[Federal Register Volume 61, Number 29 (Monday, February 12, 1996)]
[Proposed Rules]
[Pages 5364-5370]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2917]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 440
[WH-FRL-5419-1]
RIN 2040-AC74
Amendment to Ore Mining and Dressing Point Source Category;
Effluent Limitations Guidelines and New Source Performance Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: This proposed rule would amend the applicability of certain
effluent limitations guidelines and new source performance standards
governing mines with froth-flotation mills to the Alaska-Juneau (A-J)
gold mine project near Juneau, Alaska. Specifically, EPA is proposing
to exempt dewatered tailings produced by the proposed A-J mine and mill
from effluent guidelines based on best practicable control technology
(BPT) and best available control technology economically achievable
(BAT), and from new source performance standards (NSPS) that appear at
40 CFR part 440, subpart J. EPA also is proposing that a definition of
``dewatered tailings'' be added to 40 CFR part 440, subpart L. EPA is
issuing today's proposal because the use of a tailings impoundment was
part of the technology basis for the BPT, BAT, and NSPS requirements of
subpart J; however, it appears that extreme topographic and climatic
conditions at the A-J project site render it impractical to treat and
dispose of tailings in a tailings impoundment so as to meet the
requirements of subpart J. EPA would not take action to finalize this
proposal if a feasible alternative for tailings treatment is identified
that would obviate the need for the exemption. EPA expects to make a
final determination with respect to this proposal by the end of 1996.
Since this proposed rule is deregulatory in nature, no costs are
estimated. The benefit of this proposed rule is the potential for
increased flexibility in permitting the disposal of tailing wastes from
the gold mine and mill operations, resulting in the mitigation of
environmental impacts. Costs and benefits resulting from this action
will be determined as part of the environmental assessment of feasible
alternatives. During the preparation of this proposed rule, the Agency
held
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consultations with State and local governments, industry, and public
interest group representatives.
DATES: Comments on this proposal must be submitted on or before April
12, 1996, except for comments concerning technological alternatives for
the A-J project site. The comment period on that issue will be open
until August 12, 1996. A series of public meetings concerning the
exclusion of dewatered tailings from coverage of 40 CFR part 440,
subpart J is being planned for the Spring of 1996 during the extended
comment period. The times and locations of these meetings will be
published in the Federal Register and local newspapers when they are
finalized.
ADDRESSES: Send comments to Ore Mining Comment Clerk, Water Docket Mail
Code 4101, Environmental Protection Agency, 401 M Street, S.W.,
Washington D.C. 20460. Commenters are requested to submit an original
and three copies of their comments, enclosures or references. The
supporting information and all comments on this proposal will be
available for inspection and copying at the Water Docket, located in
Room L102 at the above address. For access to the docket materials,
call (202) 260-3027 between 9:00 a.m. and 3:30 p.m. for an appointment.
FOR FURTHER INFORMATION CONTACT: Ronald G. Kirby at (202) 260-7168.
SUPPLEMENTARY INFORMATION:
A. Legal and Regulatory Background
EPA issued effluent limitations guidelines for the ore mining and
dressing point source category based on Best Practicable Technology
(BPT) on July 11, 1978 (43 FR 29771). Effluent limitations guidelines
based on Best Available Technology (BAT) and New Source Performance
Standards (NSPS) were issued on December 3, 1982 (47 FR 54598). These
are codified at 40 CFR part 440. Detailed engineering, technical and
cost information supporting the ore mining and dressing guidelines and
standards are summarized in reports entitled Development Document for
Effluent Limitations Guidelines and New Source Performance Standards
for the Ore Mining and Dressing Point Source Category, Volume I and II
July 1978, EPA # 440/1-78/061d and e (``1978 Development Document'')
and Development Document for Final Effluent Limitations Guidelines and
New Source Performance Standards for the Ore Mining and Dressing Point
Source Category, EPA # 440/1-82/061, November 1982 (``1982 Development
Document''). The economic analysis for NSPS in part 440 is summarized
in Economic Analysis of New Source Performance Standards for the Ore
Mining and Dressing Industry, November 1982. These documents and the
rest of the supporting public record for the part 440 guidelines and
standards are available for review at the EPA Water Docket and are part
of the record for this proposal.
BPT limitations generally represent the average of the best
existing waste treatment performance within an industry subcategory.
BAT limitations generally represent the best existing performance in
the industrial subcategory or category. In establishing BAT, the Agency
considers such factors as the age of the equipment and facilities
involved, the process employed, the engineering aspects of the control
technologies, process changes, the cost of achieving such effluent
reduction and nonwater quality environmental impacts. NSPS are based on
the best available demonstrated technology. In general, the best
available demonstrated technology consists, in part or completely, of
the same technology as that determined for BAT for existing sources
within an industry. However, in some cases it is determined that new
plants have the opportunity to install more efficient production
processes and wastewater treatment technologies than existing sources.
In such cases, NSPS may be established at a level more stringent than
BAT. While EPA bases effluent limitations guidelines and new source
performance standards on identified technologies, dischargers are not
required to use any particular technology. They may meet the effluent
limitations and standards using any technology they determine is
appropriate.
Effluent limitations guidelines and new source performance
standards applicable to Copper, Lead, Zinc, Gold, Silver, and
Molybdenum ore mines, including mines with froth-flotation mills,
appear at 40 CFR part 440, subpart J (``Subpart J'').
B. Technical Information
Gold mining has historically occurred in the Alaskan region near
Juneau. Economic conditions have improved in recent years, stimulating
continued extraction of this valuable resource. Due to improvements in
the technology to extract lower concentrations of precious metals, and
the continuing stable prices received for these metals, a number of
projects have been identified, at or near previously mined areas in
southeast Alaska, as economically feasible. As is explained in more
detail below, the use of an impoundment was part of the technology
basis for the BPT, BAT and NSPS requirements of subpart J. Since the
issuance of the ore mining and dressing guidelines, a number of
projects covered by subpart J have progressed through the permit
process. A few of these projects have identified the use of
impoundments as a potential problem, although without merit in EPA's
view. However, the detailed site specific design information from the
Alaska-Juneau (A-J) project recently has brought into question the
appropriateness of the technology basis for the requirements of subpart
J, as applied to the A-J site. The function of the impoundment as part
of the technology basis and its application to the A-J project site are
discussed below, along with the effect of today's proposal.
1. Application of Subpart J to A-J Project
The existing BPT, BAT, and NSPS requirements in Subpart J that are
applicable to mines with froth-flotation mills are based on treatment
technology consisting of impoundment, treatment of the impoundment
(pond) water to precipitate metals and enhanced settling of particulate
matter by pH adjustment, chemical flocculent treatment, if necessary,
clarification and filtration of overflow pond water for recycle back to
the mill. For BPT and BAT, the Agency determined that although many
existing froth-flotation mills were practicing wastewater treatment and
recycle, the cost to retrofit the remaining mills' treatment systems
would be prohibitive. Thus, the technology basis for both BPT and BAT
did not include total recycle, and BAT limitations were set equivalent
to BPT for existing sources. For NSPS, the Agency determined that new
sources could design a wastewater treatment and recycle system in
conjunction with a tailings impoundment that would generally achieve no
discharge of process wastewater. (NSPS includes exceptions that allow
discharges under certain specified circumstances, as noted below.)
Tailings ponds have been used historically in the mining industry.
Tailings are the waste rock remaining after the processing of the
mineral-bearing (lode) ore. The lode ore is processed by crushing and
grinding, and then separation and concentration. Remaining pulverized
lode ore that is too poor in gold to be further processed and waste
material resulting from the washing, concentration, or treatment of the
ground ore are known as ``tailings.'' These are sent to the tailings
pond, which serves as the disposal site for the solids (pulverized
waste rock and other
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precipitates) that settle out of the tailings wastestream when it is
added to the pond. The impoundment is designed primarily for suspended
solids removal and retention, so it must be large enough to provide
sufficient retention time and quiescent conditions conducive to
settling, including adequate volume to hold the settled solids. The
tailings impoundment assumed by EPA in establishing the requirements of
Subpart J is designed to permanently hold the mill tailings expected
for the life of the mine while also containing precipitation that falls
directly on the impoundment and the runoff resulting from a 10 year, 24
hour storm event. Additional impoundment volume may be necessary to
promote the settling of solids to achieve allowable discharge
limitations.
The location of a tailings impoundment is determined by evaluating
the best site for gravity flow of tailings to an area for permanent
disposal, for minimal inflow from runoff or stream flow, and for a
stable dam. The mine project site (including the mill) is located in
close proximity to the ore body to control costs in order to make the
project economically viable. Most tailings impoundments are located
within a few miles of the ore body. Information in the 1978 and 1982
records indicates that approximately six miles was the greatest
distance between the tailings impoundment and the mill at existing
mines that were studied.
Generally, even when siting a tailings pond in a narrow valley with
severe slopes, a location can be found to allow diversion of stream
flow around the tailings pond to prevent or minimize pollution
potential. For example, the tailings impoundment can be placed adjacent
to one wall of the valley. It may be necessary to reroute the stream by
means of contouring or construction of open channels or conduits.
Runoff can be prevented from entering the impoundment by constructing
diversion ditches, flumes, and dikes upslope and along the sides of the
impoundment.
Tailings can be characterized generally as a process wastewater
with approximately 20-50 percent solids by weight. In arid or semi-arid
areas, evaporation and seepage from the tailings pond may equal or
exceed the input of the water fraction of the tailings wastestream
(i.e., the remaining 50-80 percent by weight liquid fraction). In all
areas, even arid areas, the amount of runoff entering the tailings pond
is minimized by diversion using a number of common management
practices. However, in areas of net annual precipitation (i.e., where
the annual rainfall and snowfall amount exceeds the annual amount of
evaporation), Subpart J allows excess pond water to be discharged based
on a calculated amount of runoff for BPT, BAT, and NSPS, subject to
specified effluent limitations. 40 CFR 440.102(c)(2); 440.103(c)(2); 40
CFR 104(b)(2)(i). The amount of runoff is determined by the difference
in annual precipitation and evaporation rates times the amount of
surface area of the pond that receives direct precipitation and the
amount of ground surface area surrounding the pond that drains into it.
For NSPS, EPA also included, in response to comments, an exemption from
no discharge for an equivalent volume of fresh (makeup) water that
mills could demonstrate is necessary due to a buildup of contaminants
in the recycled pond water that significantly interferes with the ore
recovery process. Such a discharge, which also is subject to specified
limitations, is allowed only if the interference can not be eliminated
through appropriate treatment of the recycle water. 40 CFR
440.104(b)(2)(ii). In addition, the volume of any excess runoff from a
single storm or combined storm event exceeding the 10 year, 24 hour
event design criteria of the pond also may be discharged. 40 CFR
440.131(b). Treatment of the excess pond water, in addition to its
settling in the tailings impoundment, may be required using chemical
flocculation either directly in the tailings pond or in subsequent
treatment units to enhance solids settling and to precipitate and
settle metal hydroxides in order to meet the current discharge
limitations.
The intended function of the tailings impoundment (pond) that is
part of the technology basis for BPT, BAT, and NSPS in Subpart J was
critical to the establishment of all three sets of limitations. The
ability to divert surface runoff and existing stream flow from entering
the pond is most critical in high precipitation areas for the proper
function of the tailings pond with respect to meeting the BPT, BAT, and
NSPS requirements of Subpart J. Studies conducted by EPA in developing
BPT, BAT, and NSPS evaluated a number of geographic locations where
extreme topography and high rainfall were evident. Where topography and
climatic extremes render any significant amount of diversion
impractical, most or possibly all of the water within the watershed in
which the impoundment is located will enter the impoundment and become
contaminated by mine and mill wastewater, making subsequent treatment
of the wastewater to meet recycle or discharge quality requirements
more difficult.
The technology basis for the BPT and BAT discharge limitations and
the NSPS no discharge requirement in subpart J included an ability for
mills to divert significant amounts of natural stream flow and surface
runoff around the tailings impoundment. In net precipitation areas, as
well as net evaporation areas, EPA assumed or identified some degree of
ability to divert runoff and/or stream flow in evaluating the design
and construction of the tailings impoundments and their ability to meet
the requirements of subpart J. In both the 1978 and the 1982
Development Documents supporting BPT, BAT, and NSPS, EPA discussed
diversion or minimization of surface runoff at various sites, and
considered the types of practices available for achieving it. EPA also
considered the possibility that extreme topography could be an obstacle
to achieving no discharge, but judged that the exemptions and
provisions discussed above would provide the relief that would be
necessary for a mill to operate under the no discharge requirement. See
the 1982 Development Document, page 535.
Many of the mills that were evaluated during the development of
NSPS for subpart J practiced recycle and achieved no discharge.
However, most of these mills were located in net evaporation areas or
water short areas, where all of the excess pond water that could not be
recycled would evaporate or seep out of the pond. EPA did include mills
located in net precipitation areas in its evaluation of the no
discharge requirement. In these areas, rainfall could occur in such
quantity and at a regular enough frequency that pond water in excess of
that required for recycle cannot be evaporated or seeped at a high
enough rate to meet a no discharge requirement. Thus, the discharge
allowances previously discussed were incorporated into the NSPS.
2. Today's Proposal
In light of the importance of the ability to divert natural stream
flow and runoff, specific information from the A-J gold mine project
has called into question the appropriateness of applying the
requirements of Subpart J to this project. The A-J project has been
evaluated in an Environmental Impact Statement prepared by the Bureau
of Land Management (BLM). In BLM's preferred alternative, the design of
the tailings impoundment includes a dam extending the width of Sheep
Creek Valley to a height of 345 feet. The impoundment would encompass
420 acres of the 540 acre valley. The large
[[Page 5367]]
volume of the impoundment was made necessary in part because of the
extremely large volume of tailings generated (over 100 million tons)
during the life of the project and by the inability to divert runoff
and stream flow using the common practices discussed above. In the case
of the A-J project, the technical review of the submitted project
design determined that for those design options presented, all of the
existing stream flow and runoff would enter the impoundment and
preclude adequate treatment of the wastewater prior to discharge.
If the tailings impoundment were used at the Sheep Creek Valley
site in a manner anticipated by the current Subpart J requirements, but
without the benefit of diverting the natural stream-flow, significant
amounts of runoff from rainfall events would enter the impoundment and
by coming into direct contact with the actual mill process wastewater,
be considered as ``process wastewater'' as defined at 40 CFR 401.11(q).
As described previously, all or almost all of this runoff, entering the
impoundment, would be allowed to be discharged under NSPS as part of
the storm allowance provision, along with any contaminant build up and/
or mine drainage wastewaters, provided that discharge meets the
specified limitations. Because of the inability to divert water around
the Sheep Creek Valley impoundment location, an exceptionally large
volume of process wastewater would be generated, and would make
treatment options contemplated by the current technology basis unable
to meet the limits imposed by the allowances. These same considerations
apply to BPT and BAT except for the fresh makeup water allowance
described earlier.
EPA's Region 10 issued a report regarding the A-J project plan in
December 1994 entitled, ``Alaska Juneau Gold Mine Project, Technical
Assistance Report for the U.S. Army Corps of Engineers Alaska
District'' (known as the ``TAR''). The TAR concluded that
implementation of the plan to construct the tailings impoundment across
the valley and discharge this amount of wastewater likely would not
ensure compliance with NSPS and would cause widespread exceedances of
state water quality standards. In addition, the TAR concluded that the
tailings impoundment would remain a substantial risk even after closure
of the mill because it would not be isolated from the existing stream
flow, including all or almost all of the valley's precipitation runoff.
This would require continued maintenance of the impoundment dam as an
active retention structure for a large volume of water in an area of
active seismic activity and avalanche hazards. As part of a
supplemental environmental impact statement (SEIS) under the National
Environmental Policy Act (NEPA), additional project design alternatives
for the A-J project will be evaluated, including whether an alternative
location for an impoundment is possible.
EPA has concluded from the technical information identified and
discussed above that the requirements in Subpart J might not be
appropriate for tailings from a new ore mill located in Sheep Creek
Valley, as described in the A-J project EIS. Due to the substantial
annual net precipitation along with extreme topography, the combination
of which leads to an inability to divert natural stream flow and any
significant volume of surface runoff around the tailings impoundment,
treatment of the discharge to allowable concentration levels cannot be
accomplished. In addition, the 1978 and 1982 final rules did not
consider the long-term (post-closure) safety considerations, such as
the long-term structural integrity of the impoundment dam, that result
from the existence of a tailings pond that was not isolated from stream
flow and runoff.
Thus, EPA is proposing to exempt dewatered tailings from the A-J
project from the existing BPT, BAT, and NSPS requirements in 40 CFR
part 440, subpart J (Sec. 440.102-104). EPA also is proposing to add a
definition of ``dewatered tailings'' to 40 CFR part 440, Subpart L,
specifying that ``dewatered tailings'' means that portion of a mill
tailings slurry wastestream from which approximately 75 percent or more
of the water fraction has been removed for recycling through the mill.
This definition continues to rely on the recycle portion of the
technology basis for the current rule following the separation of much
of the solids which are contained as part of the tailings, for possible
discharge using an alternative control technology. Mine drainage,
process wastewater separated from the dewatered tailings, and other
process wastewater discharges from the A-J project would continue to be
covered by subpart J. NPDES permit requirements for discharges of
dewatered tailings from the A-J project would be determined by EPA
using best professional judgment in accordance with 40 CFR 125.3,
utilizing the results of ongoing environmental review of the project
under NEPA.
EPA's proposal to exempt dewatered tailings from the A-J project
from the requirements of NSPS has some precedent. During development of
the 1982 ore mining and dressing guidelines, the Agency received
comments from developers of a molybdenum mine and mill in southeastern
Alaska (Quartz Hill). The developers argued that the mill differed
substantially from the existing molybdenum mills upon which the Agency
based the proposed NSPS and that the alternative of submarine tailings
disposal should not be precluded from consideration. Specifically, they
argued that precipitation was greater at the Quartz Hill site than at
other facilities and that the terrain was unusually steep,
necessitating the construction of a dam much larger than tailings
impoundments at existing facilities. They argued that since the mine
and mill were located in the environmentally sensitive Misty Fjords
National Monument, construction of a massive tailings impoundment may
result in greater long term environmental degradation than at existing
facilities. They also pointed out that the mine and mill were being
developed in accordance with the dictates of the Alaska National
Interest Lands Conservation Act (ANILCA), which requires an intensive
study of the overall environmental impact of the mine and mill before
construction begins. Finally, they noted that the mine and mill were in
an earthquake area, and that construction of a large tailings dam
raises concerns for safety of the population below the dam. The Agency
disagreed with the commenter's assertions that the proposed molybdenum
mine and mill differed significantly in topography and climate from
existing mines and mills. However, given the possibility that
compliance with the no discharge NSPS would result in substantial non-
water quality environmental impacts, and given the fact that these
impacts were being subjected to an intense environmental scrutiny, the
Agency exempted the project from requirements of NSPS.
Today's proposal to exempt the A-J project from certain
requirements of Subpart J opens the way for the detailed evaluation of
alternatives for treatment of the tailings from the project that are
not allowable under the current regulations. Some of these alternatives
do not involve the use of Sheep Creek Valley as an impoundment site and
might lessen the environmental impacts of the project. This portion of
the preamble discusses technologies that involve the use of a smaller
impoundment or no impoundment at all.
As part of the review of the original A-J project design submittal,
the Bureau of Land Management (BLM) conducted
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an environmental impact analysis reported in the document titled, ``A-J
Gold Mine Project Final Environmental Impact Statement'' (BLM, 1992).
The BLM analysis included evaluations of tailings disposal options
other than the construction of the dam and impoundment in Sheep Creek
Valley. These alternatives included refilling of the mine with
dewatered tailings, disposal of dry tailings on land, and disposal of
tailings at alternative disposal locations (e.g., Powerline/Icy Gulch,
Sheep Fork Carlson Creek, and Rhine Creek). Generally, these
alternatives were rejected because of expected exceedances of water
quality criteria or because of cost which would render the project
uneconomical. Some of these alternatives may receive additional
consideration as a result of the SEIS effort. For example, EPA
concluded in the TAR that the Powerline/Icy Gulch disposal location
should be re-evaluated because diversion of up to 80 percent of the
surface runoff may be achievable. In addition, the discharge of
tailings from the A-J project to marine waters (submarine tailings
disposal), which otherwise would be prohibited by subpart J, could
appropriately be evaluated as a result of today's proposal. The
discharge of tailings to marine waters would require final revision of
subpart J under today's proposal. A combination of the above disposal
alternatives could also be considered.
Potential difficulties with the use of tailings impoundments in
areas of extreme topography and climate were raised both during the
development of the existing part 440 guidelines and standards and also
during the permitting process for several mine and mill sites. However,
except for the Quartz Hill site (which was undergoing a separate
environmental review during the development of part 440 and was
excluded from coverage by that Part), no other site that EPA has
reviewed until now has exhibited such extreme topographic and climatic
conditions that an exemption from certain Subpart J requirements, as
proposed, might be warranted. Because much of southeastern Alaska
consists of highly mountainous terrain characterized by glacially
carved valleys with avalanche chutes and talus slopes, EPA solicits
comment on whether other mine sites exhibit extreme environmental
conditions such as those at the A-J project site, and would be
estimated to have project characteristics such as extremely large
volumes of tailings that would pose treatment and disposal problems
under part 440.
As mentioned above, the A-J project site is the only current new
source site reviewed by EPA that exhibits extreme topographic and
climatic conditions which might justify an exemption from certain
Subpart J requirements, as proposed. If additional sites are
identified, a more general exemption provision might be appropriate,
provided that adequate criteria can be established to identify project
sites that would qualify for the exemption. EPA is considering the
following possible alternative to an exemption that covers the A-J
project only:
(e) The provisions of this subpart shall not apply to discharges
of dewatered tailings if a permit applicant demonstrates to the
satisfaction of the permitting authority that due to high net
precipitation and extreme topography (e.g., steep valley walls,
avalanche hazards, or talus slopes), it would not be feasible to
divert natural stream flow and runoff, rendering impractical the
treatment and disposal of tailings in a tailings impoundment.
If a more general exemption provision is incorporated into the
final rule based on comments and additional data on the characteristics
of extreme sites, quantifiable criteria to identify qualifying sites
might be included. EPA solicits comment on the type of criteria that
could be included in such a provision. The amount of annual
precipitation, slope of mountainous terrain, width of valley floor and
location of avalanche chutes and/or seismically active (earthquake)
areas are examples of quantifiable criteria that could be useful in
establishing a more general exemption provision.
EPA might take final action with respect to today's proposed
exemption covering only the A-J project site. Alternatively, based on
the additional information, EPA might identify a feasible alternative
for tailings treatment by the A-J project that would allow compliance
with the existing regulations and obviate the need for any exemption
from Subpart J as proposed. The Agency could also promulgate a more
general exemption as described above, or take final action with respect
to the A-J project site but proceed to collect further data on other
project sites identified by commenters or on criteria for a more
generally applicable exemption. Variations on these approaches are also
possible. EPA will evaluate all comments and information received prior
to making a final determination, which the Agency currently expects to
do by the end of 1996.
3. Further Evaluation of A-J Project Proposal
Today's proposal does not in itself authorize or endorse any method
of tailings treatment or disposal at the A-J site. As discussed
previously, additional designs for the A-J project are expected to be
evaluated under NEPA. These studies are conducted as part of the NPDES
permitting process for new sources. Any permit issued would include
discharge requirements based on applicable NSPS or effluent limitations
guidelines, on best professional judgment (BPJ) where guidelines are
not applicable, and on any applicable water quality standards. 40 CFR
122.49(g), 40 CFR 122.44(a) and 40 CFR 122.44(d).
In preparation for the development of the draft NPDES permit,
scoping for the AJ project SEIS is scheduled to begin in February,
1996, with publication of a draft SEIS in late Spring of 1996. The SEIS
will evaluate the impacts of the disposal of mine tailings in marine
waters (approximately 300 feet deep) in Stephens Passage, several miles
south of the city of Juneau. The tailings would be produced by
processing finely ground ore via gravity separation and flotation using
various reagents (no cyanide) to produce a concentrate that would be
shipped elsewhere for refining. The tailings would be dewatered to
allow for recycling of the process water in the milling process. The
dewatered tailings, which may be remixed with sea water (for buoyancy
control), would be piped to a discharge point in Stephens Passage.
In addition to disposal of dewatered tailings in deep marine
waters, the SEIS will examine other potential tailings disposal sites.
The SEIS will specifically examine whether there are any potential
upland tailings impoundment sites where the diversion of surface runoff
would be possible. A Final SEIS should be available by late 1996.
4. Conclusion and Request for Comments
EPA solicits comment and additional information on all aspects of
today's proposal to amend the applicability of subpart J. In
particular, the Agency seeks comment on whether an exemption for the A-
J mine project from the requirements of Subpart J as proposed is
warranted; and whether additional project sites exist which exhibit
extreme topographic and climatic conditions that might warrant the
exclusion of dewatered tailings from coverage under subpart J.
Information also is requested on the types of criteria that could be
used to establish a more
[[Page 5369]]
general exemption from the requirements of Subpart J in the event that
additional sites are identified which exhibit extremely rugged terrain
and high annual precipitation, leading to a similar inability to divert
natural stream flow and stormwater runoff. EPA also solicits any
information or data available on alternative tailings disposal
technologies that could be used at the A-J site. Such technologies may
include dewatered tailings discharge to deep marine waters, backfilling
of the mine with dewatered tailings and disposal of dewatered tailings
on land without an impoundment. Cleaned tailings might also be used as
road building materials in asphalt or used as construction material in
concrete block or brick. The cleaned tailings could be fixed and
stabilized with concrete prior to either mine or off-site land
disposal.
C. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted.
Under section 204 of the UMRA, EPA generally must develop a process
to permit elected officials of State, local and tribal governments (or
their designated employees with authority to act on their behalf) to
provide meaningful and timely input in the development of regulatory
proposals containing significant Federal intergovernmental mandates.
These consultation requirements build on those of Executive Order 12875
(``Enhancing the Intergovernmental Partnership'').
Before EPA establishes any regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, it must have developed under section 203 of the UMRA a
small government agency plan. The plan must provide for notifying
potentially affected small governments, enabling officials of affected
small governments to have meaningful and timely input in the
development of EPA regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with the regulatory requirements.
EPA has determined that this rule does not contain a Federal
mandate that may result in expenditures of $100 million or more for
State, local, and tribal governments, in the aggregate, or the private
sector in any one year. Since this proposed rule is deregulatory in
nature, the expected cost for implementation by the private sector is
below $100 million. In addition, this proposal does not impose a
mandate on any governmental entities since EPA is the permitting
authority for this mine. As a result, EPA has also determined that this
rule contains no regulatory requirements that might significantly or
uniquely affect small governments. For the same reason, EPA does not
need to develop a plan for consultation of affected governmental
entities pursuant to Section 204 of UMRA and Executive Order 12875.
During the preparation of this proposed rule, the Agency held
consultations with State and local governments, industry, and public
interest group representatives.
D. Executive Order 12866
Under Executive Order 12866, 58 FR 51735 (October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlement, grants
user fees, or loan programs or the rights and obligations or recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities,or the principles set forth in the
Executive Order.
Pursuant to the terms of Executive Order 12866, EPA has determined
that this rule is not a ``significant regulatory action'' because the
rule is a deregulatory action and has the potential to create jobs
while continuing to protect the environment.
E. Paperwork Reduction Act
This proposed rule contains no information collection activities.
Therefore, no information collection request (ICR) has been submitted
to the Office of Management and Budget (OMB) for review and approval
under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et
seq.
List of Subjects in 40 CFR Part 440
Environmental protection, Gold ore mining and dressing industry,
Wastewater treatment, Waste treatment and disposal, Submarine tailings
disposal, Metals, Water pollution control.
Dated: February 2, 1996.
Carol M. Browner,
Administrator.
For the reasons set forth in this preamble, part 440 of title 40 of
the Code of Federal Regulations is proposed to be amended as follows:
PART 440--[AMENDED]
1. The authority citation for part 440 continues to read as
follows:
Authority: Secs. 301, 304(b), (c) and (e), 306, 307, and 501 of
the Clean Water Act (The Federal Water Pollution Control Act
Amendments of 1972, as amended by the Clean Water Act of 1977 and
the Water Quality Act of 1987), (the Act), 33 U.S.C. 1311, 1314(b),
(c) and (e), 1316, 1317, and 1361; 86 Stat. 816, Pub. L. 92-500; 91
Stat. 1567, Pub. L. 95-217; 101 Stat. 7, Pub. L. 100-4.
2. Section 440.100 is amended by adding paragraph (e) to read as
follows:
Sec. 440.100 Applicability; description of the copper, lead, zinc,
gold, silver, and molybdenum ores subcategory.
* * * * *
(e) The provisions of this subpart shall not apply to discharges of
dewatered tailings from the Alaska-Juneau mine and mill near Juneau,
Alaska.
3. Section 440.132 is amended by adding paragraph (k) to read as
follows:
Sec. 440.132 General definitions.
* * * * *
[[Page 5370]]
(k) Dewatered tailings means that portion of a mill tailings slurry
wastestream from which approximately 75 percent or more of the water
fraction has been removed for recycling through the mill.
[FR Doc. 96-2917 Filed 2-9-96; 8:45 am]
BILLING CODE 6560-50-P
