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

SUMMARY: Today's action clarifies an interpretation of the technology-

based effluent limitations applicable to point sources of ``mine

drainage'' at active ore mining and dressing operations, which was

contained in a recently-issued NPDES general permit for storm water

associated with industrial activity. With this notice, EPA provides a

more definitive interpretation of the applicability of those recently-

issued general permits, specifically, as they apply to certain storm

water discharges at active ore mining and dressing operations. To

incorporate today's interpretation, EPA modifies the NPDES general

permits issued by EPA Regions 1, 6, 9 and 10 because the Agency is the

permit issuance authority in States in those Regions. EPA intends,

however, that the interpretation apply nationwide in all EPA Regions.

DATES: These permit modifications shall be effective on September 8,

1998.

ADDRESSES: The complete administrative record for today's permit

modification is available for public review the Water Docket MC-4101,

U.S. Environmental Protection Agency, 401 M Street, SW, Washington, DC,

20460.

FOR FURTHER INFORMATION CONTACT: For further information, contact Bryan

Rittenhouse, Office of Wastewater Management, Office of Water at (202)

260-0592 or the appropriate EPA Regional Office. For EPA Region 1,

covering discharges in the State of Maine and Federal Indian

reservations in Maine, in the Commonwealth of Massachusetts and Federal

Indian reservations in Massachusetts, in the State of New Hampshire and

Federal Indian reservations in New Hampshire, as well as Federal Indian

reservations in the States of Vermont, Connecticut, and Rhode Island,

and Federal facilities in Vermont, contact Thelma Hamilton at (617)

565-3569. For EPA Region 6, covering discharges in the State of Texas

and Federal Indian reservations in Texas, in the State of New Mexico

and Federal Indian reservations in New Mexico (except Navajo

Reservation lands, which are covered by EPA Region 9 and Ute

Reservation lands, which are covered by EPA Region 8 and were not

covered by the Multi-Sector General Permit), as well as Federal Indian

reservations in Oklahoma and Louisiana, contact Brian Burgess at (214)

665-7534. For EPA Region 9, covering the State of Arizona and Federal

Indian reservations in Arizona, and Federal Indian reservations in

California (except the Hoopa Valley Tribe) and Nevada, as well as the

Duck Valley, Fort McDermitt, Goshute Reservations and Navajo

Reservations, each of which cross State boundaries, contact Eugene

Bromley at (415) 744-1906. For EPA Region 10, covering the State of

Alaska and Federal Indian reservations in Alaska, the State of Idaho

and Federal Indian reservations in Idaho (except the Duck Valley

Reservation, which is covered by EPA Region 9), Federal Indian

reservations in Washington and Oregon (except the Fort McDermitt

Reservation, which is covered by EPA Region 9), as well as Federal

facilities in Washington, contact Joe Wallace at (206) 553-6645.

SUPPLEMENTARY INFORMATION:

Authority: EPA issues NPDES permits under the authority of CWA

section 402, 33 U.S.C. section 1342. Today's modification is based

on an interpretation of rules published under the authority of CWA

sections 301, 304, 308, 402, and 501(a), 33 U.S.C. sections 1311,

1314, 1318, 1342, and 1361(a). Today's action modifies a table that

was initially published in conjunction with NPDES permits for storm

water associated with industrial activity issued pursuant to CWA

section 402, 33 U.S.C. section 1342.

In today's notice, EPA announces its interpretation of the

technology-based effluent limitations applicable to point sources of

``mine drainage'' at ore mining and dressing operations under the Clean

Water Act (``CWA''). 33 U.S.C. Sec. 1251 et seq. This interpretation

updates and replaces an earlier interpretation published in the fact

sheet for the final National Pollutant Discharge Elimination System

(``NPDES'') Storm Water Multi-Sector General Permit for Industrial

Activities at 60 FR 50804 (Sept. 29, 1995)(``Multi-Sector Permit'').

The interpretation in today's notice replaces EPA's interpretation in

Table G-4 of the Multi-Sector Permit regarding the applicability of the

``mine drainage'' provisions of regulations found at 40 CFR Part 440.

60 FR at 50897. Today's notice also supersedes and clarifies the

interpretation that the Agency proposed at 62 FR 54950 (Oct. 22, 1997).

EPA reviewed the administrative record supporting the Part 440

regulations, as well as Agency statements made during the course of

litigation over those regulations, and revises Table G-4 accordingly.

In litigation challenging the Multi-Sector Permit, National Mining

Association v. EPA, No. 95-3519 (8th Cir.), the National Mining

Association (NMA) argued that the regulatory interpretation contained

in Table G-4 was overly expansive and not supported by appropriate

economic and technological evaluation. To support its argument, NMA

cited Agency statements made during the course of litigation

approximately twenty years earlier. These statements were not raised

and presented to the Agency during the public comment period of the

permit. In response to NMA's arguments in the current litigation, EPA

has re-evaluated the underlying record supporting the Part 440

regulations and is supplementing its interpretation of the ``mine

drainage'' provisions contained in Table G-4. Today's action supersedes

the Agency interpretation contained in the Fact Sheet to the Multi-

Sector Permit, as originally issued.

Upon review of those documents, the Agency believes the documents

(including judicial case law) speak for themselves. Therefore, the

Agency is proposing to withdraw portions of the Table that discuss

applicability of the Part 440 regulations; i.e., those portions of the

Table that do not specify applicability of the Multi-Sector permit. By

today's action, EPA also expands the applicability of the Multi-Sector

permit consistent with the interpretation in today's notice.

I. Effluent Guidelines for Ore Dressing and Mining Point Source

Category

A. Background

Congress enacted the Clean Water Act to establish a comprehensive

program to ``restore and maintain the chemical, physical and biological

integrity of the Nation's waters' through the reduction, and eventual

elimination, of the discharge of pollutants into those waters. CWA

Sec. 101(a); 33 U.S.C. Sec. 1251(a). To achieve its objective, the CWA

provides for a permit program to control ``point source'' pollution.

The CWA point source permitting program is known as the National

Pollutant Discharge Elimination System (``NPDES''), under which EPA or

authorized States issue permits for point source discharges. Except in

accordance with an NPDES permit, a point source discharge of a

pollutant is unlawful. CWA Sec. 301(a); 33 U.S.C. Sec. 1311(a). All

NPDES permits must, at a minimum, contain technology-based effluent

limitations established in effluent guidelines or standards or, if no

such

[[Page 42535]]

guidelines have been established, limitations derived on the basis of

best professional judgment.

Individual NPDES permits contain substantive restrictions, called

``effluent limitations,'' which are aimed at controlling the level of

pollutants in point source discharges. CWA Sec. 402(a); 33 U.S.C.

Sec. 1342(a). Effluent limitations may be ``technology-based'' or

``water quality-based.''1 For some industrial point source

categories, EPA has published technology-based effluent limitations

that apply on a nationwide basis, pursuant to CWA Secs. 304(b) and

306(b)(1)(B); 33 U.S.C. Secs. 1314(b) and 1316(b)(1)(B).2

These limitations are called national effluent limitations guidelines

or standards. EPA has published best practicable control technology

currently available (``BPT''), best conventional pollutant control

technology (``BCT''), best available technology economically achievable

(``BAT'') effluent guidelines, and new source performance standards

(``NSPS'') for point sources in over fifty different industrial

categories. Among the effluent guidelines and standards which EPA has

established are those applicable to the ore mining and dressing

industry. These guidelines are known as the ``Effluent Guidelines for

the Ore Mining and Dressing Point Source Category'' (hereinafter

referred to as the ``Guidelines''). The Guidelines are published at 40

CFR Part 440.

---------------------------------------------------------------------------

\1\ Water quality based effluent limitations are included in

permits when necessary to assure compliance with water quality

standards.

\2\ If no such guidelines have been established, technology-

based limits are developed on a case-by-case basis based on the best

professional judgment of the permit writer.

---------------------------------------------------------------------------

EPA first published the Guidelines on an interim final basis on

November 6, 1975. 40 FR 51722. On July 11, 1978, after substantially

expanding the data base supporting the Guidelines, and after

considering comments submitted since initial promulgation, EPA

republished the Guidelines in modified form. 43 FR 29771 (July 11,

1978). Both the initial and republished Guidelines established BPT

effluent limitations for discharges for ore mining and dressing

operations.

B. Storm Water Regulation Under the Guidelines 3

---------------------------------------------------------------------------

\3\ The definitions of and discussion of these terms in this

notice are within the use of these terms under the NPDES program and

the Clean Water Act. These definitions are not specifically

applicable to the use of these terms under other federal

environmental laws, including under the Resources Conservation and

Recovery Act, 42 U.S.C. Secs. 6901, et seq. (RCRA) and its

implementing regulations.

---------------------------------------------------------------------------

The Guidelines establish industry-wide effluent limitations for two

types of mine discharges: (1) mill discharges and (2) mine drainage.

``Mine drainage'' means ``any water drained, pumped, or siphoned from a

mine.'' 40 CFR 440.132(h). A ``mine,'' in turn, is defined as:

An active mining area, including all land and property placed

under, or above the surface of such land, used in or resulting from the

work of extracting metal ore or minerals from their natural deposits by

any means or method, including secondary recovery of metal ore from

refuse or other storage piles, wastes, or rock dumps and mine tailings

derived from the mining, cleaning, or concentration of metal ores. 40

CFR 440.132(g)(emphasis added). An ``active mining area,'' in turn, is

defined as: A place where work or other activity related to the

extraction, removal, or recovery of metal ore is being conducted,

except, with respect to surface mines, any area of land on or in which

grading has been completed to return the earth to desired contour and

reclamation work has begun. 40 CFR 440.132(a).

1. Petition for Reconsideration

After EPA promulgated the Guidelines on July 11, 1978, a number of

mining companies filed petitions for judicial review challenging the

Guidelines. [The judicial challenges are discussed below.] During the

pendency of its judicial challenge, one of those companies, Kennecott

Copper Corporation (``Kennecott'') filed an administrative petition

with EPA (dated September 26, 1978) requesting that the Agency

reconsider and clarify the Guidelines. Kennecott amended its petition

on November 9, 1978. Kennecott identified five areas of alleged

deficiencies and concerns with the Guidelines. One of these issues

related to the storm water runoff provisions of the Guidelines.

Kennecott objected to the storm water runoff provisions, which it

argued were overly vague and capable of being interpreted in a manner

that would violate applicable law. Among other things, Kennecott was

particularly concerned about applicability of the Guidelines to what it

referred to as ``non-process'' areas at mining operations. Kennecott

further argued that the Guidelines, if applied in the manner suggested

by Kennecott, would entail exorbitant costs not considered during the

rule making. Kennecott presented EPA with cost estimates that Kennecott

believed it would have to incur to comply with the Guidelines.

Kennecott estimated costs to control storm water drainage flows from

what Kennecott referred to as the ``process'' and ``non-process'' areas

at two Kennecott mining operations, the Ray Mine and the Chino Mine. As

discussed more fully below, the Agency's decision on Kennecott's

petition is at the core of the NMA litigation over the Multi-Sector

Permit.

In partial response to the Kennecott petition, EPA published a

notice in the Federal Register that clarified the scope of the

Guidelines' applicability to storm water runoff. 44 FR 7953-54 (Feb. 8,

1979). That Notice of Clarification explained that the Guidelines

applied only to point sources in the active mining area. The Notice

clarified EPA's interpretation that the ``mine drainage'' provisions

applied to ``water which contacts an active mining area and flows into

a point source.'' Id. EPA further explained that mining operations are

not required to ``collect and contain diffuse storm [water] runoff

which would not otherwise be collected in or does not otherwise drain

into a point source.'' Id. at 7954. In other words, diffuse storm water

(from an active mining area) that was collected or contained in, or

that naturally flowed into, a point source was subject to the

Guidelines. Other storm water drainage flows were not subject to the

Guidelines.

EPA denied Kennecott's petition on February 21, 1979. In doing so,

EPA relied in part on the Notice of Clarification. The decision on the

reconsideration petition discussed the applicability of the Guidelines

to Kennecott's Ray Mine. For storm water drainage flows from what

Kennecott called ``non-process'' areas at the Ray Mine, EPA concluded

that Kennecott would incur no additional costs. Kennecott had, for the

purposes of its petition, defined ``non-process'' area to mean

``overburden dumps, material too low in mineral content even to leach,

and exposed benches at the mine.'' Citing to the Notice of

Clarification, EPA concluded that the definition of ``mine drainage''

did not include diffuse storm water runoff from overburden dumps and

material too low in mineral content to leach. As that Notice of

Clarification explained, ``[a]ll water which contacts an `active mining

area * * *' and either does not flow, or is not channeled by the

operator, to a point source, is considered runoff, and it is not the

regulations' intent to require the mine operator to collect and treat

such runoff.'' 44 FR at 7954. On the matter of storm water contacting

the exposed benches, EPA could not determine whether such discharges

would constitute point source discharges and thus, concluded that the

issue would best be addressed by the permitting

[[Page 42536]]

authority in the context of a permit proceeding.

2. Judicial Challenge

The Guidelines rule was ultimately upheld by the U.S. Court of

Appeals for the Tenth Circuit. Kennecott Copper Corp. v. EPA, 612 F.2d

1232 (10th Cir. 1979). In affirming the Guidelines, the Tenth Circuit

relied on the language of the Notice of Clarification and considered

moot the Petitioner's challenges to storm water runoff provisions,

which were based on the argument that the Guidelines were overly board

and included ``nonpoint'' as well as ``point sources.'' Kennecott

Copper Corp., 612 F.2d at 1242. The court further found that ``* * *

EPA is entirely within its authority in regulating [discharges of]

storm runoff that falls within [the definition of] a `point source.' ''

Id. at 1243. Additionally, the court reasoned that the determination of

whether a particular discharge constitutes a point source is best made

in the context of permit proceedings, guided by the broad definition of

``point source'' provided in the CWA.4 The Court recognized

that it is ``unrealistic, if not altogether impossible'' to provide an

``absolute and unequivocal'' definition of ``point source'' and rule of

applicability, further supporting case-by-case or site-specific

determinations on applicability of the Guidelines.

---------------------------------------------------------------------------

\4\ ``Point source'' is defined at Clean Water Act Sec. 502(14)

to mean ``any discernible, confined, and discrete conveyance,

including but not limited to any pipe, ditch, channel, tunnel,

conduit, well, discrete fissure, container, rolling stock,

concentrated animal feeding operation, or vessel or other floating

craft, from which pollutants are or may be discharged. See also 40

CFR 122.2.

---------------------------------------------------------------------------

Congress has purposefully phrased this definition broadly. This is

as it should be given its contemplated applicability to literally

thousands of pollution sources. To cast such definitions in absolute,

unequivocal terms would be unrealistic, if not altogether impossible.

As we observed in American Petroleum Institute, 540 F.2d at 1032: ``On

the road to attainment of the no discharge objective some flexibility

is needed.'' 612 F.2d at 1243.

The court did not say anything further in response to Kennecott's

arguments complaining that the Guidelines would improperly regulate

nonpoint source discharges at mine sites. The court did not rely on or

cite to any other references in the administrative record before it. In

response to any remaining arguments before it, the court simply noted

that ``careful examination of petitioner's remaining arguments has

persuaded us that they are without merit.'' Id. at 1243. Thus, the

court either summarily rejected Kennecott's arguments that the

Guidelines were vague and overly board, or affirmatively upheld the

regulations against Kennecott's challenges based on reasons explained

in the decision.5

---------------------------------------------------------------------------

\5\ In litigation over the Multi-Sector Permit, NMA now suggests

that the 10th Circuit relied on the Agency statements concerning the

status of storm water drainage flows at the Ray Mine to uphold the

Guidelines and that the Agency cannot now conclude that the court

independently found the storm water runoff provisions of the

Guidelines acceptable. EPA disagrees. The court's decision never

cites or discusses any of these statements.

---------------------------------------------------------------------------

While, over the course of the intervening years, the federal courts

have refined their interpretations of ``point source,'' EPA's

conclusions about point sources at mining operations has remained

constant. In upholding the Guidelines in Kennecott Copper Corp., the

Tenth Circuit specifically cited to one of the seminal cases upon which

courts rely for the proposition that the term ``point source'' should

be interpreted broadly, United States v. Earth Sciences, Inc., 599 F.2d

368 (10th Cir. 1979). 612 F.2d at 1241, 1243.

3. Subsequent Agency Action

Apart from the Agency statements made during the course of the

Kennecott Copper Corp. litigation, EPA staff has not been able to

locate evidence of subsequent Agency action referring to those

statements. Since that time, EPA and authorized NPDES States have

issued permits to a significant number of ore mining and dressing

operations. Until the instant litigation, no party identified or

presented any of the Agency litigation statements from the Kennecott

Copper Corp. case to Agency personnel working with NPDES permits.

A subsequent judicial case, which EPA cited in the 1990 storm water

regulations, further clarifies that storm water associated with

industrial activity at mining sites may result in point source

discharges. See Sierra Club v. Abston Construction Co., Inc., 620 F.2d

41 (5th Cir. 1980); 55 FR at 47997. In that case, the court determined

that whether a point source discharge was present due to rainfall

causing sediment basin overflow and erosion of piles of discarded

material, even without direct action by coal miners, was a question of

fact. 620 F.2d at 45. The ultimate question was whether the discharge

is from a ``discernible, confined, discrete conveyance,'' whether by

gravitational or non-gravitational means. Id. It was irrelevant that

operators did not construct the conveyances, so long as those

conveyances were reasonably likely to be the means by which pollutants

were ultimately deposited into a navigable body of water. Id.

Conveyances of pollution formed either as a result of natural erosion

or by material means may fit the statutory definition of point source.

Id.

II. NPDES Storm Water General Multi-Sector Permit for Industrial

Activities

A. Background

In 1987, Congress amended the CWA by adding, among other things,

several provisions concerning the control of point source discharges

composed entirely of storm water. In the 1987 amendments, Congress

directed EPA to publish permit application regulations for ``discharges

of storm water associated with industrial activity.'' CWA

Sec. 402(p)(4)(A), 33 U.S.C. Sec. 1342(p)(4)(A). On November 16, 1990,

EPA published those regulations. In doing so, EPA defined ``storm

water'' as storm water runoff, snow melt runoff, and surface runoff and

drainage. It also defined ``[s]torm water discharge associated with

industrial activity'' to mean the discharge of pollutants from any

conveyance which is used for collecting and conveying storm water and

which is directly related to manufacturing, processing, or raw

materials storage areas at an industrial plant. See 40 CFR

122.26(b)(14). Included among these discharges were discharges from

conveyances at mining facilities, including from active and inactive

mining operations that discharge storm water contaminated by contact

with or that has come into contact with overburden. 40 CFR

122.26(b)(14)(iii). In the course of that rule making, in order to

reconcile those application regulations with a statutory exemption from

CWA section 402(l)(2), EPA noted that ``a permit application will be

required when discharges of storm water runoff from mining operations

come into contact with any overburden. * * * '' 55 FR 47990, 48032.

Today's interpretation and permit modification implements those

provisions.

Upon challenge, this part of the regulations was upheld by the U.S.

Court of Appeals for the Ninth Circuit. American Mining Congress v.

EPA, 965 F.2d 759 (9th Cir. 1992) (regulations upheld against industry

challenge that the rules, among other things, imposed retroactive

liability for storm water discharges from existing mine sites). The

issues in that case are related to, but different from, the issues

addressed in today's action. That case involved inactive mines; today's

action involves active mining operations.

[[Page 42537]]

The NPDES regulations for storm water describe three mechanisms by

which dischargers of storm water associated with industrial activity

could apply for permits. 40 CFR 122.26(c)(1). First, dischargers can

apply for ``individual permits.'' Second, (prior to 1992) dischargers

could apply for permits through a ``group application.'' Third,

dischargers can apply for coverage under an ``EPA promulgated storm

water general permit.'' Dischargers from numerous industries applied

for permits through the group application process. Among them were

dischargers from the ore mining and dressing industry.

On March 10, 1993, EPA accepted group applications from ore mining

and dressing industry applicants and began processing those group

applications. On November 19, 1993, EPA proposed to issue a single

``general'' permit (for each State where EPA issues permits) based on

all of the group applications accepted and received from group

applicants in various covered industries. 58 FR 61146, 61236-61251

(November 19, 1993). EPA issued that set of general permits on

September 29, 1995, and took subsequent action concerning these general

permits on February 9, 1996, February 20, 1996 and September 24, 1996.

These general permits are entitled the NPDES Storm Water Multi-Sector

General Permits for Industrial Activities (hereinafter referred to in

the singular as the ``Multi-Sector Permit''). The Multi-Sector Permit

applies in most States, Territories, and Indian Country where EPA

administers the NPDES permitting program.

The Multi-Sector Permit contains requirements that are specifically

tailored to the types of industrial activity occurring at facilities

represented by various industry groups applicants. Unlike much of the

Ore Mining and Dressing Guidelines, the Multi-Sector Permit

incorporates narrative effluent limitations for storm water discharges.

These narrative effluent limitations are referred to as ``best

management practices'' (``BMPs''). BMPs are designed to represent the

pollution reductions achievable through application of BAT and BCT.

Permits include BMPs to control or abate the discharge of pollutants

when, for example, numeric effluent limitations are infeasible. 40 CFR

122.44(k).

In addition to the narrative BMPs, the Multi-Sector Permit includes

eligibility restrictions. Multi-Sector Permit Part I.B.3.(a)-(h), 60 FR

at 51112. Discharges that do not comply with the eligibility

restrictions are not authorized by the permit. For example, storm water

discharges that the Agency has determined to be or may reasonably be

expected to be contributing to a violation of a water quality standard

are not authorized by the Multi-Sector Permit. Multi-Sector Permit Part

I.B.3.f.

B. Multi-Sector Permit Coverage of Mining Activity

By its terms, the Multi-Sector Permit provides authorization for

some storm water discharges from ore (metal) mining and dressing

facilities. Authorization initially was limited, however, to storm

water discharges from or off of: topsoil piles; offsite haul/access

roads outside the active mining area; onsite haul roads if not

constructed of waste rock or spent ore (except if mine drainage is used

for dust control); runoff from tailings dams/dikes when not constructed

of waste rock/tailings and no process fluids are present; concentration

buildings, if no contact with material piles; mill sites, if no contact

with material piles; chemical storage areas; docking facilities, if no

excessive contact with waste product; explosive storage areas;

reclaimed areas released from reclamation bonds prior to December 17,

1990; and partially/inadequately reclaimed areas or areas not released

from reclamation bonds.

The Multi-Sector Permit covers discharges composed of entirely

storm water flows, as well as certain allowable non-storm water

discharges. 60 FR at 51114; Part III.A. The Multi-Sector Permit does

not authorize point source dry weather discharges, such as from mine

adits, tunnels, or contaminated springs or seeps, which are not storm

water. Id.; Part III.A.2.a.; 60 FR at 51155. Note that such dry weather

discharges are not affected by today's clarification.

Under the Multi-Sector Permit at Part I.B.3.g., permit coverage is

available for storm water discharges covered by some, but not all, of

the various effluent guidelines that address storm water, including,

for example, some of the storm water discharges under the Mineral

Mining and Processing Guidelines at 40 CFR Part 436. 60 FR at 51112.

The Multi-Sector Permit does not, however, cover storm water discharges

from point sources that are subject to the Ore Mining and Dressing

Guidelines. 60 FR at 51155; Part XI.G.1.a.

Table G-4 of the Multi-Sector Permit, entitled ``Applicability of

40 CFR Part 440 Effluent Limitations Guidelines to Storm Water,''

identified various discharge sources associated with ore mining and

dressing operations. The Table indicated EPA's view at that time

concerning standards of regulatory control for those discharges. The

different standards of regulatory control include: ``mine drainage''

effluent limitations guidelines, found in the Guidelines; ``mill

discharge process water'' effluent limitations guidelines, also found

in the Guidelines; ``storm water,'' which could, for example, be found

in the Multi-Sector Permit; and ``unclassified,'' indicating discharges

not regulated under the Guidelines or the Multi-Sector Permit.

As EPA said in adopting the Multi-Sector Permit: ``Table G-4

clarifies the applicability of the Effluent Limitations Guidelines

found in 40 CFR Part 440. This Table does not expand or redefine these

Effluent Limitations Guidelines.'' 60 FR at 50897 (emphasis added).

EPA's intent in publishing Table G-4, therefore, was merely to

reiterate the interpretation that EPA issued when it promulgated the

Guidelines.

III. Legal Challenge Concerning Table G-4

On October 10, 1995, the National Mining Association (hereinafter

referred to as ``NMA'' or the ``Petitioners'') petitioned the U.S.

Court of Appeals for the Eighth Circuit for judicial review of the

Multi-Sector Permit. Specifically, Petitioners challenged EPA's

determination that storm water runoff from a number of ancillary mine

sources identified in Table G-4 of the Multi-Sector Permit would

constitute sources of ``mine drainage'' under the Guidelines. The

particular mining activities of concern include overburden piles, haul

roads made of overburden and other ancillary mine areas. As noted

above, EPA excluded storm water runoff from these sources from coverage

under the Multi-Sector Permit. The Petitioners contended that this

determination reflects a new, more expansive interpretation of the

Guidelines.

NMA presented documents from the prior Kennecott litigation,

namely: EPA's 1979 decision responding to Kennecott's petition for

reconsideration of the Guidelines; a letter of EPA counsel which was

attached to a decision responding to the Kennecott petition for

reconsideration of the Guidelines; and a brief that EPA filed before

the Tenth Circuit. NMA cited these documents to support its argument

that EPA's interpretation prior to publishing the Multi-Sector Permit

was that ``overburden'' (``waste rock/overburden piles'') and ancillary

areas at mining operations would be outside the scope of the

Guidelines. NMA asserted that certain entries in Table G-4 were

incorrect to the extent that the table categorically identified

discharges from such sources as covered by the Guidelines. NMA argued

that, based on

[[Page 42538]]

EPA statements made during the course of the Kennecott litigation, no

overburden-related areas are covered by the Guidelines.

EPA has reviewed the Agency statements made during the 1979

litigation challenging the Guidelines rule making. While disagreeing

with NMA's categorical conclusion that no overburden-related areas are

covered by the Guidelines, EPA believes the earlier Agency statements

reflect an EPA interpretation that a storm water discharge from a waste

rock or overburden piles would not be subject to the Guidelines unless:

(1) it naturally drains (or is intentionally diverted) to a point

source; and (2) combines with ``mine drainage'' that is otherwise

regulated under the Part 440 regulations. Such a discharge would be

subject to the Part 440 regulations if, however, it combined with

either process waters (i.e., mill drainage) or other mine drainage.

This clarification was not obvious from the face of Table G-4 as

presented in the Multi-Sector Permit.

NMA's challenge to the Multi-Sector Permit is currently under the

advisement of the Eighth Circuit. Both parties have submitted briefs. A

coalition of citizens' interest groups, the Western Mining Action

Project and Sierra Club Legal Defense Fund, also filed an amicus curiae

brief with the Court. On March 10, 1997, the Eighth Circuit heard oral

argument in National Mining Association v. EPA, No. 95-3519. At that

time, counsel for EPA represented to the court that EPA intended to

prepare a clarification of the Agency's interpretation of the

technology-based effluent limitations applicable to point source

discharges from various areas at ore mining and dressing operations.

Today's notice provides that clarification and would revise the Table

so that it reflects only sources to which the Permit would apply.

IV. Interpretation

Upon fuller review of the underlying record, EPA now believes that,

in 1978-79, the Agency did not consider certain point source discharges

of storm water associated with ``waste rock and overburden'' to be

subject to the Ore Mining and Dressing Guidelines. Specifically, EPA

did not conduct a complete economic and technological assessment of

diverting drainage flows from ``waste rock or overburden'' outside the

active mining area into the active mining area. Therefore, the Agency

did not consider such discharges to be sources of mine drainage. First,

discharges from waste rock and/or overburden piles would be outside the

scope of the Guidelines if they consist ``entirely of diffuse runoff

which contacts overburden piles, which did not either normally flow to,

or by design drain to a point source.'' Such diffuse runoff would not

even be subject to the NPDES permit program if it was not added to

waters of the United States through a discrete, confined, discernable

conveyance. See 44 FR 7953 (Feb. 8, 1979). Second, such discharges

would be outside the scope of the Guidelines if storm water runoff from

waste rock and/or overburden-related sources does not combine with mine

drainage otherwise subject to the Part 440 regulations. In light of the

above, EPA believes that, to the extent that a reader could

misinterpret the Table as categorically including all ``waste rock/

overburden'' sources to be within the ``active mining area,'' Table G-4

did not accurately reflect the scope of the applicability of the

Guidelines.

Today's action does not change in any way EPA's interpretation of

the coverage of the Guidelines set forth in the 1979 Notice of

Clarification, which provides that the Guidelines ``are not intended to

require the operator to collect and contain diffuse storm water runoff

which would not otherwise be collected in or does not otherwise drain

into a point source.'' Today's notice articulates the 1979

interpretation to the fact situation contained in Table G-4 of the

Multi-Sector Permit.

Discharges from overburden-related sources that do not combine with

``mine drainage'' otherwise subject to the Part 440 regulations are not

covered by the Guidelines. Like all ``point source'' discharges,

however, these discharges require NPDES permit authorization to be in

compliance with the CWA. If these discharges are entirely composed of

storm water (and are not covered by the Guidelines), then they may be

authorized under an EPA general permit for storm water (if it otherwise

meets the eligibility provisions), or an individual permit with BPJ-

based controls, which may include either numeric limitations and/or

narrative limitations (in the form of BMPs).

Discharges from haul roads constructed of waste rock or spent ore

are subject to the Guidelines only if the discharge combines with

``mine drainage'' otherwise subject to the Part 440 regulations and the

resulting storm water flows drain into a point source. Point source

discharges consisting entirely of storm water from haul road-related

sources would be addressed in the same manner as ``waste rock and

overburden'' (see above). As noted above, such discharges would be

outside the scope of the NPDES program if they consist entirely of

diffuse runoff which does not flow to a point source.

EPA notes that NPDES permit coverage is still required when runoff

from waste rock and overburden piles is channeled or drains to a point

source. Under today's clarification, determinations about whether

numeric effluent limitations similar to those in the Ore Mining and

Dressing Guidelines should apply to discharges from overburden piles

and haul roads are ones to be made on a site-by-site basis based on the

``best professional judgment'' of the permit writer (according to

regulations at 40 CFR 125.3(d)). Such permits might include effluent

limitations similar to the effluent limitations for ``mine drainage''

under the Guidelines. If determined feasible, EPA acknowledges that

compliance with such limits may necessitate diversion of flows from

such sources for treatment purposes. EPA provides additional guidance

below.

V. Guidance To Permit Applicants and Permit Writers

Based on the foregoing discussion, EPA is revising Table G-4 today.

In its earlier form, Table G-4 could have been misinterpreted.

Consistent with earlier EPA statements made in the preamble to the

Guidelines, the Notice of Clarification and other documents discussed

above, the Table G-4 references to discharges from ``waste rock/

overburden'' and ``onsite haul roads constructed of waste rock or spent

ore'' at active ore mining and dressing sites are hereby modified. The

Agency does not consider those discharges to be subject to the

Guidelines unless they combine with ``mine drainage'' otherwise subject

to the Part 440 regulations and the resulting storm water flows drain

into a point source. Although not compelled by the Guidelines, numeric

effluent limitations may be appropriate for these discharges if the

permit writer so determines on a BPJ basis or if the discharge would

cause or contribute to a violation of water quality standards.

The term ``active mining area'' should be interpreted in accordance

with the plain language of the regulations; however, application of the

definition may vary from mine to mine. As the Tenth Circuit recognized

in the Kennecott Corp. case, ``to cast such definitions in absolute,

unequivocal terms would be unrealistic, if not altogether impossible.''

612 F.2d at 1243. The regulations define ``active mining area'' as ``a

place where work or other activity related to the extraction, removal,

or recovery of metal ore is

[[Page 42539]]

being conducted, except, with respect to surface mines, any area of

land on or in which grading has been completed to return the earth to

desired contour and reclamation work has begun.'' 40 CFR 440.132(a).

Today's interpretation and guidance describe a distinct class of

discharges that was not apparent from the face of Table G-4 when the

Agency published the Multi-Sector Permit. Specifically, today's

interpretation identifies some discharges that could have been

interpreted to be ``mine drainage'' under the plain language of the

Guidelines and, therefore, within the applicability of the Guidelines

and ineligible for coverage under the ore mining and dressing portion

of the Multi-Sector General Permit (and under Table G-4) even though

the Agency did not evaluate the technological feasibility and cost

impacts of diverting drainage from those sources into the active mining

area when it developed the Ore Mining and Dressing Guidelines. Based on

today's clarification, such an interpretation would be inaccurate

because EPA did not require diversion of flows from outside the active

mining area into the active mining area for treatment. For this class

of discharges described by today's notice, i.e., those from overburden

and/or waste rock sources that do not combine with mine drainage

otherwise subject to the Part 440 regulations, authorization under a

EPA general permit for storm water may be available subject to the

eligibility restriction against storm water discharges that the Agency

has determined to be or may reasonably be expected to be contributing

to a violation of a water quality standard.

Note that the permit applicant bears the initial responsibility to

determine whether its discharges are eligible for coverage under an

EPA-issued general permit. Discharges of ``mine drainage'' from the

``active mining area'' are not eligible for authorization under either

the NPDES Baseline General permit or the Multi-Sector Permit because

such discharges are subject to the Guidelines. For this reason, EPA

encourages permit applicants to contact the NPDES permit issuance

authority if there is any doubt regarding the nature and scope of the

``active mining area'' at the site of their operations. In many cases,

modifications to individual permits may be more appropriate for longer-

term authorization of the storm discharges in question. Of course, as

indicated in the Table, there may be other such point sources of

drainage from within the active mining area that would not be ``mine

drainage.'' Such discharges may be appropriately regulated under EPA

general permits for storm water.

EPA also recommends that permit applicants contact the relevant

NPDES authority for assistance in determining the appropriate

permitting vehicle to address the class of discharges described in

today's notice. At the time of reissuance, individual permits provide

the best opportunity to evaluate all discharges at a mining operation,

determine appropriate technology-based and water quality-based

limitations, and tailor controls appropriate for the discharge, for

example, through the use of best professional judgment (BPJ) according

to 40 CFR Sec. 125.3(d) or analogous State law, and where necessary to

assure compliance with water quality standards.

NPDES permitting authorities should consider the following

pollutants of concern when determining appropriate permit limitations:

--pH, Acidity, and Alkalinity. The term pH is a measure of relative

acidity or alkalinity of water. Acidity is produced by substances that

yield hydrogen ions upon hydrolysis and alkalinity is produced by

substances that yield hydroxyl ions. The concentration of hydrogen ions

is termed ``pH.'' At a pH of 7, the water is neutral; lower pH values

indicate acidity and higher values indicate alkalinity. Mine waste

water is generally acidic as a result of the oxidation of minerals.

Extremes in pH or rapid pH changes can exert stress conditions on

aquatic biota, even to the point of killing aquatic life. The relative

toxicity to aquatic life of other pollutants often is related to pH.

For example, metalocyanide complexes can increase a thousand-fold in

toxicity with a decline of 1.5 pH units. pH also affects the

availability of nutrients utilized by aquatic life.

--Total Suspended Solids (``TSS''). Suspended solids adversely affect

fisheries by covering the bottoms of streams and lakes, destroying the

bottom dwelling fish and spawning grounds. Solids in suspension

increase water turbidity, reduce light penetration and impair photo

synthetic activity. When solids settle to the bottom, they are often

more damaging to aquatic life. TSS composed of organic matter may

deplete available oxygen supplies necessary for maintaining aquatic

ecosystems. High TSS concentrations are prevalent in discharges from

mining operations as a result of the mining process itself.

--Copper. In relatively low doses, copper can cause systems of

gastroenteritis in humans, with nausea and intestinal irritations.

Copper concentrations of less than one milligram per liter can be toxic

to many kinds of fish and aquatic biota.

--Zinc. Concentrations of zinc ranging from 0.01 to 0.1 milligrams per

liter are lethal to fish. Zinc may be rendered more toxic in the

presence of copper.

If the NPDES permitting authority has data, for example, which

indicate that discharges outside the active mining area only present

pollution concerns associated with solids (e.g., settleable solids or

total suspended solids), the permit requirements for those discharges

may be limited to controlling those solids. However, if discharges

contain heavy metals, the permitting authority, using BPJ, may

establish appropriate technology-based metals effluent limitations.

Further, if the permitting authority has data to indicate a reasonable

potential to cause or contribute to an excursion of water quality

standards for other pollutants, including pH and/or heavy metals, then

the permit must include those more stringent requirements to assure

compliance with water quality standards. EPA recommends ongoing

monitoring for both pH and metals because the complex geochemistry at

many mine sites presents difficulty in predicting the quality of storm

water into the future.

In making BPJ determinations to require, for example, diversion of

contaminated storm water flows for treatment, permitting authorities

need to consider: the age of the equipment and facilities involved;

process employed; the engineering aspects of the application of various

types of control techniques; process changes; the costs of achieving

effluent reduction; and non-water quality environmental impacts

(including energy requirements). Such considerations should be

documented in permit fact sheets.

In cases where there is a dry weather discharge outside the scope

of the Guidelines, EPA strongly recommends that the permitting

authority issue an individual NPDES permit using BPJ to establish

appropriate technology-based limits or more stringent limitations

necessary to assure compliance with water quality standards. The

permitting authority should consider the degree of pollutant discharges

(especially, whether the discharge contains heavy metal pollutants) and

must consider the impact on the receiving water when establishing

appropriate water quality-based controls on the discharge.

Finally, the Agency cautions that today's interpretation should not

be

[[Page 42540]]

read as a license for mine operators to convert point source discharges

into ``nonpoint'' sources in order to avoid regulation under the NPDES

permit program. If a mining operation has a discernable, confined,

discrete conveyance, any attempt to avoid regulation by intentional

``diffusion'' of that waste water stream, for example by spraying it

over a hill side or inserting diffusing devices at the ends of drainage

culverts, would still constitute a point source discharge if the waste

water ultimately enters waters of the United States (as opposed to

appropriate land application of such waste waters). While such

diffusion may beneficially reduce the potential for erosion and

instream sedimentation, it would not eliminate the need for treatment

where necessary, for example, where the discharge contains metals

contributing to a violation of State water quality standards.

VI. Monitoring Requirements for Waste Rock and/or Overburden

Sources Eligible for Authorization Under Today's Modification

Subject to the eligibility limitations in the Multi-Sector Permit,

storm water discharges from waste rock and overburden sources are

eligible for general permit authorization according to the terms and

conditions of the permit. For the most part, permittees will control

such discharges in the same manner as other storm water discharges

associated with the operation that were already eligible for permit

coverage. In response to comments that extending Multi-Sector Permit

coverage to this category of discharges is inappropriate, however,

today's permit modifications impose requirements for analytic

monitoring of storm water discharges from these waste rock and/or

overburden sources.

By authorizing storm water discharges from waste rock and/or

overburden sources, today's modifications to the Multi-Sector Permit

will assure identification of and pollutant reduction at waste rock

and/or overburden sources that might otherwise have remained

unregulated until EPA (or State) regulatory personnel conduct

individual, mine-by-mine, source-by-source evaluations. Under the

monitoring requirements in today's modification, permittees (at all

types of mines) will sample and measure at least once for a variety of

mining-related pollutants. In addition, depending on the type of ore

mined, permittees will also sample and measure twice annually for a

list of pollutants specified for specific types of ore mining

categories.

The Multi-Sector Permit, as modified, expires in September 2000.

Thus, the authorization provided by today's permit modification will be

of limited duration. Given the limitations in the data set from which

EPA derived the requirements in the Multi-Sector Permit, the Agency

believes that monitoring over time (until September 2000) is necessary,

both to appropriately control storm water discharges from waste rock

and overburden until September 2000, and to determine the appropriate

control measures upon reissuance of the Multi-Sector Permit. As such,

the monitoring is both ``regulatory,'' in that it will identify sources

of particular concern, as well as ``evaluative,'' in that it will

provide data to describe and evaluate storm water discharges from waste

rock and overburden sources in a comprehensive fashion.

For storm water discharges from waste rock and overburden piles,

permittees will sample and analyze at least once for the following

metals: antimony, arsenic, beryllium, cadmium, copper, iron, lead,

manganese, mercury, nickel, selenium, silver, zinc. Each of these

metals can be measured using the same analytic test procedure. The

original Multi-Sector Permit also included ``parameter benchmark

values'' for each of these metals. See 60 FR at 50826 (Table 5).

Consistent with the identification of pollutants in the benchmark

values table, permittees will measure for total ``recoverable'' metals.

Though the Agency has expressed a policy preference for measurement of

total dissolved metals in describing ambient water quality, the

monitoring for total metals to characterize effluent discharges under

today's modification is consistent with NPDES regulations, which

specify that, when a permit contains a limitation for a metal, the

limit be expressed in terms of total recoverable metals. See 40 CFR

122.45(c). At the discretion of the permittee, however, the permittee

may also report information about ``dissolved'' metal analysis for the

measured samples because EPA will evaluate all available monitoring

information to determine appropriate terms and conditions for the

Multi-Sector Permit upon reissuance. Permittees will also sample and

analyze for pH, hardness, total settleable solids (TSS) and turbidity

in the storm water discharges from such piles.

For any pollutant occurring above a benchmark value, the permittee

will sample and analyze twice annually. In the case of pH monitoring,

two annual samples is required if the measured pH falls outside the

range listed in Table 5. Hardness does not have a benchmark value;

twice annual measurement of hardness would accompany measurement for

any hardness dependent metals (cadmium, copper, lead, nickel, silver,

and zinc) required to be measured twice annually based on this initial

measurement.

The permit includes this monitoring ``screen'' based on the

geologic variability of waste rock and overburden associated with

various ore types. Though a particular site may be mined only for a

particular ore type, other metals may exist in the overburden (though

not high enough in content to be of economic value). This initial

monitoring will identify any such metals of concern. Measurement of

such metals above the identified ``benchmark'' necessitates continuing

attention through twice annual monitoring. Measurement of pH will also

identify mine piles of concern for acidity. Information about hardness

is important in determining bioavailability of measured metals, which

in turn is useful to predict water quality impact. Measurement of total

settleable solids and turbidity provides an indication of the

effectiveness of measures to control erosion and runoff of storm water,

which may impair aquatic life and aquatic habitat at high levels.

As noted above, permittees are also automatically required to

conduct twice annual monitoring for specified pollutants associated

with the specific type of ore mined at the facility. For certain types

of ore mines, the effluent limitations guidelines (the Part 440

regulations) identified specific ``pollutants of concern.'' Given the

potential for changes in geochemistry of waste rock and overburden

piles over time, this categorical monitoring (twice yearly) is required

regardless of the test results from the initial monitoring screen. Note

that two types of ore mining operations, iron mining and uranium/

radium/vanadium mining, are required to measure for dissolved iron and

dissolved radium, respectively.

The permit requires two monitoring events per year (once between

January and June, and once between July and December) in order to

assure that collected samples reliably ``represent'' expected

discharges over the course of the year and to account for the

significant potential difficulty (and potential for resulting error) in

sampling. Given the opportunity for a sampling waiver under certain

temporally-dependent conditions, the twice annual monitoring

requirement will provide a meaningful representation of discharges,

including seasonal variability.

[[Page 42541]]

The analytic monitoring requirements only apply to storm water

discharges from piles of waste rock and overburden piles, not to haul

roads and access roads constructed from waste rock or overburden. While

the Agency is aware of the potential for water quality problems

associated with acid rock drainage from piles of waste rock and/or

overburden, the Agency is not aware of the same threat from drainage

from access roads and haul roads. Given the relative flow per discharge

source compared to piles, visual discharge monitoring and inspection

should be adequate for haul roads and access roads.

Monitoring is required only at representative outfalls. Consistent

with the existing Multi-Sector Permit, permittees are only required to

sample and analyze discharges from the representative outfalls, which

in turn, are to be identified in pollution prevention plans (i.e., in

the topographic maps identifying drainage patterns). The pollution

prevention plan also must explain why the discharges are expected to be

substantially identical, estimate the drainage area and runoff

coefficient. See generally, the explanation in the Multi-Sector Permit

at 60 FR at 51160, col. 3 (``Representative Discharge'').

Similar to the reporting requirements in the Multi-Sector Permit,

permittees need to submit monitoring results in Discharge Monitoring

Reports on an annual basis. Because the Multi-Sector Permit will expire

in September 2000, this requirement will result in essentially two

reports for each mining operation. The first report will provide

important information upon which the Agency can begin the process to

reissue the Multi-Sector Permit; the second report will confirm (or

refute) preliminary decisions with sufficient time for the Agency to

evaluate the information prior to proposing reissuance.

The permit modification (and monitoring requirements) apply to both

``active'' piles, as well as ``inactive'' piles, though only at

``active'' mining and dressing operations. Permittees have discretion

to sample discharges at any convenient point prior to discharge to

waters of the United States, including a sampling point after

application of the best management practice. Consistent with the

analytic monitoring requirements for discharges from active copper

mines (in the existing Multi-Sector Permit), permittees may collect

substitute samples when adverse weather conditions create dangerous

conditions for personnel or otherwise make the collection of a sample

impracticable.

VII. Summary of Responses to Public Comments

EPA has prepared a comprehensive response to public comments

received on the proposal and that document is available in the

administrative record for today's action. Some of those comments and

responses are included below.

Comment. EPA's 1978 and 1982 Development Documents reveal that EPA

has never analyzed the technical and economic feasibility of subjecting

storm water runoff from vast overburden piles, haul roads and similar

ancillary areas to the strict Part 440 effluent limitations. EPA

wrongly still presumes that the ``active mining area'' should be

interpreted broadly. The purported definition of the term ``mine''

[from the 1975 preamble and 1978 Development Document] is inconsistent

with (and far broader than) the subsequently-promulgated regulatory

definition of the term ``mine'' for the purposes of 40 CFR

Sec. 440.132. That definition does not include such things as ``haul

roads'' or ``all lands affected by the construction of new roads or the

improvements or use of existing roads to gain access to the site,'' nor

does it include ``overburden piles'' or ``storage areas'' (except to

the extent that such piles or areas are currently being used for the

``secondary recovery of metal ore''). Thus, the proposed modification

is inconsistent on its face with the existing regulation and should be

eliminated. All references to the scope of the term ``mine'' (or the

``active mining area'') should be limited to the regulatory definitions

which speak for themselves.

Response. The commenter presents forceful arguments supporting

revision of the interpretation of ``the'' definition as proposed, but

some of its assumptions understate and confuse the nature of the

Agency's actions in developing and promulgating the Part 440

regulations. By today's action, EPA explains its interpretation.

The definition of ``mine'' at 40 CFR 440.132(g) includes ``an

active mining area, including all land and property placed under, or

above the surface of such land, used in or resulting from the work of

extracting metal ore or minerals from their natural deposits by any

means or method, including secondary recovery of metal ore from refuse

or other storage piles, wastes, or rock dumps and mill tailings derived

from the mining, cleaning, or concentration of metal ores.'' An

``active mining area'' is ``a place where work or other activity

related to the extraction of, removal, or recovery of metal ore is

being conducted, except, with respect to surface mines, any area of

land on or in which grading has been completed to return the earth to

desired contour and reclamation work has begun.'' 40 CFR

440.132(a)(emphasis added). The plain meaning of the words ``other

activity related to * * *'' could be interpreted to include overburden-

related sources (in that disposal of mining waste is ``related to''

and, in fact integral to, mining) and haul roads (in that access to and

from mining sites is ``related to'' and, in fact, integral to mining).

Under today's interpretation, however, overburden-related sources would

not be categorically subject to the Part 440 regulations unless

otherwise sited in the active mining area. Likewise, waste rock and

overburden-related sources are not categorically excluded from

applicability of the Part 440 regulations because some such sources may

be sited in the active mining area and combine with mine drainage

otherwise regulated under the Part 440 regulations.

The definitions of the term ``mine'' from the 1975 preamble and

1978 Development Document differ from the definition of the term

``mine'' published at 40 CFR Sec. 440.132. Descriptions in the 1975

preamble and 1978 Development Document were developed and used by

Agency personnel gathering information at existing mining operations.

EPA presumes that some of the sources identified in the 1975 preamble

and 1978 Development Document did drain to existing treatment systems

at some facilities. EPA acknowledges, however, that the location of

such sources does not necessarily and categorically define the

geographic scope of active mining area. EPA notes that the definition

of ``mine'' in the 1982 Development Document more closely paraphrases

the regulatory definitions.

To respond to this comment and avoid further confusion, however,

EPA has removed references to the 1975 and 1978 developmental

definitions in the interpretation published today. By today's action, a

discharge associated with the disposal of waste rock or overburden

source would not be subject to regulation under the Part 440

regulations unless it: (1) naturally drains (or is intentionally

diverted) to a point source; and (2) combines with ``mine drainage''

that is otherwise regulated under the Part 440 regulations. As such,

EPA has modified the provisions of the Multi-Sector permit to include

monitoring provisions that should effectively identify any waste rock

and overburden sources of environmental concern.

[[Page 42542]]

Comment. The newly proposed version of Table G-4 omits certain

sources of storm water discharges that were listed in the prior version

and as to which the multi-sector general permit should be applicable,

specifically, crusher areas, ore piles, and spent ore piles. The

commenter believes these areas are outside the active mining area.

Response. The published interpretation no longer attempts to

enumerate various areas at mining operations for the purposes of

indicating those for which the Part 440 regulations apply. By deciding

not to list those areas, EPA specifically does not expand permit

coverage to include those areas. In the group applications from the

mining industry, group applicants did not specifically seek permit

authorization for such areas. EPA therefore lacks sufficient

information to address these areas today.

Comment. Mines are subject to state and federal regulations

pertaining to dust. Nevada encourages the use of pumped groundwater for

dust control in order to conserve water. To subject haul roads to

numeric effluent limitations because they use pumped groundwater to

limit dust in order to comply with other regulations seems

counterproductive and shortsighted. Any statement that would subject

these roads to such limitations should be deleted. In Nevada,

groundwater is typically pumped from an underground aquifer to a

holding tank for dust control usage. Groundwater used for dust control

is not normally applied to roads during storm events, thus, there would

be no commingling of storm water and ground water.

Response. EPA did not intend to identify all waters used for dust

control as sources of mine drainage. EPA recognizes that groundwater is

used for dust control in some areas of the country. EPA does not

necessarily consider groundwater to be mine drainage, especially

uncontaminated groundwater. When mine water, which might otherwise

constitute mine drainage, is used for dust control, however, then such

dust control waters would remain mine drainage.

Comment. The proposed modification should not be limited to EPA

Regions 1, 6, 9, and 10. EPA Region 8 has relied on Table G-4 from the

original Multi-Sector Permit to dictate to States with EPA-approved

NPDES permit programs how 40 CFR Part 440 must be interpreted. EPA has

provided the 1995 Multi-Sector Permit to authorized States as a model.

Because authorized States must have requirements that are at least as

stringent as the federal program, EPA should confirm that any revised

interpretation of 40 CFR Part 440 is applicable to all States with ore

mining and dressing facilities. EPA's interpretation in Table G-4 is

applicable to all States, not just EPA, including for the purposes of

withdrawal of authorized State NPDES programs. EPA has not provided a

reasoned and viable basis for regional distinctions in applicability of

the interpretation in the proposed modification.

Response. EPA agrees that the Agency's interpretation of the Part

440 regulations should apply on a national basis. States authorized to

administer the NPDES permitting program are to include effluent

limitations in permits that are at least as stringent as the

limitations that EPA would include in NPDES permits. Because the

interpretation in today's action is just that--an interpretation--and

because the primary action EPA takes in today's action is to modify

EPA-issued NPDES general permits for storm water associated with

industrial activity (the Multi-Sector Permit), only the EPA Regional

Administrators who issue the Multi-Sector Permit sign today's notice.

EPA does intend, however, that the interpretation associated with the

modification to the Multi-Sector Permit apply on a nationwide basis.

Comment. EPA should address the situation where an overburden pile

is physically separated from and does not naturally drain to an open

pit.

Response. EPA generally acknowledges that some mining operations

and some States authorized to administer the NPDES program have not

historically interpreted the term ``active mining area'' in the same

manner as the Agency would have interpreted that term reflected in the

1995 version of Table G-4. Upon fuller review of the underlying

administrative record to the original Part 440 rule makings, EPA

concludes that the Agency did not conduct a complete economic and

technological assessment of diversion of drainage flows from ``waste

rock or overburden'' outside the active mining area into the active

mining area. As such, the Agency agrees that a waste rock or an

overburden pile that is physically separated from and does not

naturally drain (or has not been intentionally diverted) to treatment

would not be a source of mine drainage. In such a case, however,

evaluation of the resulting discharges would be necessary and

appropriate to determine whether such discharge would cause, have a

reasonable potential to cause, or contribute to a violation of any

water quality standard.

Comment. EPA should clarify that water quality treatment of ``mine

drainage'' necessitated by active mining (e.g., construction of a waste

rock pile) is part of the ``active mining area'' and the ``mine'' and

that such drainage is subject to the effluent limitations guidelines

for the life of the discharge.

Response. EPA generally agrees that mining operation point sources

from active mining that represent water quality concerns remain subject

to CWA control requirements for as long as the discharge causes or

contributes (or has a reasonable potential to contribute) to a

violation of a water quality standard. EPA presumes that treatment to

protect water quality may be necessary, for example, for discharges

from a waste rock pile with mineral content high enough to leach metals

under normal environmental conditions. EPA does not, however, conclude

that all regulation of point sources to protect water quality

necessarily means that such point sources are subject to regulation

under the national effluent limitations guidelines. Any more stringent

water quality based effluent limitations are necessary when technology-

based limitations are insufficient to assure compliance with water

quality standards. The imposition of a water quality based effluent

limitation does not necessarily expand the applicability of technology-

based limitations. Such water quality-based limitations may regulate

different or fewer (or more) pollutants than applicable technology-

based limitations.

Comment. EPA should interpret the Neuman letter to exempt only

releases from ``areas * * * where work or other activity related to the

extraction, removal or recovery of metal ore is not being conducted.''

EPA should clarify that an active waste dump is clearly within an area

where such work is being conducted. The proposed modification correctly

notes the distinction between discharges from active waste rock dumps

and inactive dumps. The former are subject to the effluent limitations

guidelines and the latter are not.

Response. EPA believes that, as a practical matter, it would be

difficult to differentiate discharges from newly placed overburden and

existing overburden, especially when placement of overburden is being

conducted at existing piles. Importantly, the mere placement of such

``new'' overburden to an existing overburden pile does not

automatically make the pile part of the active mining area under the

Part 440 regulations.

Comment. The Administrator's decision of February 21, 1979, did not

exempt active waste rock dumps that do drain to a point source.

[[Page 42543]]

Response. As noted previously, EPA has struggled to provide meaning

to the Administrator's February 21, 1979 decision in light of the

appended letter from Mr. Neuman. EPA agrees that the Administrator's

decision, to the extent it addresses drainage to a point source,

clearly does not provide any basis to presume any exemption from NPDES

permit requirements. The Agency does not, however, endorse the negative

inference that the commenter draws from the Administrator's decision.

Under today's clarification, a discharge associated with the disposal

of waste rock and/or overburden would not be subject to regulation

under the Part 440 regulations unless it: (1) drains naturally (or is

intentionally diverted) to a point source; and (2) combines with ``mine

drainage'' that is otherwise regulated under the Part 440 regulations.

VIII. Regulation Assessment Requirements

A. Executive Order 12866

Under Executive Order 12866 (58 FR 51735; October 4, 1993), the

Agency must determine whether the regulatory action is ``significant''

and therefore subject to OMB review and the requirements of the

Executive Order. The Order defines ``significant regulatory action'' as

one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more,

or adversely affect in a material way the economy, a sector of the

economy, productivity, competition, jobs, the environment, public

health or safety, or State, local, or tribal governments or

communities;

(2) Create a serious inconsistency or otherwise interfere with an

action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants,

user fees, or loan programs or the rights and obligations of recipients

thereof; or

(4) Raise novel legal or policy issues arising out of legal

mandates, the President's priorities, or the principles set forth in

the Executive Order.

Because the Agency takes the position that NPDES general permits

are not ``rules'' or ``regulations'' subject to the rule making

requirements of Administrative Procedure Act section 553, it has been

determined that this rule is not a ``significant regulatory action''

under the terms of Executive Order 12866 and is therefore not subject

to OMB review.

B. Regulatory Flexibility Act

The Agency has determined that the permit modification being

published today is not subject to the Regulatory Flexibility Act

(``RFA''), which generally requires an agency to conduct a regulatory

flexibility analysis of any significant impact the rule will have on a

substantial number of small entities. By its terms, the RFA only

applies to rules subject to notice-and-comment rule making requirements

under the Administrative Procedure Act (``APA'') or any other statute.

Today's permit modification is not subject to notice and comment

requirements under the APA or any other statute because the APA defines

``rules'' in a manner that excludes permits. See APA section 551 (4),

(6), and (8).

APA section 553 does not require public notice and opportunity for

comment for interpretative rules or general statements of policy. In

addition to modifying the general permit, today's action repeats an

interpretation of existing regulations promulgated almost twenty years

ago. The action would impose no new or additional requirements.

C. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L.

104-4, establishes requirements for Federal agencies to assess the

effects of their regulatory actions on State, local, and tribal

governments and the private sector. Under section 202 of the UMRA, EPA

generally must prepare a written statement, including a cost-benefit

analysis, for proposed and final rules with ``Federal mandates'' that

may result in expenditures to State, local, and tribal governments, in

the aggregate, or to the private sector, of $100 million or more in any

one year.

For reasons explained in the discussion regarding the Regulatory

Flexibility Act, the UMRA only applies to rules subject to notice-and-

comment rule making requirements under the APA or any other statute.

Today's permit modification is not subject to notice and comment

requirements under the APA or any other statute because the APA defines

``rules'' in a manner that excludes permits. See APA section 551 (4),

(6), and (8).

Today's permit modification contains no Federal mandates (under the

regulatory provisions of Title II of the UMRA) for State, local, or

tribal governments or the private sector. Today's modification merely

announces an Agency interpretation of existing regulations. EPA has

determined that this permit modification does not contain any Federal

mandate that may result in expenditures of $100 million or more for

State, local, and tribal governments, in the aggregate, or the private

sector in any one year. Therefore, today's permit modification is not

subject to the requirements of section 202 of the UMRA.

Before EPA establishes any regulatory requirements that may

significantly or uniquely affect small governments, including tribal

governments, it must have developed under section 203 of the UMRA a

small government agency plan. The plan must provide for notifying

potentially affected small governments, enabling officials of affected

small governments to have meaningful and timely input in the

development of EPA regulatory proposals with significant Federal

intergovernmental mandates, and informing, educating, and advising

small governments on compliance with the regulatory requirements.

Because today's modification is based on an interpretation of existing

regulations and because EPA anticipates that extremely few, if any,

small governments operate mining operations, EPA has determined that

this action contains no regulatory requirements that might

significantly or uniquely affect small governments.

D. Paperwork Reduction Act

The permit modification contains no requests for information and

consequently is not subject to the Paperwork Reduction Act, 44 U.S.C.

Secs. 3501 et seq.

Official Signatures

Accordingly, I hereby find consistent with the provisions of the

Regulatory Flexibility Act, that these final permit modifications will

not have a significant impact on a substantial number of small

entities.

Authority: Clean Water Act, 33 U.S.C. 1251 et seq.

Dated: July 29, 1998.

Mindy Lubber,

Acting Regional Administrator, Region 1.

Dated: July 29, 1998.

Gregg A. Cooke,

Regional Administrator, Region 6.

Dated: July 18, 1998.

Laura Yoshii,

Acting Regional Administrator, Region 9.

Dated: July 21, 1998.

Chuck Clarke,

Regional Administrator, Region 10.

Final Permit Modification

This permit modification shall become effective on September 8,

1998.

[[Page 42544]]

Region 1

Signed and issued this 24th day of July, 1998.

Linda M. Murphy,

Director, Office of Ecosystem Protection.

------------------------------------------------------------------------

Areas of coverage Permit No.

------------------------------------------------------------------------

Connecticut Indian Country.............. CTR05*##F

Maine................................... MER05*###

Maine Indian Country.................... MER05*##F

Massachusetts........................... MAR05*###

Massachusetts Indian Country............ MAR05*##F

New Hampshire........................... NHR05*###

Rhode Island Indian Country............. RIR05*##F

Vermont Federal Facilities.............. VTR05*##F

------------------------------------------------------------------------

Region VI

Signed this 29th of July, 1998.

William B. Hathaway,

Water Quality Protection Division Director.

------------------------------------------------------------------------

Areas of coverage Permit No.

------------------------------------------------------------------------

Louisiana Indian country................ LAR05*##F

New Mexico.............................. NMR05*###

Indian country (except Navajo and Ute NMR05*##F

Mountain Reservation lands).

Oklahoma:

Indian country........................ OKR05*##F

Oil and gas exploration and production OKR05*###

related industries and pipeline

industries that are regulated by the

Oklahoma Corporation Commission.

Texas................................... TXR05*###

Indian country........................ TXR05*##F

------------------------------------------------------------------------

Region IX

Signed this 24th of July, 1998.

Alexis Strauss,

Acting Director, Water Division.

------------------------------------------------------------------------

Areas of coverage Permit No.

------------------------------------------------------------------------

Arizona................................. AZR05*###

Indian country........................ AZR05*##F

Federal Facilities.................... AZR05*##F

California:

Indian country (Not including Hoopa CAR05*##F

Valley Tribe).

Idaho:

Duck Valley Reservation............... NVR05*##F

Nevada Indian country................... NVR05*##F

New Mexico:

Navajo Reservation.................... AZR05*##F

Oregon:

Fort McDermitt Reservation............ NVR05*##F

Utah

Goshute Reservation................... NVR05*##F

Navajo Reservation.................... AZR05*##F

------------------------------------------------------------------------

Region X

Signed this 21st of July, 1998.

Philip G. Millam,

Director, Office of Water.

------------------------------------------------------------------------

Areas of coverage Permit No.

------------------------------------------------------------------------

Alaska Indian country................... AKR05*##F

Idaho: IDR05*###

Federal Facilities.................... IDR05*##F

Indian country (except Duck Valley IDR05*##F

Reservation lands).

Oregon Indian country (except for Fort ORR05*##F

McDermitt Reservation lands).

Washington Indian country............... WAR05*##F

Washington Federal Facilities........... WAR05*##F

------------------------------------------------------------------------

1. For the reasons set forth in this preamble, the table published

at 60 FR 50897 is modified to read as follows:

Table G-4.--Applicability of the Multi-Sector General Permit to Storm

Water Runoff From Active Ore (Metal) Mining and Dressing Sites

------------------------------------------------------------------------

Discharge/source of discharge Note/comment

------------------------------------------------------------------------

Piles:

Waste rock/overburden.............. If composed entirely of storm

water and not combining with

mine drainage. See Note below.

Topsoil.

Roads constructed of waste rock or

spent ore:

Onsite haul roads.................. If composed entirely of storm

water and not combining with

mine drainage. See Note below.

Offsite haul/access roads.

Roads not constructed of waste rock or

spent ore:

Onsite haul roads.................. Except if ``mine drainage'' is

used for dust control.

Offsite haul/access roads.

Milling/concentrating:

Runoff from tailings dams/dikes Except if process fluids are

when constructed of waste rock/ present and only if composed

tailings. entirely of storm water and

not combining with mine

drainage. See Note below.

Runoff from tailings dams/dikes Except if process fluids are

when not constructed of waste rock/ present.

tailings.

Concentration building............. If storm water only and no

contact with piles.

Mill site.......................... If storm water only and no

contact with piles.

Ancillary areas:

Office/administrative building and If mixed with storm water from

housing. the industrial area.

Chemical storage area.

Docking facility................... Except if excessive contact

with waste product that would

otherwise constitute ``mine

drainage''.

Explosive storage

Fuel storage (oil tanks/coal piles)

Vehicle/equipment maintenance area/

building

Parking areas...................... But coverage unnecessary if

only employee and visitor-type

parking.

Power plant.

Truck wash area.................... Except when excessive contact

with waste product that would

otherwise constitute ``mine

drainage''.

Reclamation-related areas:

Any disturbed area (unreclaimed)... Only if not in active mining

area.

[[Page 42545]]

Reclaimed areas released from

reclamation bonds prior to Dec. 17

1990.

Partially/inadequately reclaimed

areas or areas not released from

reclamation bond.

------------------------------------------------------------------------

Storm water runoff from these sources are subject to the NPDES

program for storm water unless mixed with discharges subject to the 40

CFR Part 440 that are not regulated by another permit prior to mixing.

Non-storm water discharges from these sources are subject to NPDES

permitting and may be subject to the effluent limitation guidelines

under 40 CFR Part 440.

Note: Discharges from overburden/waste rock and overburden/waste

rock-related areas are not subject to 40 CFR Part 440 unless: (1) it

drains naturally (or is intentionally diverted) to a point source;

and (2) combines with ``mine drainage'' that is otherwise regulated

under the Part 440 regulations. For such sources, coverage under

this permit would be available if the discharge is composed entirely

of storm water does not combine with other sources of mine drainage

that are not subject to 40 CFR Part 440, as well as meeting other

eligibility criteria contained in Part I.B. of the permit. Permit

applicants bear the initial responsibility for determining the

applicable technology-based standard for such discharges. EPA

recommends that permit applicants contact the relevant NPDES permit

issuance authority for assistance to determine the nature and scope

of the ``active mining area'' on a mine-by-mine basis, as well as to

determine the appropriate permitting mechanism for authorizing such

discharges.

2. The fourth sentence in the first paragraph in permit eligibility

provision for Storm Water Discharges Associated with Industrial

Activity from Metal Mining (Ore Mining and Dressing), Section XI.G.1.

(introductory language), previously published at 60 FR 51155, is

modified and a fifth and sixth sentence are added to read as follows:

1. Discharges Covered Under This Section

* * * All storm water discharges from inactive metal mining

facilities and storm water discharges from the following areas of

active, and temporarily inactive, metal mining facilities are the only

discharges covered by this permit: waste rock/overburden piles if

composed entirely of storm water and not combining with mine drainage;

topsoil piles; offsite haul/access roads; onsite haul/access roads

constructed of waste rock/overburden if composed entirely of storm

water and not combining with mine drainage; onsite haul/access roads

not constructed of waste rock/overburden/spent ore except if mine

drainage is used for dust control; runoff from tailings dams/dikes when

not constructed of waste rock/tailings and no process fluids are

present; runoff from tailings dams/dikes when constructed of waste

rock/tailings and no process fluids are present if composed entirely of

storm water and not combining with mine drainage; concentration

building if no contact with material piles; mill site if no contact

with material piles; office/administrative building and housing if

mixed with storm water from industrial area; chemical storage area;

docking facility except if excessive contact with waste product that

would otherwise constitute mine drainage; explosive storage; fuel

storage; vehicle/equipment maintenance area/building; parking areas (if

necessary); power plant; truck wash areas except when excessive contact

with waste product that would otherwise constitute mine drainage;

unreclaimed, disturbed areas outside of active mining area; reclaimed

areas released from reclamation bonds prior to December 17, 1990; and

partially/inadequately reclaimed areas or areas not released from

reclamation bond. Note: Discharges from overburden/waste rock and

overburden/waste rock-related areas are not subject to 40 CFR Part 440

unless it: (1) Drains naturally (or is intentionally diverted) to a

point source; and (2) combines with ``mine drainage'' that is otherwise

regulated under the Part 440 regulations. For such sources, coverage

under this permit is available if the discharge is composed entirely of

storm water and does not combine with sources of mine drainage that are

subject to 40 CFR Part 440, as well as meeting other eligibility

criteria contained in Part I.B. of the permit.

3. The permit is amended to include a new section d. and Tables G-2

and G-3, which would have appeared in the third column of 60 FR 51161,

to read as follows:

d. Additional Monitoring Requirements for Storm Water Discharges

from Waste Rock and Overburden Piles.

Beginning July 1, 1998, the operator of an active ore mining and

dressing facility covered by this permit must monitor the storm water

discharges from waste rock and/or overburden piles resulting from

mining activities. The operator must conduct analytic monitoring as

described below at least twice annually (once between July 1 and

December 31, and once between January 1 and June 30) for the duration

of this permit. Samples shall be collected from separate storm events a

minimum of 3 months apart, except as provided in paragraphs 5.a.(3)

(Sampling Waiver), 5.a.(4) (Representative Discharge), and 5.a.(5)

(Alternative Certification). Upon notification by the Director,

permittees may be required to conduct additional monitoring as

necessary to accurately characterize the quality and quantity of

pollutants discharged from the waste rock/overburden pile.

All permittees must conduct analytic monitoring once for the

parameters listed in Table G-2, and twice annually for any parameters

measured above the benchmark value listed in Table G-2. Permittees must

also conduct analytic monitoring twice annually for the parameters

listed Table G-3 for each of the ore mine categories listed in Table G-

3. The initial sampling conducted of Table G-2 pollutant parameters

satisfies the requirement for the first sample for any pollutant

measurement required by Table G-3.

Permittees must report monitoring results in accordance with

paragraph 5.b. (Reporting). In addition to reporting the monitoring

requirements for the parameters listed in Tables G-2 and G-3 below, the

permittee must report the date and duration (in hours) of the storm

event(s) sampled; rainfall measurements or estimates (in inches) of the

storm event that generated the sampled runoff; the duration between the

storm event sampled and the end of the previously measurable (greater

than 0.1 inch) storm event; and an estimate of the total volume (in

gallons) of the sampled discharge.

[[Page 42546]]

Table G-2.--Initial Monitoring Requirements for Storm Water Discharges

From Waste Rock and Overburden Piles Resulting From Mining Activity at

Active Ore Mining or Dressing Operations

------------------------------------------------------------------------

Pollutants of concern Benchmark values

------------------------------------------------------------------------

Total Suspended Solids (TSS).... 100 mg/L.

Turbidity (NTUs)................ 5 NTUs above background.

pH.............................. 6.0-9.0 standard units.

Hardness (as CaCO3)............. no benchmark value.

Antimony, Total................. 0.636 mg/L.

Arsenic, Total.................. 0.16854 mg/L.

Beryllium, Total................ 0.13 mg/L.

Cadmium, Total (hardness 0.0159 mg/L.

dependent).

Copper, Total (hardness 0.0636 mg/L.

dependent).

Iron, Total..................... 1.0 mg/L.

Lead, Total (hardness dependent) 0.0816 mg/L.

Manganese, Total................ 1.0 mg/L.

Mercury, Total.................. 0.0024 mg/L.

Nickel, Total (hardness 1.417 mg/L.

dependent).

Selenium, Total................. 0.2385 mg/L.

Silver, Total (hardness 0.0318 mg/L.

dependent).

Zinc, Total (hardness dependent) 0.117 mg/L.

------------------------------------------------------------------------

Table G-3.--Additional Monitoring Requirements (Twice Annual) for Storm Water Discharges From Waste Rock and

Overburden Resulting From Mining Activity at Active Mining or Dressing Operations Based on Type of Ore Handled

----------------------------------------------------------------------------------------------------------------

Pollutant/parameter

---------------------------------------------------------------------------------

Type of ore mined Total

suspended pH Metals, total

solids (TSS)

----------------------------------------------------------------------------------------------------------------

Tungsten Ore.................. X X Arsenic, Cadmium (H), Copper (H), Lead (H), Zinc

(H).

Nickel Ore.................... X X Arsenic, Cadmium (H), Copper (H), Lead (H), Zinc

(H).

Aluminum Ore.................. X X Aluminum, Iron.

Mercury Ore................... X X Nickel (H), Mercury.

Iron Ore...................... X X Iron (Dissolved).

Platinum Ore.................. ............ ............ Cadmium (H), Copper (H), Mercury, Lead (H), Zinc

(H).

Titanium Ore.................. X X Iron, Nickel (H), Zinc (H).

Vanadium Ore.................. X X Arsenic, Cadmium (H), Copper (H), Lead, Zinc (H).

Copper, Lead, Zinc, Gold, X X Arsenic, Cadmium (H), Copper (H), Lead (H), Mercury,

Silver, and Molybdenum. Zinc (H).

Uranium, Radium, and Vanadium. X X Chemical Oxygen Demand, Arsenic, Radium (Dissolved

and Total), Uranium, Zinc (H).

----------------------------------------------------------------------------------------------------------------

Note: (H) indicates that hardness must also be measured when this pollutant is measured.

4. The permit is amended to include a new section e., which would

have appeared in the third column of 60 FR 51161, to read as follows:

e. Additional Reporting Requirements for Storm Water Discharges

from Waste Rock and Overburden Resulting from Mining Activities.

Permittees with active ore mining and dressing facilities shall

submit monitoring results for each outfall discharging storm water

discharges from waste rock and overburden piles resulting from mining

activities, (or a certification in accordance with Sections (3)(a),

(3)(b), (4), (5) above) obtained during the reporting period beginning

July 1, 1998, and lasting for the duration of the permit. Permittees

must submit such monitoring results on Discharge Monitoring Report

(DMR) Form(s) postmarked no later than March 31 following the calendar

year in which the samples were collected.

5. In addition to the conditions contained in Parts I-XI of this

permit, the following requirements are incorporated into Part XII and

are placed on permittees located in the listed States, Indian country

lands (referred to as ``Federal Indian Reservations'' in the original

permit), or Territories to meet applicable Clean Water Act section 401

or Coastal Zone Management Act certification requirements.

Part XII. Coverage Under This Permit

The provisions of this Part provide modifications or additions to

the applicable conditions of Parts I through XI of this permit in order

to reflect specific conditions required as part of a State, Tribal or

Territory Clean Water Act section 401 certification process, or Coastal

Zone Management Act certification process, or as otherwise established

by the permitting authority. The additional revisions and requirements

listed below are set forth in connection with, and only apply to, the

following States, Indian country lands, and Federal facilities.

[[Page 42547]]

Region I

State of Massachusetts, Except Indian Country Lands (MAR05*###)

The following Massachusetts section 401 certification requirements

revise the permit accordingly:

1. Part II.B.8. is added to the permit as follows:

Special Permit Eligibility Requirements for the State of

Massachusetts. Discharges covered by the Multi-Sector General Permit

must comply with the provisions of 314 CMR 3.00, 314 CMR 4.00, 314 CMR

9.00 and 310 CMR 10.00 and any related policies promulgated under the

authority of the Massachusetts Clean Waters Act, M.G.L. c.21, ss.26-53,

and Wetlands Protection Act, M.G.L. c.131, s. 40. Specifically, new

facilities or the redevelopment of existing facilities subject to this

permit must comply with applicable storm water performance standards

prescribed by State regulation or policy. A permit under 314 CMR 3.04

is not required for existing facilities which meet State storm water

performance standards; an application for a permit under 314 CMR 3.00

is required only when required under 314 CMR 3.04(2)(b) (designation of

a discharge on a case-by-case basis) or is otherwise identified in 314

CMR 3.00 or Department policy as a discharge requiring a permit

application. Department regulations and policies may be obtained

through the State House Bookstore (617-727-2834) or on the Internet at

``www.magnet.state.ma.us/dep''.

2. Part VI.B.3. is added to the permit as follows:

Special Reporting Requirement for the State of Massachusetts. The

results of any quarterly monitoring required by this permit must be

sent to the appropriate regional office of the Department listed below

when the monitoring identifies violations of State Surface Water

Quality Standards, 314 CMR 4.00, for any parameter which requires

monitoring under this permit. Monitoring results must also be submitted

upon request to the Department.

Western Region

436 Dwight Street--Suite 402, Springfield, MA 01103, (413) 784-1100

Central Region

627 Main Street, Worcester, MA 01608, (508) 792-7650

Southeast Region

Lakeville Hospital--Route 105, Lakeville, MA 02347, (508) 946-2700

Northeast Region

10 Commerce Way, Woburn, MA 01801, (781) 932-7677

3. Part IV.B.2.a. is added to the permit as follows:

Special Storm Water Pollution Prevention Plan Availability

Requirement for the State of Massachusetts. The Department may request

a copy of the storm water pollution prevention plan for any facility

covered by this permit to ensure compliance with State law

requirements, including State water quality standards. The Department

may enforce its certification conditions.

4. Part VII.Q.1. is added to the permit as follows:

Special Inspection Requirements for the State of Massachusetts. The

Department may conduct an inspection of any facility covered by this

permit to ensure compliance with State law requirements, including

State water quality standards. The Department may enforce its

certification conditions.

Region VI

State of New Mexico, except Indian Country Lands (NMR05*###)

The following State of New Mexico section 401 certification

requirement revises the permit accordingly:

(a) Part I.B.8(a) is added to the permit as follows:

Special Water Quality Standard Requirement for the State of New

Mexico. Storm water discharges associated with industrial activity that

the New Mexico Environment Department (NMED)/Surface Water Quality

Bureau has determined to be, or may reasonably be expected to be,

contributing to a violation of a water quality standard are not

authorized by this permit. Upon receipt of this determination, the NMED

anticipates that the EPA will notify the general permittee within a

reasonable period of time to apply for and obtain an individual NPDES

permit for these discharges according to 40 CFR 122.28(b)(3).

Federal Indian Country Lands in the State of New Mexico (NMR05*##F)

1. Pueblo of Isleta The following Pueblo of Isleta section 401

certification requirements revise the permit accordingly:

(a) Part II.C.1. is added to the permit as follows:

Special NOI Requirement for the Pueblo of Isleta. Copies of NOIs

shall also be submitted to the Pueblo of Isleta's Environment

Department, Water Quality Program, at the following address

concurrently with NOI submission to EPA: Isleta Environment Department,

Water Quality Program, Pueblo of Isleta, PO Box 1270, Isleta, New

Mexico 87022, Telephone (505) 869-6333 or 3111.

(b) Part IX.B.1. is added to the permit as follows:

Special NOT Requirement for the Pueblo of Isleta. Copies NOTs shall

also be submitted to the Pueblo of Isleta's Environment Department,

Water Quality Program, concurrently with NOT submission to EPA. Copies

are to be sent to the address given in Part II.C.1.

(c) Part IV.F. is added to the permit as follows:

Special Storm Water Pollution Prevention Plan Requirement for the

Pueblo of Isleta. Storm water pollution prevention plans must be

submitted to the Pueblo of Isleta Environment Department, Water Quality

Program, within 30 days of plan development. SWPPPs are to be sent to

the address given in Part II.C.1.

2. Pueblo of Pojoaque The following Pueblo of Pojoaque section 401

certification requirements revise the permit accordingly:

(a) Part II.C.1. is added to the permit as follows:

Special NOI Requirement for the Pueblo of Pojoaque. Copies of NOIs

shall also be submitted to the Pueblo of Pojoaque Environment

Department at the following address concurrently with NOI submittal to

EPA: Pueblo of Pojoaque, Environment Department, Route 11, P.O. Box

208, Santa Fe, New Mexico 87501, Telephone (505) 455-2087, Fax (505)

455-2177.

(b) Part IX.B.1. is added to the permit as follows:

Special NOT Requirement for the Pueblo of Pojoaque. Copies of NOTs

shall also be submitted to the Pueblo of Pojoaque Environment

Department concurrently with NOT submittal to EPA. Copies are to be

sent to the address given in Part II.C.1.

(c) Part IV.F. is added to the permit as follows:

Special Storm Water Pollution Prevention Plan Requirement for the

Pueblo of Pojoaque. Storm water pollution prevention plans must be

submitted to the Pueblo of Pojoaque Environment Department at least 30

days before a project begins. Case-by-case determinations will be made

by the Department to assure compliance with the Pueblo of Pojaque Water

Quality Standards. SWPPPs are to be sent to the address given in Part

II.C.1.

3. Pueblo of Sandia The following Pueblo of Sandia section 401

certification requirements revise the permit accordingly:

[[Page 42548]]

(a) Part II.C.1. is added to the permit as follows:

Special NOI Requirement for the Pueblo of Sandia. Copies of NOIs

shall also be submitted to the Pueblo of Sandia Environment Department

at the following address concurrently with NOI submittal to EPA: Pueblo

of Sandia, Environment Department, Box 6008, Bernalillo, New Mexico

87004, Telephone (505) 867-4533; Fax (505) 867-9235.

(b) Part IX.B.1. is added to the permit as follows:

Special NOT Requirement for the Pueblo of Sandia. Copies of NOTs

shall also be submitted to the Pueblo of Sandia Environment Department

concurrently with NOT submittal to EPA. Copies are to be sent to the

address given in Part II.C.1.

4. Pueblo of Picuris The following Pueblo of Picuris section 401

certification requirements revise the permit accordingly:

(a) Part II.C.1. is added to the permit as follows:

Special NOI Requirement for the Pueblo of Picuris. Copies NOIs

shall also be submitted to both the Pueblo of Picuris Environment

Department and Picuris Governor Manuel Archuleta at the following

address concurrently with NOI submission to EPA: Pueblo of Picuris,

P.O. Box 127, Penasco, New Mexico 87553, Telephone (505) 587-2519.

(b) Part IX.B.1. is added to the permit as follows:

Special NOT Requirement for the Pueblo of Picuris. Copies NOTs

shall also be submitted to both the Pueblo of Picuris Environment

Department and Picuris Governor Manuel Archuleta at the address given

in Part II.C.1. concurrently with NOT submission to EPA.

(c) Part IV.F. is added to the permit as follows:

Special Storm Water Pollution Prevention Plan Requirement for the

Pueblo of Picuris. Copies of storm water pollution prevention plans

must be submitted to both the Pueblo of Picuris Environment Department

and Picuris Governor Manuel Archuleta at the address given in Part

II.C.1. concurrently with plan submission to EPA.

Region X

The State of Idaho, except Indian Country Lands (IDR05* ###)

The following State of Idaho section 401 certification requirement

revises the permit accordingly:

1. Part IV.F. is added to the permit as follows:

Special Storm Water Pollution Prevention Plan Requirement for the

State of Idaho. Storm water pollution prevention plan design and

associated storm water discharge quality shall demonstrate compliance

with applicable Idaho Water Quality Standards and Wastewater Treatment

Requirements (IDAPA 16.01.02) through the selection and use of approved

and/or reasonable Best Management Practices.

Federal Indian Country Lands in the State of Washington (WAR05* ##F)

1. Confederated Tribes of the Chehalis Reservation. The following

Confederated Tribes of the Chehalis Reservation section 401

certification requirements revise the permit accordingly:

(a) Part I.B.8(a) is added to the permit as follows:

Special Water Quality Standard Requirement for the Confederated

Tribes of the Chehalis Reservation. The permittee shall be responsible

for achieving compliance with Confederated Tribes of Chehalis

Reservation's Water Quality Standards.

(b) Part I.B.8(b) is added to the permit as follows:

Special Permit Eligibility Requirement for the Confederated Tribes

of the Chehalis Reservation. Storm water pollution prevention plans

shall be submitted to the Chehalis Tribal Department of Natural

Resources at the following address for review and approval prior to

discharge: Confederated Tribes of Chehalis Reservation, Department of

Natural Resources 420 Howanut Road, Oakville, WA 98568.

2. Puyallup Tribe of Indians. The following Puyallup Tribe of

Indians section 401 certification requirements revise the permit

accordingly:

(a) Part I.B.8(a) is added to the permit as follows:

Special Water Quality Standard Requirement for the Puyallup Tribe

of Indians. The permittee shall be responsible for achieving compliance

with Puyallup Tribe's Water Quality Standards.

(b) Part I.B.8(b) is added to the permit as follows:

Special Permit Eligibility Requirement for the Puyallup Tribe of

Indians. Storm water pollution prevention plans shall be submitted to

the Puyallup Tribe Environmental Department at the following address

for review and approval prior to discharge: Puyallup Tribe

Environmental Department 2002 East 28th Street, Tacoma, WA 98404.

(c) Part II.C.1. is added to the permit as follows:

Special NOI Requirement for the Puyallup Tribe of Indians. Copies

of NOIs shall also be submitted to the Puyallup Tribe Environmental

Department at the address listed in Part I.B.8(b) at time of NOI

submittal to EPA:

Federal Facilities in the State of Washington, Except Those Located on

Indian Country Lands (WAR05* ###)

The following State of Washington section 401 certification

requirement revises the permit accordingly:

(a) Part I.B.8(a) is added to the permit as follows:

Special Water Quality Standard Requirement for the State of

Washington. The permittee shall be responsible for achieving compliance

with the State of Washington's Water Quality Standards. These Standards

are found in Chapter 173-201AWAC (Water Quality Standards for Surface

Waters), Chapter 173-204 WAC (Sediment Management Standards), and the

human health standards in the National Toxics Rule (57 FR 60848--

60923).

[FR Doc. 98-21025 Filed 8-4-98; 8:45 am]

BILLING CODE 6560-50-P