water upon being released to water courses; and keeping acid or other 
toxic drainage from entering ground and surface waters (Section 515 (b) 
(10)). This analysis is required for the determination that the mine 
produces alkaline mine drainage and will be covered by the Alkaline 
Mine Drainage Subcategory. Based on the applicability of this 
regulation which restricts the Western Alkaline Coal Mining Subcategory 
to areas producing alkaline drainage in arid and semi arid areas, EPA 
does not believe that toxic or acid forming materials will be present 
in the runoff from non-process areas of alkaline coal mines. However, 
EPA acknowledges that SMCRA requirements are an additional measure of 
protection to ensure that any acid forming or toxic forming pockets 
will be identified and addressed as necessary to prevent the release of 
these materials in stormwater runoff.
    EPA concluded that sediment control plans developed to comply with 
SMCRA requirements will usually fulfill the requirements in today's 
regulation. In general, the sediment control plan will largely consist 
of materials generated as part of the SMCRA permit application. The 
requirement to use modeling techniques also is not inconsistent with 
SMCRA permit application requirements, as mining facilities already 
submit a watershed model as part of their SMCRA reclamation plan.
    EPA proposed and is finalizing the following language regarding 
acceptable computer models: ``The operator must use the same watershed 
model that was, or will be, used to acquire the SMCRA permit.'' EPA 
intends this to mean that a mine can use the upgraded version of a 
computer model that was used in the original application. For example, 
if the mine used SEDCAD 4.0 in their SMCRA permit application, then the 
mine operator can use SEDCAD 5.0 in subsequent modeling procedures for 
its CWA permit application. EPA believes that this language provides 
the necessary flexibility to use the most recent and appropriate 
modeling procedure. A guidance manual entitled ``Guidelines for the Use 
of the Revised Universal Soil Loss Equation (RUSLE) Version 1.06 on 
Mined Lands, Construction Sites, and Reclaimed Lands'' published by 
OSMRE in August, 1998 describes the use of RUSLE for sediment modeling 
and should be consulted for modeling approaches.
5. Bond Release
    The new subpart for Western Alkaline Coal Mining includes the 
following language: ``The effluent limitations in this subpart apply 
until the appropriate SMCRA authority has authorized bond release.'' 
This language is consistent with the language in other subparts to part 
434. As defined in Sec. 434.11(d) General definitions: ``The term `bond 
release' means the time at which the appropriate regulatory authority 
returns a reclamation or performance bond based upon its determination 
that reclamation work (including, in the case of underground mines, 
mine sealing and abandonment procedures) has been satisfactorily 
completed.'' EPA notes that this language does not necessarily mean 
``final'' bond release (which may be applicable to an entire mining 
operation) and that reclamation work may be satisfactorily completed on 
a watershed or a specific part of a disturbed area before the entire 
mine site has been reclaimed (or even mined), i.e., ``partial bond 
release.'' Therefore, EPA intends this current definition to allow a 
facility to terminate NPDES discharge points when ``partial'' bond 
release is obtained.
6. Definition of Alkaline Mine Drainage
    EPA received comment that the proposed definition for alkaline mine 
drainage imposes limitations for iron concentrations without regard to 
the form of the iron. The commenter noted that the primary mineral 
responsible for high total iron readings in certain western areas is 
magnetite. Magnetite (Fe3O4) is a naturally 
occurring iron mineral, which is in a form not typically associated 
with coal mining operations and acid mine drainage. In natural 
undisturbed conditions, the commenter cited that surface water samples 
register values for total iron as high as 40,000 mg/L (or 4%), due to 
the sediment, which is collected as part of the water sample. The 
commenter argued that the form of iron was not considered in the 
original mining regulations, and the commenter requested that EPA 
modify the definition of the Western Coal Mining Subcategory to include 
areas that have naturally-occurring high concentrations of iron due to 
magnetite.
    Although EPA has not revised either the definition of alkaline mine 
drainage or western coal mining operations, EPA acknowledges the 
concern regarding the high levels of total iron that may be found in 
natural discharges from western alkaline coal regions. EPA recognizes 
that the geochemistry of the western arid and semiarid coal regions, 
which is predominated by sandstone and limestone, differs from that of 
the eastern coal regions. As a result, the production of acid mine 
drainage is much less typical due to the inherent buffering capacity. 
In addition, EPA recognizes that there is a low occurrence of pyrite in 
the west, which is the common culprit of acid mine drainage generation. 
Instead, iron often occurs in the form of magnetite 
(Fe3O4), an inert iron oxide that has no acid 
forming potential.
    EPA evaluated the processes that produce acid mine drainage and the 
geologic conditions typical of the western alkaline coal regions to 
determine the most appropriate parameters for indicating alkaline mine 
drainage. In summary, EPA concluded that pyrite is generally uncommon 
in this coal region and that, if it does occur at a significant level, 
it can be identified by the presence of dissolved iron. For this 
reason, it is also appropriate to measure dissolved iron, in lieu of 
total iron, for surface runoff from the areas affected by the Western 
Alkaline Coal Mining Subcategory. Additionally, acid mine drainage in 
the western region is often prevented by the presence of carbonate 
minerals. Therefore, to ensure that acid-forming potential is not 
inherent to a particular discharge, EPA believes that an assessment of 
net alkalinity should be made. Determination of net alkalinity takes 
into account the effects of non-ferrous metals (e.g., Al, Mn), 
carbonates, and other substances, and, as such, negative values of net 
alkalinity are a true indication of potential acidity of drainage 
waters.
    For these reasons, EPA has revised the applicability of the Western 
Alkaline Coal Mining Subcategory as follows: ``This subpart applies to 
drainage at western coal mining operations from

[[Page 3384]]

reclamation areas, brushing and grubbing areas, topsoil stockpiling 
areas, and regraded areas where the discharge, before any treatment, 
meets all the following requirements: (1) pH is equal to or greater 
than 6; (2) dissolved iron concentration is less than 10 mg/L; and (3) 
net alkalinity is greater than zero.'' EPA believes that this will 
enable certain mines to use alternative sediment controls while 
maintaining the intent of the regulation that this subcategory does not 
apply to mines that produce acid mine drainage.
7. BPT for the Western Alkaline Coal Mining Subcategory
    EPA is today promulgating BPT effluent limitations for the Western 
Alkaline Coal Mining Subcategory to control sediment in discharges from 
reclamation areas, brushing and grubbing areas, topsoil stockpiling 
areas, and regraded areas. For further information on the basis for the 
limitations and technologies selected see the Development Document for 
Effluent Limitations Guidelines and Standards for the Western Alkaline 
Coal Mining Subcategory.
    EPA determined that BPT for the Western Coal Mining Subcategory 
consists of designing and implementing BMPs to maintain the average 
annual sediment yield equal to or below pre-mined, undisturbed 
conditions. EPA has developed this new subcategory primarily to 
addresss the negative environmental impacts created by the previous 
requirements.
    Requirements for reclamation areas (40 CFR part 434, subpart E) 
establish BPT, BAT, and NSPS based on the use of sedimentation pond 
technology, and set effluent limitations for settleable solids and pH. 
The Subpart E guidelines apply to all reclamation areas throughout the 
United States, regardless of climate, topography, or type of mine 
drainage (i.e., acid or alkaline).
    Subpart E establishes controls on the amount of settleable solids 
that can be discharged into waterways from reclamation areas. Although 
sedimentation ponds are proven to be effective at reducing sediment 
discharge, EPA believes that there are numerous non-water quality 
impacts that may harm the environment when construction of large 
sedimentation ponds in arid and semi arid regions are necessary to meet 
current effluent limits. The negative non-water quality impacts 
associated with existing regulations include: disturbing the natural 
hydrologic balance of arid and semiarid western drainage areas; 
accelerating erosion; reducing groundwater recharge; reducing water 
availability; and impacting large areas of land for sedimentation pond 
construction. A further discussion of these impacts can be found in 
Section VIII of this document and in the Development Document for the 
Western Alkaline Coal Mining Subcategory.
    EPA has concluded that the current numeric requirements at subpart 
E are not appropriate for arid and semiarid western reclamation areas 
because of the negative non-water quality impacts associated with the 
predominant use of sedimentation ponds to meet these limits, as 
discussed above. The appropriate goal for reclamation and discharges 
from post-mined lands should be to mimic conditions that were present 
prior to mining activities. In order to do this, it is necessary to 
maintain the hydrologic balance and sediment loadings of pre-mining, 
undisturbed conditions on post-mined lands. EPA believes that use of 
BMPs, including sedimentation ponds where appropriate, to control 
discharges is the most effective control technology. Therefore, EPA is 
establishing BPT that consists of designing and implementing BMPs that 
are projected to maintain the average annual sediment yield equal to or 
below pre-mined, undisturbed conditions. This would ensure that 
undisturbed conditions are maintained. In order to achieve these 
results, EPA requires that the coal mining operator develop a sediment 
control plan and demonstrate the effectiveness of the sediment controls 
through computer modeling. These requirements are detailed in the 
regulatory text.
    EPA also evaluated the costs of BPT. As discussed in Section IX of 
this document, EPA estimates that today's regulation will result in a 
net cost savings to all affected surface mine operators, and will be at 
worst cost-neutral for affected underground operators (although EPA 
believes that most will also incur cost savings). Therefore, 
implementing these standards will result in no facility closures or 
negative economic impact to the industry. EPA projects that the new 
subcategory will result in cost savings of $12.8 million to $13.2 
million annually.
8. BCT for the Western Alkaline Coal Mining Subcategory
    EPA is establishing BPT and BAT to control conventional, toxic, and 
non-conventional pollutants based on a sediment control plan. EPA is 
not establishing numeric effluent limitations for any conventional 
pollutant and EPA is not promulgating BCT limitations for this 
subcategory at this time.
9. BAT for the Western Alkaline Coal Mining Subcategory
    EPA has not identified any more stringent treatment technology that 
could represent BAT level of control for maintaining discharge levels 
of solids consistent with pre-mined conditions on post-mined land in 
the western alkaline coal region. EPA is therefore establishing that 
BAT standards be equivalent to BPT. Further, as discussed in Section IX 
of this document, EPA estimates that today's regulation will result in 
a net cost savings to all affected surface mine operators, and will be 
at worst cost-neutral for affected underground operators. Therefore, 
implementing BAT standards will result in no facility closures or 
negative economic impact to the industry.
10. NSPS for the Western Alkaline Coal Mining Subcategory
    As discussed for BAT, EPA has not identified any more stringent 
treatment technology option that it considers to represent NSPS level 
of control. Further, EPA estimates that today's regulation will result 
in a net cost savings to all affected surface mine operators, and will 
be at worst cost-neutral to affected underground operators. Therefore, 
implementing NSPS standards will result in no barrier to entry based 
upon the establishment of this level of control for new sources. EPA 
has therefore determined that NSPS standards be established equivalent 
to BAT.

VI. Statistical and Monitoring Procedures for the Coal Remining 
Subcategory

A. Statistical Procedures for the Coal Remining Subcategory

    EPA's statistical procedures are presented in Appendix B of the 
regulation and described in detail in the Coal Remining Statistical 
Support Document. The procedures in Appendix B apply to the Coal 
Remining Subcategory.
    The regulatory text requires that calculations described in 
Appendix B be applied to pollutant loadings. Pollutant loadings are 
calculated as the product of a flow measurement and a pollutant 
concentration. As described in the proposal, EPA has interpreted the 
Rahall amendment's requirement not to exceed a pollutant baseline 
``level'' as a requirement not to exceed a pollutant baseline loading. 
EPA's record demonstrates that BMPs applied during remining act 
principally by reducing discharge flow and pollutant loading. In fact, 
pollutant concentration may actually increase in some cases where the 
pollutant quantity (loading) is

[[Page 3385]]

reduced substantially. Setting limits based on concentrations would 
very likely inhibit beneficial remining projects and would be counter-
productive and ineffective. To achieve pollutant reductions from 
remining, EPA concluded that it is essential to set limits for 
pollutant loadings rather than concentrations.
    The objective of these statistical procedures is to provide a 
method for deciding when the pollutant levels of a discharge exceed 
baseline pollutant levels. These procedures are intended to detect a 
substantial, continuing state of exceedance, while reducing the 
likelihood of a ``false alarm.'' To do this, it is essential to a have 
an adequate duration and frequency of sample collection to determine 
baseline levels and to determine compliance with these levels.
    In developing these procedures, EPA considered the statistical 
distribution and characteristics of discharge loadings data from pre-
existing discharges, the suitability of parametric and non-parametric 
statistical procedures for such data, the number of samples required 
for these procedures to perform adequately and reliably, and the 
balance between false positive and false negative decision error rates. 
EPA also considered the cost involved with sample collection as well as 
delays in permit approval during the establishment of baseline, and 
considered the potential that increased sampling could discourage 
remining. In order to sufficiently characterize pollutant levels during 
baseline determination and during each annual monitoring period, EPA is 
requiring that the results of at least one sample be obtained per month 
for a period of 12 months.
    EPA evaluated the statistical properties of eastern coal mine 
discharge data (EPA's Coal Remining Database, DCN 1335 and the 
Statistical Analysis of Abandoned Mine Drainage in the Assessment of 
Pollution Load, EPA (821-B-01-014). EPA verified its findings as 
discussed in the proposal on relative variability of pollutant 
loadings. EPA also characterized the serial correlation of loadings and 
flow. EPA found that (a) to a first approximation, loadings might 
reasonably be described by a first-order autoregressive model, and (b) 
the coefficient of serial correlation for loadings at a one-month time 
lag typically ranged from 0.35 to 0.65, with the median near 0.50.
    EPA evaluated the proposed statistical procedures and a variety of 
parametric and non-parametric alternative procedures to determine their 
decision error rates, their suitability for serially correlated data, 
and their ability to accommodate zero loadings and negative loadings. 
As a result of these evaluations, EPA modified the proposed statistical 
procedures so as to achieve the objective stated in the preamble to the 
proposed rule: to have a power of at least 0.75 for detecting an 
increase of one standard deviation in the average for loadings, while 
minimizing the chance of `false alarms' in the event that the average 
loading decreases or remains unchanged.
    Zero loadings are expected to occur, at least for some remining 
sites, after regrading and contouring when discharge flows may be 
reduced greatly; zero flows have been observed after remining at some 
mine sites (EPA's Coal Remining Database, DCN 1335 and the Coal 
Remining BMP Guidance Manual). Negative values of loadings are possible 
and have been observed for net acidity at some mine sites.
    Serial correlation has a profound influence over the power of 
statistical procedures. The statistical procedures, as proposed, were 
more suitable for uncorrelated data than for serially correlated data. 
EPA modified the procedures so that they have the intended power when 
applied to serially correlated loadings data of the sort typical of 
remining sites in the eastern U.S. (Record section 11.1). The 
modifications consisted of (a) increasing the number of times in 
succession that the baseline trigger value must be exceeded for 
additional sampling or treatment to be required, (b) changing numeric 
constants used in the calculation of baseline trigger values, and (c) 
under proposed Procedure B, dropping the parametric statistical methods 
and providing a nonparametric calculation for the single-observation 
trigger.
    In the preamble to the proposed rule, EPA discussed the potential 
problem of unrepresentative baseline years and optional measures that 
could mitigate the uncertainty of characterizing the baseline loadings. 
It is possible that one year of sampling may not accurately 
characterize baseline levels, because discharge flows can vary among 
years in response to inter-year variations in rainfall and ground water 
flow. There is some risk that the particular year chosen to 
characterize baseline flows and loadings will be a year of atypically 
high or low flow or loadings. There may be a need to evaluate 
differences among baseline years in loadings and flows. Therefore, EPA 
investigated optional procedures that could be used to account for the 
uncertainty in characterizing baseline from a one-year sample duration, 
or that could be used to account for the unrepresentative character of 
a baseline sampling year. EPA evaluated correlations between discharge 
flow and various parameters of existing mine discharge data and indices 
for which data spanning over many years are available to the public 
(i.e., Palmer Indices, Standardized Precipitation Index, Crop Moisture 
Index, Surface Water Supply Index, and USGS Current and Historical 
Daily Streamflow). EPA concluded that historical stream flow data from 
a USGS gage station associated with a discharge could be used to test 
whether the given baseline year was significantly different from the 
previous years. This would be done by comparing the mean stream flow 
for the baseline year to the 2.5th and 97.5th percentiles of annual 
mean stream flows prior to the baseline year. If the mean stream flow 
for the baseline year falls below the 2.5th percentile or above the 
97.5th percentile, corrective action can be taken on the baseline data, 
and EPA recommends that the operator or permitting authority conduct 
additional monitoring to establish a meaningful baseline. However, due 
to the site-specific nature of discharges and the variability of 
streamflow compared to discharge data, EPA was unable to establish any 
optional procedure that could incorporate existing data from public 
sources into a meaningful baseline calculation.
    Stakeholders have commented that, occasionally, a pre-existing 
discharge may contain iron or manganese concentrations that are lower 
than the current subpart E effluent limitations established for active 
mine wastewater. In these circumstances, the baseline standards may be 
a disincentive for remining because the operator may have to treat a 
discharge to levels below those currently required by BAT for active 
mine discharges. This may be a disincentive for remining operations. 
Therefore, EPA has incorporated a methodology in the statistical 
procedure for determining baseline so that the BAT concentration limit 
is substituted for certain baseline measurements when a measured 
concentration is below the BAT limit.

B. Evaluation of Statistical Triggers

    EPA evaluated the power of the statistical triggers in Section VIII 
of the proposed rule. Power can be defined in plain language as the 
frequency with which a statistical decision procedure will declare that 
remining loadings exceed baseline loadings when the remining loadings 
truly are greater than baseline loadings.
    The ideal statistical procedure would always declare ``not larger'' 
when

[[Page 3386]]

remining pollutant loadings are less than or equal to baseline 
loadings, and would always signal ``larger'' when remining loadings 
exceeded baseline. No such ideal procedure exists. Instead, the rate of 
signaling ``larger'' will increase as the average difference between 
baseline and remining loadings increases in magnitude. Statistical 
triggers may be ``tuned'' by choosing their numeric constants so that a 
compromise is achieved between false alarms (that is, signaling 
``larger'' when remining loadings are not larger than baseline 
loadings) and correct alarms (when remining loadings truly are 
greater).
    Power of the statistical triggers was evaluated by simulating a 60-
month monitoring program for 5000 discharges, and recording the 
frequency with which the triggers indicated that the remining loadings 
exceeded baseline. The evaluations of power led to a choice of numeric 
constants that achieve a reasonable balance between false alarms and 
correct alarms.
    This reasonable balance was considered to be achieved when a 
trigger produced the following results:
    (1) When there was no change in loadings from the baseline to 
remining time period, the power (``false alarm rate''; type-I error 
rate) was not larger than that for the triggers used by Pennsylvania's 
successful remining program;
    (2) When there was a decrease of 0.5 standard deviations in the 
mean loading after the baseline period, the power (``false alarm 
rate,'' in this case the probability of concluding that loadings 
increased during remining when they actually decreased) was smaller 
than 5%;
    (3) When the mean loading increased by 1 to 2 standard deviations 
after the baseline period, the power (``correct alarm rate'') was 
maximized.
    EPA reached several conclusions about the proposed statistical 
triggers based on these evaluations.
    (1) The proposed Cumulative Sum Control Chart (CUSUM) method under 
Procedure B did not add value to the simpler monthly and annual 
comparisons. Accordingly, the CUSUM method is omitted from Appendix B 
to the final rule.
    (2) The magnitude of serial correlation has a substantial effect on 
power. Statistical triggers that have reasonable power when there is no 
serial correlation could be unreasonable when there is substantial 
serial correlation, because they could then have very high rates of 
type I errors (false alarms). It was necessary to select numeric 
constants for the statistical triggers that are appropriate to data 
having autocorrelation. For evaluating and comparing statistical 
methods and triggers, EPA relied primarily upon the power in 
simulations for which the first-order autocorrelation coefficient took 
the value of 0.5.
    (3) The Single Observation Trigger of the proposed Procedure A had 
a high rate of declaring loadings to be larger than baseline when they 
were not. The Single Observation Trigger was therefore modified to 
agree with the method that has long been used successfully in the State 
of Pennsylvania. The statistical modification was to change the Single 
Observation Trigger at Step 5 from ``If any two observations exceed L 
during weekly monitoring, * * *'' to the following: ``If all four 
weekly observations exceed L during weekly monitoring, * * *''
    (4) Proposed Procedure B, ``E. Annual Comparisons,'' also had a 
high rate of declaring loadings to be larger than baseline when they 
were not. This part of proposed Procedure B was modified to require use 
of Tables for the 99.9% level (alpha = 0.001) rather than the 95% level 
(alpha = 0.05) for the Wilcoxon-Mann-Whitney Test.
    (5) The Single Observation Limit of the proposed Procedure B was 
changed from a parametric to a nonparametric method which has similar 
power. The nonparametric method accommodates zero flows (which may 
occur during remining) and negatively-valued loading data (which may 
occur for net acidity) without requiring additional or complex 
modifications (as the proposed parametric method would).
    (6) The annual (subtle trigger) and single-observation (quick 
trigger) triggers long used in Pennsylvania were included in the 
simulations. EPA believes that the error rates and power of these 
triggers were acceptable in practice because BMPs reduced discharge 
loadings substantially. Hawkins (1994) reviewed the application of 
these triggers to remining operations in Pennsylvania, and concluded 
that the rates of triggering were low because remining almost always 
reduced loadings substantially. EPA's Coal Remining Best Management 
Practices Guidance Manual includes an extensive analysis of remining 
discharges that supports this conclusion. EPA concluded that the 
statistical triggers that Pennsylvania uses in its remining program are 
acceptable and effective. Method 1 of the Final Rule follows the 
Pennsylvania triggers exactly except that a different constant (1.815 = 
1.96 * 1.25 / 1.35) is used in the formula for the Annual Procedure in 
order to decrease the likelihood of obtaining false positives. 
Pennsylvania uses a more stringent number (1.58 = 1.7 * 1.25 / 1.35). 
For a complete discussion of EPA's rationale and selection of 
statistical methodology, see the Coal Mining Statistical Support 
Document.
    (7) The evaluation of power applies to a worst-case situation. In 
particular, the rate of declaring loadings to be larger than baseline 
when they are not is over-stated by the results. It is evaluated in 
terms of the percentage of mines that would experience at least one 
finding that loadings exceed the baseline level over a period of five 
years (60 months), when in fact there has been no change from baseline. 
In practice, the area contributing to a discharge should be remined and 
regraded in less time, after which the discharge flow and loading will 
be substantially reduced. Thus, the time period during which one can 
expect loadings at the baseline level typically will be shorter than 
five years. This in turn will mean lower percentages than reported in 
Table 1 for the condition of no change from baseline loadings.
    (8) The procedures as proposed had unreasonably high ``false alarm 
rates'' because they were designed for uncorrelated data. The modified 
procedures provided for the final regulation have reasonable 
performance when applied to serially-correlated, lognormally-
distributed data typical of coal mine discharge loadings.
    The power of statistical triggers for the final regulation is shown 
in Table VI.B.1. The results show that Method 1 and Method 2 have 
comparable power. The main difference stems from the Monthly Procedure, 
which has higher power when Method 1 is used. Note that the Annual 
Procedure used without the Monthly Procedure would not have a high rate 
of detecting an increase of one standard deviation above baseline. Used 
in combination, the monthly and annual triggers provide power over 90% 
to detect substantial increases above baseline at least once during 
five years, although in practice the power will be smaller for reasons 
discussed above under (7).

[[Page 3387]]



  Table VI.B.1.--Statistical Triggers as Modified for Final Regulation: Percentage of Mines Declared to Exceed
                Baseline Level (at least once during 5 years of simulated monthly monitoring) \1\
----------------------------------------------------------------------------------------------------------------
                                                                  Shift from baseline to remining period \2\
         Annual trigger \3\             Monthly trigger \4\  ---------------------------------------------------
                                                                  -0.5          0            +1           2
----------------------------------------------------------------------------------------------------------------
None................................  Method 1..............           10           33           89           99
Method 1 (a=1.96)...................  none..................            3           11           59           94
Method 1 (a=1.96)...................  Method 1..............           12           39           93          100
Method 1 (a=1.96)...................  Method 2..............            7           29           91          100
----------------------------------------------------------------------------------------------------------------
None................................  Method 2..............            5           22           86          100
Method 2 (=0.001)..........  none..................            2           11           65           97
Method 2 (=0.001)..........  Method 2..............            7           28           91          100
Method 2 (=0.001)..........  Method 1..............           12           38           93         100
----------------------------------------------------------------------------------------------------------------
\1\ Assumes monthly serial correlation of 0.5 for log(x), with x distributed lognormally. Percentages were
  rounded to the nearest 1%.
\2\ The shift was scaled in terms of standard deviation units (sigma symbol = standard deviation)
\3\ Annual procedures: Method 1 of the final regulation is the Subtle Trigger under Procedure A of the proposed
  regulation, with the leading constant changed from 1.58 to 1.96. Method 2 of the final regulation is the
  Wilcoxon-Mann-Whitney Test under Procedure B (E. Annual Comparisons) of the proposed regulation, with the
  significance level changed from 0.05 to 0.001.
\4\ Monthly procedures: Method 1 of the final regulation is the Single-Observation Trigger under Procedure A of
  the proposed regulation. Method 2 of the final regulation is a nonparametric replacement for the parametric
  Single-Observation Trigger under Procedure A of the proposed regulation.

C. Sample Collection To Establish Baseline Conditions and To Monitor 
Compliance for the Coal Remining Subcategory

    EPA evaluated the duration and frequency of sampling necessary to 
apply the statistical procedures. Those procedures are used to compare 
the levels of baseline loadings to the levels of loadings during 
remining or the period when the discharge is permitted. Without an 
adequate duration and frequency of sampling, the statistical procedures 
would often fail to detect genuine exceedance of baseline conditions or 
could establish baseline levels that are established as either too low 
or too high.
    Based on the considerations described below, EPA proposed that the 
smallest acceptable number and frequency of samples is 12 monthly 
samples, taken consecutively over the course of one year. In the 
proposal, EPA raised the possibility that seasonal stratification might 
have the potential to provide a basis for more precise estimates of 
baseline characteristics, if the sampling plan is designed and executed 
correctly and if results are calculated using appropriate statistical 
estimators, and that there may be alternative plans that could be based 
upon subdivision of the year into distinct time periods. These time 
periods might be sampled with different intensities, or could be based 
on other types of stratified sampling plans that attempt to account for 
seasonal variations. EPA received several comments stating that a 
baseline sampling period of less than 12 months may be appropriate.
    EPA considers an adequate number of samples to be that number that 
would allow an appropriate statistical procedure to detect an increase 
of one standard deviation in the mean or median loading between a 
baseline year and a monitoring year with a probability (power) of at 
least 0.75.
    The power analysis used in the proposed statistical procedures was 
based on a two-sample t-test. The t-test can be an appropriate 
statistical procedure for a yearly comparison because loadings from 
mine discharges appear to be approximately distributed log-normally, 
and thus logarithms of loadings are expected to be approximately 
distributed normally. The (non-parametric) Wilcoxon-Mann-Whitney test 
is also appropriate for yearly comparisons and has a power nearly equal 
to that of the t-test when applied to normally distributed data. EPA 
determined that annual comparisons of baseline to remining years based 
upon 12 samples in each year were expected to have a power 0.75 to 
detect a difference of one standard deviation. While the t-test was 
dropped as a statistical procedure for assessing baseline in the Final 
Rule, the analyses defined in Appendix B, including the Wilcoxon-Mann-
Whitney test, were designed to have similar power if 12 baseline 
samples were collected. If significant autocorrelation is present 
between samples (as discussed in section VI.B), the estimated power is 
likely to be less than 0.75; therefore, 12 samples should be considered 
the minimum acceptable for determining baseline.
    An increase of one standard deviation can represent a large 
increase in loading, given the large variability of flows and loadings 
observed in mine discharges. The coefficient of variation (CV) is the 
ratio of the standard deviation to the mean of the observations. Sample 
CVs for iron loadings range approximately from 0.25 to 4.00, and 
commonly exceed 1.00. Sample CVs for manganese loadings range 
approximately from 0.24 to 5.00. When the CV equals 1.00, an increase 
of the average loading by one standard deviation above baseline implies 
a doubling of the loading.
    The duration, frequency, and seasonal distribution of sampling are 
important aspects of a sampling plan, and can affect the precision and 
accuracy of statistical estimates as much as can the number of samples. 
To avoid systematic bias, sampling, during and after baseline 
determination, should systematically cover all periods of the year 
during which substantially high or low discharge flows can be expected.
    Unequal sampling of months could bias the baseline mean or median 
toward high or low loadings by over-sampling of high-flow or low-flow 
months. However, unequal sampling of different time periods can be 
accounted for using statistical estimation procedures appropriate to 
stratified sampling. Stratified seasonal sampling, possibly with 
unequal sampling of different time periods, is a suitable alternative 
to regular monthly sampling, provided that correct statistical 
estimation procedures for stratified sampling are applied to estimate 
the mean, median, variance, interquartile range, and other quantities 
used in the statistical procedures, and provided that at least one 
sample be taken per month over the course of 1 year.
    In conclusion, EPA is promulgating a statistical procedure that 
requires a minimum of 12 monthly samples, taken

[[Page 3388]]

consecutively over the course of one year to determine baseline.

D. Regulated Pollutant Parameters in Pre-Existing Discharges

    EPA proposed to regulate iron, manganese, and pH, which are the 
parameters addressed by the Rahall Amendment and are a subset of the 
parameters directly regulated in 40 CFR part 434. Additionally, EPA 
solicited comment in the proposal and NODA on regulating acidity 
instead of pH, on establishing alternative limits for sediment, and on 
establishing limitations or monitoring requirements for additional 
parameters such as sulfate. Based on comments received and on further 
data evaluation, EPA is establishing limitations for iron, manganese, 
net acidity, and solids. These issues are addressed below.
1. Acidity
    The Rahall Amendment provides an exemption for remining operations 
from BAT effluent limitations for the pH level in pre-existing 
discharges. In the proposed rule, EPA solicited comment on the use of 
acidity instead of pH for pre-existing discharges. In very dilute or 
pure water, pH can be considered a measurement of acidity. In drainage 
from abandoned coal mines, however, pH is an indication of the 
instantaneous hydrogen ion concentration, and does not measure the 
potential of the solution to produce additional hydrogen from metals or 
carbon dioxide during neutralization or further oxidation. Because 
hydrogen ions are only one component of the acidity that can occur in 
acid mine drainage, there can be instances where, although the pH is 
nearly neutral, acidity exceeds alkalinity. Therefore, EPA concluded 
that the reduction of pollutant loadings can best be achieved by 
evaluating acidity, which includes pH.
    In the final rule, pollutant loading is used to define baseline 
conditions for remining operations because loading captures both 
pollutant concentration and discharge flow. Although it is possible to 
determine a pH load (i.e., load of H+ ions), it is not very 
meaningful because pH load does not account for the latent acidity that 
is present in the form of dissolved metals or carbon dioxide. 
Additionally, in cases where treatment of discharges is required, the 
amount of treatment is based on acidity or net alkalinity rather than 
on pH. For this reason, acidity data already are typically submitted 
with remining permit applications and reporting. Pollutant loading is 
also used to determine mass balances and the effects of a discharge on 
a receiving waterbody. Such a determination is possible for acidity, 
net acidity, or alkalinity, but is not likely to be meaningful for pH 
because mixing can result in precipitation or dissolution of ions.
    EPA notes that commenters were unanimous in their support for the 
use of acidity instead of pH. For these reasons, EPA has modified the 
limitations in the final rule to require compliance with baseline net 
acidity determinations.
2. Sulfate
    EPA also solicited comments and data regarding the merits of using 
sulfate as a parameter for assessment of pollution loading from pre-
existing discharges. Commenters agreed that this is a useful parameter 
for determining whether or not a pre-existing discharge is affected by 
mine drainage, and how remining BMPs have affected the discharge. 
However, commenters noted that it should be assessed as part of the 
baseline and for the potential effects of remining, but should not be 
included as a baseline effluent limit.
    EPA concluded that sulfate is a useful parameter for evaluating the 
effectiveness of BMPs implemented under a Pollution Abatement Plan, and 
is aware that current State remining programs request that sulfate data 
are submitted during permit application and periodic reporting. EPA 
encourages this practice, but EPA agrees with commenters that effluent 
limitations for sulfate are unnecessary to determine that pre-existing 
discharge loadings are not increased over baseline.
3. Solids
    EPA did not initially propose alternative limits for solids. 
However, due to comments received on the proposal, EPA issued a Notice 
of Data Availability (NODA) presenting commenters' concerns and new 
data submitted to EPA regarding solids levels in pre-existing 
discharges. EPA received numerous comments on the NODA which supported 
EPA's decision to adopt alternative limits for solids.
    Based on the existing conditions of sediment present at some AML, 
EPA concluded that the benefits of remining may be severely limited if 
EPA does not address sediment in the final rule. Consistent with the 
intent of the Rahall Amendment, which seeks to encourage remining while 
ensuring that the remining activity will potentially improve and 
reclaim AML, EPA is establishing alternative limits for TSS such that 
the sediment load of the pre-existing discharge cannot be increased 
over baseline during remining and reclamation activities.
    EPA believes that the final regulation is consistent with SMCRA 
which mandates the prevention of additional contribution of suspended 
solids to streamflow to the extent possible using the best technology 
currently available. EPA has adopted what is essentially a compliance 
schedule so that, during remining and reclamation activities, the 
operator cannot contribute sediment levels beyond the baseline 
discharge loading. After remining and reclamation has been completed, 
the operator must meet the standards for TSS and SS contained in 
subpart E--Post Mining areas prior to bond release. EPA concluded that 
the implementation of successful sediment control BMPs should, in most 
cases, be able to meet the BPT standards contained in subpart E--Post 
Mining areas regardless of whether the area has been disturbed due to 
remining or virgin mining.
    Based on comments provided, however, EPA believes that there may be 
some exceptions where the post-mining sediment standards may not be 
economically feasible and may be detrimental for remining areas. 
Therefore, EPA has provided an exclusion from the post-mining sediment 
standards for ``steep-slope'' areas and other areas where the 
permitting authority determines it is infeasible or impractical based 
on the site-specific conditions of soil, climate, topography, or 
baseline conditions. In these instances, the pre-existing discharge 
must still meet the alternative baseline standards.
    An example of when it would be impractical to establish subpart E 
numeric standards would be a tract of AML in the pollution abatement 
area that is not disturbed by remining. In this case, voluntary 
vegetative growth may have already been established and sediment runoff 
may be minimal. In this case, however, the AML area may not support 
100% plant coverage and the discharge may contain a moderate amount of 
sediment that does not meet the subpart E numeric standards. In this 
case, the NPDES permitting authority may decide that it would be 
excessively costly and may even be more harmful to disturb the area, 
reclaim the land, revegetate the area and incorporate BMPs to meet the 
subpart E standards. EPA believes that this exclusion establishes 
necessary flexibility to permit authorities to adopt the most 
environmentally beneficial and cost-effective approach to reclamation.
    During remining, the alternative limits for TSS are to be 
established in a manner consistent with the alternative

[[Page 3389]]

limits established for acidity, iron, and manganese (i.e., based on the 
statistical methodology provided in Appendix B of the final 
regulation). The statistical procedures are described in Section VI.A 
above. This protocol requires a minimum of 12 monthly samples to 
establish baseline. EPA recommends that baseline sediment sampling 
include precipitation events in order to adequately characterize the 
baseline where runoff contributes directly to the sediment load.

VII. Non-Water Quality Environmental Impacts of Final Regulations

    The elimination or reduction of pollution has the potential to 
aggravate non water quality environmental problems. Under sections 
304(b) and 306 of the CWA, EPA is required to consider these non-water 
quality environmental impacts (including energy requirements) in 
developing effluent limitations guidelines and NSPS. In compliance with 
these provisions, EPA has evaluated the effect of this regulation on 
air pollution, solid waste generation, energy consumption, and safety. 
Today's rule does not require the implementation of treatment 
technologies that result in any increase in air emissions, in solid 
waste generation or in energy consumption over present industry 
activities.
    Non-water quality environmental impacts are a major consideration 
for this rule because the rule is intended to improve or eliminate a 
number of existing non-water quality environmental and safety problems. 
Remining operations have improved or eliminated adverse non-water 
quality environmental conditions such as abandoned and dangerous 
highwalls, dangerous spoil piles and embankments, dangerous 
impoundments, subsidence, mine openings, and clogged streams that pose 
a threat to health, safety, and the general welfare of people. EPA 
projects that remining has the potential to eliminate nearly three 
million feet of dangerous highwall in the Appalachian and mid-Continent 
coal regions.
    EPA also does not expect today's rule to have an adverse impact on 
health, safety, and the general welfare of people in the arid and 
semiarid western coal region. The intent of the rule is to allow runoff 
to flow naturally from disturbed and reclaimed areas. EPA believes 
that, in most cases, this is preferable to retention in sedimentation 
ponds that is accompanied by periodic releases of runoff containing 
sediment imbalances potentially disruptive to land stability. Alternate 
sediment control technologies in these regions address and alleviate 
adverse non-water quality environmental conditions such as: quickly 
eroding stream banks, water loss through evaporation, soil and slope 
instability, and lack of vegetation.
    Based on this evaluation, EPA concluded that the regulations being 
promulgated today under these new subcategories will improve existing 
AML conditions in the eastern United States and will improve the 
hydrologic imbalances produced by application of current regulations in 
the western arid and semiarid United States.

VIII. Environmental Benefits Analysis

    EPA presented estimates of the environmental benefits of today's 
regulation in Section IX of the proposal. The benefits assessment for 
the Coal Remining Subcategory is identical to the assessment performed 
at proposal. For the Western Alkaline Coal Mining Subcategory, the 
methodology for the assessment is identical to that performed at 
proposal. However, the calculations have changed due to the 
incorporation of additional data provided by two model mine studies 
submitted during the comment period.
    EPA's complete benefits assessment can be found in Benefits 
Assessment of Effluent Limitations Guidelines and Standards for the 
Coal Mining Industry: Remining and Western Alkaline Subcategories 
(hereafter referred to as the ``Benefits Assessment''). A detailed 
summary is also contained in Chapter 8 of Economic and Environmental 
Impact Analysis of Effluent Limitations Guidelines and Standards for 
the Coal Mining Industry: Remining and Western Alkaline Subcategories 
(hereafter referred to as the ``EA'').

A. Coal Remining Subcategory

    The water quality improvements associated with today's rule for 
remining depend on (1) changes in annual permitting rates for remining; 
(2) characteristics of sites selected for remining; and (3) the type 
and magnitude of the environmental improvements expected from remining. 
Remining permits in Pennsylvania increased by an estimated factor of 
three to eight following State implementation of a regulation that is 
similar to today's remining rule. EPA believes that implementing 
today's rule is likely to have a similar effect on other States with 
remineable coal reserves and similar abandoned mine drainage problems. 
The type and magnitude of site-specific water quality improvements 
under the final rule are not expected to be dramatically different than 
those that have occurred under existing requirements in Pennsylvania.
    Of approximately 9,500 miles of acid mine drainage impacted streams 
in States where coal mining has previously occurred (Record Section 
3.2.2), EPA estimates that remining operations have the potential to 
improve 2,900 to 4,800 miles of impacted streams, and that 1,100 to 
2,100 miles of these streams may demonstrate significant improvement. 
EPA estimates that one to six miles of stream may see improvement for 
every 1,000 acres of abandoned mine land reclaimed. Based on an average 
of 38 acres of AML reclamation per permit, EPA estimates approximately 
0.04 to 0.2 miles of stream improvement per remining project. EPA 
estimates that AML sites affected by the rule have an average of 70 
highwall feet per acre. EPA also estimates that an additional 216,000 
to 307,000 feet of highwall (41 to 58 miles) will be targeted for 
removal each year as a result of today's rule.
    EPA assessed the potential impacts of remining BMPs on water 
quality using pollutant loadings data from pre-existing discharges at 
13 mines included in EPA's Coal Remining Database (Record Section 
3.5.1). Approximately 58 percent of the post-baseline observations 
showed a decrease in mean pollutant loadings. Approximately half of 
these sites (27 percent of the post-baseline observations) showed a 
statistically significant decrease in loadings. The 13 mines examined 
by EPA are active remining operations; decreases in pollutant loads are 
expected to become more significant with time. In comparison, 
Pennsylvania's Remining Site Study of 112 closed remining sites (Record 
Section 3.5.3) found that the Pennsylvania program for these sites was 
effective in improving or eliminating acidity loading in 45 percent of 
the pre-existing discharges, total iron loading in 44 percent of the 
discharges, and total manganese in 42 percent of the discharges. The 
Pennsylvania Remining Site Study focused on sites reclaimed to at least 
Stage II bond release standards, so that the mitigating impacts of BMPs 
had ample time to take effect.
    Remining generates human health benefits by reducing the risk of 
injury at AML sites and reducing discharge of acid mine drainage to 
waterways. However, the human health benefits associated with 
consumption of water and organisms are not likely to be significant 
because (1) acid mine drainage constituents are not bioaccumulative, 
and adverse health effects associated with fish consumption are 
therefore not expected; and (2) public drinking water sources are

[[Page 3390]]

treated for most acid mine drainage constituents associated with 
adverse health effects. Eliminating safety hazards by closing abandoned 
mine openings, eliminating highwalls, stabilizing unstable spoils, and 
removing hazardous waterbodies potentially prevents injuries and saves 
lives.
    EPA evaluated the potential impacts to human and aquatic life by 
comparing the number of water quality criteria exceedances in receiving 
waterbodies in the baseline (pre-remining) and post-baseline sampling 
periods for 11 remining sites in the Coal Remining Database for which 
relevant data exist. Exceedances of the human health criterion for pH 
(water plus organism consumption, field pH) were eliminated at two 
sites while exceedances of chronic aquatic life criteria were 
eliminated for pH (field pH) and iron at two sites. Exceedances of the 
acute aquatic life criterion for manganese also were eliminated at two 
sites. Although surface water quality data examined indicate changes in 
the number of water quality exceedances due to remining, nine of the 11 
sites consist of active remining operations where the full 
environmental impacts of BMPs have yet to be realized. Correlations 
between pre-existing discharge loads and pollutant concentrations in 
receiving water can be used to determine the extent to which remining 
BMPs are responsible for changes in surface water quality. However, the 
lack of sufficient data on relevant sources of acid mine drainage 
upstream from pre-existing discharges at the selected mine sites made 
it difficult to estimate these correlations.
    Remining and the associated reclamation of AML is expected to 
generate ecological and recreational benefits by (1) improving 
terrestrial wildlife habitat, (2) reducing pollutant concentrations 
below levels that adversely affect aquatic biota, and (3) improving the 
aesthetic quality of land and water resources. EPA was able to quantify 
and monetize some of the benefits expected from increased remining 
using a benefits transfer approach. The benefits transfer approach 
relies on information from existing benefit studies applicable to 
assessing the benefits of improved environmental conditions at remining 
sites. Benefits are estimated by multiplying relevant values from the 
literature by the additional acreage reclaimed under the remining 
subcategory.
    EPA used the following assumptions to estimate annual benefit 
values for ecological improvements: (1) 3,100 to 4,400 acres will be 
permitted annually under the subcategory; (2) 57 percent of the acres 
permitted will actually be reclaimed (1,800 to 2,500 acres) ; (3) 38 
percent to 44 percent of acres reclaimed per year are expected to be 
associated with significant decreases in acid mine drainage (AMD) 
pollutant loads to surface water bodies; and (4) annualized benefits 
from remining begin to occur five years after permit issuance and are 
calculated for a five year period. EPA assumed that 57 percent of the 
acres permitted would actually be reclaimed based on a study of 105 
remining permits in Pennsylvania (Hawkins, 1995, Characterization and 
Effectiveness of Remining Abandoned Coal Mines in Pennsylvania). The 
study found that on average, a remining site had 67 AML acres, of which 
38 acres (or 57 percent) were actually reclaimed. The assumption that 
38 to 44 percent of acres reclaimed would be associated with 
significant decreases in AMD pollutant loads was based on the results 
of Pennsylvania's study of 112 closed remining sites. A detailed 
explanation of all assumptions is provided in the Benefits Assessment 
document for the proposed rule.
    EPA estimated water-related ecological benefits using the benefits 
transfer approach with values taken from a benefit-cost study of 
surface mine reclamation in central Appalachia by Randall et al. (1978, 
Reclaiming Coal Surface Mines in Central Appalachia: A Case Study of 
the Benefits and Costs). EPA's analysis is based on two values from the 
study: (1) Degradation of life-support systems for aquatic and 
terrestrial wildlife and recreation resources, valued at $37 per acre 
per year (1998$); and (2) aesthetic damages, valued at $140 per acre 
per year (1998$). EPA estimated nonuse benefits using a widely accepted 
approach developed by Fisher and Raucher (1984, Intrinsic Benefits of 
Improved Water Quality: Conceptual and Empirical Perspectives), where 
nonuse benefits are estimated as one-half of the estimated water-
related recreational use benefits. The estimated water-related benefits 
range from $0.53 to $0.89 million per year.
    Reclaiming the surface area at AML sites will enhance the sites' 
appearance and improve wildlife habitats, positively affecting 
populations of various wildlife species, including game birds. This is 
likely to have a positive effect on wildlife-oriented recreation, 
including hunting and wildlife viewing. EPA estimated land-related 
ecological benefits using the benefits transfer approach with values 
taken from a study of improved opportunities for hunting and wildlife 
viewing resulting from open space preservation by Feather et al. (1999, 
Economic Valuation of Environmental Benefits and the Targeting 
Conservation Programs). EPA's analysis is based on two values from the 
study: (1) The average wildlife viewing value of $21 per acre per year; 
and (2) the improved pheasant hunting value of $7 per acre per year. 
Based on an aggregate value of $28 per acre per year, EPA estimates 
land-related benefits of $0.20 to $0.29 million per year.
    The sum of the estimated monetary values of the different benefit 
categories results in total annual benefits of $0.73 to $1.17 million 
from implementing the remining subcategory. This estimate does not 
include benefit categories that EPA was unable to quantify and/or 
monetize, which include human health and safety impacts. EPA examined a 
number of data sources to determine the annual rate of accidents 
associated with exposed highwall and other hazardous features of AML in 
order to estimate the benefits attributable to the decreased risk 
resulting from remining safety improvements. EPA contacted State and 
Federal agencies responsible for AML statistics as well as agencies 
responsible for maintaining public health statistics and concluded that 
the necessary information was not available to support such an 
analysis.

B. Western Alkaline Coal Mining Subcategory

    Only a small percentage of potentially affected western coal mines 
discharge to permanent or perennial water bodies. Information about 
receiving waters is available for 39 of the existing surface coal mines 
affected by this rule, and 30 of these discharge to intermittent or 
ephemeral creeks, washes, or arroyos. Only two of these mines list a 
permanent water body as the primary receiving water. It is therefore 
difficult to describe the benefits of the Western Alkaline Coal Mining 
Subcategory in terms of the use designations referenced in the section 
101(a) goals of the Clean Water Act.
    The environmental conditions and naturally high sediment yields in 
arid and semiarid coal regions were discussed in Section IV of the 
proposal. The potential impacts of the predominant use of sedimentation 
ponds to control settleable solids in these regions include reduced 
sediment loads to natural drainage features, reduced downstream flood 
peaks and runoff volumes, and downstream channel bed and bank changes. 
The environmental and water quality effects of these hydrologic impacts 
include: (1) Reducing ground water recharge, (2)

[[Page 3391]]

shrinking biological communities consisting of and reliant upon 
riparian and hydrophytic vegetation, (3) degrading downstream channel 
beds by cleaner waters, resulting from retention of water and sediment 
runoff, and (4) accelerating erosion. Because of the depletion of 
runoff associated with such ponds, the potential impact to endangered 
fish species exists in some watersheds in the West. Therefore, 
construction of sedimentation ponds in Utah, Colorado or Southern 
Wyoming that results in an additional water depletion to the upper 
Colorado or Platte River system triggers formal Section 7 Endangered 
Species Act consultation with the U.S. Fish and Wildlife Service.
    Site-specific alternative sediment control plans incorporating BMPs 
designed and implemented to control sediment and erosion have the 
potential to provide both land and water-related benefits. Land-related 
benefits include decreased surface area disturbance, increased soil 
conservation, and improved vegetation. Surface disturbance is estimated 
to decrease by approximately 600 acres per year across all existing 
potentially affected surface mine sites in the western region. 
Vegetative cover may increase by five percent when BMPs are used.
    EPA was only able to monetize land-related benefits associated with 
decreased surface area disturbance. Hunting benefits from increased 
availability of undisturbed open space were estimated to be between 
$0.37 and $2.46 per acre per year based on Feather et al. (1999) and 
Scott (Scott, M., G.R. Bilyard, S.O. Link, C.A. Ulibarri, H. 
Westerdahl, P.F. Ricci, and H.E. Seely. 1998. Valuation of Ecological 
Resources and Functions. Environmental Management, Vol. 22, No 1:49-
68). Annual land-related benefits of the subcategory range from $2,000 
to $13,000 per year, based on the value of enhanced hunting 
opportunities. However, this estimate does not account for a number of 
benefit categories, including nonuse ecological benefits that may 
account for the major portion of land-related benefits in relatively 
unpopulated areas such as those affected by this rule.
    Water-related benefits include improved hydrologic and fluvial 
stability in the watersheds affected by western mining operations. 
These benefits will be site-specific and depend upon the nature of 
environmental quality changes; the current in-stream water uses, if 
any, and; the population expected to benefit from increased water 
quantity. EPA estimated water-related benefits using the estimated mean 
``willingness to pay'' (WTP) values for preservation of perennial 
stream flows adequate to support abundant stream side plants, animals 
and fish from Crandall et al. (1992, Valuing Riparian Areas: A 
Southwestern Case Study). The WTP value is applied to water-based 
recreation consumers residing in counties affected by western mining 
operations discharging to, or affecting, water bodies with perennial 
flow. EPA identified seven perennial streams located in six counties 
that are likely to be affected by today's rule. The estimated monetary 
value of recreational water-related benefits for these streams ranges 
from $25,000 to $488,000. As noted above, EPA estimates that nonuse 
benefits are equal to one-half of the water-related recreational 
benefits, or $12,500 to $244,000 per year.
    Total estimated annualized benefits for the subcategory range from 
$39,500 to $745,000. This estimate does not include benefit categories 
that EPA was unable to quantify and/or monetize, which include 
increased vegetative cover and some additional recreational and nonuse 
benefits associated with western alkaline coal mine reclamation areas. 
A more detailed discussion of the benefits analysis is contained in the 
EA.

IX. Economic Analysis

A. Introduction, Overview, and Sources of Data

    This section presents EPA's estimates of the economic impacts 
attributed to the final regulation. The economic impacts are evaluated 
for each subcategory for BPT, BCT, BAT, and NSPS as applicable. A 
description of the regulatory requirements for each subcategory is 
given in Section V of today's document. EPA's detailed economic impact 
assessment can be found in Economic and Environmental Impact Analysis 
of Final Effluent Limitations Guidelines and Standards for the Coal 
Mining Industry: Remining and Western Alkaline Subcategories (referred 
to as the ``EA''). Additional information can be found in Coal Remining 
and Western Alkaline Mining: Economic and Environmental Profile, which 
EPA prepared in support of the proposed rulemaking.
    This section of today's document describes the segment of the coal 
industry that would be impacted by the final rule (i.e., the number of 
firms and number of mines that would incur costs or realize savings 
under the final rule), the financial condition of the potentially 
affected firms, the aggregate cost or cost savings to that segment, and 
the economic impacts attributed to the final rule. The section also 
discusses impacts on small entities and presents a cost-benefit 
analysis. This discussion will form the basis for EPA's findings on 
regulatory flexibility, presented in Section X.B. All costs are 
reported in 1998 dollars unless otherwise noted.
    EPA developed this regulation using an expedited rulemaking 
procedure. Therefore, EPA's economic analysis relied on industry 
profile information voluntarily provided by stakeholders, on data 
compiled from individual mining permits, and on data from publicly 
available sources. For the Coal Remining Subcategory, EPA obtained 
information on abandoned mine lands from the Abandoned Mine Lands 
Information System (AMLIS) maintained by the Office of Surface Mining 
(Record Section 3.5.2), the National Abandoned Lands Inventory System 
(NALIS) database maintained by the Pennsylvania Department of 
Environmental Protection (Record Section 3.5.5), and a survey of States 
conducted by the Interstate Mining Compact Commission (Record Section 
3.2.2). For the Western Alkaline Coal Mining Subcategory, EPA relied on 
industry profile data developed and submitted to EPA by the Western 
Coal Mining Work Group as described in Section V of the proposal. 
Specifically, the work group provided data on coal mine operators, mine 
locations, annual production, reclamation permit numbers, acres of land 
reclaimed, and reclamation bond amounts. This information is included 
in Section 3.3 of the Record.
    Data on the coal industry as a whole, including coal production, 
employment, and prices, as well as information on individual western 
alkaline underground mines, were obtained from various Energy 
Information Administration sources, including the 1997 Coal Industry 
Annual, the 1998 Annual Energy Outlook, and the 1992 Census of Mineral 
Industries. EPA used the Security and Exchange Commission's Edgar 
database, which provides access to various filings by publicly held 
firms, such as 8Ks and 10Ks, for financial data and information on 
corporate structures. EPA also used a database maintained by Dun & 
Bradstreet, which provides estimates of employment and revenue for many 
privately held firms, and obtained industry financial performance data 
from Leo Troy's Almanac of Business and Industrial Financial Ratios.

B. Method for Estimating Compliance Costs

    The costs and savings of the final regulation are associated with 
BMP

[[Page 3392]]

implementation, baseline monitoring, and performance monitoring. For 
each subcategory, EPA estimated economic baseline conditions based on 
existing State and Federal regulations and current industry practices. 
For remining, EPA assumed as economic baseline conditions remining 
under a Rahall permit, pursuant to section 301(p).
1. Coal Remining Subcategory
    As discussed in the proposal, EPA projected costs for each remining 
site by calculating the cost of monitoring requirements for determining 
baseline, the cost of potential increases in reclamation permit 
numbers, acres of land reclaimed, and reclamation bond amounts. This 
information is included in Section 3.3 of the Record.
    Data on the coal industry as a whole, including coal production, 
employment, and prices, as well as information on individual western 
alkaline underground mines, were obtained from various Energy 
Information Administration sources, including the 1997 Coal Industry 
Annual, the 1998 Annual Energy Outlook, and the 1992 Census of Mineral 
Industries. EPA used the Security and Exchange Commission's Edgar 
database, which provides access to various filings by publicly held 
firms, such as 8Ks and 10Ks, for financial data and information on 
corporate structures. EPA also used a database maintained by Dun & 
Bradstreet, which provides estimates of employment and revenue for many 
privately held firms, and obtained industry financial performance data 
from Leo Troy's Almanac of Business and Industrial Financial Ratios.

B. Method for Estimating Compliance Costs

    The costs and savings of the final regulation are associated with 
BMP implementation, baseline monitoring, and performance monitoring. 
For each subcategory, EPA estimated economic baseline conditions based 
on existing State and Federal regulations and current industry 
practices. For remining, EPA assumed as economic baseline conditions 
remining under a Rahall permit, pursuant to section 301(p).
1. Coal Remining Subcategory
    As discussed in the proposal, EPA projected costs for each remining 
site by calculating the cost of monitoring requirements for determining 
baseline, the cost of potential increases in compliance monitoring 
requirements, and the potential costs associated with implementing the 
required pollution abatement plan. To assess the increased baseline 
determination and monitoring requirements of the rule, EPA evaluated 
current State requirements for operations permitted under the Rahall 
provision and calculated the costs under this final regulation that 
exceed the current State requirements. Current State sample collection 
requirements for determining and monitoring baseline are included in 
the Record at Section 3.4.
    Although EPA estimated that the Coal Remining Subcategory would be 
applicable to 64 to 91 remining sites and 3,810 to 5,400 acres 
annually, EPA projects that fewer sites would realize costs or benefits 
from this proposal. As noted throughout the proposal, the Commonwealth 
of Pennsylvania has an advanced remining program and EPA does not 
believe that the rule will have a measurable impact on Pennsylvania's 
remining activities. Therefore, EPA did not include Pennsylvania's 
remining sites in the estimation of costs or benefits. EPA's cost and 
benefit analysis were calculated for a total of 43 to 61 sites 
representing 3,100 to 4,400 permitted acres each year. EPA estimates 
that approximately 1,800 to 2,500 of these acres would actually be 
reclaimed each year. Table IX. B.1 shows the various estimates EPA used 
in the estimation of costs and benefits (these are the same estimates 
used in the proposal).

            Table IX. B.1: Annual Estimates of Affected Remining Sites Used in the Economic Analyses
----------------------------------------------------------------------------------------------------------------
                                                   Number of
           Additional sites permitted                sites         Acres              Used in analysis of
----------------------------------------------------------------------------------------------------------------
All types, all States (initial estimate).......     64-91      3,812-5,401
All types, excluding PA........................     43-61      3,111-4,407    Monitoring costs for selected
                                                                               States; NPDES permitting
                                                                               authority costs.
10% of surface & underground sites only (no       3.9-5.6      309-438        Costs of additional BMPs.
 coal refuse piles), excluding PA.
Additional acres reclaimed: (57% of acres        ............  1,773-2,512    Benefits from recreational use of
 permitted, all types excluding PA).                                           reclaimed land.
Additional acres reclaimed expected to have      ............  667-1,115      Benefits from recreational use of
 significant decreases in AMD pollutant loads                                  improved water bodies; Aesthetic
 (37.6-44.4% of additional reclaimed acres).                                   improvements in water bodies;
                                                                               Nonuse benefits.
----------------------------------------------------------------------------------------------------------------

2. Western Alkaline Coal Mining Subcategory
    EPA's Coal Remining and Western Alkaline Mining: Economic and 
Environmental Profile prepared for proposal provides profile 
information on the 47 surface coal mines and 24 underground coal mines 
initially believed to be in scope of the subcategory. As discussed in 
the proposal, EPA determined that one of the surface mines profiled was 
already in the final reclamation stage and would not be affected by the 
rule. EPA also determined that any savings to underground producers 
were likely to be small given the limited acreage and lack of 
complexity associated with these reclamation areas, and did not 
calculate these benefits. The remainder of this section considers only 
the 46 active existing surface mines in its discussion.
    In the proposal, the only incremental cost attributed to the 
subcategory was associated with the watershed modeling requirements. 
Although information provided by OSMRE during the comment period 
(Record Section 7.2) indicates that all coal mine operators already 
perform modeling (to support their SMCRA permit applications) that is 
sufficient for purposes of this rulemaking, EPA has chosen to maintain 
the proposed costing approach that conservatively allows for some 
additional modeling costs due to this regulation.

C. Costs and Cost Savings of the Final Rule

1. Coal Remining Subcategory
    Under the final rule, EPA is requiring operators to conduct one 
year of monthly sampling to determine the baseline pollutant levels for 
net acidity, iron (total), TSS, and manganese (total) (see part 434 
Appendix B). Although most States with remining activities

[[Page 3393]]

have similar requirements, remining sites in Alabama and Kentucky will 
be required to add six samples annually. EPA did not have data for 
Illinois, Indiana, or Tennessee because the remining operations that 
occur in these States do not incorporate Rahall provisions for pre-
existing discharges. EPA has conservatively assumed sample collection 
costs for 12 additional samples annually for these States. Information 
representing current state sampling requirements is included in the 
Record at Section 5.
    EPA has generated compliance costs based on monthly monitoring. 
Most States already have similar requirements, with the exception of 
Ohio, which currently requires quarterly modeling. Again, EPA did not 
have data for Illinois, Indiana, or Tennessee because these States do 
not incorporate Rahall provisions in their remining permits. For these 
States, EPA has conservatively assumed that an additional 12 compliance 
monitoring samples per year would be required for five years.
    Because each remining site will typically have more than one pre-
existing discharge, EPA reviewed Pennsylvania remining sites to 
estimate the average number of pre-existing discharges per site. EPA 
used this calculated average of four pre-existing discharges per site 
for estimating baseline determination and compliance monitoring costs 
(Record Section 3.3.1). Additionally, EPA assumed that remining 
operators would have to purchase and install flow weirs to comply with 
the baseline monitoring requirements in the States that do not 
currently incorporate Rahall provisions in their remining permits. 
These assumptions result in an upper-bound estimate of additional 
monitoring costs for the 43 to 61 potentially affected sites per year.
    EPA estimates the total annual incremental monitoring costs to be 
in the range of $133,500 to $193,500. Of this, between $83,000 and 
$120,000 is associated with incremental baseline monitoring 
requirements and between $50,500 and $73,500 results from incremental 
compliance monitoring during the five-year mining period. Detailed 
assumptions and calculations are presented in the EA.
    In addition to baseline determination and compliance monitoring, 
remining operators must develop and implement a site-specific pollution 
abatement plan for each remining site. In many cases, EPA believes that 
the requirements for the pollution abatement plan will be satisfied by 
an approved SMCRA plan. However, EPA recognizes that some operators may 
be required to implement additional or more intensive BMPs under the 
rule beyond what is included in a SMCRA-approved pollution abatement 
plan.
    EPA developed a general estimate of the potential costs of 
additional BMPs based on review of the existing remining permits 
contained in the Coal Remining Database (Record Section 3.5.1) , and on 
information provided in the Coal Remining BMP Guidance Manual. EPA 
determined that the most likely additional BMP that NPDES permit 
writers might require would be a one-time increase in the amount of 
alkaline material used as a soil amendment to prevent or ameliorate the 
formation of acid mine drainage. EPA assumed that an average mine 
facility requiring additional BMPs would need to increase its alkaline 
addition by a rate of 50 to 100 tons per acre to meet the additional 
NPDES permit review requirements. EPA estimated an average cost for 
alkaline addition of $12.90/ton, and assumed that 10 percent of surface 
and underground remining sites would be required to incur these 
additional BMP costs. Because the typical BMP for coal refuse piles is 
simply removal of the pile, no incremental BMP costs would be incurred 
for these sites. Based on EPA's estimate that between 309 and 438 acres 
could be required to implement additional or more intensive BMPs each 
year, the estimated annual cost of additional BMP requirements would 
range from $199,500 to $565,000.
    Based on the above assumptions, the total estimated incremental 
costs associated with the final rule range from $333,000 to $758,500 
per year for the Coal Remining Subcategory. These costs are based on 
EPA's estimates of what is likely to happen in the future, and they 
would be incurred by new remining operations. Table IX. C.1 summarizes 
the incremental costs associated with the subcategory. These are the 
same estimates presented in the proposal.

        Table IX. C.1.--Annual Costs for the Remining Subcategory
                                 [1998$]
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Monitoring Costs...................................    $133,500-$193,500
Additional BMPs....................................    $199,500-$565,000
    Total Compliance Costs.........................    $333,000-$758,500
------------------------------------------------------------------------

2. Western Alkaline Coal Mining Subcategory
    The cost impacts of the subcategory will vary, depending on site-
specific conditions at each eligible coal mine. However, based on 
available data and information, EPA believes that the costs of 
reclamation under today's rule will be less than or equal to 
reclamation costs for Subpart E for each individual operator, and thus 
for the subcategory as a whole.
    EPA expects that the sediment control plan will consist entirely of 
materials generated as part of the SMCRA permit application. The SMCRA 
permit application process requires that a coal mining operator submit 
an extensive reclamation plan, documentation and analysis to OSMRE or 
the permitting authority for approval. Based on these requirements, EPA 
believes that plans developed to comply with SMCRA requirements will 
fulfill the EPA requirements for sediment control plans. The 
requirement to use watershed modeling techniques is not inconsistent 
SMCRA permit application requirements. As discussed in the proposal, 
EPA believes that none of the coal mine operators will incur 
incremental modeling costs. However, because modeling requirements for 
this regulation may differ in some circumstances from SMCRA 
requirements, EPA has conservatively assumed that each surface mine 
operator will incur $50,000 in watershed modeling costs in the economic 
impact analysis. Total incremental modeling costs (annualized at seven 
percent over ten years) for the 46 surface mines are estimated to be 
$327,000 based on this assumption.
    EPA projects that cost savings for this subcategory would result 
from lower capital and operating costs associated with implementing the 
BMP plans, and from an expected reduction in the reclamation bonding 
period. The cost savings for controls based on BMPs were calculated for 
three representative model mines differentiated by geographic region: 
Desert Southwest (DSW), Intermountain (IM), and Northern Plains (NP). 
The cost models were submitted by the Western Coal

[[Page 3394]]

Mining Work Group (WCMWG, 1999a, 2001). The cost models are discussed 
in detail in the Development Document for Final Effluent Limitations 
Guidelines and Standards for the Western Alkaline Coal Mining 
Subcategory and are included in the Record at Section 3.3.2. The cost 
estimates for each model mine relied on data taken from case study mine 
permit applications, mine records, technical resources and industry 
experience. The models estimated capital costs (design, construction 
and removal of ponds and implementation of BMPs) and operating costs 
(inspection, maintenance, and operation) over the anticipated bonding 
period.
    EPA classified each mine by region within the subcategory (DSW, IM, 
or NP). Cost savings for reclamation at each mine were calculated by 
extrapolating the cost savings per disturbed acre calculated for the 
appropriate model mine. Costs are discounted at a seven percent real 
rate over a ten-year period. Although individual input data changed 
with the addition of the two new representative model mine types, EPA's 
methodology did not change from proposal. The present value of cost 
savings for the DSW model mine was calculated to be $672,000 ($1,760 
per acre). For the IM model mine, the present value of expected cost 
savings is $199,000 ($522 per acre). Finally, the NP model mine is 
expected to achieve a present value of cost savings of $235,000 ($617 
per acre) under the new subcategory.
    EPA used the projected disturbance acreage divided by the remaining 
mine life to estimate the annual acres reclaimed at each existing mine 
site. This information was available for 26 mines: two DSW mines, one 
IM mine, and 23 NP mines. The 20 mines without data available on 
expected mine life and disturbance acres are located in the NP (18 
mines) and IM (two mines) regions. EPA used the average annual acres 
reclaimed for mines with available data in these two regions (305 acres 
per year) to estimate reclamation cost savings. For each mine site, 
annual acres reclaimed were multiplied by the present value of savings 
per acre for the appropriate regional model mine and totaled. Estimated 
annual reclamation cost savings total $12.7 million for the 46 
producing surface mines in the subcategory, significantly smaller than 
the estimate for proposed rulemaking of $30.8 million. The decrease in 
total estimated annual reclamation savings is primarily due to the 
lower savings per acre at IM and NP mines which comprise the majority 
of the subcategory. A detailed analysis of this difference as it 
relates to the additional model mines that account for different 
geographical features is contained in the EA.
    EPA has also calculated cost savings that may result from earlier 
Phase II bond release. The OSMRE hydrology requirement to release 
performance bonds at Phase II, requires compliance with the previously 
applicable 0.5 
ml/L effluent standard for SS (30 CFR part 800.40(c)(1)). The Western 
Coal Mining Work Group, in its draft Mine Modeling and Performance Cost 
Report (Record Section 3.3.2) estimates that the typical post-mining 
Phase II bonding period can be ten years or more under the previous 
effluent guidelines. Reclamation areas must achieve considerable 
maturity before they are capable of meeting this standard. The BMP-
based approach in today's rule uses the inspection of BMP design, 
construction, operation and maintenance to demonstrate compliance 
instead of the current sampling and analysis of surface water drainage 
for reclamation success evaluations. The report estimates that the BMP-
based approach would reduce the time it takes reclaimed lands to 
qualify for Phase II bond release by about five years. 3
    EPA used the following assumptions to estimate cost savings due to 
earlier Phase II bond release: (1) A post-mining Phase II bonding 
period of ten years under the numeric effluent guidelines and five 
years under the new subcategory; (2) twenty-five percent of the 
reported bond amount would be released at the end of Phase II; and (3) 
surety bonds were used, with annual fees between $3.75 and $5.50 per 
thousand. Twenty-six mines provided information necessary to calculate 
associated bond savings. The total estimated savings for these mines 
range from $0.2 to $0.3 million when annualized at seven percent over 
the five-year permit period. EPA assumes that the remaining 20 mines 
for which savings could not be calculated would achieve the average 
savings per mine ($7,200 to $10,600) resulting in total annualized 
savings between $0.1 and $0.2 million. Detailed assumptions and 
calculations are contained in the EA. Projected bond savings for the 
entire subcategory thus total from $0.3 to $0.5 million. These 
estimated bond savings are about 2 percent less than the estimated bond 
savings presented at proposal. The difference in the two estimates is 
entirely attributable to lower expected disturbance acres per permit 
period in IM and NP mines.
    The estimated net savings in compliance costs associated with the 
subcategory, considering the savings to mining operations in sediment 
control and bonding costs, is estimated to be approximately $12.8 
million, as shown in Table IX. C.2.

Table IX. C.2.--Annual Cost Savings for the Western Alkaline Coal Mining
                               Subcategory
                                 [$1998]
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Modeling Costs.............................                  ($ 327,000)
Sediment Control Cost Savings..............                  $12,721,000
Earlier Phase 2 Bond Release Savings.......            $341,900-$501,400
Total Compliance Cost Savings..............      $12,735,900-$12,895,400
------------------------------------------------------------------------

D. Economic Impacts of the Final Rule

1. Economic Impacts for the Coal Remining Subcategory
    As discussed in Section V, EPA is promulgating BPT, BCT, BAT, and 
NSPS that have the same technical basis. EPA believes that the final 
rule will not impact existing remining permits. For new permits, 
remining operators will have the ability to choose among potential 
remining sites, and will only select sites that they believe are 
economically achievable to remine. Furthermore, any additional BMPs 
required by the NPDES authority under the final rule will be site-
specific. Today's requirements will not create any barriers to entry in 
coal remining, but instead are specifically designed to encourage new 
remining operations. Hence, the Agency finds no significant negative 
impacts to the industry associated with the subcategory.
    The implementation of a pollution abatement plan containing BMPs 
may impose additional costs beyond what is included in a SMCRA-approved 
pollution abatement plan. At the same time, the profits may increase at 
remining sites because the new regulations provide an incentive to mine 
coal from abandoned mine land areas

[[Page 3395]]

that may have been avoided in the absence of implementing regulations. 
The subcategory will also affect the relative profitability of remining 
different types of sites, with the potential to encourage remining of 
the sites with the worst environmental impacts. An analysis by the 
Department of Energy (DOE) of potential remining sites estimated an 
average coal recovery of between 2,300 and 3,300 tons per acre of 
remined land (1993, Coal Remining: Overview and Analysis). At these 
coal recovery rates, the estimated steady state annual increase in 
acres being remined would produce between 7.1 and 14.5 million tons of 
coal per year. This represents only 1.5 to 3.1 percent of total 1997 
Appalachian coal production of 468 million tons. The same DOE report 
noted that, given the general excess capacity in the coal market, it is 
likely that coal produced from new remining sites will simply displace 
coal produced elsewhere, with no net increase in production overall. 
The Coal Remining Subcategory is therefore not expected to have a 
significant impact on overall coal production or prices.
2. Economic Impacts for the Western Alkaline Coal Mining Subcategory
    As discussed in Section V, EPA is promulgating BPT, BAT, and NSPS 
limitations that have the same technical basis. EPA concludes that all 
economic impacts are positive, that compliance will result in a cost 
savings to the industry, and that the rule is economically achievable. 
Because reclamation costs under today's rule will be less than or equal 
to those previously incurred by all individual operators, and thus, to 
the subcategory as a whole, no facility closures or direct job losses 
associated with post-compliance closure are expected. However, EPA did 
estimate potential changes in labor requirements attributable to the 
rule caused by changes in labor hours associated with the types of 
erosion and sediment control structures used.
    EPA based its estimates of changes in labor requirements on the 
detailed cost estimates developed for the three model mines submitted 
by the WCMWG (1999, 2001). Dividing the full time equivalent (FTE) 
reduction for each model mine by the 10 year project life results in an 
estimated annual reduction of 0.22 FTE at the DSW model mine, 0.11 FTE 
at the NP model mine, and 0.09 FTE at the IM model mine. Applying these 
reductions in FTE to each mine in the appropriate region results in an 
estimated annual reduction of 5.2 FTEs per year. This represents less 
than 0.1 percent of the total 1997 coal mine employment (6,862 FTEs) in 
the western alkaline region States.
    The cost savings associated with the subcategory are not expected 
to have a substantial impact on the industry average cost of mining per 
ton of coal, and therefore are not expected to have major impacts on 
coal prices. While the savings are substantial in the aggregate (and 
for some individual mine operators), on average they represent a small 
portion of the total value of coal produced from the affected mines. As 
described in the EA, the overall estimated cost savings are, on 
average, 3 cents per ton or about 0.4 percent of the value of 
production. In addition, the value of production reflects the value of 
coal at the minehead. Transportation costs of coal, especially from the 
western alkaline region to the Midwestern utilities and other 
consumers, are significant and the estimated savings as a percent of 
delivered price will be smaller than 0.4 percent. Thus, as with the 
Coal Remining Subcategory, the Western Alkaline Coal Mining Subcategory 
is not expected to result in significant industry-level changes in coal 
production or prices.
    EPA is promulgating NSPS equivalent to the limitations for BPT and 
BAT for the Western Alkaline Coal Mining Subcategory. In general, EPA 
believes that new sources will be able to comply at costs that are 
similar to or less than the costs for existing sources, because new 
sources can apply control technologies more efficiently than sources 
that need to retrofit for those technologies. Specifically, to the 
extent that existing sources have already incurred costs associated 
with installing sedimentation ponds, new sources would be able to avoid 
such costs. There is nothing about today's rule that would give 
existing operators a cost advantage over new mine operators; therefore, 
NSPS limitations will not present a barrier to entry for new 
facilities.

E. Additional Impacts

1. Costs to the NPDES Permitting Authority
    Additional costs will be incurred by the NPDES permitting authority 
to review new permit applications and issue revised permits based on 
the rule. Under the final rule, NPDES permitting authorities will 
review baseline pollutant levels and pollution abatement plans for the 
Coal Remining Subcategory and watershed modeling results and sediment 
control plans for the Western Alkaline Coal Mining Subcategory.
    EPA estimates that permit review will require an average of 35 
hours of a permit writer's time per site and that permit writers 
receive an hourly wage of $31.68. Based on these assumptions, total 
annual costs to the NPDES permitting authorities range from $47,500 to 
$67,500 for the 43 to 61 additional sites that can be expected to be 
permitted under the Coal Remining Subcategory. An upper-bound estimate 
of costs associated with implementing the western subcategory assumes 
that all 46 existing surface mine permits are renewed. The total 
incremental annual cost would be $12,500 when annualized over a 5-year 
permit (using a seven percent discount rate). Total additional permit 
review costs for the rule are therefore estimated to be between $60,000 
and $80,000 per year. A detailed analysis is contained in the EA.
2. Community Impacts
    EPA considered whether the rule would significantly alter the 
competitive position of coal produced in different regions of the 
country, or lead to growth or reductions in employment in different 
regions and communities. EPA concluded that the final rule would not 
have a significant impact on relative coal production in the West 
versus the East. The annualized cost savings estimates for Western 
Alkaline surface mines affected by today's regulation average about 
$0.033 per ton, or only 0.4 percent of the value of coal production 
from these mines. Data from the Department of Energy indicate that the 
average cost of rail transportation for coal from western to midwestern 
States is approximately $0.00912 per ton-mile. Therefore, the potential 
cost savings that would be realized by this rule in western mines would 
not affect the price competitiveness of coal because Western Alkaline 
mines would be able to ship their coal about 4 additional miles while 
maintaining the same delivered price. The coal from western mines 
appears to compete directly with eastern coal in about eight States, 
where the $0.033 savings per ton comprises only 0.13 percent of the 
average delivered price (the average delivered price of coal was about 
$25.51 per ton in 1998). Therefore, EPA concluded that the cost savings 
generated for Western Alkaline Coal Mines as a result of today's rule 
will have minimal impact on coal production in the West versus the East 
coal regions.
    For the Coal Remining Subcategory, it is likely that production and 
employment will shift toward eligible abandoned mine lands, but will 
not to increase national coal production and

[[Page 3396]]

employment or affect coal prices significantly overall.
    EPA projects that impacts of the Western Alkaline Coal Mine 
Subcategory on mine employment will also be minor. As discussed above, 
EPA estimated a reduction in labor requirements of 5.2 FTEs per year by 
extrapolating from the model mine results for each region. This 
represents less than 0.1 percent of the total 1997 coal mine employment 
in the western alkaline region States. The estimated annual 5.2 FTE 
direct mine job losses would result in an additional 8.7 FTE indirect 
job losses based on RIMSII regional employment multipliers (U.S. Bureau 
of Economic Analysis, Regional Input-Output Modeling Systems, 
``RIMSII''). Therefore, the total impact on employment, direct and 
indirect, that may result from the Western Alkaline Coal Mining 
Subcategory is a reduction of approximately 13.9 FTEs per year. This 
reduction in employment might be offset if lower costs under the 
subcategory encourage growth in coal mining in the western alkaline 
region.
3. Foreign Trade Impacts
    EPA does not project any foreign trade impacts as a result of the 
final effluent limitations guidelines and standards. U.S. coal exports 
consist primarily of Appalachian bituminous coal, especially from West 
Virginia, Virginia and Kentucky (U.S. DOE/EIA, Coal Data: A Reference; 
U.S. DOE/EIA Coal Industry Annual 1997). Coal imports to the U.S. are 
insignificant. Impacts are difficult to predict, since coal exports are 
determined by economic conditions in foreign markets and changes in the 
international exchange rate for the U.S. dollar. However, no foreign 
trade impacts are expected given the relatively small projected 
increase in production and projected lack of impact on costs of 
production or prices.

F. Cost Effectiveness Analysis

    Cost-effectiveness calculations are used during the development of 
effluent limitations guidelines and standards to compare the efficiency 
of regulatory options in removing toxic and non-conventional 
pollutants. Cost-effectiveness is calculated as the incremental annual 
cost of a pollution control option per incremental pollutant removal. 
The results for an option are considered relative to another option or 
to a benchmark, such as existing treatment. In EPA's cost-effectiveness 
analysis for effluent guidelines, pollutant removals are measured in 
toxicity normalized units called ``pounds-equivalent.'' The cost-
effectiveness value, therefore, represents the unit cost of removing an 
additional pound-equivalent of pollutants. In general, the lower the 
cost-effectiveness value, the more cost-efficient the technology will 
be in removing pollutants, taking into account their toxicity. While 
not required by the CWA, cost-effectiveness analysis is a useful tool 
for evaluating regulatory options for the removal of toxic pollutants.
    While cost-effectiveness results are usually reported in the Notice 
of Final Rulemaking for effluent guidelines, such results are not 
presented in today's document because of the nature of the two 
subcategories. For the Coal Remining Subcategory, EPA is unable to 
predict pollutant reductions that would be achieved at future remining 
operations. As described in Section V, it is difficult to project the 
results, in terms of measured improvements in pollutant discharges, 
that will be produced through the application of any given BMP or group 
of BMPs at a particular site. EPA is therefore unable to calculate 
cost-effectiveness. For the Western Alkaline Coal Mining Subcategory, 
cost-effectiveness was not calculated because there are no incremental 
costs attributed to the rule.

G. Cost Benefit Analysis

    EPA estimated and compared the costs and benefits for each of the 
subcategories. Both subcategories have the potential to create 
significant environmental benefits at little or no additional cost to 
the industry. The monetized annual benefit estimates for the Coal 
Remining Subcategory ($734,000 to $1,175,500) substantially outweigh 
the projected annual costs ($380,500 to $826,000).
    In addition to the monetized benefits, the increase in remining is 
projected to result in the removal of some 216,000 to 307,000 feet of 
highwall each year. As described in the EA, EPA was not able to find 
reliable data to evaluate the decreased risk of serious injury or death 
resulting from remining safety improvement. It is clear that AMLs are 
dangerous sites and that implementation of the Coal Remining 
Subcategory will result in benefits by making these sites less 
hazardous. The increase in remining also has the potential to recover 
an estimated 7.1 to 14.5 million tons of coal per year that might 
otherwise remain unrecovered, with a value of approximately $188.5 to 
$385.0 million (based on an average 1997 value per ton of coal in 
Appalachia of $26.55).
    The Western Alkaline Coal Mining Subcategory is projected to result 
in net cost savings while increasing environmental benefits. The 
industry compliance cost savings associated with the final rule arise 
from reduced costs for sediment control and earlier Phase II bond 
release. Total annual cost savings to society are expected to be 
approximately $13 million. Annual environmental benefits are valued 
between $39,500 and $745,000--with the majority of benefits resulting 
from recreational use of waters with improved water flow. Table IX.G.1 
summarizes the total social costs/cost savings and benefits attributed 
to today's rulemaking.

 Table IX.G.1.--Total Annual Social Costs/(Cost Savings) and Benefits of
                                the Rule
                                 [$1998]
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Social Costs/Cost Savings:
    Total Social Costs--Remining...........            $380,500-$826,000
    Total Social Cost Savings--Western         ($12,723,500-$12,882,500)
     Alkaline..............................
        Total Social Cost Savings..........    ($12,343,000-$12,056,500)
Monetized Social Benefits:
    Total Monetized Benefits--Remining.....          $734,000-$1,175,500
    Total Monetized Benefits--Western                   $39,500-$745,000
     Alkaline..............................
        Total Monetized Benefits...........          $773,500-$1,920,500
------------------------------------------------------------------------


[[Page 3397]]

X. Regulatory Requirements

A. Executive Order 12866: Regulatory Planning and Review

    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.
    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 (RFA), as amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA)

    The Regulatory Flexibility Act generally requires an agency to 
prepare a regulatory flexibility analysis for any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business that has 500 
or fewer employees (based on SBA size standards); (2) a small 
governmental jurisdiction that is a government of a city, county, town, 
school district or special district with a population of less than 
50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impact of today's final rule on 
small entities, I certify that this action will not have significant 
economic impact on a substantial number of small entities. In 
determining whether a rule has significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analysis is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the rule on small entities.'' 5 U.S.C. 603 and 604. 
Thus, an agency may certify that a rule will not have a significant 
economic impact on a substantial number of small entities if the rule 
relieves regulatory burden, or otherwise has a positive economic effect 
on all of the small entities subject to the rule.
    EPA projects that the new subcategory for western alkaline mines 
results in cost savings for all small surface mine operators. For all 
small underground mine operators, EPA projects no incremental costs, 
and the Agency believes that many are likely to experience some cost 
savings. Section IX of this document discusses the likely cost savings 
associated with the subcategory in more detail. As described in Section 
V of this document, the previous regulations at 40 CFR part 434 create 
a disincentive for remining by imposing limitations on pre-existing 
discharges for which compliance is cost prohibitive. Despite the 
statutory authority for exemptions from these limitations provided by 
the Rahall Amendment, coal mining companies and States remain hesitant 
to pursue remining without formal EPA guidelines. The remining 
subcategory provides standardized procedures for developing effluent 
limits for pre-existing discharges, thereby eliminating the uncertainty 
involved in interpreting and implementing current Rahall requirements. 
This subcategory is intended to remove barriers to the permitting of 
remining sites with pre-existing discharges, and is therefore expected 
to encourage remining activities by small entities. Thus, we have 
concluded that today's final rule will relieve regulatory burden for 
all small entities.

C. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective February 22, 2002.

D. Paperwork Reduction Act

    The Office of Management and Budget (OMB) has approved the 
information collection requirements contained in this rule under the 
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and 
has assigned OMB control number 2040-0239.
    Today's rule requires an applicant to submit baseline monitoring 
and a pollution abatement plan for coal mining operations involved in 
remediation of abandoned mine lands and the associated acid mine 
drainage during extraction of remaining coal resources. In addition, 
today's rule requires an applicant involved in reclamation of coal 
mining areas in arid regions to submit a sediment control plan for 
sediment control activities. Information collection is needed to 
determine whether these plans will achieve the reclamation and 
environmental protection pursuant to the Surface Mining Control and 
Reclamation Act and the Clean Water Act. Without this information, 
Federal and State regulatory authorities cannot review and approve 
permit application requests. Data collection and reporting requirements 
associated with these activities are substantively covered by the 
``Surface Mining Permit Applications--Minimum Requirements for 
Reclamation and Operation Plan--30 CFR part 780'' ICR, OMB Control 
Number 1029-0036. Data collection and reporting requirements from 
today's rule that may not be included in the 30 CFR part 780 ICR are: 
some incremental baseline and annual monitoring and some sediment yield 
modeling.
    The initial burden for coal mining and remining sites under the 
rule is estimated at 1,890 hours and $314,538 for baseline 
determination monitoring at coal remining sites. The initial burden 
associated with preparation of a site's pollution abatement plan or 
sediment control plan is already covered by an applicable SMCRA ICR. 
The annual burden for coal mining and remining sites under the rule is 
estimated at 3,024 hours per year and $189,302 per year for

[[Page 3398]]

annual monitoring at coal remining sites.
    The initial burden for NPDES control authorities is estimated at 
9,800 hours and $310,464 for review of SMCRA remining and reclamation 
plans (which include BMPs) and preparation of the NPDES permit. The 
annual burden for NPDES control authorities is estimated at 2,340 hours 
per year and $74,131 per year for review of annual monitoring data at 
coal remining sites.
    For the Coal Remining Subcategory, the reporting burden is 
estimated to average 15.6 hours per respondent per year ((1,890 hours/3 
years + 3,024 hours/year)/234 coal remining sites). This estimate 
includes time for collecting and submitting baseline and annual 
monitoring results. For the Western Alkaline Coal Mining Subcategory, 
there is projected to be no additional reporting burden.
    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; 
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.
    An Agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15. EPA is 
amending the table in 40 CFR part 9 of currently approved ICR control 
numbers issued by OMB for various regulations to list the information 
requirements contained in this final rule.

E. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 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. Before promulgating an EPA rule for which a written statement 
is needed, Section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. 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.
    EPA has determined that this final rule does not contain a 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. Although the rule will impose some permit 
review and approval requirements on regulatory authorities, EPA has 
determined that this cost burden will be less than $80,000 annually. 
Accordingly, today's regulation is not subject to the requirements of 
sections 202 and 205 of UMRA. EPA has determined that this regulation 
contains no regulatory requirements that might significantly or 
uniquely affect small governments. Thus, it is not subject to the 
requirements of Section 203 of the UMRA. The regulation does not 
establish requirements that apply to small governments.

F. Executive Order 13175: Consultation and Coordination with Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by Tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian Tribes, on 
the relationship between the Federal government and the Indian Tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian Tribes.''
    This final rule does not have tribal implications. It will not have 
substantial direct effects on Tribal governments, on the relationship 
between the Federal government and Indian Tribes, or on the 
distribution of power and responsibilities between the Federal 
government and Indian Tribes, as specified in Executive Order 13175. 
Although EPA has identified sites in the western United States with 
existing coal mining operations that are located on Tribal lands, EPA 
projects that this regulation will generate a net cost savings for 
these mine sites. Thus, Executive Order 13175 does not apply to this 
rule.
    Nevertheless, EPA consulted with representatives of tribal 
governments. EPA has identified sites in the western United States with 
existing coal mining operations that are located on Tribal lands. With 
assistance from its American Indian Environmental Office, EPA has 
identified five Tribes as having lands in the western U.S. with, or 
having an interest in, coal mining activities. The Tribes are the 
Navajo Nation, the Hopi Tribe, the Crow Tribe, the Southern Ute Indian 
Tribe, and the Northern Cheyenne Tribe. EPA representatives met with 
Tribal officials from the Navajo Nation during coal mine site visits in 
New Mexico and Arizona in August 1998 to review environmental 
conditions and the applicability of the proposed regulation. In 
December 1999, EPA sent meeting invitations to Tribal Chairmen, 
Directors of Tribal Environmental Departments, and other 
representatives of the five Tribes with existing or potential interest 
in coal mining, and met with Tribal representatives from the Navajo 
Nation and Hopi Tribes in Albuquerque, NM on December 16, 1999 to 
consult on the proposed amendments to the existing effluent limitations 
guidelines, and to discuss plans for involvement at public meetings in 
western locations. As a result of this consultation, EPA agreed to an 
initial comment period on the proposal of 90 days. EPA later granted an 
extension to the comment period of 60 days. EPA provided a copy of the

[[Page 3399]]

relevant portions of the Rulemaking Record at the western location 
identified in the ADDRESSES section of this document to be available 
for Tribal representatives. During the comment period, EPA held public 
meetings in three locations that were convenient for attendance by 
Tribal representatives. No significant issues were raised by the 
Tribes. In response to the proposed rule, EPA received written comments 
from the Navajo EPA, which indicated general support for the Western 
Alkaline Coal Mining Subcategory.

G. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999) requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This final rule does not have federalism implications. It will not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. The rule will not impose 
substantial costs on States and localities. The rule establishes 
effluent limitations imposing requirements that apply to coal mining 
facilities. The rule does not apply directly to States and localities 
and will only affect State and local governments when they are 
administering CWA permitting programs. The rule, at most, imposes 
minimal administrative costs on States that have an authorized NPDES 
program. (These States must incorporate the new limitations and 
standards in new and reissued NPDES permits). Thus, Executive Order 
13132 does not apply to this rule. Although Executive Order 13132 does 
not apply to this rule, EPA did consult with representatives of State 
governments throughout this regulatory development. State authorities 
raised numerous issues which are discussed in Section XII of this 
document. In the spirit of Executive Order 13132, and consistent with 
EPA policy to promote communications between EPA and State and local 
governments, EPA specifically solicited comment on the proposed rule 
from State and local officials.

H. National Technology Transfer and Advancement Act

    As noted in the proposed rule, section 12(d) of the National 
Technology Transfer and Advancement Act (NTTAA) of 1995, Public Law No. 
104-113 section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary 
consensus standards in its regulatory activities unless to do so would 
be inconsistent with applicable law or otherwise impractical. Voluntary 
consensus standards are technical standards (e.g., materials 
specifications, test methods, sampling procedures, business practices, 
etc.) that are developed or adopted by voluntary consensus standard 
bodies. The NTTAA directs EPA to provide Congress, through the Office 
of Management and Budget (OMB), explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    Today's rule does not establish any technical standards, thus, 
NTTAA does not apply to this rule. It should be noted, however, that 
today's rule requires dischargers to monitor for total suspended solids 
(TSS), settleable solids (SS), manganese, iron, and acidity. Facilities 
monitoring for these analytes need to use previously-approved technical 
standards already specified in the tables at 40 CFR 136.3.

I. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    The Executive Order ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies 
to any rule that: (1) Is determined to be ``economically significant'' 
as defined under Executive Order 12866, and (2) concerns an 
environmental health or safety risk that EPA has reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria, the Agency must evaluate the environmental health 
or safety effects of the planned rule on children; and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency. This rule is 
not subject to Executive Order 13045 because it is neither 
``economically significant'' as defined under Executive Order 12866, 
nor does it concern an environmental health or safety risk that EPA has 
reason to believe may have a disproportionate effect on children.

J. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a 
significant regulatory action under Executive Order 12866.

XI. Regulatory Implementation

    Upon promulgation of these regulations, the effluent limitations 
for the appropriate subcategory must be applied in all Federal and 
State NPDES permits issued to affected facilities in the Western 
Alkaline Coal Mining Subcategory and Coal Remining Subcategory. This 
section discusses upset and bypass provisions, variances and 
modifications, and monitoring requirements.

A. Upset and Bypass Provisions

    A ``bypass'' is an intentional diversion of waste streams from any 
portion of a treatment facility. An ``upset'' is an exceptional 
incident in which there is unintentional and temporary noncompliance 
with technology-based permit effluent limitations because of factors 
beyond the reasonable control of the permittee. EPA's regulations 
concerning bypasses and upsets are set forth at 40 CFR 122.41(m) and 
(n), and 40 CFR 403.16 (upset) and 403.17 (bypass).

B. Variances and Modifications

    The CWA requires application of the effluent limitations 
established pursuant to section 301 or the pretreatment standards of 
section 307 to all direct and indirect dischargers. However, the 
statute provides for the modification of these national requirements in 
a limited number of circumstances. Moreover, the Agency has established 
administrative mechanisms to provide an opportunity for relief from the 
application of national effluent limitations guidelines and 
pretreatment standards for categories of existing sources for priority, 
conventional and non-conventional pollutants.
1. Fundamentally Different Factors Variances
    EPA will develop effluent limitations guidelines or standards 
different from the otherwise applicable requirements if an individual 
existing discharging facility is fundamentally different with respect 
to factors considered in establishing the guidelines or standards 
applicable to the individual facility. Such a modification is known as 
a

[[Page 3400]]

``fundamentally different factors'' (FDF) variance.
    Early on, EPA, by regulation, provided for FDF modifications from 
BPT effluent limitations, BAT limitations for priority and non-
conventional pollutants and BCT limitation for conventional pollutants 
for direct dischargers. FDF variances for priority pollutants were 
challenged judicially and ultimately sustained by the Supreme Court. 
(Chemical Manufacturers Ass'n v. NRDC, 479 U.S. 116 (1985)).
    Subsequently, in the Water Quality Act of 1987, Congress added 
section 301(n) explicitly to authorize modification of the otherwise 
applicable BAT effluent limitations or categorical pretreatment 
standards for existing sources if a facility is fundamentally different 
with respect to the factors specified in section 304 (other than costs) 
from those considered by EPA in establishing the effluent limitations 
or pretreatment standards. Section 301(n) also defined the conditions 
under which EPA may establish alternative requirements. Under section 
301(n), an application for approval of an FDF variance must be based 
solely on (1) information submitted during the rulemaking raising the 
factors that are fundamentally different or (2) information the 
applicant did not have an opportunity to submit. The alternate 
limitation or standard must be no less stringent than justified by the 
difference and must not result in markedly more adverse non-water 
quality environmental impacts than the national limitation or standard.
    EPA regulations at 40 CFR part 125, subpart D, authorizing the 
Regional Administrators to establish alternative guidelines and 
standards, further detail the substantive criteria used to evaluate FDF 
variance requests for existing direct dischargers. Thus, 40 CFR 
125.31(d) identifies six factors (e.g., volume of process wastewater, 
age and size of a discharger's facility) that may be considered in 
determining if a facility is fundamentally different. The Agency must 
determine whether, on the basis of one or more of these factors, the 
facility in question is fundamentally different from the facilities and 
factors considered by EPA in developing the nationally applicable 
effluent guidelines. The regulation also lists four other factors 
(e.g., infeasibility of installation within the time allowed or a 
discharger's ability to pay) that may not provide a basis for an FDF 
variance. In addition, under 40 CFR 125.31(b)(3), a request for 
limitations less stringent than the national limitation may be approved 
only if compliance with the national limitations would result in either 
(a) a removal cost wholly out of proportion to the removal cost 
considered during development of the national limitations, or (b) a 
non-water quality environmental impact (including energy requirements) 
fundamentally more adverse than the impact considered during 
development of the national limits. EPA regulations provide for an FDF 
variance for existing indirect dischargers at 40 CFR 403.13. The 
conditions for approval of a request to modify applicable pretreatment 
standards and factors considered are the same as those for direct 
dischargers.
    The legislative history of section 301(n) underscores the necessity 
for the FDF variance applicant to establish eligibility for the 
variance. EPA's regulations at 40 CFR 125.32(b)(1) are explicit in 
imposing this burden upon the applicant. The applicant must show that 
the factors relating to the discharge controlled by the applicant's 
NPDES permit which are claimed to be fundamentally different are, in 
fact, fundamentally different from those factors considered by EPA in 
establishing the applicable guidelines. FDF variance requests with all 
supporting information and data must be received by the permitting 
authority within 180 days of publication of the final effluent 
limitations guideline. The specific regulations covering the 
requirements for and the administration of FDF variances are found at 
40 CFR 122.21(m)(1), and 40 CFR 125 Subpart D. FDF variances are not 
available for new sources.
2. Permit Modifications
    Even after EPA (or an authorized State) has issued a final NPDES 
permit to a direct discharger, the permit may still be modified under 
certain conditions. (When a permit modification is under consideration, 
however, all other permit conditions remain in effect.) A permit 
modification may be triggered in several circumstances. These could 
include a regulatory inspection or information submitted by the 
permittee that reveals the need for modification. There are two 
classifications of modifications: major and minor. From a procedural 
standpoint, they differ primarily with respect to the public notice 
requirements. Major modifications require public notice while minor 
modifications do not. Virtually any modification that results in less 
stringent conditions is treated as a major modification, with 
provisions for public notice and comment. Conditions that would 
necessitate a major modification of a permit are described in 40 CFR 
122.62. Minor modifications are generally non-substantive changes. The 
conditions for minor modifications are described in 40 CFR 122.63.

C. Relationship of Effluent Limitations to NPDES Permits and Monitoring 
Requirements

    Effluent limitations act as a primary mechanism to control the 
discharges of pollutants to waters of the United States. These 
limitations are applied to individual facilities through NPDES permits 
issued by EPA or authorized States under section 402 of the Act.
    The Agency has developed the limitations for this regulation to 
cover the discharge of pollutants for these industrial categories. In 
specific cases, the NPDES permitting authority may elect to establish 
technology-based permit limits for pollutants not covered by this 
regulation. In addition, if State water quality standards or other 
provisions of State or Federal law require limits on pollutants not 
covered by this regulation (or require more stringent limits on covered 
pollutants), the permitting authority must apply those limitations.
    All mining operations subject to today's regulation must also 
comply with SMCRA requirements. EPA has worked extensively with OSMRE 
in the preparation of this rule in order to ensure that today's 
requirements are consistent with OSMRE requirements. EPA believes that, 
in most cases, CWA requirements for a pollution abatement plan and 
sediment control plan will be satisfied by the requirements contained 
in an approved SMCRA permit.
    EPA believes that compliance determinations under today's rule will 
encourage coordination and cooperation between SMCRA and NPDES 
authorities. EPA believes that, in some cases, the NPDES permit 
authority may not have the mining expertise or resources to adequately 
review pollution abatement plans, sediment control plans and associated 
modeling efforts and recognizes that the requirements for permit 
application provided under SMCRA, section 507, reclamation plans under 
SMCRA section 508, and inspections and monitoring provided under SMCRA 
section 517 are, in most cases, substantial and adequate. EPA envisions 
that approval by OSMRE or the delegated authority on the modeling 
effort and sediment control plan will often be sufficient review to 
satisfy the NPDES permitting authority. The coordination of regulatory 
agencies may require a memorandum of understanding to be developed 
between regulatory agencies or other

[[Page 3401]]

mechanisms in order to implement alternative sediment control standards 
efficiently.

D. Analytical Methods

    Section 304(h) of the Clean Water Act directs EPA to promulgate 
guidelines establishing test methods for the analysis of pollutants. 
Facilities use these methods to determine the presence and 
concentration of pollutants in wastewater, and EPA, State and local 
control authorities use them for compliance monitoring and for filing 
applications for the NPDES program under 40 CFR 122.21, 122.41, 122.44 
and 123.25.
    The final rule requires facilities in the Coal Remining Subcategory 
to monitor for net acidity, TSS, SS, iron, and manganese. EPA has 
previously approved test methods for all these pollutants at 40 CFR 
136.3.

XII. Summary of EPA Responses to Significant Comments on Proposal

    The following section summarizes significant comments received on 
the proposed rule and the NODA, and a summary of EPA's response. 
Thirty-two stakeholders provided comments on the April 11, 2000 
proposal addressing over 40 separate issues, and ten stakeholders 
provided comment on the NODA.
    The complete comment summary and response document can be found in 
the public record for this final rule (DCN 3056). In selecting comments 
and responses for summary, the Agency selected those major and 
controversial issues that received considerable comment. Alternatively, 
comments and responses on other less controversial issues and issues 
where EPA essentially agrees with the commenters are not included 
below.

A. Coal Remining Subcategory

    Comment: The implications of the language concerning bond release 
for remining operations could be debilitating if the language is 
interpreted to mean that any time passive treatment is incorporated 
into the pollution abatement plan, the operator will be perpetually 
liable for the operation and maintenance of the treatment facility. The 
ultimate result could be that the operator is never able to achieve 
complete bond release due to the existence of a passive treatment 
system.
    Response: EPA understands the concern regarding perpetual liability 
for remining operations implementing passive treatment operations. EPA 
clarifies that for those remining operations that include passive 
treatment as an inherent portion of an approved Pollution Abatement 
Plan, the passive treatment operation should be considered a BMP and 
treated as part of implementing the Pollution Abatement Plan. See 
section V.A.4 of this document.
    Comment: The requirements for baseline data collection for remining 
sites with pre-existing discharges should be no more stringent than 
baseline data collection requirements for permit applications that do 
not include remining. If existing water quality and seasonal variation 
requirements are more stringent, burdensome, and expensive for remining 
applicants, this will present another barrier for remining.
    Response: There are no baseline data collection requirement for 
NPDES permit applications. However, EPA is aware that baseline data 
collection requirements for coal mining permits under SMCRA that do not 
include remining may be less stringent than those for remining permits. 
For mining permits that do not include remining operations, baseline 
information is typically collected from undisturbed areas and is used 
for a number of purposes. These purposes include: indicating overburden 
quality; predicting post-mining water quality; establishing background 
conditions for affected and unaffected groundwater (for permit decision 
making); providing background data for water supplies; and establishing 
circumstances for which a mining operation resulted in environmental 
improvement or degradation. The baseline data collected for these 
mining permits is not used to establish effluent limitations, and the 
collection of baseline data is not required for establishing effluent 
limitations.
    Part 434 does not require baseline data collection for mines not 
involved in remining. The differing baseline sampling requirements 
reflect the different purpose and use of the baseline data in each 
circumstance. In the case of remining, baseline pollutant discharge 
samples are collected for the establishment of baseline conditions 
which are then used to establish site-specific effluent limitations for 
the pre-existing discharge. The effluent limitations based on this data 
collection are incorporated into the NPDES permit. Therefore, EPA 
believes that an adequate baseline sampling program must be used in 
order to accurately characterize baseline conditions that are used to 
establish effluent limitations. Therefore, EPA believes that the 
baseline data collection for Coal Remining Subcategory, while more 
stringent than that associated with non-remining permits, is necessary 
due to the site-specific nature of the Coal Remining Subcategory NPDES 
effluent limitations.
    Comment: Where incentives are offered to encourage remining, those 
incentives should not include a lowering of environmental protection 
standards, but rather should focus on financial incentives that 
encourage remining without compromising the post-remining environmental 
quality of the area. Predictably, the resulting proposed rule is skewed 
towards assisting coal operators to cut costs in remining previously 
disturbed areas, while sacrificing the ability to achieve meaningful 
improvements in baseline conditions from previously mined areas.
    Response: EPA agrees that coal operators should be provided 
financial incentives that encourage remining without compromising the 
post-remining environmental water quality. However, EPA does not agree 
that it has lowered environmental standards in order to achieve this 
goal. The issue with AML is that there is no responsible party for 
cleaning abandoned mine land, and discharges from abandoned mine lands 
continue to be a very serious problem affecting many areas of the 
Appalachian coal region. As noted in the proposal, there are over 1.1 
million acres of abandoned coal mine lands in the United States which 
have produced over 9,709 miles of streams polluted by acid mine 
drainage.
    Under SMCRA, a fund was established to pay for damage associated 
with abandoned mine lands. Expenditures from this fund are authorized 
through the regular congressional budgetary and appropriations process. 
Additionally, the funds are prioritized to fix problems that pose 
immediate health and safety risks, such as highwalls and open mine 
shafts. In 1999, $2.5 billion of the $3.6 billion of high priority coal 
related AML problems in OSMRE's AML inventory had yet to be funded and 
reclaimed. Due to the vast expense of reclaiming all AML, EPA believes 
that remining is a timely and cost-efficient means of reclaiming AML.
    EPA does not agree that the remining regulations are sacrificing 
the ability to achieve meaningful environmental improvements. As noted 
in comments submitted by the Commonwealth of Pennsylvania, over 100 
sites containing over 200 pollution discharges and 34,000 acres have 
been successfully reclaimed as a result of remining. This has been done 
at no expense to the taxpayer and has resulted in the reduction of 
discharge of acid loading by 15,918 pounds/day. A detailed

[[Page 3402]]

assessment of the water quality improvements and BMP implementation at 
these sites was provided in EPA's proposed rulemaking record and in 
Chapter 6 of EPA's Coal Remining BMP Guidance Manual.
    Comment: The rule should include provision for BMP-based permit 
requirements in lieu of specific loading-based effluent limits for 
remining sites because remining is virtually certain to result in 
improvement.
    Response: The goal of this rule is to improve water quality. EPA 
agrees that in most cases, remining operations will result in improved 
water quality. In fact, EPA's record on the rule contains data that 
overwhelmingly demonstrate improvement in water quality and 
environmental conditions resulting from remining operations. At these 
remining operations, most pre-existing discharges demonstrated a 
significant improvement in water quality. However, numerous pre-
existing discharges demonstrated no change in water quality, and a 
small number demonstrated a decrease in water quality. At these sites, 
other non-water quality benefits may have been achieved. Therefore, EPA 
concluded that implementing BMPs is not a guarantee of success, and EPA 
concluded that numeric monitoring is necessary in most cases to ensure 
that a mine operator is not contributing additional quantities of 
pollutant loads to the nation's waterways. While EPA believes that 
there is a high likelihood of improvement in pre-existing discharges 
due to remining, EPA also acknowledges that improper or inadequate BMPs 
may increase pollutant loadings. EPA concluded that it is necessary for 
mine operators to adequately demonstrate that they are not increasing 
pollutant loadings over baseline, as required by the Rahall amendment.
    EPA does not believe that monitoring poses an undue burden on the 
mine operator. EPA notes that monitoring costs are less than $3000 per 
year per discharge. If BMPs are appropriately incorporated into the 
plan and implemented accordingly, then the mine operator should be able 
to comply with the baseline numeric limits established in this 
regulation without incurring additional cost. Therefore, EPA has 
concluded that numeric limits, in addition to a pollution abatement 
plan, is the Best Available Technology for the Coal Remining 
Subcategory.
    EPA has included a provision in the final rule for BMP-based 
effluent limitations where numeric limitations are infeasible. EPA 
believes this provision will allow improvement of AML that otherwise 
would continue to remain unreclaimed. EPA has determined that in 
certain specific cases, it is infeasible to calculate and monitor 
baseline pollutant levels in pre-existing discharges.
    Comment: Under the current language in the law the States have some 
flexibility on how they would approach their respective remining 
programs. This enables a State program to develop rules and policies in 
concert with their State water quality authority that work for their 
specific region. A one-size-fits-all approach as contained in this rule 
does not necessarily work for all of the States' mining areas.
    Response: In this final rule, EPA is balancing the need to provide 
guidance and clarification of the provisions of the Rahall Amendment 
with a recognition of the authority and flexibility given States to 
allow alternative requirements for remining permits. EPA is specifying 
the minimum requirements necessary for determining baseline. The permit 
authority then has the discretion to determine appropriate remining 
standards (which can be set at baseline or better) and site-specific 
BMPs. EPA is providing guidance on appropriate BMPs, but is not 
specifying the actual selection of BMPs. Thus, the final rule assumes 
that the coal remining expertise available from State and regional 
agencies will be used heavily in the review and approval of appropriate 
BMPs for each remining site's Pollution Abatement Plan.
    Comment: A twelve-month sampling program to determine baseline 
pollution loads is a significant disincentive to remining due to the 
cost and time involved.
    Response: The comment asserts that the monitoring requirements of a 
minimum of 12 monthly samples is too restrictive and will serve as 
disincentives to remining. EPA disagrees with this assertion. EPA has 
considered the findings by R.D. Zande & Associates and the Ohio Coal 
Development Office, which included responses to a questionnaire given 
to mine operators. While the responses did identify the number of 
samples as a disincentive to remining, responses also expressed concern 
over ``the risk operators take that the information they are getting 
from the sampling will not give an accurate picture of how the remining 
will affect the effluent for the NPDES discharge,'' which is precisely 
the reason EPA has established the requirement for at least 12 
representative baseline samples. Although EPA agrees there are likely 
to be some circumstances where the requirements for baseline sample 
collection may discourage remining, there are clearly other 
disincentives for remining that this rule will reduce. Namely, this 
regulation will establish formal EPA procedures for remining procedures 
based on standardized statistical procedures and the use of BMPs.
    Moreover, EPA does not agree with the commenter's assertion that 
the requirement for 12 monthly baseline samples is a significant 
deterrent to obtaining a mining permit because this would cause an 
unreasonable delay in getting a permit. This has not been the 
experience of Ohio's neighbor, Pennsylvania, which has required 12 
monthly samples since 1986. As explained in one of the documents 
supporting the proposed rule (i.e., Coal Remining Statistical Support 
Document (EPA 821-R-00-011)), since 1985, PADEP has issued 
approximately 300 remining permits, with a 98 percent success rate. 
This document defines a successful remining site as one that has been 
mined without incurring treatment liability as the result of exceeding 
the baseline pollution load of the pre-existing discharges. The comment 
does not explain why the requirement for 12 monthly samples would act 
as disincentives in Ohio when Pennsylvania has demonstrated its 
success.
    EPA further notes that planning, collecting data, completing the 
paperwork, and processing SMRCA mine permits is a time-consuming 
process of about a year during which the baseline samples can be 
collected. In particular, meeting the SMCRA requirements before 
preparing and submitting a permit application will require several 
months, during which a mine operator has the opportunity to begin 
baseline sampling. For example, the PA DEP requires at least three 
samples to have been collected prior to submission of a remining permit 
application. In theory, this can be accomplished within 60 days (by 
sampling on days 1, 30 and 60). EPA also believes, optimistically, that 
it will take at least 2 months for an operator to prepare a permit 
application due to the necessity of complying with SMCRA, and a minimum 
of 6 months for permit review and approval. Thus, if the permit were 
approved in an unusually short time, a mine operator would need to 
obtain an additional 2 or 3 monthly samples in order to accumulate 12 
months of baseline data, and more likely, a 12-month sampling program 
could be completed before permit approval. Thus, because of the SMCRA 
requirements and Pennsylvania's success, EPA does not believe that 
requiring 12 monthly samples places an

[[Page 3403]]

undue burden on mine operators, and EPA believes it is more likely that 
a mine operator will be able to obtain 12 samples during the permitting 
process if the operator identifies and plans for baseline sampling 
early in the remining process.
    In addition, EPA notes that the baseline sample collection 
requirements of this rule protect both the remining operator and the 
environment. If baseline characterization of pre-existing pollutant 
discharges is inadequate (for example, if it is based on too few 
samples), there is a chance that an operator could consistently face 
noncompliance by discharging pollutant loadings above an underestimated 
baseline that did not adequately incorporate natural variation in 
pollutant loading. In addition, there is the chance that environmental 
improvement could be jeopardized by allowing for pollutant loading 
discharges at high levels that still fall below an overestimated 
baseline.
    Finally, as discussed in the Coal Remining Statistical Support 
Document (EPA-821-B-01-011), and in Statistical Analysis of Abandoned 
Mine Drainage in the Assessment of Pollution Load (EPA-821-B-01-014), 
EPA believes that 12 monthly samples are the minimum to derive a 
statistically sound estimate of baseline.
    Comment: EPA should consider expanding the rule to allow for 
alternative remining limits for other parameters, including suspended 
solids and settleable solids. The same rationale justifying alternative 
limits for acid mine drainage should apply to all existing water 
quality problems from abandoned mine lands. For instance, in Virginia, 
the State's 1998 303(d) list identifies fifteen streams in the 
coalfields impaired by resource extraction. Only two of those streams 
are identified as impaired by AMD and only one by active coal mining. 
The majority of the impaired streams have been impacted by discharges 
from abandoned underground mines or drainage from unreclaimed surface 
mines containing high levels of dissolved, settleable, and suspended 
solids. Coal companies will continue to be discouraged from assuming 
these significant drainage and discharge liabilities without some 
alternative effluent limitations.
    Response: Based on the baseline conditions of sediment present at 
some AML, EPA believes that the benefits of remining may be severely 
limited if EPA does not address sediment in the final rule. In 
accordance with the intent of the Rahall Amendment, which seeks to 
encourage remining while ensuring that the remining activity will 
potentially improve and reclaim AML, and due to comments received on 
the NODA, EPA is establishing alternative limits for sediment in pre-
existing discharges.
    Comment: EPA does not have the authority to promulgate alternative 
standards for sediment because this is inconsistent with the Rahall 
amendment.
    Response: The authority for today's rule is section 304(b) of the 
Clean Water Act, which requires the Agency to adopt and revise 
regulations providing guidelines for effluent limitations as 
appropriate. The Rahall Amendment, section 301(p) of the Act, provided 
specific authority for modified, less stringent effluent limitations 
for specified coal remining operations. Because the effluent 
limitations guidelines for the Coal Mining Point Source Category did 
not provide any different requirements for coal remining operations, 
the Rahall Amendment provided the only basis for issuing permits 
containing modified requirements to remining operations. In 
promulgating today's regulations adopting effluent limitation 
guidelines for the coal remining subcategory, EPA is adopting 
requirements that are consistent with, but not necessarily identical 
to, the provisions of the Rahall Amendment. The applicability of these 
effluent limitation guidelines to remining operations in AML abandoned 
after the enactment of SMCRA is within EPA's discretion under section 
304(b).

B. Western Alkaline Coal Mining Subcategory

    Comment: EPA documents related to the rule assume that the proposed 
Western Alkaline Coal Mining Subcategory would have no ``significant 
impacts on relative coal production in the West versus the East'' but 
fail to detail the basis for this assumption.
    Response: EPA further examined the potential impact of the proposed 
guidelines on the competitiveness of coal production in the East 
relative to coal production in the West. This analysis supported EPA's 
conclusions that the rule would have no significant impact on 
competitiveness. The revised estimated cost savings comprise an average 
of about $0.033 saved per ton of coal produced in western alkaline 
surface mines or about 0.4 percent of the value of coal production. 
This relatively small percentage decrease in delivered price, combined 
with the effect of transportation costs, suggest that the impact of the 
savings on the relative competitiveness of eastern and western coal 
should be very small. A detailed analysis of this issue is presented in 
the economic analysis, included in the rulemaking record.
    Comment: The commenter believes that if modeling can demonstrate 
compliance it does not matter where the runoff originates. The 
commenter supports the expansion of the Western Alkaline Coal Mining 
Subcategory to include drainage from active mining areas.
    Response: The Agency has considered the use of alternative sediment 
controls for non-process areas in addition to reclamation areas. EPA 
determined that alternative sediment controls were appropriate for 
reclamation areas for several reasons. These reasons included that 
sediment is a natural component of runoff in arid watersheds, that 
sediment is typically the only parameter of concern in runoff from 
western alkaline reclamation areas, that BMPs are proven to be 
effective at controlling sediment, and that computer modeling 
procedures are able to accurately predict sediment runoff conditions. 
Due to comments received in support of expanding the area of 
alternative sediment controls, EPA evaluated additional non-process 
areas under the same set of circumstances. Based on this rationale, in 
addition to comments and data received on the proposal, EPA determined 
that similar circumstances exist for runoff from some non-process mine 
areas including brushing and grubbing areas, topsoil stockpiling areas, 
and regraded areas. In each of these areas, sediment is typically the 
only parameter of concern, BMPs can be implemented to maintain sediment 
levels below baseline, and modeling procedures are appropriate. 
Therefore, EPA has expanded the Western Alkaline Coal Mining 
Subcategory to include these areas in addition to the mining 
reclamation area. However, EPA decided not to include spoil piles in 
the Western Alkaline Coal Mining Subcategory due to the lack of 
applicable BMPs, the lack of adequate modeling procedures for an 
unconsolidated land area, and the potential for contamination of the 
runoff. See section V.B.3 for further explanation.
    Comment: If indeed there are serious negative impacts to retaining 
sedimentation ponds after active mining has ceased, then EPA has chosen 
the wrong solution. The obvious remedy is to enforce the existing 
regulations, not change them to accommodate these negative impacts that 
violate Federal and State mining laws.
    Response: EPA notes that it has received comments from other 
stakeholders which have both agreed and disagreed with EPA's assertion 
that

[[Page 3404]]

sedimentation ponds may be causing negative environmental impacts. EPA 
believes that sedimentation ponds, when constructed to meet numeric 
discharge standards, may cause negative environmental impacts in 
certain circumstances. EPA listed the potential impacts in the proposal 
which include loss of water due to evaporation, additional land 
disturbance, accelerated erosion, and upset of the natural hydrologic 
balance. While in many cases sedimentation ponds are not causing 
negative impacts, EPA also believes that there are instances where 
sedimentation ponds are causing upsets to the natural hydrologic 
balance. As discussed in the preamble, EPA believes that the most 
environmentally responsible goal is to maintain sediment loads at pre-
disturbed conditions.
    The negative impacts caused by the exclusive use of sedimentation 
ponds cannot necessarily be remedied by enforcing existing regulations. 
For example, water loss from a sedimentation pond cannot reasonably be 
controlled. Additionally, land must be disturbed during the 
construction, maintenance, and removal of the sedimentation ponds. 
Although this land must eventually be reclaimed in order to meet 
existing regulations, EPA estimates that 600 acres per year will not be 
disturbed due to implementation of the sediment control plan required 
by the Western Alkaline Coal Mining Subcategory.
    OSMRE regulations require that mine operators ``minimize the 
disturbances to the prevailing hydrologic balance at the mine-site and 
in associated offsite areas and to the quality and quantity of water in 
surface and ground water systems both during and after surface coal 
mining operations and during reclamation * * *'' (SMCRA section 
515(b)(10)). While existing EPA regulations at 40 CFR part 434, subpart 
E Post-Mining Areas require that wastewater discharges from reclamation 
areas contain less than 0.5 ml/L settleable solids, EPA has concluded 
that background sediment concentrations in the arid and semiarid west 
are significantly higher than the 0.5 ml/L standard. EPA has recognized 
this discrepancy by adopting the Western Alkaline Subcategory.
    Comment: In Colorado, all of the coal mines rely extensively on 
approved and permitted sedimentation ponds to ensure compliance with 
applicable discharge standards, to control sediment and to protect 
downstream water quality. Colorado's topography and hydrologic regime 
generally dictate the need for sedimentation ponds to achieve this 
compliance and protection. The proposed alternative standards and 
practices may also be applicable in some cases and such options should 
be allowed. However, we recommend that the rules clearly include a 
``grandfather clause'' which states that mines can continue to utilize, 
now and in the future, sedimentation ponds with numeric standard 
methods.
    Response: EPA notes that in many cases, sedimentation ponds may be 
necessary to meet water quality standards or to protect receiving 
streams and has concluded that the use of sedimentation ponds should be 
determined on a site by site basis in accordance with computer 
modeling, NPDES permit authorities and SMCRA permit authorities. EPA 
does not believe that a ``grandfather clause'' is necessary to address 
the commenter's concerns. EPA has clearly stated in the proposed and 
final preamble that sedimentation ponds are considered a BMP which may 
be necessary in certain circumstances to protect water quality. EPA 
also believes that numeric limitations may be necessary in certain 
circumstances to protect water quality, and recognizes that the NPDES 
authority can impose numeric effluent limits on point source discharges 
from reclamation areas where necessary to meet water quality standards.
    Comment: A commenter would like further clarification regarding the 
use of the term ``natural'' in reference to sediment loading, 
background levels and undisturbed conditions. In New Mexico most land 
cannot be considered ``natural'' since it has been disturbed some way. 
There is nothing that could be considered ``natural''.
    Response: EPA agrees with the commenter that ``natural'' conditions 
are not the same as ``background'' conditions because much of the 
applicable land has been disturbed in some way by activities such as 
grazing or development. EPA erroneously used these two terms 
interchangeably in the proposal. EPA has revised its language in the 
final preamble and rule to correct this error by using the term ``pre-
mined, undisturbed'' to indicate the level of sediment present prior to 
disturbance by surface coal mining.
    Comment: The successful enforcement of both SMCRA and Clean Water 
Act requirements on the coal industry is, at best, a tenuous situation. 
EPA proposes to eliminate numeric effluent limitations in the western 
alkaline coal mining subcategory and instead place its trust in control 
plans based on computer modeling. This rather subjective standard would 
be difficult to enforce.
    Response: As documented by comments submitted by the Office of 
Surface Mining, State and Tribal regulatory authorities, and mine 
operators, EPA does not agree that enforcement of both SMCRA and CWA 
requirements will be difficult. In fact, EPA believes that the new 
subcategory requirements will be much easier to enforce than numeric 
limits. As described in the proposal, implementation of a sediment 
control plan based on computer modeling will allow inspectors to 
determine compliance at any time, regardless of whether or not 
precipitation has occurred. Additionally, EPA does not agree that 
computer modeling produces a ``subjective'' standard. The RUSLE and 
SEDCAD models are well documented models based on many years of 
experience. As documented by comments submitted, these models are 
commonly used by regulatory authorities to determine sediment loadings.
    Comment: The requirements for the proposed western alkaline coal 
mining subcategory have the potential to duplicate many permitting, 
inspection, and enforcement provisions of SMCRA.
    Response: EPA does not intend for the new subcategory requirements 
to result in a duplication of work. Rather, EPA believes that 
compliance determinations under today's rule will encourage 
coordination and cooperation between SMCRA and NPDES authorities. EPA 
believes that, in many cases, the NPDES permit authority may not have 
the expertise or resources to adequately review mining related sediment 
control plans and associated modeling efforts. EPA recognizes that the 
requirements for permit application provided under SMCRA section 507, 
reclamation plans provided under SMCRA section 508, and inspections and 
monitoring provided under SMCRA section 517 are, in most cases, 
substantial and adequate. EPA envisions that approval by OSMRE or the 
delegated authority on the modeling effort and sediment control plan 
will often be sufficient to satisfy the NPDES permitting authority. As 
stated in Section XI.2.C of this document, this may require a 
Memorandum of Understanding to be developed to further the cooperation 
between regulatory agencies.
    Comment: Some experience with sedimentation ponds in the arid and 
semiarid West is that downstream erosion caused by ``clear water 
discharge,'' while theoretically possible, is not generally a problem 
because storm runoff at most western mines is stored and rarely 
discharges from these ponds. Water is mostly lost to

[[Page 3405]]

evaporation and seepage. Also, in northwest Colorado, coal mine 
operators may also discharge into streams that, by contrast, are shrub 
lined, stable and not subject to additional erosion or scouring. Thus, 
sedimentation ponds produce environmental benefits and are generally 
used by coal mine operators in the Uinta Basin to meet applicable 
discharge requirements.
    Response: EPA thanks the commenter for clarification that ``clear 
water discharge'' may not typically be a problem. Comment on this issue 
has been varied. Some commenters have supported the claim that 
sedimentation ponds disturb downstream hydrologic balances and the 
``clear water'' discharge from such ponds can cause erosion to 
receiving streams. Other commenters have noted that they have not found 
this to be the case.
    EPA agrees that sedimentation ponds do not necessarily result in 
adverse environmental impacts. EPA believes that ponds may be necessary 
in certain circumstances to ensure that sediment levels are maintained 
below pre-mine levels. EPA notes that ponds are one of a suite of BMPs 
that a mine may install in order to meet reclamation standards. 
However, ponds may not be necessary in all circumstances and the use of 
other BMPs such as check dams, vegetation, silt fences, and other 
construction practices may be equally protective of the environment. 
One advantage of using BMPs in lieu of, or in addition to, ponds is 
that less land is disturbed for pond construction and removal.
    EPA also acknowledges there are differences in background 
conditions among sites in the West. For this reason, EPA has 
established a regulatory structure for the Western Alkaline Coal Mining 
Subcategory that allows mine sites to design site-specific sediment 
control plans that demonstrate that the discharge of sediment will not 
be greater than pre-mined, undisturbed conditions. Therefore, the 
sediment control plan and discharge limitations for a mine in northwest 
Colorado will likely be different from a mine site in New Mexico.
    Comment: Models are constantly in a state of upgrade, thus model 
predictions written into an operator's permit application package can 
become outdated. New models may be released that better predict 
sediment yield for reclaimed areas than one used for the original 
reclamation and hydrologic analysis. The commenter recommends that EPA 
stipulate in the final regulation flexibility with regard to models 
that OSMRE validates for developing sediment yield standards.
    Response: EPA proposed and finalized the following language 
regarding acceptable computer models: ``The operator must use the same 
watershed model that was or will be used to acquire the SMCRA permit 
.'' EPA intends this to mean that a mine can use the upgraded version 
of a computer model that was used in the original application. For 
example, if the mine used SEDCAD 4.0 in their application, then the 
mine operator could use SEDCAD 5.0 in subsequent modeling procedures. 
This does not mean that the operator could switch to an entirely new 
model that was not approved in the original mine permit. EPA believes 
that this language provides the necessary flexibility that the 
commenter desires to use the most recent and appropriate modeling 
procedure.

Appendix A: Definitions, Acronyms, and Abbreviations Used in This 
Document

Act--Clean Water Act
Agency--U.S. Environmental Protection Agency
Alkaline mine drainage--mine drainage which, before any treatment, 
has a pH equal to or greater than 6.0 and total iron concentration 
of less than 10 mg/l.
AMD--Acid mine drainage, which means mine drainage which, before any 
treatment, either has a pH of less than 6.0 or a total iron 
concentration equal to or greater than 10 mg/l.
AML--Abandoned mine land
BAT--The best available technology economically achievable, under 
section 304(b)(2)(B) of the Clean Water Act
BCT--Best conventional pollutant control technology under section 
304(b)(4)(B) of the Clean Water Act
BMP--Best management practice
BPT--Best practicable control technology currently available, under 
section 304(b)(1) of the Clean Water Act
Brushing and grubbing area--The area where woody plant materials 
that would interfere with soil salvage operations have been removed 
or incorporated into the soil that is being salvaged.
CFR--Code of Federal Regulations
Clean Water Act--Federal Water Pollution Control Act Amendments (33 
U.S.C. 1251 et seq.)
Conventional pollutants--Constituents of wastewater as determined by 
Section 304(a)(4) of the Clean Water Act, including pollutants 
classified as biochemical oxygen demanding, suspended solids, oil 
and grease, fecal coliform, and pH
CWA--Clean Water Act
EPA--U.S. Environmental Protection Agency
FTE--Full-time employees
ICR--Information Collection Request
NAICS--North American Industry Classification System
NPDES--National Pollutant Discharge Elimination System
NSPS--New source performance standards under Section 306 of the 
Clean Water Act
OMB--Office of Management and Budget
OSMRE --Office of Surface Mining, Reclamation and Enforcement
Pollution abatement area--The part of the permit area that is 
causing or contributing to the baseline pollution load of pre-
existing discharges. The pollution abatement area must include, to 
the extent practicable, areas adjacent to and nearby the remining 
operation that also must be affected to reduce the pollution load of 
the pre-existing discharges and may include the immediate location 
of the pre-existing discharges.
POTW--Publicly-owned treatment works
PPA--Pollution Prevention Act of 1990
Pre-existing discharge--Any discharge resulting from mining 
activities that have been abandoned prior to the time of the 
remining permit application.
Pre-mined, undisturbed--The conditions present at the time of a 
mining permit application.
PSNS--Pretreatment standards for new sources
Reclamation area--the surface area of a coal mine that has been 
returned to required contour and on which revegetation 
(specifically, seeding or planting) work has been commenced.
Regraded area--The surface area of a coal mine which has been 
returned to required contour.
Remining--Coal remining refers to a coal mining operation at a site 
on which coal mining was previously conducted and where the site has 
been abandoned or the performance bond has been forfeited.
RFA--Regulatory Flexibility Act
RUSLE--Revised Universal Soil Loss Equation
SBA--Small Business Administration
SBREFA--Small Business Regulatory Enforcement Fairness Act
Sediment--All undissolved organic and inorganic material transported 
or deposited by water.
Sediment Yield--The sum of the soil losses from a surface minus 
deposition in macro-topographic depressions, at the toe of the 
hillslope, along field boundaries, or in terraces and channels 
sculpted into the hillslope.
SIC--Standard Industrial Classifications
SMCRA--Surface Mining Control and Reclamation Act
SS--Settleable Solids
Topsoil stockpiling area--The area outside the mined-out area where 
topsoil is temporarily stored for use in reclamation, including 
containment berms.
Toxic Pollutants--The pollutants designated by EPA as toxic in 40 
CFR 401.15.
TSS--Total Suspended Solids
UMRA--Unfunded Mandates Reform Act
U.S.C.--United States Code
WTP--Willingness to pay

List of Subjects

40 CFR Part 9

    Reporting and recordkeeping requirements.

[[Page 3406]]

40 CFR Part 434

    Environmental protection, Mines, Reporting and recordkeeping 
requirements, Waste treatment and disposal, Water pollution control.

    Dated: December 27, 2001.
Christine Todd Whitman,
Administrator.


    For the reasons set forth in the preamble, 40 CFR Parts 9 and 434 
are amended as follows:

PART 9--[AMENDED]

    1. The authority citation for part 9 continues to read as follows:

    Authority: 7 U.S.C. 135 et seq., 136-136y; 15 U.S.C. 2001, 2003, 
2005, 2006, 2601-2671; 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33 
U.S.C. 1251 et seq., 1311, 1313d, 1314, 1318, 1321, 1326, 1330, 
1342, 1344, 1345 (d) and (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR, 
1971-1975 Comp. p. 973; 42 U.S.C. 241, 242b, 243, 246, 300f, 300g, 
300g-1, 300g-2, 300g-3, 300g-4, 300g-5, 300g-6, 300j-1, 300j-2, 
300j-3, 300j-4, 300j-9, 1857 et seq., 6901-6992k, 7401-7671q, 7542, 
9601-9657, 11023, 11048.

    2. In Sec. 9.1 the table is amended by adding a new heading with 
entries in numerical order to read as follows:


Sec. 9.1  OMB approvals under the Paperwork Reduction Act.

* * * * *

------------------------------------------------------------------------
                                                             OMB control
                      40 CFR citation                            No.
------------------------------------------------------------------------
 
                 *        *        *        *        *
                    Coal Mining Point Source Category
------------------------------------------------------------------------
434.72-434.75..............................................    2040-0239
434.82-434.83..............................................    2040-0239
434.85.....................................................    2040-0239
Appendix B.................................................    2040-0239
 
                  *        *        *        *        *
------------------------------------------------------------------------

PART 434--[AMENDED]

    2. The authority citation for part 434 continues to read as 
follows:

    Authority: 33 U.S.C. 1311, 1314(b), (c), (e), and (g), 1316(b) 
and (c), 1317(b) and (c), and 1361.


    3. Revise Sec. 434.50 to read as follows:


Sec. 434.50  Applicability.

    The provisions of this subpart are applicable to discharges from 
post-mining areas, except as provided in subpart H--Western Alkaline 
Coal Mining of this part.

    4. Revise Sec. 434.60 to read as follows:


Sec. 434.60  Applicability.

    The provisions of this subpart F apply to this part 434 as 
specified in subparts B, C, D, E and G of this part.

    5. Add subpart G, consisting of Secs. 434.70 through 434.75, to 
read as follows:
Subpart G--Coal Remining
Sec.
434.70  Specialized definitions.
434.71  Applicability.
434.72  Effluent limitations attainable by the application of the 
best practicable control technology currently available (BPT).
434.73  Effluent limitations attainable by application of the best 
available technology economically achievable (BAT).
434.74  Effluent limitations attainable by application of the best 
conventional pollutant control technology (BCT).
434.75  New source performance standards (NSPS).

Subpart G--Coal Remining


Sec. 434.70  Specialized definitions.

    (a) The term coal remining operation means a coal mining operation 
at a site on which coal mining was previously conducted and where the 
site has been abandoned or the performance bond has been forfeited.
    (b) The term pollution abatement area means the part of the permit 
area that is causing or contributing to the baseline pollution load of 
pre-existing discharges. The pollution abatement area must include, to 
the extent practicable, areas adjacent to and nearby the remining 
operation that also must be affected to reduce the pollution load of 
the pre-existing discharges and may include the immediate location of 
the pre-existing discharges.
    (c) The term pre-existing discharge means any discharge resulting 
from mining activities that have been abandoned prior to the time of a 
remining permit application. This term shall include a pre-existing 
discharge that is relocated as a result of the implementation of best 
management practices (BMPs) contained in the Pollution Abatement Plan.
    (d) The term steep slope means any slope above twenty degrees or 
such lesser slope as may be defined by the regulatory authority after 
consideration of soil, climate, and other characteristics of a region 
or State. This term does not apply to those situations in which an 
operator is mining on flat or gently rolling terrain, on which an 
occasional steep slope is encountered and through which the mining 
operation is to proceed, leaving a plain or predominantly flat area.
    (e) The term new source remining operation means a remining 
operation at a coal mine where mining first commences after February 
22, 2002 and subsequently becomes an abandoned mine.


Sec. 434.71  Applicability.

    (a) This subpart applies to pre-existing discharges that are 
located within or are hydrologically connected to pollution abatement 
areas of a coal remining operation.
    (b) A pre-existing discharge that is intercepted by active mining 
or that is commingled with waste streams from active mining areas for 
treatment is subject to the provisions of Sec. 434.61 Commingling of 
waste streams. For the purposes of this subpart, Sec. 434.61 requires 
compliance with applicable BPT, BAT, BCT, and NSPS effluent limitations 
in subparts C, D, and F of this part. Section 434.61 applies to the 
commingled waste stream only during the time when the pre-existing 
discharge is intercepted by active mining or is commingled with active 
mine wastewater for treatment or discharge. After commingling has 
ceased, the pre-existing discharge is subject to the provisions of this 
part.
    (c) In situations where coal remining operations seek reissuance of 
an existing remining permit with BPJ limitations and the regulatory 
authority determines that it is not feasible for a remining operator to 
re-establish baseline pollutant levels in accordance with the 
statistical procedures contained in Appendix B of this part, pre-
existing discharge limitations at existing remining operations shall 
remain subject to baseline pollutant levels established during the 
original permit application.
    (d) The effluent limitations in this subpart apply to pre-existing 
discharges until the appropriate SMCRA authority has authorized bond 
release.


Sec. 434.72  Effluent limitations attainable by the application of the 
best practicable control technology currently available (BPT).

    (a) The operator must submit a site-specific Pollution Abatement 
Plan to the permitting authority for the pollution abatement area. The 
plan must be approved by the permitting authority and incorporated into 
the permit as an effluent limitation. The Pollution Abatement Plan must 
identify characteristics of the pollution abatement area and the pre-
existing discharges. The Pollution Abatement Plan must be designed to 
reduce the pollution load from pre-existing discharges and must 
identify the

[[Page 3407]]

selected best management practices (BMPs) to be used. The plan must 
describe the design specifications, construction specifications, 
maintenance schedules, criteria for monitoring and inspection, and 
expected performance of the BMPs. The BMPs must be implemented as 
specified in the plan.
    (b) (1) Except as provided in 40 CFR 125.30 through 125.32 and 
paragraph (b)(2) of this section, the following effluent limits apply 
to pre-existing discharges:

                          Effluent Limitations
------------------------------------------------------------------------
               Pollutant                           Requirement
------------------------------------------------------------------------
(i) Iron, total........................  May not exceed baseline
                                          loadings (as defined by
                                          Appendix B of this part).
(ii) Manganese, total..................  May not exceed baseline
                                          loadings (as defined by
                                          Appendix B of this part).
(iii) Acidity, net.....................  May not exceed baseline
                                          loadings (as defined by
                                          Appendix B of this part).
(iv) TSS...............................  During remining and
                                          reclamation, may not exceed
                                          baseline loadings (as defined
                                          by Appendix B of this part).
                                         Prior to bond release, the pre-
                                          existing discharge must meet
                                          the applicable standards for
                                          TSS or SS contained in Subpart
                                          E.\1\
------------------------------------------------------------------------
\1\ A pre-existing discharge is exempt from meeting standards in Subpart
  E of this part for TSS and SS when the permitting authority determines
  that Subpart E standards are infeasible or impractical based on the
  site-specific conditions of soil, climate, topography, steep slopes,
  or other baseline conditions provided that the operator demonstrates
  that significant reductions of TSS and SS will be achieved through the
  incorporation of sediment control BMPs into the Pollution Abatement
  Plan as required by paragraph (a) of this section.

    (2) If the permitting authority determines that it is infeasible to 
collect samples for establishing the baseline pollutant levels pursuant 
to paragraph (b)(1) of this section, and that remining will result in 
significant improvement that would not otherwise occur, then the 
numeric effluent limitations in paragraph (b)(1) of this section do not 
apply. Pre-existing discharges for which it is infeasible to collect 
samples for determination of baseline pollutant levels include, but are 
not limited to, discharges that exist as a diffuse groundwater flow 
that cannot be assessed via sample collection; a base flow to a 
receiving stream that cannot be monitored separate from the receiving 
stream; a discharge on a steep or hazardous slope that is inaccessible 
for sample collection; or, a number of pre-existing discharges so 
extensive that monitoring of individual discharges is infeasible.


Sec. 434.73  Effluent limitations attainable by application of the best 
available technology economically achievable (BAT).

    Except as provided in 40 CFR 125.30 through 125.32 and 
434.72(b)(2), a pre-existing discharge must comply with the effluent 
limitations listed in Sec. 434.72(b) for net acidity, iron and 
manganese. The operator must also submit and implement a Pollution 
Abatement Plan as required in Sec. 434.72(a) .


Sec. 434.74  Effluent limitations attainable by application of the best 
conventional pollutant control technology (BCT).

    Except as provided in 40 CFR 125.30 through 125.32 and 
434.72(b)(2), a pre-existing discharge must comply with the effluent 
limitations listed in Sec. 434.72(b) for total suspended solids. The 
operator must also submit and implement a Pollution Abatement Plan as 
required in Sec. 434.72(a).


Sec. 434.75  New source performance standards (NSPS).

    Except as provided in Sec. 434.72(b)(2), a pre-existing discharge 
from a new source remining operation must comply with the effluent 
limitations listed in Sec. 434.72(b) for iron, manganese, acidity and 
total suspended solids. The operator must also submit and implement a 
Pollution Abatement Plan as required in Sec. 434.72(a).

    6. Add subpart H, consisting of Secs. 434.80 through 434.85, to 
read as follows:
Subpart H--Western Alkaline Coal Mining
Sec.
434.80  Specialized definitions.
434.81  Applicability.
434.82  Effluent limitations attainable by the application of the 
best practicable control technology currently available (BPT).
434.83  Effluent limitations attainable by application of the best 
available technology economically achievable (BAT).
434.84  Effluent limitations attainable by application of the best 
conventional pollutant control technology (BCT). [Reserved]
434.85  New source performance standards (NSPS).

Subpart H--Western Alkaline Coal Mining


Sec. 434.80  Specialized definitions.

    (a) The term brushing and grubbing area means the area where woody 
plant materials that would interfere with soil salvage operations have 
been removed or incorporated into the soil that is being salvaged.
    (b) The term regraded area means the surface area of a coal mine 
that has been returned to required contour.
    (c) The term sediment means undissolved organic and inorganic 
material transported or deposited by water.
    (d) The term sediment yield means the sum of the soil losses from a 
surface minus deposition in macro-topographic depressions, at the toe 
of the hillslope, along field boundaries, or in terraces and channels 
sculpted into the hillslope.
    (e) The term topsoil stockpiling area means the area outside the 
mined-out area where topsoil is temporarily stored for use in 
reclamation, including containment berms.
    (f) The term western coal mining operation means a surface or 
underground coal mining operation located in the interior western 
United States, west of the 100th meridian west longitude, in an arid or 
semiarid environment with an average annual precipitation of 26.0 
inches or less.


Sec. 434.81  Applicability.

    (a) This subpart applies to alkaline mine drainage at western coal 
mining operations from reclamation areas, brushing and grubbing areas, 
topsoil stockpiling areas, and regraded areas.
    (b) This subpart applies to drainage at western coal mining 
operations from reclamation areas, brushing and grubbing areas, topsoil 
stockpiling areas, and regraded areas where the discharge, before any 
treatment, meets all the following requirements:
    (1) pH is equal to or greater than 6.0;

[[Page 3408]]

    (2) Dissolved iron concentration is less than 10 mg/L; and
    (3) Net alkalinity is greater than zero.
    (c) The effluent limitations in this subpart apply until the 
appropriate SMCRA authority has authorized bond release.


Sec. 434.82  Effluent limitations attainable by the application of the 
best practicable control technology currently available (BPT).

    Except as provided in 40 CFR 125.30 through 125.32, the following 
effluent limitations apply to mine drainage from applicable areas of 
western coal mining operations:
    (a) The operator must submit a site-specific Sediment Control Plan 
to the permitting authority that is designed to prevent an increase in 
the average annual sediment yield from pre-mined, undisturbed 
conditions. The Sediment Control Plan must be approved by the 
permitting authority and be incorporated into the permit as an effluent 
limitation. The Sediment Control Plan must identify best management 
practices (BMPs) and also must describe design specifications, 
construction specifications, maintenance schedules, criteria for 
inspection, as well as expected performance and longevity of the best 
management practices.
    (b) Using watershed models, the operator must demonstrate that 
implementation of the Sediment Control Plan will result in average 
annual sediment yields that will not be greater than the sediment yield 
levels from pre-mined, undisturbed conditions. The operator must use 
the same watershed model that was, or will be, used to acquire the 
SMCRA permit.
    (c) The operator must design, implement, and maintain BMPs in the 
manner specified in the Sediment Control Plan.


Sec. 434.83  Effluent limitations attainable by application of the best 
available technology economically achievable (BAT).

    Except as provided in 40 CFR 125.30 through 125.32, any existing 
western coal mining operation with drainage subject to this subpart 
must meet the effluent limitations in Sec. 434.82.


Sec. 434.84  Effluent limitations attainable by application of the best 
conventional pollutant control technology (BCT). [Reserved]


Sec. 434.85  New source performance standards (NSPS).

    Any new source western coal mining operation with drainage subject 
to this subpart must meet the effluent limitations in Sec. 434.82.

    6. Part 434 is amended by adding appendix B to part 434 as follows:

Appendix B to Part 434--Baseline Determination and Compliance 
Monitoring for Pre-existing Discharges at Remining Operations

I. General Procedure Requirements

    a. This appendix presents the procedures to be used for 
establishing effluent limitations for pre-existing discharges at 
coal remining operations, in accordance with the requirements set 
forth in Subpart G; Coal Remining. The requirements specify that 
pollutant loadings of total iron, total manganese, total suspended 
solids, and net acidity in pre-existing discharges shall not exceed 
baseline pollutant loadings. The procedures described in this 
appendix shall be used for determining site-specific, baseline 
pollutant loadings, and for determining whether discharge loadings 
during coal remining operations have exceeded the baseline loading. 
Both a monthly (single-observation) procedure and an annual 
procedure shall be applied, as described below.
    b. In order to sufficiently characterize pollutant loadings 
during baseline determination and during each annual monitoring 
period, it is required that at least one sample result be obtained 
per month for a period of 12 months.
    c. Calculations described in this appendix must be applied to 
pollutant loadings. Each loading value is calculated as the product 
of a flow measurement and pollutant concentration taken on the same 
date at the same discharge sampling point, using standard units of 
flow and concentration (to be determined by the permitting 
authority). For example, flow may be measured in cubic feet per 
second, concentration in milligrams per liter, and the pollutant 
loading could be calculated in pounds per year.
    d. Accommodating Data Below the Maximum Daily Limit at subpart C 
of this part. In the event that a pollutant concentration in the 
data used to determine baseline is lower than the daily maximum 
limitation established in subpart C of this part for active mine 
wastewater, the statistical procedures should not establish a 
baseline more stringent than the BPT and BAT effluent standards 
established in subpart C of this part. Therefore, if the total iron 
concentration in a baseline sample is below 7.0 mg/L, or the total 
manganese concentration is below 4.0 mg/L, the baseline sample 
concentration may be replaced with 7.0 mg/L and 4.0 mg/L, 
respectively, for the purposes of some of the statistical 
calculations in this Appendix B. The substituted values should be 
used for all methods in this Appendix B with the exception of the 
calculation of the interquartile range (R) in Method 1 for the 
annual trigger (Step 3), and in Method 2 for the single observation 
trigger (Step 3). The interquartile range (R) is the difference 
between the quartiles M-1 and M1; these values 
should be calculated using actual loadings (based on measured 
concentrations) when they are used to calculate R. This should be 
done in order to account for the full range of variability in the 
data.

II. Procedure for Calculating and Applying a Single-Observation 
(Monthly) Trigger

    Two alternative methods are provided for calculating a single-
observation trigger. One method must be selected and applied by the 
permitting authority for any given remining permit.

A. Method 1 for Calculating a Single Observation Trigger (L)

    (1) Count the number of baseline observations taken for the 
pollutant of interest. Label this number n. In order to sufficiently 
characterize pollutant loadings during baseline determination and 
during each annual monitoring period, it is required that at least 
one sample result be obtained per month for a period of 12 months.
    (2) Order all baseline loading observations from lowest to 
highest. Let the lowest number (minimum) be x(1), the 
next lowest be x(2), and so forth until the highest 
number (maximum) is x(n).
    (3) If fewer than 17 baseline observations were obtained, then 
the single observation trigger (L) will equal the maximum of the 
baseline observations (x(n)).
    (4) If at least 17 baseline observations were obtained, 
calculate the median (M) of all baseline observations:
    Instructions for calculation of a median of n observations:
    If n is odd, then M equals x(n/2+1/2).
    For example, if there are 17 observations, then M = 
X(17/2+1/2) = x(9), the 9th highest 
observation.
    If n is even, then M equals 0.5 * (x(n/2) + 
x(n/2+1)).
    For example, if there are 18 observations, then M equals 0.5 
multiplied by the sum of the 9th and 10th highest observations.
    (a) Next, calculate M1 as the median of the subset of 
observations that range from the calculated M to the maximum 
x(n); that is, calculate the median of all x larger than 
or equal to M.
    (b) Next, calculate M2 as the median of the subset of 
observations that range from the calculated M1 to 
x(n) ; that is, calculate the median of all x larger than 
or equal to M1.
    (c) Next, calculate M3 as the median of the subset of 
observations that range from the calculated M2 to 
x(n) ; that is, calculate the median of all x larger than 
or equal to M2.
    (d) Finally, calculate the single observation trigger (L) as the 
median of the subset of observations that range from the calculated 
M3 to x(n).

    Note: When subsetting the data for each of steps 3a-3d, the 
subset should include all observations greater than or equal to the 
median calculated in the previous step. If the median calculated in 
the previous step is not an actual observation, it is not included 
in the new subset of observations. The new median value will then be 
calculated using the median procedure, based on whether the number 
of points in the subset is odd or even.

    (5) Method for applying the single observation trigger (L) to 
determine when the baseline level has been exceeded
    If two successive monthly monitoring observations both exceed L, 
immediately begin weekly monitoring for four weeks (four weekly 
samples).

[[Page 3409]]

    (a) If three or fewer of the weekly observations exceed L, 
resume monthly monitoring
    (b) If all four weekly observations exceed L, the baseline 
pollution loading has been exceeded.

B. Method 2 for Calculating a Single Observation Trigger (L)

    (1) Follow Method 1 above to obtain M1 (the third 
quartile, that is, the 75th percentile).
    (2) Calculate M-1 as the median of the baseline data 
which are less than or equal to the sample median M.
    (3) Calculate interquartile range, R = (M1 - 
M-1).
    (4) Calculate the single observation trigger L as

L = M1 + 3 * R

    (5) If two successive monthly monitoring observations both 
exceed L, immediately begin weekly monitoring for four weeks (four 
weekly samples).
    (a) If three or fewer of the weekly observations exceed L, 
resume monthly monitoring
    (b) If all four weekly observations exceed L, the baseline 
pollution loading has been exceeded.

III. Procedure for Calculating and Applying an Annual Trigger

A. Method 1 for Calculating and Applying an Annual Trigger (T)

    (1) Calculate M and M1 of the baseline loading data 
as described above under Method 1 for the single observation 
trigger.
    (2) Calculate M-1 as the median of the baseline data 
which are less than or equal to the sample median M.
    (3) Calculate the interquartile range, R = (M1 - 
M-1).
    (4) The annual trigger for baseline (Tb) is calculated as:
    [GRAPHIC] [TIFF OMITTED] TR23JA02.002
    
where n is the number of baseline loading observations.
    (5) To compare baseline loading data to observations from the 
annual monitoring period, repeat steps 1-3 for the set of monitoring 
observations. Label the results of the calculations M' and R'. Let m 
be the number of monitoring observations.
    (6) The subtle trigger (Tm) of the monitoring data is calculated 
as:
[GRAPHIC] [TIFF OMITTED] TR23JA02.003

    (7) If Tm > Tb, the median loading of the monitoring 
observations has exceeded the baseline loading.

B. Method 2 for Calculating and Applying an Annual Trigger (T)

    Method 2 applies the Wilcoxon-Mann-Whitney test to determine 
whether the median loading of the monitoring observations has 
exceeded the baseline median. No baseline value T is calculated.

(1) Steps for Conducting the Wilcoxon-Mann-Whitney Test

    (a) Let n be the number of baseline loading observations taken, 
and let m be the number of monitoring loading observations taken. In 
order to sufficiently characterize pollutant loadings during 
baseline determination and during each annual monitoring period, it 
is required that at least one sample result be obtained per month 
for a period of 12 months.
    (b) Order the combined baseline and monitoring observations from 
smallest to largest.
    (c) Assign a rank to each observation based on the assigned 
order: the smallest observation will have rank 1, the next smallest 
will have rank 2, and so forth, up to the highest observation, which 
will have rank n + m.
    (1) If two or more observations are tied (have the same value), 
then the average rank for those observations should be used. For 
example, suppose the following four values are being ranked:

3, 4, 6, 4

Since 3 is the lowest of the four numbers, it would be assigned a 
rank of 1. The highest of the four numbers is 6, and would be 
assigned a rank of 4. The other two numbers are both 4. Rather than 
assign one a rank of 2 and the other a rank of 3, the average of 2 
and 3 (i.e., 2.5) is given to both numbers.
    (d) Sum all the assigned ranks of the n baseline observations, 
and let this sum be Sn.
    (e) Obtain the critical value (C) from Table 1. When 12 monthly 
data are available for both baseline and monitoring (i.e., n = 12 
and m = 12), the critical value C is 99.
    (f) Compare C to Sn. If Sn is less than C, 
then the monitoring loadings have exceeded the baseline loadings.

(2) Example Calculations for the Wilcoxon-Mann-Whitney Test

 
 
                                                                      BASELINE DATA
--------------------------------------------------------------------------------------------------------------------------------------------------------
      8.0          9.0          9.0         10.0         12.0         15.0         17.0         18.0         21.0         23.0        28.0        30.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                     MONITORING DATA
--------------------------------------------------------------------------------------------------------------------------------------------------------
      9.0         10.0         11.0         12.0         13.0         14.0         16.0         18.0         20.0         24.0        29.0        31.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                     BASELINE RANKS
--------------------------------------------------------------------------------------------------------------------------------------------------------
      1.0          3.0          3.0          5.5          8.5         12.0         14.0         15.5         18.0         19.0        21.0        23.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                    MONITORING RANKS
--------------------------------------------------------------------------------------------------------------------------------------------------------
      3.0          5.5          7.0          8.5         10.0         11.0         13.0         15.5         17.0         20.0        22.0       24.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sum of Ranks for Baseline is Sn = 143.5, critical value is Cn,m = 99.

(3) Critical Values for the Wilcoxon-Mann-Whitney Test

    (a) When n and m are less than 21, use Table 1.
    In order to find the appropriate critical value, match column 
with correct n (number of baseline observations) to row with correct 
m (number of monitoring observations)\*\.

[[Page 3410]]



                                             Table 1.--Critical Values (C) of the Wilcoxon-Mann-Whitney Test
                                                 (for a one-sided test at the 0.001 significance level)
--------------------------------------------------------------------------------------------------------------------------------------------------------
              n  m                 10         11         12         13         14         15         16         17         18         19         20
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
10.............................        66         79         93        109        125        142        160        179        199        220        243
--------------------------------------------------------------------------------------------------------------------------------------------------------
11.............................        68         82         96        112        128        145        164        183        204        225        248
--------------------------------------------------------------------------------------------------------------------------------------------------------
12.............................        70         84         99        115        131        149        168        188        209        231        253
--------------------------------------------------------------------------------------------------------------------------------------------------------
13.............................        73         87        102        118        135        153        172        192        214        236        259
--------------------------------------------------------------------------------------------------------------------------------------------------------
14.............................        75         89        104        121        138        157        176        197        218        241        265
--------------------------------------------------------------------------------------------------------------------------------------------------------
15.............................        77         91        107        124        142        161        180        201        223        246        270
--------------------------------------------------------------------------------------------------------------------------------------------------------
16.............................        79         94        110        127        145        164        185        206        228        251        276
--------------------------------------------------------------------------------------------------------------------------------------------------------
17.............................        81         96        113        130        149        168        189        211        233        257        281
--------------------------------------------------------------------------------------------------------------------------------------------------------
18.............................        83         99        116        134        152        172        193        215        238        262        287
--------------------------------------------------------------------------------------------------------------------------------------------------------
19.............................        85        101        119        137        156        176        197        220        243        268        293
--------------------------------------------------------------------------------------------------------------------------------------------------------
20.............................        88        104        121        140        160        180        202        224        248        273        299
--------------------------------------------------------------------------------------------------------------------------------------------------------

    (b) When n or m is greater than 20 and there are few ties, 
calculate an approximate critical value using the following formula 
and round the result to the next larger integer. Let N = n + m.
[GRAPHIC] [TIFF OMITTED] TR23JA02.004

    For example, this calculation provides a result of 295.76 for n 
= m = 20, and a result of 96.476 for n = m = 12. Rounding up 
produces approximate critical values of 296 and 97.
    (c) When n or m is greater than 20 and there are many ties, 
calculate an approximate critical value using the following formula 
and round the result to the next larger integer. Let S be the sum of 
the squares of the ranks or average ranks of all N observations. Let 
N = n + m.
[GRAPHIC] [TIFF OMITTED] TR23JA02.005

    In the preceding formula, calculate V using
    [GRAPHIC] [TIFF OMITTED] TR23JA02.006
    

[FR Doc. 02-106 Filed 1-22-02; 8:45 am]
BILLING CODE 6560-50-P