96-2917. Amendment to Ore Mining and Dressing Point Source Category; Effluent Limitations Guidelines and New Source Performance Standards  

  • [Federal Register Volume 61, Number 29 (Monday, February 12, 1996)]
    [Proposed Rules]
    [Pages 5364-5370]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 96-2917]
    
    
    
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    ENVIRONMENTAL PROTECTION AGENCY
    40 CFR Part 440
    
    [WH-FRL-5419-1]
    RIN 2040-AC74
    
    
    Amendment to Ore Mining and Dressing Point Source Category; 
    Effluent Limitations Guidelines and New Source Performance Standards
    
    AGENCY: Environmental Protection Agency (EPA).
    
    ACTION: Proposed rule.
    
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    SUMMARY: This proposed rule would amend the applicability of certain 
    effluent limitations guidelines and new source performance standards 
    governing mines with froth-flotation mills to the Alaska-Juneau (A-J) 
    gold mine project near Juneau, Alaska. Specifically, EPA is proposing 
    to exempt dewatered tailings produced by the proposed A-J mine and mill 
    from effluent guidelines based on best practicable control technology 
    (BPT) and best available control technology economically achievable 
    (BAT), and from new source performance standards (NSPS) that appear at 
    40 CFR part 440, subpart J. EPA also is proposing that a definition of 
    ``dewatered tailings'' be added to 40 CFR part 440, subpart L. EPA is 
    issuing today's proposal because the use of a tailings impoundment was 
    part of the technology basis for the BPT, BAT, and NSPS requirements of 
    subpart J; however, it appears that extreme topographic and climatic 
    conditions at the A-J project site render it impractical to treat and 
    dispose of tailings in a tailings impoundment so as to meet the 
    requirements of subpart J. EPA would not take action to finalize this 
    proposal if a feasible alternative for tailings treatment is identified 
    that would obviate the need for the exemption. EPA expects to make a 
    final determination with respect to this proposal by the end of 1996. 
    Since this proposed rule is deregulatory in nature, no costs are 
    estimated. The benefit of this proposed rule is the potential for 
    increased flexibility in permitting the disposal of tailing wastes from 
    the gold mine and mill operations, resulting in the mitigation of 
    environmental impacts. Costs and benefits resulting from this action 
    will be determined as part of the environmental assessment of feasible 
    alternatives. During the preparation of this proposed rule, the Agency 
    held 
    
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    consultations with State and local governments, industry, and public 
    interest group representatives.
    
    DATES: Comments on this proposal must be submitted on or before April 
    12, 1996, except for comments concerning technological alternatives for 
    the A-J project site. The comment period on that issue will be open 
    until August 12, 1996. A series of public meetings concerning the 
    exclusion of dewatered tailings from coverage of 40 CFR part 440, 
    subpart J is being planned for the Spring of 1996 during the extended 
    comment period. The times and locations of these meetings will be 
    published in the Federal Register and local newspapers when they are 
    finalized.
    
    ADDRESSES: Send comments to Ore Mining Comment Clerk, Water Docket Mail 
    Code 4101, Environmental Protection Agency, 401 M Street, S.W., 
    Washington D.C. 20460. Commenters are requested to submit an original 
    and three copies of their comments, enclosures or references. The 
    supporting information and all comments on this proposal will be 
    available for inspection and copying at the Water Docket, located in 
    Room L102 at the above address. For access to the docket materials, 
    call (202) 260-3027 between 9:00 a.m. and 3:30 p.m. for an appointment.
    
    FOR FURTHER INFORMATION CONTACT: Ronald G. Kirby at (202) 260-7168.
    
    SUPPLEMENTARY INFORMATION:
    
    A. Legal and Regulatory Background
    
        EPA issued effluent limitations guidelines for the ore mining and 
    dressing point source category based on Best Practicable Technology 
    (BPT) on July 11, 1978 (43 FR 29771). Effluent limitations guidelines 
    based on Best Available Technology (BAT) and New Source Performance 
    Standards (NSPS) were issued on December 3, 1982 (47 FR 54598). These 
    are codified at 40 CFR part 440. Detailed engineering, technical and 
    cost information supporting the ore mining and dressing guidelines and 
    standards are summarized in reports entitled Development Document for 
    Effluent Limitations Guidelines and New Source Performance Standards 
    for the Ore Mining and Dressing Point Source Category, Volume I and II 
    July 1978, EPA # 440/1-78/061d and e (``1978 Development Document'') 
    and Development Document for Final Effluent Limitations Guidelines and 
    New Source Performance Standards for the Ore Mining and Dressing Point 
    Source Category, EPA # 440/1-82/061, November 1982 (``1982 Development 
    Document''). The economic analysis for NSPS in part 440 is summarized 
    in Economic Analysis of New Source Performance Standards for the Ore 
    Mining and Dressing Industry, November 1982. These documents and the 
    rest of the supporting public record for the part 440 guidelines and 
    standards are available for review at the EPA Water Docket and are part 
    of the record for this proposal.
        BPT limitations generally represent the average of the best 
    existing waste treatment performance within an industry subcategory. 
    BAT limitations generally represent the best existing performance in 
    the industrial subcategory or category. In establishing BAT, the Agency 
    considers such factors as the age of the equipment and facilities 
    involved, the process employed, the engineering aspects of the control 
    technologies, process changes, the cost of achieving such effluent 
    reduction and nonwater quality environmental impacts. NSPS are based on 
    the best available demonstrated technology. In general, the best 
    available demonstrated technology consists, in part or completely, of 
    the same technology as that determined for BAT for existing sources 
    within an industry. However, in some cases it is determined that new 
    plants have the opportunity to install more efficient production 
    processes and wastewater treatment technologies than existing sources. 
    In such cases, NSPS may be established at a level more stringent than 
    BAT. While EPA bases effluent limitations guidelines and new source 
    performance standards on identified technologies, dischargers are not 
    required to use any particular technology. They may meet the effluent 
    limitations and standards using any technology they determine is 
    appropriate.
        Effluent limitations guidelines and new source performance 
    standards applicable to Copper, Lead, Zinc, Gold, Silver, and 
    Molybdenum ore mines, including mines with froth-flotation mills, 
    appear at 40 CFR part 440, subpart J (``Subpart J'').
    
    B. Technical Information
    
        Gold mining has historically occurred in the Alaskan region near 
    Juneau. Economic conditions have improved in recent years, stimulating 
    continued extraction of this valuable resource. Due to improvements in 
    the technology to extract lower concentrations of precious metals, and 
    the continuing stable prices received for these metals, a number of 
    projects have been identified, at or near previously mined areas in 
    southeast Alaska, as economically feasible. As is explained in more 
    detail below, the use of an impoundment was part of the technology 
    basis for the BPT, BAT and NSPS requirements of subpart J. Since the 
    issuance of the ore mining and dressing guidelines, a number of 
    projects covered by subpart J have progressed through the permit 
    process. A few of these projects have identified the use of 
    impoundments as a potential problem, although without merit in EPA's 
    view. However, the detailed site specific design information from the 
    Alaska-Juneau (A-J) project recently has brought into question the 
    appropriateness of the technology basis for the requirements of subpart 
    J, as applied to the A-J site. The function of the impoundment as part 
    of the technology basis and its application to the A-J project site are 
    discussed below, along with the effect of today's proposal.
    
    1. Application of Subpart J to A-J Project
    
        The existing BPT, BAT, and NSPS requirements in Subpart J that are 
    applicable to mines with froth-flotation mills are based on treatment 
    technology consisting of impoundment, treatment of the impoundment 
    (pond) water to precipitate metals and enhanced settling of particulate 
    matter by pH adjustment, chemical flocculent treatment, if necessary, 
    clarification and filtration of overflow pond water for recycle back to 
    the mill. For BPT and BAT, the Agency determined that although many 
    existing froth-flotation mills were practicing wastewater treatment and 
    recycle, the cost to retrofit the remaining mills' treatment systems 
    would be prohibitive. Thus, the technology basis for both BPT and BAT 
    did not include total recycle, and BAT limitations were set equivalent 
    to BPT for existing sources. For NSPS, the Agency determined that new 
    sources could design a wastewater treatment and recycle system in 
    conjunction with a tailings impoundment that would generally achieve no 
    discharge of process wastewater. (NSPS includes exceptions that allow 
    discharges under certain specified circumstances, as noted below.)
        Tailings ponds have been used historically in the mining industry. 
    Tailings are the waste rock remaining after the processing of the 
    mineral-bearing (lode) ore. The lode ore is processed by crushing and 
    grinding, and then separation and concentration. Remaining pulverized 
    lode ore that is too poor in gold to be further processed and waste 
    material resulting from the washing, concentration, or treatment of the 
    ground ore are known as ``tailings.'' These are sent to the tailings 
    pond, which serves as the disposal site for the solids (pulverized 
    waste rock and other 
    
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    precipitates) that settle out of the tailings wastestream when it is 
    added to the pond. The impoundment is designed primarily for suspended 
    solids removal and retention, so it must be large enough to provide 
    sufficient retention time and quiescent conditions conducive to 
    settling, including adequate volume to hold the settled solids. The 
    tailings impoundment assumed by EPA in establishing the requirements of 
    Subpart J is designed to permanently hold the mill tailings expected 
    for the life of the mine while also containing precipitation that falls 
    directly on the impoundment and the runoff resulting from a 10 year, 24 
    hour storm event. Additional impoundment volume may be necessary to 
    promote the settling of solids to achieve allowable discharge 
    limitations.
        The location of a tailings impoundment is determined by evaluating 
    the best site for gravity flow of tailings to an area for permanent 
    disposal, for minimal inflow from runoff or stream flow, and for a 
    stable dam. The mine project site (including the mill) is located in 
    close proximity to the ore body to control costs in order to make the 
    project economically viable. Most tailings impoundments are located 
    within a few miles of the ore body. Information in the 1978 and 1982 
    records indicates that approximately six miles was the greatest 
    distance between the tailings impoundment and the mill at existing 
    mines that were studied.
        Generally, even when siting a tailings pond in a narrow valley with 
    severe slopes, a location can be found to allow diversion of stream 
    flow around the tailings pond to prevent or minimize pollution 
    potential. For example, the tailings impoundment can be placed adjacent 
    to one wall of the valley. It may be necessary to reroute the stream by 
    means of contouring or construction of open channels or conduits. 
    Runoff can be prevented from entering the impoundment by constructing 
    diversion ditches, flumes, and dikes upslope and along the sides of the 
    impoundment.
        Tailings can be characterized generally as a process wastewater 
    with approximately 20-50 percent solids by weight. In arid or semi-arid 
    areas, evaporation and seepage from the tailings pond may equal or 
    exceed the input of the water fraction of the tailings wastestream 
    (i.e., the remaining 50-80 percent by weight liquid fraction). In all 
    areas, even arid areas, the amount of runoff entering the tailings pond 
    is minimized by diversion using a number of common management 
    practices. However, in areas of net annual precipitation (i.e., where 
    the annual rainfall and snowfall amount exceeds the annual amount of 
    evaporation), Subpart J allows excess pond water to be discharged based 
    on a calculated amount of runoff for BPT, BAT, and NSPS, subject to 
    specified effluent limitations. 40 CFR 440.102(c)(2); 440.103(c)(2); 40 
    CFR 104(b)(2)(i). The amount of runoff is determined by the difference 
    in annual precipitation and evaporation rates times the amount of 
    surface area of the pond that receives direct precipitation and the 
    amount of ground surface area surrounding the pond that drains into it. 
    For NSPS, EPA also included, in response to comments, an exemption from 
    no discharge for an equivalent volume of fresh (makeup) water that 
    mills could demonstrate is necessary due to a buildup of contaminants 
    in the recycled pond water that significantly interferes with the ore 
    recovery process. Such a discharge, which also is subject to specified 
    limitations, is allowed only if the interference can not be eliminated 
    through appropriate treatment of the recycle water. 40 CFR 
    440.104(b)(2)(ii). In addition, the volume of any excess runoff from a 
    single storm or combined storm event exceeding the 10 year, 24 hour 
    event design criteria of the pond also may be discharged. 40 CFR 
    440.131(b). Treatment of the excess pond water, in addition to its 
    settling in the tailings impoundment, may be required using chemical 
    flocculation either directly in the tailings pond or in subsequent 
    treatment units to enhance solids settling and to precipitate and 
    settle metal hydroxides in order to meet the current discharge 
    limitations.
        The intended function of the tailings impoundment (pond) that is 
    part of the technology basis for BPT, BAT, and NSPS in Subpart J was 
    critical to the establishment of all three sets of limitations. The 
    ability to divert surface runoff and existing stream flow from entering 
    the pond is most critical in high precipitation areas for the proper 
    function of the tailings pond with respect to meeting the BPT, BAT, and 
    NSPS requirements of Subpart J. Studies conducted by EPA in developing 
    BPT, BAT, and NSPS evaluated a number of geographic locations where 
    extreme topography and high rainfall were evident. Where topography and 
    climatic extremes render any significant amount of diversion 
    impractical, most or possibly all of the water within the watershed in 
    which the impoundment is located will enter the impoundment and become 
    contaminated by mine and mill wastewater, making subsequent treatment 
    of the wastewater to meet recycle or discharge quality requirements 
    more difficult.
        The technology basis for the BPT and BAT discharge limitations and 
    the NSPS no discharge requirement in subpart J included an ability for 
    mills to divert significant amounts of natural stream flow and surface 
    runoff around the tailings impoundment. In net precipitation areas, as 
    well as net evaporation areas, EPA assumed or identified some degree of 
    ability to divert runoff and/or stream flow in evaluating the design 
    and construction of the tailings impoundments and their ability to meet 
    the requirements of subpart J. In both the 1978 and the 1982 
    Development Documents supporting BPT, BAT, and NSPS, EPA discussed 
    diversion or minimization of surface runoff at various sites, and 
    considered the types of practices available for achieving it. EPA also 
    considered the possibility that extreme topography could be an obstacle 
    to achieving no discharge, but judged that the exemptions and 
    provisions discussed above would provide the relief that would be 
    necessary for a mill to operate under the no discharge requirement. See 
    the 1982 Development Document, page 535.
        Many of the mills that were evaluated during the development of 
    NSPS for subpart J practiced recycle and achieved no discharge. 
    However, most of these mills were located in net evaporation areas or 
    water short areas, where all of the excess pond water that could not be 
    recycled would evaporate or seep out of the pond. EPA did include mills 
    located in net precipitation areas in its evaluation of the no 
    discharge requirement. In these areas, rainfall could occur in such 
    quantity and at a regular enough frequency that pond water in excess of 
    that required for recycle cannot be evaporated or seeped at a high 
    enough rate to meet a no discharge requirement. Thus, the discharge 
    allowances previously discussed were incorporated into the NSPS.
    
    2. Today's Proposal
    
        In light of the importance of the ability to divert natural stream 
    flow and runoff, specific information from the A-J gold mine project 
    has called into question the appropriateness of applying the 
    requirements of Subpart J to this project. The A-J project has been 
    evaluated in an Environmental Impact Statement prepared by the Bureau 
    of Land Management (BLM). In BLM's preferred alternative, the design of 
    the tailings impoundment includes a dam extending the width of Sheep 
    Creek Valley to a height of 345 feet. The impoundment would encompass 
    420 acres of the 540 acre valley. The large 
    
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    volume of the impoundment was made necessary in part because of the 
    extremely large volume of tailings generated (over 100 million tons) 
    during the life of the project and by the inability to divert runoff 
    and stream flow using the common practices discussed above. In the case 
    of the A-J project, the technical review of the submitted project 
    design determined that for those design options presented, all of the 
    existing stream flow and runoff would enter the impoundment and 
    preclude adequate treatment of the wastewater prior to discharge.
        If the tailings impoundment were used at the Sheep Creek Valley 
    site in a manner anticipated by the current Subpart J requirements, but 
    without the benefit of diverting the natural stream-flow, significant 
    amounts of runoff from rainfall events would enter the impoundment and 
    by coming into direct contact with the actual mill process wastewater, 
    be considered as ``process wastewater'' as defined at 40 CFR 401.11(q). 
    As described previously, all or almost all of this runoff, entering the 
    impoundment, would be allowed to be discharged under NSPS as part of 
    the storm allowance provision, along with any contaminant build up and/
    or mine drainage wastewaters, provided that discharge meets the 
    specified limitations. Because of the inability to divert water around 
    the Sheep Creek Valley impoundment location, an exceptionally large 
    volume of process wastewater would be generated, and would make 
    treatment options contemplated by the current technology basis unable 
    to meet the limits imposed by the allowances. These same considerations 
    apply to BPT and BAT except for the fresh makeup water allowance 
    described earlier.
        EPA's Region 10 issued a report regarding the A-J project plan in 
    December 1994 entitled, ``Alaska Juneau Gold Mine Project, Technical 
    Assistance Report for the U.S. Army Corps of Engineers Alaska 
    District'' (known as the ``TAR''). The TAR concluded that 
    implementation of the plan to construct the tailings impoundment across 
    the valley and discharge this amount of wastewater likely would not 
    ensure compliance with NSPS and would cause widespread exceedances of 
    state water quality standards. In addition, the TAR concluded that the 
    tailings impoundment would remain a substantial risk even after closure 
    of the mill because it would not be isolated from the existing stream 
    flow, including all or almost all of the valley's precipitation runoff. 
    This would require continued maintenance of the impoundment dam as an 
    active retention structure for a large volume of water in an area of 
    active seismic activity and avalanche hazards. As part of a 
    supplemental environmental impact statement (SEIS) under the National 
    Environmental Policy Act (NEPA), additional project design alternatives 
    for the A-J project will be evaluated, including whether an alternative 
    location for an impoundment is possible.
        EPA has concluded from the technical information identified and 
    discussed above that the requirements in Subpart J might not be 
    appropriate for tailings from a new ore mill located in Sheep Creek 
    Valley, as described in the A-J project EIS. Due to the substantial 
    annual net precipitation along with extreme topography, the combination 
    of which leads to an inability to divert natural stream flow and any 
    significant volume of surface runoff around the tailings impoundment, 
    treatment of the discharge to allowable concentration levels cannot be 
    accomplished. In addition, the 1978 and 1982 final rules did not 
    consider the long-term (post-closure) safety considerations, such as 
    the long-term structural integrity of the impoundment dam, that result 
    from the existence of a tailings pond that was not isolated from stream 
    flow and runoff.
        Thus, EPA is proposing to exempt dewatered tailings from the A-J 
    project from the existing BPT, BAT, and NSPS requirements in 40 CFR 
    part 440, subpart J (Sec. 440.102-104). EPA also is proposing to add a 
    definition of ``dewatered tailings'' to 40 CFR part 440, Subpart L, 
    specifying that ``dewatered tailings'' means that portion of a mill 
    tailings slurry wastestream from which approximately 75 percent or more 
    of the water fraction has been removed for recycling through the mill. 
    This definition continues to rely on the recycle portion of the 
    technology basis for the current rule following the separation of much 
    of the solids which are contained as part of the tailings, for possible 
    discharge using an alternative control technology. Mine drainage, 
    process wastewater separated from the dewatered tailings, and other 
    process wastewater discharges from the A-J project would continue to be 
    covered by subpart J. NPDES permit requirements for discharges of 
    dewatered tailings from the A-J project would be determined by EPA 
    using best professional judgment in accordance with 40 CFR 125.3, 
    utilizing the results of ongoing environmental review of the project 
    under NEPA.
        EPA's proposal to exempt dewatered tailings from the A-J project 
    from the requirements of NSPS has some precedent. During development of 
    the 1982 ore mining and dressing guidelines, the Agency received 
    comments from developers of a molybdenum mine and mill in southeastern 
    Alaska (Quartz Hill). The developers argued that the mill differed 
    substantially from the existing molybdenum mills upon which the Agency 
    based the proposed NSPS and that the alternative of submarine tailings 
    disposal should not be precluded from consideration. Specifically, they 
    argued that precipitation was greater at the Quartz Hill site than at 
    other facilities and that the terrain was unusually steep, 
    necessitating the construction of a dam much larger than tailings 
    impoundments at existing facilities. They argued that since the mine 
    and mill were located in the environmentally sensitive Misty Fjords 
    National Monument, construction of a massive tailings impoundment may 
    result in greater long term environmental degradation than at existing 
    facilities. They also pointed out that the mine and mill were being 
    developed in accordance with the dictates of the Alaska National 
    Interest Lands Conservation Act (ANILCA), which requires an intensive 
    study of the overall environmental impact of the mine and mill before 
    construction begins. Finally, they noted that the mine and mill were in 
    an earthquake area, and that construction of a large tailings dam 
    raises concerns for safety of the population below the dam. The Agency 
    disagreed with the commenter's assertions that the proposed molybdenum 
    mine and mill differed significantly in topography and climate from 
    existing mines and mills. However, given the possibility that 
    compliance with the no discharge NSPS would result in substantial non-
    water quality environmental impacts, and given the fact that these 
    impacts were being subjected to an intense environmental scrutiny, the 
    Agency exempted the project from requirements of NSPS.
        Today's proposal to exempt the A-J project from certain 
    requirements of Subpart J opens the way for the detailed evaluation of 
    alternatives for treatment of the tailings from the project that are 
    not allowable under the current regulations. Some of these alternatives 
    do not involve the use of Sheep Creek Valley as an impoundment site and 
    might lessen the environmental impacts of the project. This portion of 
    the preamble discusses technologies that involve the use of a smaller 
    impoundment or no impoundment at all.
        As part of the review of the original A-J project design submittal, 
    the Bureau of Land Management (BLM) conducted 
    
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    an environmental impact analysis reported in the document titled, ``A-J 
    Gold Mine Project Final Environmental Impact Statement'' (BLM, 1992). 
    The BLM analysis included evaluations of tailings disposal options 
    other than the construction of the dam and impoundment in Sheep Creek 
    Valley. These alternatives included refilling of the mine with 
    dewatered tailings, disposal of dry tailings on land, and disposal of 
    tailings at alternative disposal locations (e.g., Powerline/Icy Gulch, 
    Sheep Fork Carlson Creek, and Rhine Creek). Generally, these 
    alternatives were rejected because of expected exceedances of water 
    quality criteria or because of cost which would render the project 
    uneconomical. Some of these alternatives may receive additional 
    consideration as a result of the SEIS effort. For example, EPA 
    concluded in the TAR that the Powerline/Icy Gulch disposal location 
    should be re-evaluated because diversion of up to 80 percent of the 
    surface runoff may be achievable. In addition, the discharge of 
    tailings from the A-J project to marine waters (submarine tailings 
    disposal), which otherwise would be prohibited by subpart J, could 
    appropriately be evaluated as a result of today's proposal. The 
    discharge of tailings to marine waters would require final revision of 
    subpart J under today's proposal. A combination of the above disposal 
    alternatives could also be considered.
        Potential difficulties with the use of tailings impoundments in 
    areas of extreme topography and climate were raised both during the 
    development of the existing part 440 guidelines and standards and also 
    during the permitting process for several mine and mill sites. However, 
    except for the Quartz Hill site (which was undergoing a separate 
    environmental review during the development of part 440 and was 
    excluded from coverage by that Part), no other site that EPA has 
    reviewed until now has exhibited such extreme topographic and climatic 
    conditions that an exemption from certain Subpart J requirements, as 
    proposed, might be warranted. Because much of southeastern Alaska 
    consists of highly mountainous terrain characterized by glacially 
    carved valleys with avalanche chutes and talus slopes, EPA solicits 
    comment on whether other mine sites exhibit extreme environmental 
    conditions such as those at the A-J project site, and would be 
    estimated to have project characteristics such as extremely large 
    volumes of tailings that would pose treatment and disposal problems 
    under part 440.
        As mentioned above, the A-J project site is the only current new 
    source site reviewed by EPA that exhibits extreme topographic and 
    climatic conditions which might justify an exemption from certain 
    Subpart J requirements, as proposed. If additional sites are 
    identified, a more general exemption provision might be appropriate, 
    provided that adequate criteria can be established to identify project 
    sites that would qualify for the exemption. EPA is considering the 
    following possible alternative to an exemption that covers the A-J 
    project only:
    
        (e) The provisions of this subpart shall not apply to discharges 
    of dewatered tailings if a permit applicant demonstrates to the 
    satisfaction of the permitting authority that due to high net 
    precipitation and extreme topography (e.g., steep valley walls, 
    avalanche hazards, or talus slopes), it would not be feasible to 
    divert natural stream flow and runoff, rendering impractical the 
    treatment and disposal of tailings in a tailings impoundment.
    
        If a more general exemption provision is incorporated into the 
    final rule based on comments and additional data on the characteristics 
    of extreme sites, quantifiable criteria to identify qualifying sites 
    might be included. EPA solicits comment on the type of criteria that 
    could be included in such a provision. The amount of annual 
    precipitation, slope of mountainous terrain, width of valley floor and 
    location of avalanche chutes and/or seismically active (earthquake) 
    areas are examples of quantifiable criteria that could be useful in 
    establishing a more general exemption provision.
        EPA might take final action with respect to today's proposed 
    exemption covering only the A-J project site. Alternatively, based on 
    the additional information, EPA might identify a feasible alternative 
    for tailings treatment by the A-J project that would allow compliance 
    with the existing regulations and obviate the need for any exemption 
    from Subpart J as proposed. The Agency could also promulgate a more 
    general exemption as described above, or take final action with respect 
    to the A-J project site but proceed to collect further data on other 
    project sites identified by commenters or on criteria for a more 
    generally applicable exemption. Variations on these approaches are also 
    possible. EPA will evaluate all comments and information received prior 
    to making a final determination, which the Agency currently expects to 
    do by the end of 1996.
    
    3. Further Evaluation of A-J Project Proposal
    
        Today's proposal does not in itself authorize or endorse any method 
    of tailings treatment or disposal at the A-J site. As discussed 
    previously, additional designs for the A-J project are expected to be 
    evaluated under NEPA. These studies are conducted as part of the NPDES 
    permitting process for new sources. Any permit issued would include 
    discharge requirements based on applicable NSPS or effluent limitations 
    guidelines, on best professional judgment (BPJ) where guidelines are 
    not applicable, and on any applicable water quality standards. 40 CFR 
    122.49(g), 40 CFR 122.44(a) and 40 CFR 122.44(d).
        In preparation for the development of the draft NPDES permit, 
    scoping for the AJ project SEIS is scheduled to begin in February, 
    1996, with publication of a draft SEIS in late Spring of 1996. The SEIS 
    will evaluate the impacts of the disposal of mine tailings in marine 
    waters (approximately 300 feet deep) in Stephens Passage, several miles 
    south of the city of Juneau. The tailings would be produced by 
    processing finely ground ore via gravity separation and flotation using 
    various reagents (no cyanide) to produce a concentrate that would be 
    shipped elsewhere for refining. The tailings would be dewatered to 
    allow for recycling of the process water in the milling process. The 
    dewatered tailings, which may be remixed with sea water (for buoyancy 
    control), would be piped to a discharge point in Stephens Passage.
        In addition to disposal of dewatered tailings in deep marine 
    waters, the SEIS will examine other potential tailings disposal sites. 
    The SEIS will specifically examine whether there are any potential 
    upland tailings impoundment sites where the diversion of surface runoff 
    would be possible. A Final SEIS should be available by late 1996.
    
    4. Conclusion and Request for Comments
    
        EPA solicits comment and additional information on all aspects of 
    today's proposal to amend the applicability of subpart J. In 
    particular, the Agency seeks comment on whether an exemption for the A-
    J mine project from the requirements of Subpart J as proposed is 
    warranted; and whether additional project sites exist which exhibit 
    extreme topographic and climatic conditions that might warrant the 
    exclusion of dewatered tailings from coverage under subpart J. 
    Information also is requested on the types of criteria that could be 
    used to establish a more 
    
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    general exemption from the requirements of Subpart J in the event that 
    additional sites are identified which exhibit extremely rugged terrain 
    and high annual precipitation, leading to a similar inability to divert 
    natural stream flow and stormwater runoff. EPA also solicits any 
    information or data available on alternative tailings disposal 
    technologies that could be used at the A-J site. Such technologies may 
    include dewatered tailings discharge to deep marine waters, backfilling 
    of the mine with dewatered tailings and disposal of dewatered tailings 
    on land without an impoundment. Cleaned tailings might also be used as 
    road building materials in asphalt or used as construction material in 
    concrete block or brick. The cleaned tailings could be fixed and 
    stabilized with concrete prior to either mine or off-site land 
    disposal.
    
    C. Unfunded Mandates Reform Act
    
        Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
    Law 104-4, establishes requirements for Federal agencies to assess the 
    effects of their regulatory actions on State, local, and tribal 
    governments and the private sector. Under section 202 of the UMRA, EPA 
    generally must prepare a written statement, including a cost-benefit 
    analysis, for proposed and final rules with ``Federal mandates'' that 
    may result in expenditures to State, local, and tribal governments, in 
    the aggregate, or to the private sector, of $100 million or more in any 
    one year. Before promulgating an EPA rule for which a written statement 
    is needed, section 205 of the UMRA generally requires EPA to identify 
    and consider a reasonable number of regulatory alternatives and adopt 
    the least costly, most cost-effective or least burdensome alternative 
    that achieves the objectives of the rule. The provisions of section 205 
    do not apply when they are inconsistent with applicable law. Moreover, 
    section 205 allows EPA to adopt an alternative other than the least 
    costly, most cost-effective or least burdensome alternative if the 
    Administrator publishes with the final rule an explanation why that 
    alternative was not adopted.
        Under section 204 of the UMRA, EPA generally must develop a process 
    to permit elected officials of State, local and tribal governments (or 
    their designated employees with authority to act on their behalf) to 
    provide meaningful and timely input in the development of regulatory 
    proposals containing significant Federal intergovernmental mandates. 
    These consultation requirements build on those of Executive Order 12875 
    (``Enhancing the Intergovernmental Partnership'').
        Before EPA establishes any regulatory requirements that may 
    significantly or uniquely affect small governments, including tribal 
    governments, it must have developed under section 203 of the UMRA a 
    small government agency plan. The plan must provide for notifying 
    potentially affected small governments, enabling officials of affected 
    small governments to have meaningful and timely input in the 
    development of EPA regulatory proposals with significant Federal 
    intergovernmental mandates, and informing, educating, and advising 
    small governments on compliance with the regulatory requirements.
        EPA has determined that this rule does not contain a Federal 
    mandate that may result in expenditures of $100 million or more for 
    State, local, and tribal governments, in the aggregate, or the private 
    sector in any one year. Since this proposed rule is deregulatory in 
    nature, the expected cost for implementation by the private sector is 
    below $100 million. In addition, this proposal does not impose a 
    mandate on any governmental entities since EPA is the permitting 
    authority for this mine. As a result, EPA has also determined that this 
    rule contains no regulatory requirements that might significantly or 
    uniquely affect small governments. For the same reason, EPA does not 
    need to develop a plan for consultation of affected governmental 
    entities pursuant to Section 204 of UMRA and Executive Order 12875.
        During the preparation of this proposed rule, the Agency held 
    consultations with State and local governments, industry, and public 
    interest group representatives.
    
    D. 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 entitlement, grants 
    user fees, or loan programs or the rights and obligations or 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.
        Pursuant to the terms of Executive Order 12866, EPA has determined 
    that this rule is not a ``significant regulatory action'' because the 
    rule is a deregulatory action and has the potential to create jobs 
    while continuing to protect the environment.
    
    E. Paperwork Reduction Act
    
        This proposed rule contains no information collection activities. 
    Therefore, no information collection request (ICR) has been submitted 
    to the Office of Management and Budget (OMB) for review and approval 
    under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et 
    seq.
    
    List of Subjects in 40 CFR Part 440
    
        Environmental protection, Gold ore mining and dressing industry, 
    Wastewater treatment, Waste treatment and disposal, Submarine tailings 
    disposal, Metals, Water pollution control.
    
        Dated: February 2, 1996.
    Carol M. Browner,
    Administrator.
    
        For the reasons set forth in this preamble, part 440 of title 40 of 
    the Code of Federal Regulations is proposed to be amended as follows:
    
    PART 440--[AMENDED]
    
        1. The authority citation for part 440 continues to read as 
    follows:
    
        Authority: Secs. 301, 304(b), (c) and (e), 306, 307, and 501 of 
    the Clean Water Act (The Federal Water Pollution Control Act 
    Amendments of 1972, as amended by the Clean Water Act of 1977 and 
    the Water Quality Act of 1987), (the Act), 33 U.S.C. 1311, 1314(b), 
    (c) and (e), 1316, 1317, and 1361; 86 Stat. 816, Pub. L. 92-500; 91 
    Stat. 1567, Pub. L. 95-217; 101 Stat. 7, Pub. L. 100-4.
    
        2. Section 440.100 is amended by adding paragraph (e) to read as 
    follows:
    
    
    Sec. 440.100  Applicability; description of the copper, lead, zinc, 
    gold, silver, and molybdenum ores subcategory.
    
    * * * * *
        (e) The provisions of this subpart shall not apply to discharges of 
    dewatered tailings from the Alaska-Juneau mine and mill near Juneau, 
    Alaska.
        3. Section 440.132 is amended by adding paragraph (k) to read as 
    follows:
    
    
    Sec. 440.132  General definitions.
    
    * * * * * 
    
    [[Page 5370]]
    
        (k) Dewatered tailings means that portion of a mill tailings slurry 
    wastestream from which approximately 75 percent or more of the water 
    fraction has been removed for recycling through the mill.
    
    [FR Doc. 96-2917 Filed 2-9-96; 8:45 am]
    BILLING CODE 6560-50-P
    
    

Document Information

Published:
02/12/1996
Department:
Environmental Protection Agency
Entry Type:
Proposed Rule
Action:
Proposed rule.
Document Number:
96-2917
Dates:
Comments on this proposal must be submitted on or before April 12, 1996, except for comments concerning technological alternatives for the A-J project site. The comment period on that issue will be open until August 12, 1996. A series of public meetings concerning the exclusion of dewatered tailings from coverage of 40 CFR part 440, subpart J is being planned for the Spring of 1996 during the extended comment period. The times and locations of these meetings will be published in the Federal ...
Pages:
5364-5370 (7 pages)
Docket Numbers:
WH-FRL-5419-1
RINs:
2040-AC74: Withdrawal of Proposed Amendment to Effluent Guidelines and Standards for Ore Mining and Dressing Point Source Category, New Source Performance Standards
RIN Links:
https://www.federalregister.gov/regulations/2040-AC74/withdrawal-of-proposed-amendment-to-effluent-guidelines-and-standards-for-ore-mining-and-dressing-po
PDF File:
96-2917.pdf
CFR: (2)
40 CFR 440.100
40 CFR 440.132