[Federal Register Volume 66, Number 146 (Monday, July 30, 2001)]
[Proposed Rules]
[Pages 39300-39303]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-18887]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 434
[FRL-7019-2]
Notice of Data Availability; Coal Mining Point Source Category;
Amendments to Effluent Limitations Guidelines and New Source
Performance Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of data availability.
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SUMMARY: On April 11, 2000 (65 FR 19440), EPA published proposed
amendments to effluent limitations guidelines and standards for the
coal mining point source category (40 CFR part 434). EPA proposed to
add two new subparts to the existing regulations, the Coal Remining
Subcategory (Subpart G) and the Western Alkaline Coal Mining
Subcategory (Subpart H).
In the proposal, EPA specifically solicited comment on 18 issues,
in addition to a general comment solicitation on all aspects of the
proposed regulation. EPA received comments from various stakeholders,
including state, tribal and federal regulatory authorities,
environmental groups, and industry groups.
In response to the general comment solicitation, EPA received
comments and data on aspects of the proposal for which EPA did not
specifically solicit comment. Due to comments received, EPA is
considering changes to certain aspects of the proposed Coal Remining
Subcategory. Today, EPA is making these data and comments available for
public review and comment.
DATES: Submit your comments by August 29, 2001.
ADDRESSES: Submit comments to Mr. John Tinger at the following address:
U.S. EPA, Engineering and Analysis Division (4303), 1200 Pennsylvania
Ave., NW., Washington, DC 20460. Comments sent via courier or Federal
Express should be sent to: John Tinger, U.S. EPA, Engineering and
Analysis Division (4303), Room 615 West Tower, 401 M St., SW.,
Washington, DC 20460. You are encouraged to submit comments
electronically to [email protected].
The data and information being announced today are available for
review in the EPA Water Docket at EPA Headquarters at Waterside Mall,
Room EB-57, 401 M St., SW., Washington, DC 20460. For access to the
docket materials, call (202) 260-3027 between 9:00 a.m. and 4:00 p.m.
for an appointment. A reasonable fee may be charged for copying.
FOR FURTHER INFORMATION CONTACT: Mr. John Tinger at (202) 260-4992 or
at the following e-mail address: [email protected].
SUPPLEMENTARY INFORMATION:
Contents of This Document
I. Purpose of this Notice
II. Background
III. Date of Applicability for Remining Operations
IV. Alternative Limits for Solids in Pre-existing Discharges
V. Summary of Comment Solicitation
I. Purpose of This Notice
On April 11, 2000, EPA published proposed amendments to effluent
limitations guidelines and standards for the coal mining point source
category (65 FR 19440). EPA proposed to add provisions for two new
subcategories, the Coal Remining Subcategory and the Western Alkaline
Coal Mining Subcategory. In today's notice, EPA is providing a
discussion of options relating to specific issues raised by commenters
on the remining subcategory that were not presented in the proposal.
EPA is presenting these comments and the options that EPA is
considering for the final rulemaking. EPA solicits comments on these
options and on the related comments and data collected since proposal.
Specifically, EPA is soliciting comment on the effective date of the
Remining Subcategory and on alternative effluent limits for solids.
II. Background
Coal mining in the eastern United States has been an important
industry for several centuries. The lack of adequate environmental
controls, until recently, has produced hundreds of thousands of acres
of abandoned mine land (AML). Prior to passage of the Surface Mining
Control and Reclamation Act (SMCRA) in 1977, reclamation of coal mining
sites was not a federal requirement, and drainage from AML has become a
significant water quality problem in Appalachia.
Based on information supplied by the Interstate Mining Compact
Commission (IMCC) and the Office of Surface Mining (OSM) Abandoned Mine
Land Inventory System, EPA estimates there currently are over 1.1
million acres of abandoned coal mine lands in the United States. These
have produced over 9,709 miles of streams polluted by acid mine
drainage. In addition, there are over 18,000 miles of abandoned
highwalls, 16,326 acres of dangerous piles and embankments, and 874
dangerous impoundments. Of the land disturbed by coal mining between
1930 and 1971,
[[Page 39301]]
only 30 percent has been reclaimed to acceptable levels. Several states
have indicated that acid mine drainage from abandoned coal mine land is
their most serious water pollution problem. Streams that are impacted
by acid mine drainage characteristically have low pH levels (less than
6.0 standard units) and contain high concentrations of sulfate,
acidity, dissolved iron and other metals.
As part of 1987 amendments to the Clean Water Act, Congress added
section 301(p), often called the Rahall Amendment, to provide
incentives for remining AML. Section 301(p) provides an exemption for
remining operations from the Best Available Technology Economically
Achievable (BAT) effluent limits for iron, manganese, and pH for pre-
existing discharges from AML. Instead, a permit writer may set site-
specific, numeric BAT limits for pre-existing discharges based on Best
Professional Judgement (BPJ). The permit applicant must demonstrate
that the remining operation will result in the potential for improved
water quality from the remining operation. The permit effluent limits
may not allow pollutant discharges to exceed pre-existing ``baseline''
levels of iron, manganese, and pH. The Rahall Amendment did not provide
for alternative effluent limits for Total Suspended Solids (TSS) or
Settleable Solids (SS). Despite the statutory authority provided by the
Rahall Amendment, coal mining companies and most states remain hesitant
to pursue remining without formal EPA approval and guidelines.
On April 11, 2000, EPA proposed to establish requirements for
determining baseline pollutant loadings in pre-existing discharges and
for implementing pollution abatement plans consistent with the
requirements of the Rahall Amendment. In the proposal, EPA stated its
belief that encouraging remining operations through the proposed
subcategory has the potential for improving hazardous conditions and
improving acid mine drainage from AML. EPA solicited comment on this
conclusion and on potential options that may be environmentally
preferable to the proposed remining subcategory. In response, EPA
received comments on several issues where EPA did not specifically
solicit comment. Commenters believe incorporation of these issues could
increase the potential benefits of the remining subcategory.
III. Date of Applicability for Remining Operations
The Rahall Amendment defines remining as a coal mining operation
which begins after the date of the enactment of the Rahall Amendment
(February 4, 1987) at a site on which coal mining was conducted before
the effective date of the Surface Mining Control and Reclamation Act
(SMCRA) of 1977. Thus, the Rahall Amendment attempted to encourage
remining by allowing operators an alternative to treating degraded pre-
existing discharges to the levels set in EPA's current effluent
limitations guidelines for coal mining. EPA's proposed definition of
remining as ``a coal mining operation at a site on which coal mining
was conducted prior to August 3, 1977,'' is consistent with the
definition provided under the Rahall Amendment.
In response to the proposal, EPA received comments requesting that
EPA extend the applicability of the proposed Remining Subcategory to
include AML abandoned after August 3, 1977. Commenters noted that bonds
have been forfeited on some coal mining sites since the effective date
of SMCRA, and suggested that remining at these locations could result
in environmental benefits.
For the reasons discussed in Sections IV.B, VI.A, and IX.A of the
proposal, EPA concluded that remining has many potential benefits at
little cost. During remining operations, acid-forming materials are
removed with the extraction of the coal, pollution abatement Best
Management Practices (BMPs) are implemented under applicable regulatory
requirements, and the AML is reclaimed. During remining, many of the
problems associated with AML, such as dangerous highwalls, vertical
openings, and abandoned coal refuse piles can be corrected at no cost
to OSM's Abandoned Mine Land Program. Furthermore, implementation of
appropriate BMPs during remining operations can be effective at
improving the water quality of pre-existing discharges.
EPA recognizes that one of the most successful means of improving
abandoned mine land is for coal mining companies to remine abandoned
areas and extract the coal reserves that remain. EPA also recognizes
that if abandoned mine lands are ignored during coal mining of adjacent
areas, a time-critical opportunity for reclaiming AML may be lost. Once
coal mining operations have ceased on the adjacent areas, there is
little incentive for operators to return.
Since the close of the public comment period, EPA has collected
additional data on abandoned mine lands and bond forfeitures since 1977
(DCN 3036 in the regulatory record). Based on data obtained from OSM's
abandoned mine lands database, it is estimated that there are 260 bond
forfeiture sites that are currently producing acid mine drainage. To
date, these sites have not been reclaimed. There are various reasons
for lack of cleanup, such as that the bonds posted in the early stages
of SMCRA may not have been sufficient to cover clean up costs.
Additionally, as described in the proposal, the AML fund establishes
priorities for AML cleanup based on direct risks to human health, and
acid mine drainage may not receive priority for use of public funds if
it does not pose a direct threat to humans. However, if these sites
have remaining coal reserves, remining may be a feasible option to
reclaim the land at little or no cost to the abandoned mine lands fund.
For the reasons described in the proposal, remining may offer an
incentive for reclaiming hazardous conditions at these sites.
EPA is therefore considering extending the applicability of the
subcategory to include the remining of bond forfeiture sites. By
extending the remining subcategory, EPA believes that increased
remediation of abandoned mine lands may be facilitated.
EPA is also considering the potential implication of such a change
to bond forfeiture occurrence. EPA is trying to determine if, by
allowing alternative limits for remining after bond forfeiture, EPA may
be encouraging bond forfeitures in the future. To avoid providing an
incentive for increased bond forfeiture, EPA is also considering
limiting the applicability of the subcategory to mine sites abandoned
prior to the promulgation date of the final rule. In this manner, the
regulations may allow remining to correct for past failures, but not
encourage future bond forfeitures.
EPA is soliciting comment on extending the applicability of the
remining subcategory to include mine sites abandoned after enactment of
SMCRA, and the effect that this could have on creating an incentive for
a mine operator to abandon a coal mining operation. EPA is also
soliciting comment on the need to limit the date of applicability of
the remining subcategory to the effective date of a final rule for the
Coal Remining Subcategory.
IV. Alternative Limits for Solids in Pre-existing Discharges
Under the proposed regulations, a remining permit would contain
specific numeric and non-numeric requirements. The numeric requirements
would be established on a case-by-case basis in compliance with
standardized requirements for statistical procedures to establish and
monitor baseline
[[Page 39302]]
pollutant discharges. The numeric effluent limitations set at baseline
levels would ensure that in no event will the pollutant discharges
exceed the discharges prior to remining, consistent with section
301(p)(2). The stringency of the non-numeric permit provisions would be
established using best professional judgement to evaluate the adequacy
of the selected BMPs contained in a pollution abatement plan. The
pollution abatement plan would demonstrate that the remining operation
will result in the potential for improved water quality, as also
contemplated by section 301(p)(2).
EPA proposed that the remining subcategory would establish
alternative limits for pH, iron, and manganese, but not for solids.
This proposal was consistent with section 301(p)(2). Existing effluent
limits for solids are addressed in Subpart C--Acid or Ferruginous Mine
Drainage, which establish limits for TSS (maximum for any 1 day of 70.0
mg/l and a maximum average daily value of 35.0 mg/l) and in Subpart E,
Post-Mining Areas, which establish limits for reclamation areas (0.5
ml/L SS) and for underground mine drainage (maximum TSS for any 1 day
of 70.0 mg/l and a maximum TSS average daily value of 35.0 mg/l).
EPA received comments stating that acid mine drainage was not the
primary concern for all cases of AML, and that alternative limits for
pH, iron, and manganese, but not for solids, would not be sufficient to
provide an incentive for remining many AML sites. Therefore, commenters
requested that EPA also apply alternative limits for the level of
solids in pre-existing discharges. During the public comment period,
some states submitted information to EPA that documents significant
problems with sediment discharges from AML. For instance, Virginia's
1998 303(d) list identifies 15 streams in the coalfields impaired by
resource extraction, but only two of those streams are identified as
impaired by acid mine drainage and only one by active coal mining. The
Ohio Department of Natural Resources cites that there are AML sites
currently discharging over 250 tons per acre of sediment per year, and
that over 500 miles of streams have been documented to have excess
sediment problems due to runoff from unreclaimed mine lands. The
majority of the impaired streams have been impacted by discharges from
abandoned underground mines or drainage from unreclaimed surface mines
containing high levels of dissolved, settleable, and suspended solids.
Commenters noted that it is sediment loading that is polluting these
streams, and that the provisions under the Rahall Amendment and the
proposed subcategory are not sufficient to address this problem.
The reasons for excessive solids loads in runoff from abandoned
mine lands include lack of vegetative cover due to acidic or toxic
soils; lack of vegetative cover due to steep slopes; and high runoff
volume and velocity due to steep slopes. While EPA has focused on the
benefits of reducing the toxic loadings of pre-existing discharges
through implementation of Best Management Practices (BMPs), many of the
activities associated with AML reclamation also have the potential to
significantly reduce sediment loadings. BMPs typically implemented
during the course of remining that will permanently stabilize sediment
loading include the removal of spoil piles; regrading land to original
contour; adding topsoil; and establishing vegetation. A study conducted
by the U.S. Geological Survey, ``Sedimentation and Water Quality in the
West Branch Shade River Basin, Ohio, 1983-85'' (Childress and Jones,
1988, DCN 3038.1) assessed the effects of BMPs on AML impacted by
sediment. The study found that sediment loads decreased 98 percent
(from 8.6 tons per acre to 0.15 tons per acre) after the AML was
reclaimed. Reclamation activities included regrading, addition of
topsoil, incorporation of fertilizer and/or lime, seeding and mulching,
and sedimentation ponds.
In the proposal, EPA stated its belief that the current level of
sediment control is necessary during surface disturbance operations to
avoid sedimentation and erosion that can clog streams, increase the
risk of flooding, impair land stability, and destroy aquatic habitats.
While EPA continues to believe that sediment control is necessary for
surface disturbances, EPA also acknowledges that remining operators may
not be able to meet existing solids limits because of pre-existing
conditions at AML. These high sediment conditions exist prior to any
surface disturbance by the remining operator, and EPA is therefore
considering alternative limits for sediment control.
Based on the baseline conditions of sediment present at some AML,
EPA believes that the benefits of remining may be severely limited if
EPA does not address sediment in the final rule. EPA notes, for
example, that a pre-existing discharge with a sediment load of greater
than one ton per acre may be out of compliance with current effluent
limitations on the day the remining permit is issued, even prior to any
disturbance of the permit area. Sediment loads cited by commenters of
8.6 to 250 tons per acre per year would likely be significantly out of
compliance with current standards. In accordance with the intent of the
Rahall Amendment, which seeks to encourage remining while ensuring that
the remining activity will potentially improve and reclaim AML, EPA is
considering allowing alternative limits for TSS and SS in pre-existing
discharges. Based on the comments and information received, EPA is
soliciting comment on whether alternative limits for solids are
necessary to fully realize the potential benefits of remining.
EPA envisions that the numeric requirements for sediment would be
established on a case-by-case basis in compliance with standardized
requirements for statistical procedures to establish and monitor
baseline pollutant discharges. The standardized procedures for solids
loading could be the same procedures developed for the other
parameters, and could be established as mass-based loadings in pounds
per day. The numeric effluent limitations set at baseline levels would
ensure that in no event will the pollutant discharges exceed the
discharges prior to remining. The proposed statistical procedures were
discussed in Section VII of the proposal and in the Coal Remining
Statistical Support Document (EPA 821-R-00-001). EPA solicits comment
on how baseline standards for solids could be implemented.
While EPA is considering alternative limits for solids based on
background levels, EPA is also considering whether the alternative
limits for solids should be allowed in perpetuity similar to baseline
levels of pH, iron, and manganese. As EPA discussed in the proposal,
one of the primary reasons for the alternative limitations for pH,
iron, and manganese is due to the complex hydrologic and geochemical
relationships that cause acid mine drainage in abandoned mines. The
full extent of the acid mine drainage problem may not be completely
known at the time of remining, and mine operators are unwilling to
accept the potential risk and liability associated with past mistakes
if held to existing standards. Therefore, EPA stated its belief that it
is infeasible to determine the level of improvement that a BMP will
exhibit on an AML wastewater discharge, and that a numeric limit more
stringent than baseline could not be established for pH, iron, and
manganese.
However, EPA believes that the control of sediment is much less
[[Page 39303]]
complex than the control of pH, iron, and manganese in acid mine
drainage. In contrast to the complex relationships of BMPs and their
relationship on pH, iron, and manganese in pre-existing discharges, the
BMPs for sediment control are typically fully understood and can be
accomplished with relatively simple procedures that are already
required by SMCRA such as regrading, replacing topsoil, and
establishing vegetation. This was demonstrated in the data provided by
the U.S. Geological Survey study, which showed a 98 percent decrease in
sediment loadings after implementation of sediment controls.
Therefore, EPA is also considering establishing an alternative
limit for solids until BMPs can be implemented. This option would apply
standards for solids such that solids cannot be increased over baseline
during remining activities, but that the mine operators would have to
meet current standards for Post-Mining Areas prior to obtaining bond
release. The current standards for sediment control at post-mining
areas is either 0.5 ml/L SS for reclamation areas; or a maximum TSS for
any 1 day of 70.0 mg/l and a maximum TSS average daily value of 35.0
mg/l for underground mine drainage. EPA believes that this approach may
allow remining operators to remine AML contaminated with sediment, but
that it may also continue to encourage reclamation and sediment
control. EPA solicits comment on establishing a compliance schedule
such that during remining, sediment loads must not exceed baseline
loads, but that the solids level must meet existing standards for Post-
Mining Areas prior to bond release.
As with numeric limitations for pH, iron, and manganese, and as
stated in the proposed rule, these alternate limits will not be
applicable to discharges from active mining operations. Therefore, the
existing limits for TSS during surface disturbances from active mining
(i.e. for the ``extraction, removal, or recovery of coal from its
natural deposits'') would continue to be required to meet the existing
solids limits.
V. Summary of Comment Solicitation
EPA is soliciting comment on (1) extending the applicability of the
remining subcategory to include mine sites abandoned after enactment of
SMCRA, (2) the effect that this could have on creating an incentive for
a mine operator to abandon a coal mining operation, and (3) the need to
limit the date of applicability of the remining subcategory to the
effective date of a final rule for the Coal Remining Subcategory.
EPA is also soliciting comment on (4) providing an alternative
limit for solids, (5) on the implementation of an alternative limit for
solids by using the same statistical procedures used for other
alternative limits and, (6) on establishing a compliance schedule such
that during remining, sediment loads must not exceed baseline loads,
but that the solids level must meet existing standards for Post-Mining
Areas prior to bond release.
Dated: July 20, 2001.
Diane C. Regas,
Acting Assistant Administrator for Water.
[FR Doc. 01-18887 Filed 7-27-01; 8:45 am]
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