[Federal Register Volume 59, Number 103 (Tuesday, May 31, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-13099]
[[Page Unknown]]
[Federal Register: May 31, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-4887-5]
Final NPDES General Permit for Placer Mining in Alaska
AGENCY: Environmental Protection Agency, Region 10.
ACTION: Notice of a Final NPDES General Permit.
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SUMMARY: The Director, Water Division, of Region 10 is today issuing a
final National Pollutant Discharge Elimination System (NPDES) general
permit under the Clean Water Act which will authorize discharges from
placer mining facilities in the state of Alaska.
Notice of the draft general permit was published January 14, 1994,
at 59 FR 2504. This permit is intended to regulate placer mining
activities in the state of Alaska. EPA, Region 10 has issued almost
identical individual permits to these facilities in the past and
intends to relieve some of the administrative burden of issuing
individual permits by issuing this general permit.
The final general permit establishes effluent limitations,
standards, prohibitions and other conditions on discharges from the
covered facilities. These conditions are based on existing national
effluent guidelines and material contained in the administrative
record, including Alaska Water Quality Standards and the National
Toxics Rule. A description of the basis for any changes in conditions
and requirements from the proposed general permit to the final general
permit is given in the Response to Comments published below.
DATES: Request for Coverage: Written request for coverage under the
general permit shall be provided to EPA, Region 10, as described in
Part I.E. of the final permit. Coverage under the general permit
requires written notification from EPA that coverage has been granted
and that a specific permit number has been assigned to the operation.
Administrative Record: The administrative record for the final
permit is available for public review at EPA, Region 10, at the address
listed below.
ADDRESSES: Requests for coverage should be sent to Environmental
Protection Agency, Region 10, 1200 Sixth Avenue, WD-134, Seattle, WA
98101.
FOR FURTHER INFORMATION CONTACT: Cindi Godsey at 1200 Sixth Avenue, WD-
134, Seattle, Washington 98101 or by telephone at (206) 553-1755.
Copies of the final general permit, response to comments and today's
notice may be obtained by writing to the above address or by calling
Jeanette Carriveau at (206) 553-1214.
SUPPLEMENTARY INFORMATION:
Executive Order 12866
The Office of Management and Budget has exempted this action from
the review requirements of Executive Order 12866 pursuant to section 6
of that order.
Regulatory Flexibility Act
After review of the facts presented in the notice printed above, I
hereby certify pursuant to the provision of 5 U.S.C. 605(b) that this
general NPDES permit will not have a significant impact on a
substantial number of small entities. Moreover, the permit reduces a
significant administrative burden on regulated sources.
Dated: May 13, 1994.
Charles E. Findley,
Director, Water Division.
Response to Comments
On January 14, 1994, EPA, Region 10, issued a notice for a proposed
National Pollutant Discharge Elimination System (NPDES) General Permit
(GP) for Alaskan placer miners (59 FR 2504, Friday, January 14, 1994).
During the public notice period, comments were received from National
Marine Fisheries Service (NMFS), Trustees for Alaska, Northern Alaska
Environmental Center, Sierra Club Legal Defense Fund, Department of
Interior (DOI), Alaska Department of Natural Resources (ADNR), Alaska
Department of Environmental Conservation (ADEC), Utility Water Act
Group, American Rivers, Alaska Miners Association, Livengood/Tolovana
Mining District, Karl Hanneman, Steve J. McGroarty, Roger C. Burggraf,
Glenn Bouton, Paul Manuel, Steve Masterman, Paul Sayer, Fred Heflinger,
Guy L. Wiggs, and Denise Herzog. Public Hearings were held in
Anchorage, Alaska on February 7, 1994, and in Fairbanks, Alaska on
February 8 and 9, 1994. This document directly responds to the
significant comments pertaining to the GP, made in writing and at the
Public Hearings, and the Finding of Significant Impact (FNSI) for the
Environmental Assessment (EA).
1. Comment: Two commentors object to the use of a general permit
due to the variations among mine sites. One commentor recommends
issuing individual permits for all suction dredges larger than 4
inches. In addition, another commentor objects to regulating discharges
from operations utilizing the hydraulic removal of overburden through
this GP stating these operations should be considered in individual
permits.
Response: EPA's NPDES regulations [40 CFR 122.28(a)] outline the
conditions under which the Director may issue a general permit. More
specifically, 40 CFR 122.28(a)(2)(ii) lists conditions the sources must
meet to be considered for a general permit:
a. The facilities involve the same or substantially similar types
of operations.
b. The facilities discharge the same type of wastes.
c. Require the same effluent limitations and operating conditions.
d. Require the same or similar monitoring.
EPA has covered three different classifications of facilities in
this GP but feels that each operation is similar to the others in that
class. The development of the effluent guidelines for placer mining
showed that with treatment, the pollutants of concern were the same for
all facilities. In addition, the Alaska Water Quality Standards (WQS)
have been taken into account for two parameters as being necessary for
additional controls. In EPA's best professional judgement, the second
condition applies to facilities utilizing the hydraulic removal of
overburden as long as the settleable solids are kept at 0.2 ml/L or
below. Also, suction dredges discharging to waters of the United States
that operate in the active stream channel would have substantially the
same types of discharged waste. EPA believes that each category can be
regulated using the same effluent limitations and operating conditions
and facilities in each category can be regulated using similar
monitoring.
2. Comment: Several commentors believe that bucket dredges should
be regulated under individual permits. In addition, one commentor feels
that small bucket dredges should be regulated under individual permits.
Response: The Development Document for Effluent Limitations
Guidelines and New Source Performance Standards for the Ore Mining and
Dressing Point Source Category - Gold Placer Mine Subcategory includes
those larger bucket dredges as mechanical operations. Since effluent
guidelines and New Source Performance Standards (NSPS) apply to these
facilities, the facilities are involved in operations similar to other
mechanical operations and thus can be regulated by this GP. Since EPA
did not include smaller bucket dredge operations as authorized by this
GP, any application for this type of operation would need to be
addressed in an individual permit.
3. Comment: Two commentors claim that the approach used to comply
with National Environmental Policy Act (NEPA) if a new source is
determined to have a significant impact violates the NEPA process.
Response: The commentors are correct but this was not the intent of
Permit Part I.A.3. This part is rewritten to read, ``If there will be a
significant impact, the facility will require an Environmental Impact
Statement (EIS).'' EPA would prepare the EIS as funds became available
or the new source could enter a three party agreement with EPA and an
agreed upon third party contractor where the new source would pay the
contractor but EPA would oversee the work.
4. Comment: Two commentors suggest that the GP define ``expanding
facilities'' to distinguish between an expansion and a new source.
Response: The GP has defined ``expanding facility'' in Permit Part
VIII.D. as: ``any facility increasing in size such as to affect the
discharge but operating within the permit area covered by its GP.''
5. Comment: Several commentors object to regulating discharges from
operations utilizing the hydraulic removal of overburden due to the
environmental impacts this method has on the surface.
Response: The NPDES program regulates pollutant discharges to
surface waters of the United States as mandated by the Clean Water Act
(CWA). EPA does not have authority under the CWA to regulate land use.
That authority rests with the appropriate land management agency.
6. Comment: Two commentors suggest that EPA clarify Permit Part
I.E.1. because they believe that saying: `* * * EPA ``may'' require
individual permits* * *' gives EPA too much discretion.
Response: The language in the GP comes directly out of 40 CFR
122.28(a)(3)(i). The regulations intended EPA to have some discretion
in making this determination.
7. Comment: Two commentors suggest the addition of the need for a
Total Maximum Daily Load (TMDL) as a reason for requiring an individual
permit.
Response: EPA agrees and it has been incorporated in Permit Part
I.E.1.g.
8. Comment: Two commentors claim Permit Part I.E.2. would allow an
applicant who falls into a category that may require an individual
permit to gain coverage under the GP until a decision is made on the
individual permit application.
Response: Permit Part I.E.2. states: ``The Regional Administrator
will notify the operator in writing that a permit application is
required. If an operator fails to submit in a timely manner an
individual NPDES permit application as required, then the applicability
of this general permit to the individual NPDES permittee is
automatically terminated at the end of the day specified for
application submittal.'' The Regional Administrator has the opportunity
not only to require an individual permit application from a new
applicant, but from an existing facility covered by the GP whose
situation is not as indicated on the Notice of Intent (NOI). The GP is
applicable to a new applicant only if they are in a category authorized
by the GP. Coverage is not granted until the applicant has been
notified according to Permit Part I.F.4.
9. Comment: Two commentors claim there is a discrepancy between
Permit Part I.F.4. and I.E.1. as to when coverage is effective because
I.E.1. implies that a facility that may require an individual permit is
covered by the GP until notified.
Response: Permit Part I.E.1. states: ``The Regional Administrator
may require any person authorized by this permit to apply for and
obtain an individual NPDES permit when:''; then lists the situations
when an individual permit may be required. There is nothing in this
part that indicates an operation would be covered by the GP if it
requires an individual permit (see previous comment). The GP indicates
in both I.F.1. and I.F.4. that the applicant will be notified in
writing that coverage is granted.
10. Comment: Two commentors claim that Permit Part I.E.5. gives a
permittee automatic coverage under the GP if they are denied an
individual permit.
Response: Permit Part I.E.5. states that if a facility, already
covered by the GP, applies for and is denied an individual permit that
coverage will automatically be reinstated under the GP. This is only
the case for permittees already covered, not just authorized, by the GP
otherwise coverage could not be reinstated as is specified.
11. Comment: Two commentors suggest that a limitation for total
suspended solids (TSS) be required in the placer mining NPDES permits
because the settleable solids effluent guideline value of 0.2 ml/L does
not provide reasonable assurance that the state water quality standards
for sediments is met or in the alternative that TSS should be
technology-based limited on the permit writer's Best Professional
Judgement (BPJ).
Response: Effluent guidelines do not contain TSS limits but Section
301 (b)(1)(c) of the CWA requires permits to contain conditions
necessary to comply with state water quality standards. The Alaska WQS
contain no specific criteria for TSS. Therefore, limits on TSS would be
required only when such limits are needed to assure compliance with
regulations or Alaska water quality standards such as sediment or
turbidity.
Because settleable solids is a more direct measure of sediment
impacts than TSS, it would not be appropriate to establish a TSS limit
for purposes of compliance with sediment criteria. EPA evaluated the
possibility of using a TSS limit in lieu of the turbidity limit to
assure compliance with state turbidity criteria. A review of the data
showed there was no direct correlation between TSS concentrations and
turbidity values. Therefore, no TSS limit could be established which
would assure compliance with the state turbidity criteria. The effluent
limitations for settleable solids and turbidity adequately address
compliance with WQS that may be impacted by TSS in placer mining
discharges. Therefore, EPA determined that it is not necessary to
establish limits for TSS. However, if the state of Alaska were to
include a limitation for TSS in their Section 401 Certification, EPA
would include it in the GP. But the Section 401 Certification has been
waived by the State according to the time specified in 40 CFR 124.53 so
no limitation for TSS is included.
12. Comment: Two commentors object to EPA granting turbidity
modifications to permittees under the GP because it does not provide
the public with formal notice and opportunity to comment as did the
individual permits.
Response: Turbidity modifications were not available for public
comment for the individual placer mining permits issued in the past.
The additional information to calculate the modifications was always
called for and supplied during the public comment period. The GP has
allowed public comment on the method of determining the turbidity
modifications just as did the individual permits.
13. Comment: Two commentors object to the turbidity limitation
based on the following issues:
a. It contradicts the basic principle of pollution control,
b. EPA has granted a mixing zone without going through the
procedures required by the Alaska water quality standards,
c. EPA has failed to account for the effects of multiple sources of
turbidity on the same receiving water, and
d. The State of Alaska has historically taken the approach that
mass balance equations are inappropriate basis for determining effluent
limitations.
Response: The WQS at 18 AAC 70.032(a) states: ``In applying the
water quality criteria set out in this chapter, the department will,
upon application and in its discretion, prescribe in its permits or
certifications a volume of dilution for an effluent or substance within
a receiving water * * *''. The state water quality standards describe
dilution as an allowable method of pollution control. The proposed
permit does take into account other man-made sources of turbidity on
the receiving water. Permit Part II.D.1.c. states that the ``natural''
background shall be measured for turbidity, where ``natural''
background is defined as the level upstream from all mining and other
man-made disturbances. The state has taken the position that a mass
balance equation is not appropriate for volume based limitations.
Turbidity is not a volume based limitation. The values used in the mass
balance equation for turbidity assume the worst case scenario. The
summer low flow for the stream (3Q2) is the upstream flow and the
highest estimated effluent flow is used. This should account for slight
variations in operation.
14. Comment: Two commentors indicate that the arsenic limitations
in the placer permits will not have sufficient public participation to
determine if they are protective.
Response: This option is an EPA interpretation of the WQS and
discharges up to ``natural'' background will be included in the permit
as an option to determine the arsenic limitation. If the state of
Alaska disagrees with this interpretation in their Section 401
Certification, then this option would not be included in the GP. The
Section 401 Certification has been waived according to the timeframe
specified in 40 CFR 124.53.
15. Comment: Several commentors indicate that the effluent
limitations in the permit will not prevent placer miners from violating
the water quality standard for metals other than arsenic and
limitations should be included in the permit based on site specific
information. One commentor indicates that there are two studies by
Hamilton and Buhl dated 1990 which should be considered.
Response: The combination of the recirculation of process water and
the removal of settleable solids in any waters discharged from the
mines will adequately control all pollutants found in effluents in this
subcategory. These pollutants include metals which are reduced with a
reduction in the solids. The decision by EPA to rely on the settleable
solids limitation as an indicator was specifically upheld by the Ninth
Circuit in Rybachek v. EPA. It was also upheld by the Superior Court
for the State of Alaska in Stein v. State because Trustees did not
produce post-1989 National Effluent Guideline evidence that toxic
metals, other than arsenic, discharged from placer mines violate WQS.
Although the publication dates on the studies cited are post-1989, the
actual studies were conducted prior to guideline development.
16. Comment: Two commentors claim that EPA must apply technology-
based limitations from the National Effluent Guidelines to suction
dredges.
Response: In the development of the Effluent Guidelines for placer
mining, the only type of dredge specified as being covered by the
guidelines were bucket dredges so effluent guidelines do not apply
directly to suction dredges. Suction Dredges are regulated by BPJ
according to 40 CFR 125.3. Based on BPJ, the effluent guidelines for
mechanical operations do not apply to suction dredges and the
requirements included in the GP do apply to this category of
discharger.
17. Comment: Several commentors suggest that Permit Part IV.A. be
changed to reflect that the turbidity measurement should be made at
natural background.
Response: EPA agrees and has modified this part of the GP.
18. Comment: Two commentors claim that the GP lacks an effective
reporting requirement for the technology-based limits in Permit Parts
II.A.1.a. and II.B.1.a. They suggest specifying an exact procedure to
determine compliance with these requirements.
Response: This is accomplished in two parts of the GP. The first is
in Permit Part III.A.4. which states that the amount of new water
allowed to enter the plant site for use in ore processing shall be
limited to the minimum amount required as makeup water for processing
operations. The second is in Permit Part II.A.2. and II.B.2. which
state that effluent discharges are prohibited during periods when new
water is allowed to enter the plant site. Additionally, there shall be
no discharge as a result of the intake of new water. The combination of
these two provisions prevents the discharge volume from being any more
than the volume of groundwater infiltration, drainage and mine drainage
at the site. Reporting of non-compliance is required in Permit Part
IV.G.2.c.
19. Comment: Two commentors claim that EPA's proposed reliance on
self- monitoring is an abdication of EPA's regulatory responsibility.
Response: The Clean Water Act prescribes self-monitoring in Section
308(a)(4)(A)(iv) which says that the Administrator shall require the
owner or operator of any point source to sample such effluents in
accordance with such manner as the Administrator shall prescribe. Self-
monitoring is a cornerstone of the NPDES program and shall remain
incorporated into this GP.
20. Comment: Two commentors claim that recreational suction
dredgers utilize dredges with 4 to 6 inch intake hoses and recommends
that EPA change the size of the dredges regulated by this permit to
greater than 6 inch intake hoses.
Response: EPA has completed a literature research project
considering the environmental effects of all suction dredge operations
and potential controls that could be placed on them. Based on this
research, EPA has concluded that suction dredges with intake hoses of
greater than 4 inches may cause environmental impacts and will be
covered by this GP. EPA has observed commercial miners using dredges
with intake hoses less than 6 inches. It does not matter if a suction
dredge is recreational. Larger recreational suction dredges may cause
environmental impacts similar to small commercial operations.
21. Comment: Two commentors suggest that new facilities should be
allowed to submit an NOI and have a permit within thirty days of the
submission. Also, another commentor claims that the GP notification
requirements are too restrictive because the average summer tourist
bringing a five or six inch dredge to Alaska for vacation cannot dredge
because their application should have been received by January 1.
Response: EPA cannot guarantee a permit within a specified
timeframe because there may be instances where information needs to be
clarified or the facility may require an individual permit and it would
not be feasible to issue a permit in 30 days. The language in Permit
Part I.F. has been changed to require NOIs by January 1 only for those
new facilities subject to NSPS. Other new facilities will only be
required to submit an NOI 90 days prior to discharge. This allows time
to review the NOI and for the applicant to receive a permit.
22. Comment: Several commentors suggest that the methodology for
determining a turbidity modification be included in the permit as well
as the Fact Sheet.
Response: EPA agrees and has modified Part II.A.1.b. and II.B.1.b.
to include the methodology for turbidity modifications.
23. Comment: Two commentors recommend inserting ``where
applicable'' after the term ``recycle system'' in Permit Part II.D.1.b.
concerning the visual inspection of a facility because all facilities
do not utilize recycle systems.
Response: The addition of the phrase ``where applicable'' may be
confusing to the permittee because the permittee may decide that
recycle is not applicable to a certain site and that discharging is the
applicable way to operate. EPA does not require the records to show a
daily inspection of the recycle system if it is determined that recycle
is not necessary.
24. Comment: Several commentors suggest that the phrase ``dredging
in the waters of the United States is permitted only within the active
stream channel'' be modified to make it possible to operate dredges
that do not discharge to waters of the United States or do so only
after treatment.
Response: Permit Part III.B.1. is quoted above and it applies only
to those suction dredges operating in waters of the United States. This
requirement does not apply to those suction dredges operating and
discharging outside waters of the United States. Those facilities with
treatment would be expected to meet the limitations for mining
operations utilizing similar treatment.
25. Comment: One commentor recommends that the GP specifically not
prevent the removal of settleable solids from settling ponds for use in
reclamation activities.
Response: Permit Part V.F. does not prevent solids from being
removed from the pond for reclamation activities. However, care should
be taken during reclamation that solids do not enter waters of the
United States. Totally reclaimed areas, released from bond, are subject
to no water discharge permits.
26. Comment: Two commentors recommend that the GP require
notification for planned alterations when the affected pollutant that
is discharged is subject to the effluent limitations in the permit.
Response: EPA agrees and this provision has been added to Permit
Part VI.B. of the proposed GP. This will make it possible to re-issue a
GP to a facility to reflect changes made that may affect effluent
limitations, especially turbidity.
27. Comment: Two commentors recommend that if modifications are
made to the proposed GP that corresponding modifications be made to the
Fact Sheet.
Response: The Fact Sheet is the document that supports the draft
general permit and is in its final form when it goes to public notice.
Any changes to the general permit from proposed to final will be
supported through this Response to Comments and the State's Section 401
Certification, if any.
28. Comment: One commentor would like Permit Part I.E.2. to specify
that EPA will notify the permittee by certified mail due to the fact
that they may leave the state for several months and not receive their
mail until they return.
Response: This change has been made to the GP although it is EPA's
experience that after a short period of time, even unclaimed certified
mail is returned to the sender.
29. Comment: One commentor suggests that Permit Part I.F.1.a. be
changed to remove the phrase ``no later than 90 days after the
effective date of the permit'' due to circumstances that may make the
deadline impossible to meet.
Response: Permit Part I.F.1.a. is applicable to existing facilities
whose permits are expiring or those needing permits. Provisions have
been made for new facilities not subject to New Source Performance
Standards (NSPS) in Permit Part I.F.1.c. and for existing facilities in
Permit Part I.F.1.e.
30. Comment: One commentor suggests the issue of a GP being
automatically terminated upon issuance of an individual permit be
addressed in the conditions of the individual permit in case the
facility needs the individual permit as well as the GP.
Response: If EPA were to issue an individual permit to a facility,
it would incorporate the necessary requirements of the GP into the
individual permit to lessen the paperwork the permittee would need to
keep track of (i.e., one discharge monitoring report, one
reapplication, etc.). Thus, the GP would no longer apply and would
automatically terminate upon the issuance of an individual permit.
31. Comment: Two commentors suggest modifying Permit Part I.F. to
allow the use of the ADNR's Annual Placer Mining Application (APMA) to
serve as the NOI for the GP.
Response: EPA will accept, but cannot require, an APMA as an NOI
for this GP as long as the APMA contains all the information on the
information sheet in Appendix A of the GP.
32. Comment: One commentor objects to the requirement to monitor
settleable solids once per day of discharge suggesting that this is a
new definition and recommends that the monitoring frequency be returned
to the previous requirement of once per day of operation.
Response: Previously issued permits did not contain a requirement
that settleable solids be monitored ``once per day of operation.'' In
Ackels v. United States Environmental Protection Agency (9th Cir.
1993), the issue of monitoring settleable solids was decided on the
1985 and 1987 permits for placer mining which states: ``The CWA [Clean
Water Act] regulates, and NPDES permits place conditions on,
`discharges' of pollutants. To monitor for compliance with an NPDES
permit, therefore, a placer miner must monitor discharges of pollutants
caused by his or her placer miner activities whenever such discharges
occur, not just on days when sluicing occurs.'' 7 F3d 862.
33. Comment: One commentor objects to the monitoring frequency for
flow and suggests once per week while operating instead of once per
day. In addition, others request that the flow monitoring requirement
of the permit be decreased from once per day to once per month because:
a. Effluent flow is static unless there is a storm event;
b. In a storm event, the volume of the receiving stream will
increase much more in proportion to the effluent; and
c. During a storm event Alaskan streams naturally exceed any limits
in the permit.
Response: Since the 9th Circuit Court upheld the requirement of
monitoring settleable solids once per day of discharge, the flow
monitoring frequency is not an onerous additional burden to the
settleable solids monitoring. See the previous comment for further
details.
34. Comment: Several commentors are opposed to any requirement for
written reports other than the annual Discharge Monitoring Report
(DMR). The objection is to Permit Part IV.G.2.c. which says that any
violation of the effluent limitations in Permit Parts II.A. and II.B.
should be reported in writing to EPA within the shortest reasonable
period of time.
Response: In the past, placer mining permits have not contained
reporting requirements which other NPDES permits contain including
notice of violations by phone within 24 hours and a written report
submitted within 5 days of becoming aware of the violation. This is due
to the unreasonableness of the imposed timeframe. EPA does not believe
that requiring a report in writing in the shortest reasonable period of
time is unreasonable. The commentors themselves have indicated in other
comments that there would be times when the miner would need to leave
the mine site to get supplies. It does not seem unreasonable that, at
this time, the miner could send a report to EPA if it is necessary.
35. Comment: One commentor indicates that turbidity modifications
should be done for the body of water that the receiving stream flows
into and not for the receiving stream directly because the discharge
does not affect the receiving stream. The commentor objects because
another permittee on a nearby stream has a much higher turbidity
modification than does his permit.
Response: The WQS serve to protect the water which is first and
most severely impacted by the discharge. The WQS used not only protect
aquatic life but also protect the receiving water for use as a water
supply and contact recreation. The application of a turbidity
modification considers several things including the size of the
receiving water's drainage area and the effluent flow from the
facility. These are the factors which can cause one permittee's
turbidity modification to be different than another.
36. Comment: Several commentors indicate that the arsenic standard
should be changed in the GP because it is too low. Several other
commentors express concern over the arsenic limit being lower than the
detection limit.
Response: In establishing the arsenic limit, the ``Amendments to
the Water Quality Standards Regulation; Compliance with CWA Section
303(c)(2)(B); Final Rule'' (57 FR 6084, Tuesday, December 22, 1992) are
used. This rulemaking promulgated the chemical-specific numeric
criteria for priority toxic pollutants necessary to bring all States
into compliance with the requirements of the CWA Section 303(c)(2)(B).
The primary focus of the rule is the inclusion of the federal water
quality criteria for pollutant(s) in State standards as necessary to
support water quality-based control programs (e.g. NPDES permits). The
federal human health standard of 0.18 g/L total recoverable
arsenic is applicable to Alaska and this number has been used to derive
the end-of-pipe limitation for the GP.
37. Comment: Two commentors mention that there should be a mixing
zone for arsenic. Additionally, several other commentors believe this
GP does not prohibit a mixing zone and suggest that the permit specify
that a mixing zone is available if ADEC approves.
Response: Mixing zones are allowed under the Alaska standards for
some pollutant discharges. However, 18 AAC 70.032(a) states, ``In
applying the water quality criteria set out in this chapter, the
department will, upon application and in its discretion, prescribe in
its permits or certifications a volume of dilution for an effluent or
substance within a receiving water unless pollutants discharged could
bioaccumulate; concentrate or persist in the environment; cause
carcinogenic, mutagenic, or teratogenic effects; or otherwise present a
risk to human health * * *'' Arsenic is a carcinogen. In a letter,
dated March 24, 1992, from the Alaska Department of Environmental
Conservation Commissioner, John Sandor, to EPA Water Division Director,
Charles Findley, the State has interpreted this to mean that ``* * * a
mixing zone may be prescribed where there is no reasonable expectation
of an adverse effect on human health or aquatic life, based on site-
specific, chemical, physical and biological characteristics.'' EPA did
not propose a mixing zone for arsenic but would include a method for
determining a mixing zone in the permit if ADEC determines, in their
Sec. 401 Certification, that such a mixing zone is appropriate and is
in compliance with its WQS. The Section 401 Certification has been
waived by the State according to the time specified in 40 CFR 124.53 so
no mixing zone is included.
38. Comment: One commentor suggests EPA use Method 3005A for sample
preparation in advance of 206.2 so the detection level would be below
the permit limitation.
Response: This sample preparation method is for Resource
Conservation Recovery Act (RCRA) sampling only and not appropriate for
NPDES permits.
39. Comment: One commentor recommends changing the permit
limitation to the minimum level specified in the GP as 4 g/L.
This commentor claims that this level would be protective of aquatic
life.
Response: The WQS protect most fresh water sources for use in
drinking, agriculture, aquaculture and industrial water supply, contact
and secondary recreation and the growth and propagation of fish, shell
fish, and other aquatic life [18 AAC 70.050]. The criteria for growth
and propagation of fish, shellfish, aquatic life and wildlife and also
for harvesting for consumption of raw mollusks or other raw aquatic
life are as stringent as any requirement except perhaps industrial
water supply and secondary recreation. EPA cannot arbitrarily choose a
number to be used as an effluent limitation in an NPDES permit. There
are regulations that must be adhered to in setting any limitation. To
use the arbitrary effluent limitation of 4 g/L would violate
40 CFR 122.44(d) which states that: ``any requirements in addition to
or more stringent than promulgated effluent limitations guidelines or
standards under sections 301, 304, 306, 307, 318 and 405 of CWA
necessary to achieve water quality standards established under section
303 of the CWA.'' ``Amendments to the Water Quality Standards
Regulation; Compliance with CWA Section 303(c)(2)(B); Final Rule'' (57
FR 6084, Tuesday, December 22, 1992) were used to determine the arsenic
limitation. This rulemaking promulgated the chemical-specific numeric
criteria for priority toxic pollutants necessary to bring all States
into compliance with the requirements of the CWA Section 303(c)(2)(B).
Since 40 CFR 122.4(a) states: ``No permit may be issued when the
conditions of the permit do not provide for compliance with the
applicable requirements of the CWA, or regulations promulgated under
CWA,'' an arbitrary number cannot be used. The Fact Sheet (page 13)
states that: ``This reporting threshold does not authorize the
discharge of this parameter in excess of the effluent limitation.''
40. Comment: One commentor points out that the 16th Edition of
Standard Methods (1985) is referenced in the permit and that there have
been two editions since then and they suggest EPA update this
reference.
Response: EPA has updated this to the 17th Edition of Standard
Methods (1989) since this is referenced in 40 CFR 136, revised July 1,
1993.
41. Comment: Several commentors pointed out that Permit Part
II.D.4. referenced on pages 8 and 9 of the proposed GP does not exist
in this permit.
Response: The reference has been corrected to read Permit Part
II.D.1.d.
42. Comment: Several commentors point out that Permit Part
II.D.1.c. contains a reference to a definition in Permit Part V.I.
which does not exist in the GP.
Response: The reference has been corrected to read Permit Part
VIII.K.
43. Comment: One commentor requests a definition of new facility
and active stream channel.
Response: The GP has defined ``new facility'' as one that has not
operated in the area specified prior to the submission of the NOI. The
``active stream channel'' is defined as that part of the channel that
is below the level of the water. These definitions appear in Part VIII.
of the GP.
44. Comment: One commentor recommends that the wording be changed
in Permit Part I.F.1. from ``owners or operators of facilities
authorized by'' to ``owners or operators of facilities to be authorized
by.''
Response: The facilities authorized by this GP are specified in
Permit Part I.B. whose title has been changed to reflect this. The
facilities to be covered by the GP may be a smaller universe,
specifically those filing NOIs and being granted coverage in writing.
45. Comment: One commentor recommends EPA initiate coordination
under Section 7 of the Endangered Species Act due to the presence of
critical habitat for sea lions in the coastal areas.
Response: EPA received a species list including the NMFS species of
concern. Comments received from NMFS indicated that the concern was the
critical habitat of the species. Since this water discharge GP is
written to protect aquatic life or human health (whichever is more
stringent), no alterations of habitat due to water discharges
authorized by this GP should occur. Consequently, formal consultation
for Section 7 of the Endangered Species Act is not necessary.
46. Comment: One commentor states that this GP requires 100%
recycle and this is unnecessarily restrictive because some miners can
operate without recycling or discharging.
Response: The GP requires no discharge of process water. It does
not specify that 100% recycle is the only way to accomplish this.
47. Comment: One commentor objects to the use of 5 Nephelometric
Turbidity Units (NTUs) above background for the turbidity limitation
because this is the limit for waters classified for contact recreation.
He recommends changing this to 25 NTUs above background because this
level is the threshold at which impact on aquatic vertebrates occurs.
Response: The WQS protect most fresh water sources for use in
drinking, agriculture, aquaculture and industrial water supply, contact
and secondary recreation and the growth and propagation of fish, shell
fish, and other aquatic life [18 AAC 70.050]. The turbidity limitation
must protect all of these and to ensure compliance with the WQS, EPA
assumed worst case conditions and used 5 NTUs above natural background
as a limit.
48. Comment: Two commentors object to using ``total recoverable''
as the way to measure arsenic because it does not take into account the
toxicity of the various valence states of arsenic and the compounds it
can form.
Response: In establishing the arsenic limit, the ``Amendments to
the Water Quality Standards Regulation; Compliance with CWA Section
303(c)(2)(B); Final Rule'' (57 FR 6084, Tuesday, December 22, 1992) are
used. This specifies that the metals are expressed in terms of total
recoverable [40 CFR 131.36(c)(4)(iii)] and 40 CFR 122.45(c) states that
``All permit effluent limitations, standards, and prohibitions for a
metal shall be expressed in terms of 'total recoverable metal' as
defined in 40 CFR part 136.''
49. Comment: One commentor claims that the measurement of
background for arsenic is different from that of turbidity.
Response: The tables in Permit Parts II.A.1.b. and II.B.1.b.
express the measurement of background as the ``natural background'' for
both turbidity and arsenic. The commentor may be referring to Permit
Part II.D.1.c. which stated that the background be monitored with no
reference to natural background. This part has been changed to
correspond to the rest of the GP.
50. Comment: One commentor indicates that the Management Practices
in Permit Parts III.B.1. and 2. of the proposed GP contradict each
other because one says dredging should take place in the active channel
and the other says to do it in quiet pools.
Response: Permit Part III.B.1. does say that dredging should take
place in the active stream channel, whereas Permit Part III.B.2. states
that discharges from dredging operations, wherever practicable, shall
be set into a quiet pool. It is possible for the discharge to be guided
away from the actual dredging site and discharged to any area where it
will settle out faster.
51. Comment: Several commentors suggest that Permit Part I.C. be
clarified. Response: To clarify the meaning of this part, the title has
been changed to ``Additional Requirements.''
52. Comment: Several commentors believe that the expiration date of
the permit is unclear and suggest this permit expire 5 years from the
date of issuance for each facility.
Response: The language in Permit Part I.G. has been clarified. This
GP will expire 5 years from its effective date as determined by 40 CFR
124.20.
53. Comment: Several commentors object to the definition of
``natural background'' and suggest that the definition of ``natural
conditions'' from the WQS [18 AAC 70.110(29)] be used in its place
because it says that the natural condition is the condition of the
water at the site prior to impacts from the facility.
Response: The WQS at 18 AAC 70.110(29) states ``natural condition
means the sum of the physical, chemical, biological, or radiological
conditions that exist in a water body before any human-caused discharge
to, or addition of material to the water.'' The Alaska Department of
Environmental Conservation does not interpret this definition to mean
that this is the condition of the water before a facility discharges to
it with no regard as to what is upstream of the site. On the contrary,
ADEC considers natural condition to be the condition of the water prior
to any man-made disturbances in the watershed and suggest that if this
cannot be determined in the watershed that a similar undisturbed
watershed should be used to determine the natural condition.
54. Comment: Several commentors have concerns about the once per
day visual inspection and suggest that the GP require the inspection
only when the operator is on-site.
Response: The commentors concerns are valid. The GP has been
changed to require a visual inspection daily during the mining season
when the operator is on-site.
55. Comment: Several commentors wished EPA to clarify Permit Part
II.D.b. relating to what the records should include.
Response: To clarify this part, it has been changed from ``These
records shall include, but are not limited to, an evaluation of the
condition of all water control devices such as diversion structures and
berms and all solid retention structures such as berms, dikes * * *''
to ``These records shall include an evaluation of the condition of all
water control devices such as diversion structures and berms and all
solid retention structures including, but not limited to, berms, dikes
* * *''
56. Comment: Several commentors express concern over the method of
measuring flow for the GP and request guidance on how to measure flow
from a facility that has no discharge from a pipe or constructed pond
overflow.
Response: To provide the requested guidance, the sentence, ``If
measurement is impractical, the operator must make a good faith effort
to estimate seepage discharging to waters of the United States each day
that seepage occurs,'' has been added to Permit Part II.D.1.f.
57. Comment: Several commentors request that reasonableness be
taken into account in Permit Part III.A.5. and suggest that the
Management Practice read ``* * * berms, dikes, pond structures, and
dams shall be reasonably maintained to continue their effectiveness * *
*''
Response: EPA does not view the addition of the word ``reasonably''
to this management practice as changing the intent of it; consequently,
this change has been made to the GP.
58. Comment: Several commentors would like the term ``mining
season'' defined.
Response: EPA has never contended that there was a set timeframe
for a mining season. Recognizing that there are various levels of
mining intensity, however, EPA has defined mining season for a
particular facility in Permit Part VIII.I. as ``the time between the
start of mining in a calendar year and when mining has ceased for that
same calendar year.''
59. Comment: Several commentors recommend that Permit Part
III.B.6.:
a. Distinguish between requirements for reclaimed and unreclaimed
areas and which need to be addressed at the end of the mining season:
b. Change the words ``after the mining season'' to ``when mining
has ceased for a particular season;'' and
c. Claim the word ``additional'' is superfluous.
Response: The commentors are correct that a distinction should be
made between unreclaimed and reclaimed lands. Runoff from lands that
are fully reclaimed and have been released from bond are not subject to
any water discharge permits. The permit has been changed to reflect
this distinction. The term ``mining season'' has been defined in Permit
Part VIII.I. (see previous comment) so the language in the GP will
remain. Because it is redundant to have a sentence containing the word
``additional'' and the phrase ``over those resulting from natural
causes,'' the word ``additional'' has been deleted from the GP.
60. Comment: Several commentors recommend that EPA clarify Permit
Part V.G. so that bypasses of water around a site for the essential
maintenance and efficient operation of the mine are not included as
effluent. The commentors recommend that Permit Parts V.G.2. and 3. be
deleted.
Response: Bypass, as referred to in Permit Part V.G., is defined in
Permit Part VIII.B. as ``the intentional diversion of waste streams
around any portion of a treatment facility'' (emphasis added). Since
water that has no contact with the mine site is not considered a waste
stream, the bypasses that the commentors refer to are diversions not
bypasses as defined in the GP. The GP contains this condition based on
40 CFR 122.41(m).
61. Comment: Several commentors request that the Fact Sheet be
included with the proposed GP along with other supporting material be
maintained as part of the GP.
Response: The Fact Sheet and other supporting material will be
maintained as part of the Administrative Record for the final GP.
62. Comment: One commentor recommends that more guidance be given
to the operator in taking samples for turbidity, both effluent and
natural background. One commentor suggests specifying a time frame of
15 minutes rather than a ``reasonable time.''
Response: While EPA would like to give more guidance to the
operator in taking samples, a timeframe of 15 minutes between effluent
and natural background would be unworkable in some cases. The natural
background is defined as being upstream from any man-made disturbance
and while this may be right upstream from the first mine on a stream,
it could be many miles for an operator close to the end of the stream.
Specifying a ``reasonable time'' is appropriate under these
circumstances.
63. Comment: One commentor urges implementation of additional Best
Management Practices (BMPs) to protect stream banks and riparian
habitat; restore pool, riffle, and stream habitat for fish; and remove
fish barriers.
Response: EPA does not believe these practices are reasonably
necessary to achieve effluent limitations or standards under 40 CFR
122.44(k).
64. Comment: One commentor objects to turbidity modifications and a
visual turbidity location for suction dredges stating that these are
federally sanctioned mixing zones and have not gotten full treatment
under NEPA.
Response: Mixing zone designations or implementation of WQS are
not, per Section 511(c) of the CWA, defined as a ``major federal
action'' subject to NEPA.
65. Comment: One commentor requests information on the standard of
proof EPA will hold ADEC to if a mixing zone is proposed for arsenic.
Response: ADEC would have to show that there would be no reasonable
expectation of an adverse effect on human health or aquatic life from
the mixing zone.
66. Comment: One commentor recommends including guidelines,
objectives, or criteria to prevent mines being left at the end of the
season in such a way that flushing, erosion and degradation will not
occur.
Response: The Management Practice in Permit Part III.A.6. addresses
this issue.
67. Comment: One commentor recommends that the Standard Conditions
of Alaska Department of Fish and Game's (ADFG) placer permits be
adopted as part of the proposed GP.
Response: EPA has incorporated several of these Standard Conditions
into the proposed GP as deemed appropriate. The other conditions in
ADFG's permits contain issues that the NPDES program has no authority
over and as such, cannot be regulated in the GP.
68. Comment: One commentor requests the scientific basis for
requesting suction dredges to discharge into ``quiet pools'' where fish
routinely hold.
Response: EPA does not require discharges into ``quiet pools'' at
all, much less ``quiet pools where fish routinely hold''. The purpose
of discharging to a quiet pool is to increase the opportunity for
discharge material to settle more without going downstream.
69. Comment: One commentor objects to the storm exemption stating
that reasonably predictable flooding is more along the lines of a
fifteen or twenty year flood event of 12-16 hours rather than the 5
year, 6 hour storm event as stated in the proposed GP.
Response: The storm exemption is designed to provide an affirmative
defense to an enforcement action. EPA recognizes that mines should not
be required to construct treatment for the maximum precipitation event
or series of precipitation events that could occur with the resulting
effects on wastewater and mine drainage discharge flows. EPA has
established, through the development of Effluent Guidelines, the
criteria for designing, constructing, and maintaining the wastewater
treatment facilities. The facilities must be able to contain and treat
the maximum volume of wastewater resulting from processing ore during a
4 hour period plus the volume that would be discharged from a 5-year,
6-hour precipitation event. The storm exemption is contained in 40 CFR
440.141(b) but can only be used as an affirmative defense if all
requirements of the regulation are met [i.e., compliance with the BMPs
in 40 CFR 440.148 and related provisions of its NPDES permit, and
compliance with the notification requirements in 40 CFR 122.41(m) and
(n)].
70. Comment: One commentor objects to the use of the GP to cover
mine sites that are located over known minable deposits of heavy metals
other than gold and if the mine site has been historically mined using
mercury.
Response: In the development of the Effluent Guidelines for Placer
Mining, EPA conducted sampling and analysis at facilities which
represented a wide range of locations, operating conditions, processes,
water use rates, topography, production rates, and treatment
technologies. From the sampling, EPA selected settleable solids as the
only pollutant of concern to be regulated by the effluent guidelines
and the sampling indicated no high levels of any metals. The quantities
and treatability of pollutants in these treated wastewaters form the
basis for selection of pollutant parameters for regulation. The
Administrator is required by the CWA to consider the regulation of all
toxic pollutants and categories of pollutants listed under Section 307
but is not specifically required to regulate any of them.
71. Comment: Two commentors object to the ``mixing zone'' given to
suction dredges.
Response: The WQS at 18 AAC 70.032(a) states that ``In applying the
water quality criteria set out in this chapter, the department will,
upon application and in its discretion, prescribe in its permits or
certifications a volume of dilution for an effluent or substance within
a receiving water . . .'' The state water quality standards describe
dilution as an allowable method of pollution control. EPA proposed the
mixing zone in the proposed GP and if the State disagrees in its
Section 401 Certification with this mixing zone determination, EPA
would insert the State's determination of the mixing zone into the GP.
The Section 401 Certification has been waived according to the
timeframe specified in 40 CFR 124.53.
72. Comment: Several commentors object to the monitoring frequency
for turbidity and arsenic. One commentor objects to the monitoring
frequency for arsenic because one sampling per season of effluent and
natural background is not statistically valid.
Response: Monitoring for these pollutants has been established at
less frequent intervals because sampling and analysis for these
parameters are more difficult and costly due in part from requiring
natural background samples. Samples for monitoring purposes must be
taken during discharge at a time when the operation has reached
equilibrium. EPA believes that the required monitoring frequencies will
be sufficient to determine compliance with permit limitations.
73. Comment: Two commentors suggest EPA clarify the procedure for
suction dredgers conducting visual inspections.
Response: The procedures are outlined in Permit Part II.C. The
visual inspection of the stream should be done 500 feet downstream from
the operating dredge. If there is any visual increase in the cloudiness
or muddiness of the water, it would be considered a violation. If this
does occur, the operator must slow down or stop operations until there
is no longer a violation.
74. Comment: Two commentors request a discussion of the
applicability of the GP to marine operations and coastal areas.
Response: This GP does not apply to marine operations. Permit Part
I.B.1.b. should have included the exception of dredges operating in
open waters as specified in 40 CFR 440.140(b). This part has been
changed to reflect this comment. Operations that are authorized by this
GP and are in coastal areas may apply for coverage under this GP. The
Alaska Department of Governmental Coordination (ADGC) has not given EPA
a consistency determination on the GP under the Alaska Coastal Zone
Management Act. EPA would like to expedite the issuance of this GP and
has made provisions in Permit Part I.A.5. so that facilities in the
coastal zone seeking coverage under the GP would be able to obtain
coverage after ADGC has made a determination, either for the facility
individually or on the GP. ADGC's determination on the GP could come in
the form of a formal determination or as a waiver due to the six month
review timeframe which will elapse on July 24, 1994.
75. Comment: One commentor objects to the use of a visual
inspection for turbidity for suction dredge operations.
Response: The visual monitoring for suction dredging has been
included in the GP pursuant to 40 CFR 122.43 which says that conditions
not specifically required in the regulations can be placed in permits
to provide for and assure compliance with all applicable requirements
of the CWA. EPA has used best professional judgement in determining
this requirement.
76. Comment: Several commentors state that the permit only covers
gold placer mines and that other placer mines (i.e., platinum and tin)
should be included since the mining techniques are for all practical
purposes identical to those covered for gold placer operations.
Response: EPA will consider these operations in the next issuance
of the GP. EPA would consider it inappropriate to include these
operations without an opportunity for public comment or inclusion in
the EA.
77. Comment: Several commentors object to EPA not including small
mechanical operations not authorized by the effluent guidelines in this
general permit. Further, two other commentors object to EPA not
authorizing small suction dredges in this GP.
Response: See comment 76.
78. Comment: Several commentors object to the use of the GP to
regulate placer mines in wild and scenic rivers and conservation system
units.
Response: EPA has included in possible requirements for an
individual permit, facilities where other federal or State legislation,
rules or regulations directly or indirectly related to water quality
may apply to that facility. This provision is found in Permit Part
I.E.1.i.
79. Comment: One commentor would like Permit Part I.C. clarified so
it is understood that the GP applies in wild and scenic rivers,
conservation system units and in anadromous streams.
Response: The GP would apply in these areas except where it has
been determined according to Permit Part I.E.1.i. that an individual
permit is required.
80. Comment: Several commentors object to natural background being
defined as above all man-made disturbances on the stream for
measurement of arsenic and turbidity. One commentor suggests that EPA
designate the natural background point.
Response: According to EPA's experience, the number of miners who
report discharging has dropped significantly in the past few years. EPA
expects this trend to continue. For those few miners that do discharge,
EPA will determine, upon request, the point at which the natural
background sample will be taken. In determining the sample point, EPA
will consider, with the input of the permittee and/or the Alaska
Division of Mining, geologic factors, drainage patterns, access, and
the location of active and historic manmade disturbances. This has been
incorporated into Permit Part II.D.1.c. for turbidity and Permit Part
II.D.1.d. for arsenic.
81. Comment: Two commentors suggest that Permit Part III.B.4. is
too all-inclusive and should be changed to say that other permits and
restrictions may apply if there is a possibility of fisheries being
affected by suction dredging. Two other commentors claim that Permit
Part III.B.4. is loosely worded and unenforceable. Two commentors
recommend that the reference to harassment of fish should be defined or
deleted from Permit Part III.B.4.
Response: EPA believes that Permit Part III.B.4. is a duplication
of Permit Part I.C. and has deleted the former from the GP.
82. Comment: One commentor claims EPA should distinguish between
the critical parameters of both intake size and engine power.
Response: EPA did not consider engine power along with size of
intake hoses because the requirements of the GP should suffice to
minimize impacts. The daily inspections for downstream impacts with the
requirement to decrease or cease operations if impacts occur are
applicable to all authorized suction dredges regardless of engine size.
83. Comment: One commentor objects to EPA not considering river
bottom variability in permitting suction dredges and suggest that EPA
issue basin specific general permits to account for this.
Response: EPA recognizes the variability of sediment sizes
throughout a fluvial system. It is this recognition that prompts the
restriction confining the activity to the active stream channel. At
least in this area, the percentage of fines is typically at a minimum
with respect to the entire fluvial system and impacts will be
minimized.
84. Comment: Two commentors claim that EPA has never enforced its
own or the state of Alaska's antidegradation policy.
Response: EPA does not have an antidegradation policy but does
mandate antidegradation as part of a state's water quality standards
[40 CFR 131.6 and 131.12]. To date, the state of Alaska has not
implemented their anti- degradation policy. The pending standards
revision address antidegradation. The State plans to begin their
implementation soon and EPA intends to work with the State in the
implementation of their policy. If a placer mine is shown to be
affected by the policy, it may be required to apply for an individual
permit. This condition has been added to the proposed GP as Permit Part
I.E.1.h.
85. Comment: Two commentors suggest revising Permit Part III.A.6.
to include detailed reclamation procedures to ensure that seasonally or
permanently abandoned mines do not pollute the receiving waters.
Response: Permit Part III.A.6. was included in the GP pursuant to
40 CFR 122.44(k)(3). This regulation requires NPDES permits to contain
BMPs that serve to control or abate the discharge pollutants when the
practices are reasonably necessary to achieve effluent limitations and
standards or to carry out the purposes and intent of the CWA. EPA does
not believe that detailed reclamation procedures are reasonably
necessary. The requirement of the GP does carry out the purposes and
intent of the CWA.
86. Comment: Several commentors object to the reporting
requirements for arsenic that require any measurement less than the
detection level to be reported as zero, anything between the detection
level and the minimum level (4) to be reported as \1/2\ the minimum
level or 2 and anything over the minimum level to be reported as the
actual number.
Response: This reporting requirement was based on draft policy that
has changed since the proposed GP was public noticed. The GP now
reflects the latest draft policy from EPA Headquarters which states
that a minimum level (ML) can be calculated from a method detection
level (MDL). For arsenic in this GP, the MDL of 1 g/L is
multiplied by 3.18. The product is rounded to 3 and this becomes the
ML. Samples measuring less than the ML are to be reported as 0
g/L while analysis greater than the ML should be reported as
the actual measure. The Fact Sheet (page 13) and the GP in Permit Part
II.D.1.d. state: ``This reporting threshold does not authorize the
discharge of this parameter in excess of the effluent limitation.''
87. Comment: One commentor suggests that EPA give some
consideration to the 1989 Alaska Supreme Court Decision regarding the
lowest measurement practical for settleable solids.
Response: EPA believes that settleable solids can be measured with
an Imhoff cone accurately to 0.2 ml/l. However, Permittees are asked to
estimate readings below this level even though they are less accurate.
If ADEC does not agree that this is protective of WQS and specifies it
in their Section 401 Certification, EPA would make the required changes
to the GP. The Section 401 Certification has been waived according to
the timeframe specified in 40 CFR 124.53.
The following comments were received on the EA from National Marine
Fisheries Service, Alaska Department of Natural Resources and Alaska
Miners Association. These comments have not been addressed in the above
responses.
88. Comment: One commentor suggests that the Purpose and Need for
Action section of the EA covering cumulative impacts does not do so
properly.
Response: Cumulative effects will be more specifically addressed in
the EAs which will continue to be prepared for the individual new
source NPDES permit actions (i.e., in the context of site-specific
conditions and those cumulative effects associated with a proposed
project). Where the potential for significant cumulative impact exists,
an environmental impact statement will be required. The proposed
general permit action evaluated in the EA will not alter the
methodology by which cumulative effects are assessed under the National
Environmental Policy Act (NEPA) prior to the permit decisions.
89. Comment: One commentor suggests that DOI, Mineral Management
Service be included in the section on Placer Mining Regulatory Programs
since it administers leases and permits mining activities within
Alaska's Outer Continental Shelf.
Response: This additional information will be incorporated into the
EAs prepared for new source projects. It should be noted that the final
GP does not cover those offshore operations (see Comment #74).
90. Comment: One commentor suggests that discussion of the Army
Corps of Engineers regulatory program for placer mining be expanded
especially regarding general permits and specific activities which fall
under their jurisdiction.
Response: See response 89.
91. Comment: One commentor suggests that no additional discharges
into water quality limited segments be authorized until TMDL
determinations are completed.
Response: EPA will continue to assess potential for exceedances of
water quality standards for all new source projects subject to NEPA
review (regardless of their location) prior to the decisions whether or
not to authorize the discharges. Permit limitations would also reflect
TMDLs for any stream segment for which a TMDL is prepared.
92. Comment: One commentor requests clarification of how mitigative
measures would be handled under the GP.
Response: Additional mitigation measures which EPA may impose as
permit conditions, as a result of the NEPA (EA or EIS) review, are
limited to those authorized by the NPDES program, and therefore must be
reasonably necessary to carry out the purposes and intent of the CWA.
CWA-related conditions other than those already in the general permit
which are determined in an EA or EIS to be necessary in order to avoid
the potential for significant impact to water quality can be
incorporated into an individual NPDES permit. The general permit
includes a provision allowing for the drafting of an individual permit
as necessary. EPA may issue or deny an NPDES permit taking into
consideration all impacts (discharge related or other) disclosed in the
NEPA review, and the extent to which potentially significant adverse
impacts can be mitigated. Mitigation may also be developed by the
applicant or be required by the land management agency or other agency
regulatory program with jurisdiction over the project.
93. Comment: One commentor claims there is a typographical error in
the section ``Description of Proposed Action, Permit Coverage,'' that
the phrase intake nozzles less than 4 inches should be intake nozzles
greater than 4 inches.
Response: The phrase is included in the list of facilities not
authorized by this GP. The GP only authorizes suction dredges with
intakes greater than 4 inches so the phrase in the EA is correct.
94. Comment: One commentor suggests that there will be significant
impacts because the permit will likely force some operators out of
business or force them to risk being charged with non-compliance, fined
and charged as a criminal due to the arsenic limitation in the proposed
GP.
Response: The GP limitation for arsenic is the same as it is in the
individual permits that have been issued since the ``Amendments to the
Water Quality Standards Regulation; Compliance with CWA Section
303(c)(2)(B); Final Rule'' (57 FR 6084, Tuesday, December 22, 1992)
went into effect. Therefore, there is no change in impact.
AUTHORIZATION TO DISCHARGE UNDER THE NATIONAL POLLUTANT DISCHARGE
ELIMINATION SYSTEM FOR ALASKAN PLACER MINERS
[General Permit No.: AK-G-37-0000]
In compliance with the provisions of the Clean Water Act (CWA), 33
U.S.C. 1251 et seq., as amended by the Water Quality Act of 1987,
Public Law 100-4, the ``Act'',
Owners and operators of facilities engaged in the processing of
placer gold are authorized to discharge to waters of the United States,
in accordance with effluent limitation, monitoring requirements, and
other conditions set forth herein.
A Copy of This General Permit Must be Kept at the Site Where
Discharges Occur.
This permit shall become effective June 30, 1994. This permit and
the authorization to discharge shall expire 5 years from the effective
date of the permit.
Charles E. Findley,
Director, Water Division, Region 10, U.S. Environmental Protection
Agency.
Table of Contents
Cover Page
I. Coverage Under This Permit
A. Coverage and Eligibility
B. Authorized Placer Mining Operations
C. Additional Requirements
D. Prohibitions
E. Requiring an Individual Permit
F. Notification Requirements
G. Permit Expiration
II. Effluent Limitations
A. Mechanical Operation (Traditional Sluicing)
B. Hydraulic Removal of Overburden
C. Suction Dredging
D. Monitoring Requirements
III. Management Practices
A. Mechanical Operations and Hydraulic Removal of Overburden
B. Suction Dredges
C. Other Requirements
D. Storm Exemption
IV. Monitoring and Reporting Requirements
A. Representative Sampling
B. Reporting of Monitoring Results
C. Monitoring Procedures
D. Additional Monitoring by the Permittee
E. Records Contents
F. Retention of Records
G. Notice of Noncompliance Reporting
H. Other Noncompliance Reporting
I. Inspection and Entry
V. Compliance Responsibilities
A. Duty to Comply
B. Penalties for Violations of Permit Conditions
C. Need to Halt or Reduce Activity not a Defense
D. Duty to Mitigate
E. Proper Operation and Maintenance
F. Removed Substances
G. Bypass of Treatment Facilities
H. Upset Conditions
I. Toxic Pollutants
VI. General Requirements
A. Changes in Discharge of Toxic Substances
B. Planned Changes
C. Anticipated Noncompliance
D. Permit Actions
E. Duty to Reapply
F. Duty to Provide Information
G. Other Information
H. Signatory Requirements
I. Availability of Reports
J. Oil and Hazardous Substance Liability
K. Property Rights
L. Severability
M. State Laws
VII. Reopener Clause
VIII. Definitions
IX. Special Conditions--Effluent Limits Below Detection Levels
A. Reporting Levels
B. Reporting Details
Attachment 1
Attachment 2
Attachment 3
Appendix A
I. Coverage Under This Permit
A. Coverage and Eligibility
1. Existing Facilities: Existing facilities (those facilities
having individual National Pollutant Discharge Elimination System
[NPDES] permits) are authorized under the terms and conditions of this
permit. Upon the submittal of a Notice of Intent (NOI) to gain coverage
under this permit, coverage will be granted according to Permit Part
F.4.
2. Pending Applications: Upon submittal of an NOI, all facilities
which have submitted applications in accordance with 40 CFR 122.21(a)
are authorized under the terms and conditions of this permit. Coverage
will be granted according to Permit Part F.4.
3. New Facilities: New facilities that are determined to be new
sources under the CWA will be required to have an Environmental
Assessment (EA) completed pursuant to the National Environmental Policy
Act (NEPA). A finding of no significant impact (FNSI) by EPA is
necessary prior to receiving coverage under this permit. If there will
be a significant impact, the facility will require an Environmental
Impact Statement (EIS). Facilities determined to be new dischargers
will be covered by the terms and conditions of this permit if they meet
all the necessary requirements of coverage.
4. Expanding Facilities: Facilities that contemplate expanding
shall submit a new NOI that describes the new discharge. The current
permit will be terminated and a new permit, reflecting the changes,
issued in its place if the facility meets all the necessary
requirements of coverage.
5. Coastal Zone Facilities: Facilities located in the coastal zone
as determinedby the Alaska Coastal Zone Management Act shall submit,
with their Notice of Intent (NOI), an individual consistency
determination from Alaska Division of Governmental Coordination (ADGC)
unless ADGC makes an overall determination on this General Permit after
its issuance.
B. Authorized Placer Mining Operations
1. Facilities that mine and process gold placer ores using gravity
separationmethods to recover the gold metal contained in the ore.
a. Open-cut gold placer mines except those open-cut mines that mine
less than 1,500 cubic yards of placer ore per mining season.
b. Mechanical dredge gold placer mines (not suction dredges) except
those dredges that remove less than 50,000 cubic yards of placer ore
per mining season or dredge in open waters.
2. Suction dredges with intake hoses of greater than 4 inches.
3. Operations utilizing hydraulic removal of overburden.
C. Additional Requirements
1. Many streams and stream reaches in Alaska have been designated
as part of the federal wild and scenic rivers system or as Conservation
System Units (CSUs) by the federal government. Permittees should
contact the district offices of the federal agencies that administer
the designated area for additional restrictions that may apply to
operating within the area.
2. Many streams in Alaska where placer mining occurs have been
designatedby the Alaska Department of Fish and Game (ADF&G) as
anadromous fish streams. Placer mining activities in these streams
require an ADF&G Fish Habitat Permit which may include additional
restrictions. The ``Atlas to the Catalog of Waters Important for the
Spawning, Rearing, or Migration of Anadromous Fish'' lists the streams
in the State which require prior ADF&G authorization. In addition,
placer mining activities in resident fish streams require an ADF&G Fish
Habitat Permit if the proposed activity will block or impede the
efficient passage of fish. Permittees operating in anadromous or
resident fish streams should contact the ADF&G to determine permitting
requirements and additional restrictions that may apply.
D. Prohibitions
Discharges from the following beneficiation processes are not
authorized under this permit: Mercury amalgamation, cyanidation, froth
floatation, heap and vat leaching.
E. Requiring an Individual Permit
1. The Regional Administrator may require any person authorized by
this permit to apply for and obtain an individual NPDES permit when:
a. The single discharge or the cumulative number of discharges is/
are a significant contributor of pollution;
b. The discharger is not in compliance with the terms and
conditions of the general permit;
c. A change has occurred in the availability of demonstrated
technology or practices for the control or abatement of pollutants
applicable to the point source;
d. Effluent limitations guidelines are subsequently promulgated for
the point sources covered by the general permit;
e. A Water Quality Management plan containing requirements
applicable to such point sources is approved; or
f. An Individual Control Strategy (ICS) is required under Section
304(L) of the Act, or
g. A Total Maximum Daily Load (TMDL) and corresponding wasteload
allocation has been completed for a waterbody or a segment of a
waterbody, or
h. A review of the facility shows that it is subject to the State
of Alaska's anti-degradation policy.
i. There are other federal or State legislation, rules or
regulations pertaining to a site directly or indirectly related to
water quality.
2. The Regional Administrator will notify the operator in writing
by certified mailthat a permit application is required. If an operator
fails to submit, in a timely manner, an individual NPDES permit
application as required, then any applicability of this general permit
to the individual NPDES permittee is automatically terminated at the
end of the day specified for application submittal.
3. Any owner or operator authorized by this permit may request to
be excluded from the coverage of this permit by applying for an
individual permit. The owner or operator shall submit an individual
application (Form 1 and Form 2C or 2D) with reasons supporting the
request to the Regional Administrator no later than 90 days after the
effective date of the permit.
4. When an individual NPDES permit is issued to an owner or
operator otherwise covered by this permit, the applicability of this
permit to the facility is automatically terminated on the effective
date of the individual permit.
5. When an individual NPDES permit is denied to an owner or
operator otherwise covered by this permit, the permittee is
automatically reinstated under this permit on the date of such denial,
unless otherwise specified by the Regional Administrator. A new
facility can receive coverage under this general permit by submitting
an NOI. See Permit Part I.A.3. for details.
6. A source excluded from a general permit solely because it
already has an individual permit may request that the individual permit
be revoked and that it be covered by the general permit. Upon
revocation of the individual permit, the general permit shall apply to
the source.
F. Notification Requirements
1. Owners or operators of facilities authorized by this permit
shall submit an NOI to be covered by this permit. The information
required for a complete NOI is in Appendix A of this permit.
Notification must be made:
a. Within 90 days of issuance of this permit; or
b. By January 1 of the year of discharge from a new facility or a
facility established since 1988 subject to New Source Performance
Standards (NSPS) that has not previously been covered by a permit; or
c. 90 days prior to discharge from a new facility not subject to
NSPS; or
d. 90 days prior to the expiration of an existing individual
permit, or
e. 90 days prior to discharge for any other facilities.
Authorization to discharge requires written notification from EPA that
coverage has been granted and that a specific permit number has been
assigned to the operation.
2. The NOI shall be signed by the owner or other signatory
authority in accordance with Permit Part VI.H. (Signatory
Requirements), and a copy shall be retained on site in accordance with
Permit Part IV.F. (Retention of Records). The address for NOI
submission to EPA is: United States Environmental Protection Agency,
Region 10, 1200 Sixth Avenue, WD-134, Seattle, Washington 98101.
3. A copy of the NOI must also be sent to the regional office of
the Alaska Department of Environmental Conservation (ADEC) that has
jurisdiction over the mine. The addresses are:
Alaska Department of Environmental Conservation, 410 Willoughby, Suite
105, Juneau, Alaska 99801
Alaska Department of Environmental Conservation, Northern Regional
Office, 610 University Avenue, Fairbanks, Alaska 99709
Alaska Department of Environmental Conservation, Southcentral Regional
Office, 3601 ``C'' Street, Suite 1350, Anchorage, Alaska 99503.
4. A copy of the general permit will be sent to the permittee when
it is determined that the facility can be granted coverage under this
general permit. If it is determined that coverage cannot be granted
under this permit, the applicant will be informed of this in writing.
G. Permit Expiration
This permit will expire five (5) years from the effective date. For
facilities submitting a new NOI 90 days prior to expiration of this
general permit, the conditions of the expired permit continue in force
until the effective date of a new permit.
II. Effluent Limitations
A. Mechanical Operation (Traditional Sluicing) [Not including Suction
Dredges]
During the term of this permit, no wastewater discharges are
authorized except as specified below.
1. Effluent Limitations
a. The volume of wastewater which may be discharged shall not
exceed the volume of infiltration, drainage and mine drainage waters
which is in excess of the make-up water required for operation of the
beneficiation process.
b. The wastewater discharged shall not exceed the following:
------------------------------------------------------------------------
Effluent characteristic Instantaneous maximum
------------------------------------------------------------------------
Settleable Solids.................. 0.2 ml/L
Turbidity.......................... 5 NTUs above natural background\1\
Arsenic, Total Recoverable......... (1) 0.18g/L
(2) natural background\2\
------------------------------------------------------------------------
\1\Subject to Turbidity Modification outlined in Permit Part VIII.T.
\2\See Permit Part II.D.1.d. for details.
2. Effluent discharges are prohibited during periods when new water
is allowed to enter the plant site. Additionally, there shall be no
discharge as a result of the intake of new water.
B. Hydraulic Removal of Overburden
During the term of this permit, no wastewater discharges are
authorized except as specified below.
1. Effluent Limitations
a. The volume of wastewater which may be discharged shall not
exceed the volume of infiltration, drainage and mine drainage waters
which is in excess of the make-up water required for operation of the
hydraulicking process.
b. The wastewater discharged shall not exceed the following:
------------------------------------------------------------------------
Effluent characteristic Instantaneous maximum
------------------------------------------------------------------------
Settleable Solids.................. 0.2 ml/L
Turbidity.......................... *5 NTUs above natural background
Arsenic, Total Recoverable......... (1) 0.18 g/L
**(2) natural background
------------------------------------------------------------------------
* Subject to Turbidity Modification outlined in Permit Part VIII.T.
** See Permit Part II.D.1.d. for details.
2.Effluent discharges are prohibited during periods when new water
is allowed to enter the plant site. Additionally, there shall be no
discharge as a result of the intake of new water.
C. Suction Dredging
1. At any point in the receiving stream 500 feet downstream of the
dredge's discharge point, the maximum allowable increase in turbidity
over the natural receiving stream turbidity while operating is 5 NTUs.
2. A visual increase in turbidity (any cloudiness or muddiness) 500
feet downstream of the suction dredge during operations would be
considered a violation of the 5 NTU limit.
3. If noticeable turbidity does occur 500 feet downstream of the
work site, operation of the suction dredge must decrease or cease so
that a violation as defined above does not exist.
D. Monitoring Requirements
1. Mechanical Operations and Hydraulic Removal of Overburden
a. During the period beginning on the effective date of this permit
and lasting until the expiration date, the following monitoring shall
be conducted:
------------------------------------------------------------------------
Effluent Monitoring Monitoring
characteristic location frequency Sample type
------------------------------------------------------------------------
Settleable Solids Effluent......... Once per day Grab.
(ml/L). each day of
discharge.
Turbidity (NTU).. Effluent natural Once per season. Grab
background.
Arsenic (g/L) total natural
recoverable. background.
Flow (gpm)....... Effluent......... (\3\)........... Instantaneous
------------------------------------------------------------------------
\1\Only when choosing Option (2).
\2\Analyzed by EPA Method 206.2 with a detection limit of 1 g/
L.
\3\See Part II.D.1.f. for details.
b. Visual Inspection
The Permittee shall institute a comprehensive visual inspection
program to facilitate proper operation and maintenance of the recycle
system and the wastewater treatment system. The Permittee shall conduct
an inspection of the site once per day, while on site, during the
mining season. The Permittee shall maintain records of all information
resulting from any visual inspections. These records shall include an
evaluation of the condition of all water control devices such as
diversion structures and berms and all solids retention structures
including, but not limited to, berms, dikes, pond structures, and dams.
The records shall also include an assessment of the presence of
sediment buildup within the settling ponds. The Permittee shall examine
all ponds for the occurrence of short circuiting.
c. Turbidity Monitoring
The Permittee shall monitor the turbidity values of the effluent
stream and the natural background turbidity values of the receiving
stream then compare the two samples. The sample results shall be
reported on the annual Discharge Monitoring Report (DMR). The Permittee
shall take one sample at a point that is representative of the
discharge prior to entering the receiving stream. The Permittee shall
take another sample above the discharge point at a location that is
considered to be the ``natural'' background of the receiving stream as
defined in Permit Part VIII.K. EPA has recognized the complex nature of
determining the point above ``natural'' background and upon request
will determine this point for the miner. In determining the sample
point, EPA will consider, with the input of the permittee and/or the
Alaska Division of Mining, geologic factors, drainage patterns, access,
and the location of active and historic manmade disturbances. Both
samples shall be taken within a reasonable time frame. Monitoring shall
be conducted in accordance with accepted analytical procedures. See
attachment 1 for sampling protocol.
d. Arsenic Monitoring
Arsenic samples shall be representative of the discharge and shall
be taken at a point prior to entering the receiving stream. Arsenic
samples taken to determine ``natural'' background shall be
representative of the receiving water upstream from any man-made
disturbances as determined above for turbidity. Monitoring shall be
conducted in accordance with accepted analytical procedures. The
Permittee shall report the sample results on the DMR. See attachment 2
for sampling protocol.
The effluent limitation for total recoverable arsenic is not
quantifiable using the EPA approved analytical method, EPA method
206.2. Thus, EPA has set forth reporting thresholds to measure the
highest acceptable quantification level for this parameter. This
reporting threshold does not authorize the discharge of this parameter
in excess of the effluent limitation. For more information, see special
conditions in Permit Part IX.
e. Settleable Solids Monitoring
Settleable solids samples shall be representative of the discharge
and shall be taken at a point prior to entering the receiving stream.
Monitoring shall be conducted in accordance with accepted analytical
procedures (Standard Methods, 17th Edition, 1989). The Permittee shall
report the sample results on the Annual DMR. See attachment 3 for
sampling and analysis protocol.
f. Flow Monitoring
Effluent flow shall be measured at the discharge prior to entering
the receiving water. Effluent flow shall be measured at least once per
day, for continuous discharges, or once during each discharge event if
discharges are intermittent. If measurement is impractical, the
operator must make a good faith effort to estimate seepage discharging
to waters of the United States each day that seepage occurs. The flow
shall be measured in gallons per minute (gpm). The flow measurements,
the number of discharge events, and the duration of each discharge
event shall be reported in the Annual DMR for each day of the mining
season.
2. Suction Dredges
a. Suction Dredge operations shall visually monitor for turbidity
as described in Permit Part II.C. once per day of operation. The
Permittee shall maintain records of all information resulting from any
visual inspections.
b. The Permittee will report the period of suction dredging on the
DMR. Visual violation occurrences will also be reported on the DMR
along with the measures taken to comply with the provisions of Permit
Part II.C.3.
III. Management Practices
A. Mechanical Operations and Hydraulic Removal of Overburden
1. The flow of surface waters (i.e., creek, river, or stream) into
the plant site shall be interrupted and these waters diverted around
and away to prevent incursion into the plant site.
2. Berms, including any pond walls, dikes, low dams, and similar
water retention structures shall be constructed in a manner such that
they are reasonably expected to reject the passage of water.
3. Measures shall be taken to assure that pollutant materials
removed from the process water and wastewater streams will be retained
in storage areas and not discharged or released to the waters of the
United States.
4. The amount of new water allowed to enter the plant site for use
in material processing shall be limited to the minimum amount required
as makeup water for processing operations.
5. All water control devices such as diversion structures and berms
and all solids retention structures such as berms, dikes, pond
structures, and dams shall be reasonably maintained to continue their
effectiveness and to protect from failure.
6. The operator shall take whatever reasonable steps are
appropriate to assure that, after the mining season, all unreclaimed
mine areas, including ponds, are in a condition which will not cause
degradation to the receiving waters over those resulting from natural
causes.
B. Suction Dredges
1. Dredging in waters of the United States is permitted only within
the active stream channel.
2. Wherever practicable, the dredge shall be set to discharge into
a quiet pool, where settling of dredge spoils can occur more rapidly.
3. Care shall be taken by the operator during refueling of the
dredge to prevent spillage into public waters or to groundwater.
C. Other Requirements
Mechanical Operations and Hydraulic Removal of Overburden
The operator shall maintain fuel handling and storage facilities in
a manner which will prevent the discharge of fuel oil into the
receiving waters or on the adjoining shoreline. A Spill Prevention
Control and Countermeasure Plan (SPCC Plan) shall be prepared and
updated as necessary in accordance with provisions of 40 CFR Part 112
for facilities storing 660 gallons in a single container above ground,
1320 gallons in the aggregate above ground, or 42,000 gallons below
ground.
The permittee shall indicate on the DMR if an SPCC Plan is
necessary and in place at the site and if changes were made to the Plan
over the previous year.
D. Storm Exemption
The permittee may qualify for a storm exemption from the
technology-based effluent limitations in Permit Part II.A.1.b. and
II.B.1.b. of this NPDES general permit if the following conditions are
met:
1. The treatment system is designed, constructed and maintained to
contain the maximum volume of untreated process wastewater which would
be discharged, stored, contained and used or recycled by the
beneficiation process into the treatment system during a 4-hour
operating period without an increase in volume from precipitation or
infiltration, plus the maximum volume of water runoff (drainage waters)
resulting from a 5-year, 6-hour precipitation event. In computing the
maximum volume of water which would result from a 5-year, 6-hour
precipitation event, the operator must include the volume which should
result from the plant site contributing runoff to the individual
treatment facility.
2. The operator takes all reasonable steps to maintain treatment of
the wastewater and minimize the amount of overflow.
3. The source is in compliance with the Management Practices in
Permit Part III.A.
4. The operator complies with the notification requirements of
Permit Parts IV.G. and IV.H.
IV. Monitoring and Reporting Requirements
A. Representative Sampling
All samples for monitoring purposes shall be representative of the
monitored activity, 40 CFR 122.41 (j). To determine compliance with
permit effluent limitations, ``grab'' samples shall be taken as
established under Permit Part II.D. Specifically, effluent samples for
settleable solids, turbidity, and arsenic shall be collected from the
settling pond outlet or other treatment systems' outlet prior to
discharge to the receiving stream. Additionally, turbidity and arsenic
(for Option 2) samples shall also be taken above the discharge point at
a location that is representative of the receiving stream's natural
background. Samples for arsenic and turbidity monitoring must be taken
during sluicing at a time when the operation has reached equilibrium.
For example, samples should be taken when sluice paydirt loading and
effluent discharge are constant.
B. Reporting of Monitoring Results
Monitoring results shall be summarized each month and reported on
EPA Form 3320-1 (DMR). The DMR shall be submitted to the Environmental
Protection Agency, Region 10, 1200 Sixth Avenue, Enforcement Section
WD-135, Seattle, Washington 98101-3188, no later than November 30 each
year.
If there is no mining activity during the year or no wastewater
discharge to a receiving stream, the permittee shall notify EPA of
these facts no later than November 30 of each year.
The DMR shall also be sent to the regional office of ADEC that has
jurisdiction over the mine. The addresses can be found in permit part
I.F.3.
C. Monitoring Procedures
Monitoring must be conducted according to test procedures approved
under 40 CFR part 136, unless other test procedures have been specified
in this permit.
D. Additional Monitoring by the Permittee
If the permittee monitors any pollutant more frequently than
required by this permit, using test procedures approved under 40 CFR
part 136 or as specified in this permit, the results of this monitoring
shall be included in the calculation and reporting of the data
submitted in the DMR. Such increased frequency shall also be indicated.
E. Records Contents
Records of monitoring information shall include:
1. The date, exact place, and time of sampling or measurements;
2. The individual(s) who performed the sampling or measurements;
3. The date(s) analyses were performed;
4. The individual(s) who performed the analyses;
5. The analytical techniques or methods used; and
6. The results of such analyses.
F. Retention of Records
The permittee shall retain records of all monitoring information,
including all calibration and maintenance records and all original
strip chart recordings for continuous monitoring instrumentation,
copies of all reports required by this permit, and records of all data
used to complete the application for this permit, for a period of at
least three years from the date of the sample, measurement, report or
application. This period may be extended by request of the Director or
ADEC at any time. Data collected on-site, copies of DMRs, and a copy of
this NPDES permit must be maintained on-site during the duration of
activity at the permitted location.
G. Notice of Noncompliance Reporting
1. Any noncompliance which may endanger health or the environment
shall be reported as soon as the permittee becomes aware of the
circumstance. A written submission shall also be provided in the
shortest reasonable period of time after the permittee becomes aware of
the occurrence.
2. The following occurrences of noncompliance shall also be
reported in writing in the shortest reasonable period of time after the
permittee becomes aware of the circumstances:
a. Any unanticipated bypass which exceeds any effluent limitation
in the permit (See Permit Part V.G., Bypass of Treatment Facilities.);
or
b. Any upset which exceeds any effluent limitation in the permit
(See Permit Part V.H., Upset Conditions.).
c. Any violation of the effluent limitations in Permit Parts II.A.
and II.B.
3. The written submission shall contain:
a. A description of the noncompliance and its cause;
b. The period of noncompliance, including exact dates and times;
c. The estimated time noncompliance is expected to continue if it
has not been corrected; and
d. Steps taken or planned to reduce, eliminate, and prevent
reoccurrence of the noncompliance.
4. The Director may waive the written report on a case-by-case
basis if an oral report has been received within 24 hours by the
Enforcement Section in Seattle, Washington, by phone, (206) 553-1213.
5. Reports shall be submitted to the addresses in Permit Part
IV.B., Reporting of Monitoring Results.
H. Other Noncompliance Reporting
Instances of noncompliance not required to be reported in Permit
Part IV.G. above shall be reported at the time that monitoring reports
for Permit Part IV.B. are submitted. The reports shall contain the
information listed in Permit Part IV.G.3.
I. Inspection and Entry
The permittee shall allow the Director, ADEC, or an authorized
representative (including an authorized contractor acting as a
representative of the Administrator), upon the presentation of
credentials and other documents as may be required by law, to:
1. Enter upon the permittee's premises where a regulated facility
or activity is located or conducted, or where records must be kept
under the conditions of this permit;
2. Have access to and copy, at reasonable times, any records that
must be kept under the conditions of this permit;
3. Inspect at reasonable times any facilities, equipment (including
monitoring and control equipment), practices, or operations regulated
or required under this permit; and
4. Sample or monitor at reasonable times, for the purpose of
assuring permit compliance or as otherwise authorized by the Act, any
substances or parameters at any location.
V. Compliance Responsibilities
A. Duty to Comply
The permittee must comply with all conditions of this permit. Any
permit noncompliance constitutes a violation of the Act and is grounds
for enforcement action; for permit termination, revocation and
reissuance, or modification; or for denial of a permit renewal
application. The permittee shall give advance notice to the Director
and ADEC of any planned changes in the permitted facility or activity
which may result in noncompliance with permit requirements.
B. Penalties for Violations of Permit Conditions
1. Administrative Penalty. The Act provides that any person who
violates a permit condition implementing Sections 301, 302, 306, 307,
308, 318, or 405 of the Act shall be subject to an administrative
penalty, not to exceed $10,000 per day for each violation.
2. Civil Penalty. The Act provides that any person who violates a
permit condition implementing Sections 301, 302, 306, 307, 308, 318, or
405 of the Act shall be subject to a civil penalty, not to exceed
$25,000 per day for each violation.
3. Criminal Penalties:
a. Negligent Violations. The Act provides that any person who
negligently violates a permit condition implementing Sections 301, 302,
306, 307, 308, 318, or 405 of the Act shall be punished by a fine of
not less than $2,500 nor more than $25,000 per day of violation, or by
imprisonment for not more than 1 year, or by both.
b. Knowing Violations. The Act provides that any person who
knowingly violates a permit condition implementing Sections 301, 302,
306, 307, 308, 318, or 405 of the Act shall be punished by a fine of
not less than $5,000 nor more than $50,000 per day of violation, or by
imprisonment for not more than 3 years, or by both.
c. Knowing Endangerment. The Act provides that any person who
knowingly violates a permit condition implementing Sections 301, 302,
306, 307, 308, 318, or 405 of the Act, and who knows at that time that
he thereby places another person in imminent danger of death or serious
bodily injury, shall, upon conviction, be subject to a fine of not more
than $250,000 or imprisonment of not more than 15 years, or both. A
person which is an organization shall, upon conviction of violating
this subparagraph, be subject to a fine of not more than $1,000,000.
d. False Statements. The Act provides that any person who knowingly
makes any false material statement, representation, or certification in
any application, record, report, plan, or other document filed or
required to be maintained under this Act or who knowingly falsifies,
tampers with, or renders inaccurate any monitoring device or method
required to be maintained under this Act, shall upon conviction, be
punished by a fine of not more that $10,000, or by imprisonment for not
more than 2 years, or by both.
Except as provided in permit conditions in Permit Part V.G., Bypass
of Treatment Facilities and Permit Part V.H., Upset Conditions, nothing
in this permit shall be construed to relieve the permittee of the civil
or criminal penalties for noncompliance.
C. Need to Halt or Reduce Activity not a Defense
It shall not be a defense for a permittee in an enforcement action
that it would have been necessary to halt or reduce the permitted
activity in order to maintain compliance with the conditions of this
permit.
D. Duty to Mitigate
The permittee shall take all reasonable steps to minimize or
prevent any discharge in violation of this permit which has a
reasonable likelihood of adversely affecting human health or the
environment.
E. Proper Operation and Maintenance
The permittee shall at all times properly operate and maintain all
facilities and systems of treatment and control (and related
appurtenances) which are installed or used by the permittee to achieve
compliance with the conditions of this permit. Proper operation and
maintenance also includes adequate laboratory controls and appropriate
quality assurance procedures. This provision requires the operation of
back-up or auxiliary facilities or similar systems which are installed
by a permittee only when the operation is necessary to achieve
compliance with the conditions of the permit.
F. Removed Substances
Solids, sludges, or other pollutants removed in the course of
treatment or control of wastewaters shall be disposed of in a manner so
as to prevent any pollutant from such materials from entering waters of
the United States.
G. Bypass of Treatment Facilities
1. Bypass not exceeding limitations. The permittee may allow any
bypass to occur which does not cause effluent limitations to be
exceeded, but only if it also is for essential maintenance to assure
efficient operation. These bypasses are not subject to the provisions
of paragraphs 2 and 3 of this section.
2. Notice:
a. Anticipated bypass. If the permittee knows in advance of the
need for a bypass, it shall submit prior notice, if possible at least
10 days before the date of the bypass.
b. Unanticipated bypass. The permittee shall submit notice of an
unanticipated bypass as required under Permit Part IV.G., Notice of
Noncompliance Reporting.
3. Prohibition of bypass.
a. Bypass is prohibited and the Director or ADEC may take
enforcement action against a permittee for a bypass, unless:
(1) The bypass was unavoidable to prevent loss of life, personal
injury, or severe property damage;
(2) There were no feasible alternatives to the bypass, such as the
use of auxiliary treatment facilities, retention of untreated wastes,
or maintenance during normal periods of equipment downtime. This
condition is not satisfied if adequate back-up equipment should have
been installed in the exercise of reasonable engineering judgment to
prevent a bypass which occurred during normal periods of equipment
downtime or preventive maintenance; and
(3) The permittee submitted notices as required under paragraph 2
of this section.
b. The Director and ADEC may approve an anticipated bypass, after
considering its adverse effects, if the Director and ADEC determine
that it will meet the three conditions listed above in paragraph 3.a.
of this section.
H. Upset Conditions
1. Effect of an upset. An upset constitutes an affirmative defense
to an action brought for noncompliance with such technology based
permit effluent limitations if the requirements of paragraph 2 of this
section are met. An administrative review of a claim that noncompliance
was caused by an upset does not represent final administrative action
for any specific event. A determination is not final until formal
administrative action is taken for the specific violation(s).
2. Conditions necessary for a demonstration of upset. A permittee
who wishes to establish the affirmative defense of upset shall
demonstrate, through properly signed, contemporaneous operating logs,
or other relevant evidence that:
a. An upset occurred and that the permittee can identify the
cause(s) of the upset;
b. The permitted facility was at the time being properly operated;
c. The permittee submitted notice of the upset as required under
Permit Part IV.G., Notice of Noncompliance Reporting; and
d. The permittee complied with any remedial measures required under
Permit Part V.D., Duty to Mitigate.
3. Burden of proof. In any enforcement proceeding, the permittee
seeking to establish the occurrence of an upset has the burden of
proof.
I. Toxic Pollutants
The permittee shall comply with effluent standards or prohibitions
established under Section 307(a) of the Act for toxic pollutants within
the time provided in the regulations that establish those standards or
prohibitions, even if the permit has not yet been modified to
incorporate the requirement.
VI. General Requirements
A. Changes in Discharge of Toxic Substances
Notification shall be provided to the Director and ADEC as soon as
the permittee knows of, or has reason to believe:
1. That any activity has occurred or will occur which would result
in the discharge, on a routine or frequent basis, of any toxic
pollutant which is not limited in the permit, if that discharge will
exceed the highest of the following ``notification levels'':
a. One hundred micrograms per liter (100 g/l);
b. Two hundred micrograms per liter (200 g/l) for acrolein
and acrylonitrile; five hundred micrograms per liter (500 g/l)
for 2,4-dinitrophenol and for 2-methyl-4, 6-dinitrophenol; and one
milligram per liter (1 mg/l) for antimony;
c. Five (5) times the maximum concentration value reported for that
pollutant in the permit application in accordance with 40 CFR
122.21(g)(7); or
d. The level established by the Director in accordance with 40 CFR
122.44(f).
2. That any activity has occurred or will occur which would result
in any discharge, on a non-routine or infrequent basis, of a toxic
pollutant which is not limited in the permit, if that discharge will
exceed the highest of the following ``notification levels'':
a. Five hundred micrograms per liter (500 g/l);
b. One milligram per liter (1 mg/l) for antimony;
c. Ten (10) times the maximum concentration value reported for that
pollutant in the permit application in accordance with 40 CFR
122.21(g)(7); or
d. The level established by the Director in accordance with 40 CFR
122.44(f).
B. Planned Changes
The permittee shall give notice to the Director and ADEC as soon as
possible of any planned physical alterations or additions to the
permitted facility. Notice is required only when:
1. The alteration or addition to a permitted facility may meet one
of the criteria for determining whether a facility is a new source as
determined in 40 CFR 122.29(b); or
2. The alteration or addition could significantly change the nature
or increase the quantity of pollutants discharged. This notification
applies to pollutants which are subject neither to effluent limitations
in the permit, nor to notification requirements under Permit Part
VI.A.1.
3. The alteration or addition will significantly change the
location, nature or volume of discharge or the quantity of pollutants,
subject to the effluent limitations, discharged.
C. Anticipated Noncompliance
The permittee shall also give advance notice to the Director and
ADEC of any planned changes in the permitted facility or activity which
may result in noncompliance with permit requirements.
D. Permit Actions
This permit may be modified, revoked and reissued, or terminated
for cause. The filing of a request by the permittee for a permit
modification, revocation and reissuance, or termination, or a
notification of planned changes or anticipated noncompliance, does not
stay any permit condition.
E. Duty to Reapply
If the permittee wishes to continue an activity regulated by this
permit after the expiration date of this permit, the permittee must
apply for and obtain a new permit. The NOI should be submitted at least
90 days before the expiration date of this permit.
F. Duty To Provide Information
The permittee shall furnish to the Director and ADEC, within a
reasonable time, any information which the Director or ADEC may request
to determine whether cause exists for modifying, revoking and
reissuing, or terminating this permit, or to determine compliance with
this permit. The permittee shall also furnish to the Director or ADEC,
upon request, copies of records required to be kept by this permit.
G. Other Information
When the permittee becomes aware that it failed to submit any
relevant facts in a permit application, or submitted incorrect
information in a permit application or any report to the Director or
ADEC, it shall promptly submit such facts or information.
H. Signatory Requirements
All applications, reports or information submitted to the Director
and ADEC shall be signed and certified.
1. All permit applications shall be signed as follows:
a. For a corporation: by a responsible corporate officer.
b. For a partnership or sole proprietorship: by a general partner
or the proprietor, respectively.
c. For a municipality, state, federal, or other public agency: by
either a principal executive officer or ranking elected official.
2. All reports required by the permit and other information
requested by the Director or ADEC shall be signed by a person described
above or by a duly authorized representative of that person. A person
is a duly authorized representative only if:
a. The authorization is made in writing by a person described above
and submitted to the Director and ADEC, and
b. The authorization specified either an individual or a position
having responsibility for the overall operation of the regulated
facility or activity, such as the position of plant manager, operator
of a well or a well field, superintendent, position of equivalent
responsibility, or an individual or position having overall
responsibility for environmental matters for the company. (A duly
authorized representative may thus be either a named individual or any
individual occupying a named position.)
3. Changes to authorization. If an authorization under paragraph
IV.H.2. is no longer accurate because a different individual or
position has responsibility for the overall operation of the facility,
a new authorization satisfying the requirements of paragraph VI.H.2.
must be submitted to the Director and ADEC prior to or together with
any reports, information, or applications to be signed by an authorized
representative.
4. Certification. Any person signing a document under this section
shall make the following certification:
``I certify under penalty of law that this document and all
attachments were prepared under my direction or supervision in
accordance with a system designed to assure that qualified personnel
properly gather and evaluate the information submitted. Based on my
inquiry of the person or persons who manage the system, or those
persons directly responsible for gathering the information, the
information submitted is, to the best of my knowledge and belief, true,
accurate, and complete. I am aware that there are significant penalties
for submitting false information, including the possibility of fine and
imprisonment for knowing violations.''
I. Availability of Reports
Except for data determined to be confidential under 40 CFR Part 2,
all reports prepared in accordance with the terms of this permit shall
be available for public inspection at the offices of the Director and
ADEC. As required by the Act, permit applications, permits and effluent
data shall not be considered confidential.
J. Oil and Hazardous Substance Liability
Nothing in this permit shall be construed to preclude the
institution of any legal action or relieve the permittee from any
responsibilities, liabilities, or penalties to which the permittee is
or may be subject under Section 311 of the Act.
K. Property Rights
The issuance of this permit does not convey any property rights of
any sort, or any exclusive privileges, nor does it authorize any injury
to private property or any invasion of personal rights, nor any
infringement of federal, state or local laws or regulations.
L. Severability
The provisions of this permit are severable, and if any provision
of this permit, or the application of any provision of this permit to
any circumstance, is held invalid, the application of such provision to
other circumstances, and the remainder of this permit, shall not be
affected thereby.
M. State Laws
Nothing in this permit shall be construed to preclude the
institution of any legal action or relieve the permittee from any
responsibilities, liabilities, or penalties established pursuant to any
applicable state law or regulation under authority preserved by Section
510 of the Act.
N. Paperwork Reduction Act
EPA has reviewed the requirements imposed on regulated facilities
in this final general permit under the Paperwork Reduction Act of 1980,
44 U.S.C. 3501 et seq. The information collection requirements of this
permit have already been approved by the Office of Management and
Budget in submission made for the NPDES permit program under the
provisions of the CWA.
VII. Reopener Clause
If effluent limitations or requirements are established or modified
in an approved State Water Quality Management Plan or Waste Load
Allocation and if they are more stringent that those listed in this
permit or control a pollutant not listed in this permit, this permit
may be reopened to include those more stringent limits or requirements.
VIII. Definitions
A. ``Active Stream Channel'' means that part of the channel that is
below the level of the water.
B. ``Bypass'' means the intentional diversion of waste streams
around any portion of a treatment facility.
C. ``Drainage Water'' means incidental surface waters from diverse
sources such as rainfall, snow melt or permafrost melt.
D. ``Expanding Facility'' means any facility increasing in size
such as to affect the discharge but operating within the permit area
covered by its general permit.
E. A ``Grab'' sample is a single sample or measurement taken at a
specific time.
F. ``Infiltration Water'' means that water which permeates through
the earth into the plant site.
G. ``Instantaneous Maximum'' means the maximum value measured at
any time.
H. ``Mine Drainage'' means any water, not associated with active
sluice water, that is drained, pumped or siphoned from a mine.
I. ``Mining Season'' means the time between the start of mining in
a calendar year and when mining has ceased for that same calendar
year.''
J. ``Monitoring Month'' means the period consisting of the calendar
weeks which begin and end in a given calendar month.
K. ``''Natural'' Background'' means the level upstream from all
mining and other man-made disturbances.
L. ``New Facility'' means a facility that has not operated in the
area specified in the NOI prior to the submission of the NOI.
M. ``NTU'' (Nephelometric Turbidity Unit) is an expression of the
optical property that causes light to be scattered and absorbed rather
than transmitted in a straight line through the water.
N. ``Make-up Water'' means that volume of water needed to replace
process water lost due to evaporation and seepage in order to maintain
the quantity necessary for the operation of the beneficiation process.
O. ``New Water'' means water from any discrete source such as a
river, creek, lake or well which is deliberately allowed or brought
into the plant site.
P. ``Plant Site'' means the area occupied by the mine, necessary
haulage ways from the mine to the beneficiation process, the
beneficiation area, the area occupied by the wastewater treatment
storage facilities and the storage areas for waste materials and solids
removed from the wastewaters during treatment.
Q. ``Receiving Water'' means waters such as lakes, rivers, streams,
creeks, or any other surface waters which receive wastewater
discharges.
R. ``Severe property damage'' means substantial physical damage to
property, damage to the treatment facilities which causes them to
become inoperable, or substantial and permanent loss of natural
resources which can reasonably be expected to occur in the absence of a
bypass. Severe property damage does not mean economic loss caused by
delays in production.
S. ``Short circuiting'' means ineffective settling ponds due to
inadequate or insufficient retention characteristics, excessive
sediment deposition, embankment infiltration/percolation, lack of
maintenance, etc.
T. ``Turbidity Modification'' means the procedures used to
calculate a higher turbidity limit based on a mass balance equation
which relates upstream receiving water flow and turbidity to effluent
flow and turbidity. The basic form of this equation is:
Q1C1+Q2C2=Q3C3,
where C1=upstream turbidity;
C2=effluent turbidity;
C3=downstream turbidity after mixing where the allowable increase
is 5 NTU above background (C1+5 NTU);
Q1=stream flow downstream from any diversion and upstream from the
discharge;
Q2=effluent flow*; and,
Q3=total stream flow downstream from discharge after complete
mixing.
*A default value of 10 gallons per minute (gpm) will be used if the NOI
states that zero discharge will be achieved.
U. ``Upset'' means an exceptional incident in which there is
unintentional and temporary noncompliance with technology-based permit
effluent limitations because of factors beyond the reasonable control
of the permittee. An upset does not include noncompliance to the extent
caused by operational error, improperly designed treatment facilities,
inadequate treatment facilities, lack of preventive maintenance, or
careless or improper operation.
V. ``Wastewater'' means all water used in and resulting from the
beneficiation process (including but not limited to the water used to
move the ore to and through the beneficiation process, the water used
to aid in classification, and the water used in gravity separation),
mine drainage, and infiltration and drainage waters which commingle
with mine drainage or waters resulting from the beneficiation process.
IX. Special Conditions--Effluent Limits Below Detection Levels
A. Reporting Levels
1. For purposes of reporting, the Permittee shall use the reporting
threshold equivalent to the interim minimum level (IML). The IML is
defined as the concentration in a sample equivalent to the
concentration of the lowest calibration standard analyzed in a specific
analytical procedure, assuming that all the method-specified sample
weights, volumes and processing steps have been followed. As such, the
permittee must utilize a standard equivalent to the concentration of
the IML for arsenic which is 3.18 g/L.
2. For the purpose of reporting on the DMR, actual analytical
results should be reported whenever possible. All analytical values at
or above the IML (rounded to 3 g/L) shall be reported as the
measured value. When the results cannot be quantified, values below the
IML shall be reported as zero (0 g/L).
B. Reporting Details:
In the ``Comment'' section of the DMR, the permittee shall report
the lowest calibration standard used and the ML achieved.
Attachment 1
Turbidity Sampling Protocol
1. Grab samples shall be collected.
2. Samples shall be collected in a sterile one liter polypropylene
or glass container.
3. Samples must be cooled to 4 degrees celsius (iced).
4. Samples must be analyzed within 48 hours of sample collection.
Attachment 2
Arsenic Sampling Protocol
1. Grab samples shall be collected.
2. Samples shall be collected in a sterile one liter polypropylene
or glass container.
3. Samples must be cooled to 4 degrees celsius (iced).
4. Samples must be sent to a laboratory for analysis as soon as
possible.
5. Samples must be acidified with nitric acid (HNO3), to a pH less
than 2, upon receipt at the laboratory.
6. Samples must be acidified for at least 16 hours prior to
analysis.
Attachment 3
Settleable Solids Sampling Protocol
1. Grab samples shall be collected.
2. Samples shall be collected in a sterile one liter polypropylene
or glass container.
3. Samples must be cooled to 4 degrees celsius (iced), if analysis
is not performed immediately.
4. Samples must be analyzed within 48 hours of sample collection.
Settleable Solids Analysis Protocol
1. Fill an Imhoff cone to the liter mark with a thoroughly mixed
sample.
2. Settle for 45 minutes, then gently stir the sides of the cone
with a rod or by gently spinning the cone.
3. Settle 15 minutes longer, then record the volume of settleable
matter in the cone as milliliters per liter. Do not estimate any
floating material. The lowest measurable level on the Imhoff cone is
0.1 ml/l. Any settleable material below the 0.1 ml/l mark shall be
recorded as trace.
Appendix A--Notice of Intent Information
Permittee Name
Address & Phone Number (Summer)
Address & Phone Number (Winter)
Operator Name (if different than Permittee)
Address & Phone Number (Summer)
Address & Phone Number (Winter)
Facility Name
Facility Location (Nearest Town)
Mining District
Latitude and Longitude
Township, Section, Range
Previous NPDES permit number
Receiving Water
Maximum Effluent Flow
Summer Lowflow stream flow
Type of Operation (Traditional, Suction Dredge, Hydraulicking)
Amount of Material processed
Signature and Date (certified according to permit part VI.H.4.)
A drawing or sketch of the operation
[FR Doc. 94-13099 Filed 5-27-94; 8:45 am]
BILLING CODE 6560-50-P
