Coal Mining Point Source Category; Amendments to Effluent Limitations Guidelines and New Source Performance Standards

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: April 11, 2000 (Volume 65, Number 70)]
[Proposed Rules]
[Page 19439-19474]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11ap00-35]

[[Page 19439]]

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Part II

Environmental Protection Agency

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40 CFR Part 434

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Coal Mining Point Source Category; Amendments to Effluent Limitations
Guidelines and New Source Performance Standards; Proposed Rule

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 434

[FRL-6571-9]
RIN 2040-AD24

Coal Mining Point Source Category; Amendments to Effluent
Limitations Guidelines and New Source Performance Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA proposes to amend the current regulations for the Coal
Mining Point Source Category by adding two new subcategories to the
existing regulation. First, EPA proposes to establish a new subcategory
that will address pre-existing discharges at coal remining operations.
EPA also proposes to establish a second new subcategory that will
address drainage from coal mining reclamation areas in the arid and
semiarid western United States. This proposal would not otherwise
change the existing regulations.
The establishment of new subcategories has the potential to create
significant environmental benefits at little or no additional cost to
the industry. Establishing the Coal Remining Subcategory will encourage
remining activities and will reduce hazards associated with abandoned
mine lands. The new subcategory has the potential to significantly
improve water quality by reducing the discharge of acidity, iron,
manganese, and sulfate from abandoned mine lands. EPA projects total
monetized annual benefits of $0.70 million to $1.2 million.
Additionally, EPA expects that this regulation will result in
significant ecological and public safety benefits that could not be
quantified and/or monetized. EPA projects that the annual compliance
cost for this new subcategory will be $0.33 million to $0.76 million.
EPA estimates that the proposed Western Alkaline Coal Mining
Subcategory will result in a net cost savings to affected surface mine
operators. The monetized and non-monetized benefits for this
subcategory are a result of adopting alternative sediment control
technologies for reclamation areas in the arid west. These technologies
are projected to increase the volume of storm water drainage to arid
watersheds and avoid the disturbance of 26,000 acres, thus reducing
severe erosion, sedimentation, hydrologic imbalance, and water loss.
EPA projects that the proposed subcategory will result in annualized
monetized benefits of $43,000 to $769,000.

DATES: Comments on the proposed regulation must be received on or
before July 10, 2000. Public meetings will be held during the comment
period. Further details of the public meetings, including dates and
specific locations, will be published in the Federal Register at a
later date.

ADDRESSES: Send written comments on the proposed rule to Mr. Joseph
Vitalis (4303); U.S. Environmental Protection Agency; 1200 Pennsylvania
Ave, NW; Washington, DC 20460. Comments delivered by hand should be
brought to Room 641, West Tower; 401 M Street, SW Washington, DC.
Please submit any references cited in your comments. Submit an original
and three copies of your written comments and enclosures. No facsimiles
(faxes) will be accepted. For information on how to submit electronic
comments see ``SUPPLEMENTARY INFORMATION, How to Submit Comments.''
A copy of the supporting documents cited in this proposal is
available for review at EPA's Water Docket; Room EB57, 401 M Street,
SW, Washington, DC 20460. A copy of the record supporting proposal of a
Western Alkaline Coal Mining Subcategory is also available for review
at the Office of Surface Mining Library, 1999 Broadway, 34th Floor,
Denver, CO. The public record for this rulemaking has been established
under docket number W-99-13, and includes supporting documentation, but
does not include any information claimed as Confidential Business
Information (CBI). For access to docket materials, please call (202)
260-3027 between 9:00 a.m. and 3:30 p.m., Monday through Friday,
excluding Federal holidays, to schedule an appointment. For access to
docket materials at the Office of Surface Mining Library, please call
(303) 844-1436 between 8:00 a.m. and 4:00 p.m. to schedule an
appointment.
See the SUPPLEMENTARY INFORMATION section for locations of the
public meetings regarding this proposal.

FOR FURTHER INFORMATION CONTACT: For additional technical information
contact John Tinger at (202) 260-4992 or ``Tinger.John@epa.gov''; or
Joseph Vitalis at (202) 260-7172. For additional economic information
contact Kristen Strellec at (202) 260-6036 or
``Strellec.Kristen@epa.gov''.

SUPPLEMENTARY INFORMATION:
Regulated Entities: Entities potentially regulated by this action
include:

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NAICS
Category Examples of regulated entities SIC codes codes
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Industry.............................. Operations engaged in the remining of abandoned 1221 212111
surface and underground coal mines and coal 1222 212112
refuse piles for remaining coal reserves in areas 1231 212113
containing discharges defined as ``pre-existing'.
Operations engaged in coal mine reclamation
activities in the arid and semiarid western coal
region.
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The preceding table is not intended to be exhaustive, but rather
provides a guide for readers regarding entities likely to be regulated
by this action. This table lists the types of entities that EPA is now
aware potentially could be regulated by this action. Other types of
entities not listed in the table could also be regulated. To determine
whether your facility is regulated by this action, you should carefully
examine the applicability criteria in Sec. 434.70 and 434.80 of today's
rule. If you have questions regarding the applicability of this action
to a particular entity, consult the person listed for technical
information in the preceding FOR FURTHER INFORMATION CONTACT section.

Locations of Public Meetings

Public meetings regarding proposal of the Western Alkaline Coal
Mining Subcategory will likely be held in Gillette, WY; Flagstaff, AZ;
and Denver, CO during the public comment period. Public meetings
regarding proposal of the Remining Subcategory also will likely be held
near Charleston, WV; Lexington, KY; and Zanesville, OH during the
public comment period. Further details of the public meetings,
including dates and specific locations, will be published in the
Federal Register at a later date. If you wish to present formal
comments at the public meetings, you should have a written copy for
submittal. No meeting materials will be distributed in advance

[[Page 19441]]

of the public meetings; all materials will be distributed at the
meetings.

How to Submit Comments

Comments also may be submitted electronically to
vitalis.joseph@epa.gov. Electronic comments must be submitted as a Word
Perfect 5/6/7/8 or ASCII file. Please avoid using special characters,
form and encryption. Electronic comments must be identified with the
docket number (W-99-13). EPA also will accept comments and data on
disks in WP 5/6/7/8 or ASCII file format. Electronic comments on this
document may be filed online at some Federal Depository Libraries. No
Confidential Business Information (CBI) should be sent via e-mail.

Supporting Documentation

The proposed regulations are supported by several key documents:
1. ``Coal Remining Best Management Practices Guidance Manual'' (EPA
821-R-00-007). This document describes abandoned mine land conditions
and the performance of Best Management Practices (BMPs) that have been
implemented at remining operations for over ten years. The BMP Guidance
Manual is a technical reference document that presents research and
data concerning the prediction and prevention of acid mine drainage to
the waters of the United States.
2. ``Coal Remining Statistical Support Document'' (EPA 821-R-00-
001). This document establishes the statistical methodology for
establishing baseline conditions and setting discharge limits at
remining sites.
3. ``Development Document for Proposed Effluent Limitations
Guidelines and Standards for the Western Alkaline Coal Mining
Subcategory'' (EPA 821-R-00-008): This document presents EPA's
technical conclusions concerning the Western Alkaline Mining
Subcategory proposal.
4. ``Economic and Environmental Impact Assessment of Proposed
Effluent Limitations Guidelines and Standards for the Coal Mining
Industry: Remining and Western Alkaline Subcategories'' (EPA-821-B-00-
002): This document presents the methodology employed to assess
economic and environmental impacts of the proposed rule and the results
of the analysis.
Major supporting documents are available from the National Service
Center for Environmental Publications (NSCEP), 11029 Kenwood Road,
Cincinnati, OH 45242, (800) 490-9198, http://www.epa.gov/ncepi. You can
obtain copies of this preamble and rule at http://www.epa.gov/OST/
guide.

Table of Contents

I. Legal Authority
II. Background
A. Statutory Authorities
B. Current Requirements for the Coal Mining Point Source
Category
III. Scope of Proposal
A. Coal Remining Subcategory
B. Western Alkaline Coal Mining Subcategory
IV. Industry Profile
A. Coal Mining Industry
B. Coal Remining Subcategory
C. Western Alkaline Coal Mining Subcategory
V. Summary of Data Collection Activities
A. Expedited Guidelines Approach
B. Coal Remining Data Collection Activities
C. Western Alkaline Coal Mining Data Collection Activities
VI. Development of Proposed Effluent Limitations Guidelines
A. Coal Remining Subcategory
B. Western Alkaline Coal Mining Subcategory
VII. Statistical and Monitoring Procedures for the Coal Remining
Subcategory
A. Statistical Procedures for the Coal Remining Subcategory
B. Monitoring to Establish Baseline Conditions and to
Demonstrate Compliance for the Coal Remining Subcategory
C. Additional Pollutant Parameters in Pre-existing Discharges
VIII. Non-Water Quality Environmental Impacts of Proposed
Regulations
IX. Environmental Benefits Analysis
A. Coal Remining Subcategory
B. Western Alkaline Coal Mining Subcategory
X. Economic Analysis
A. Introduction, Overview, and Source of Data
B. Method for Estimating Compliance Costs
C. Costs and Cost Savings of the Regulatory Options
D. Economic Impacts of Proposed Options
E. Additional Impacts
F. Cost-effectiveness Analysis
G. Cost Benefit Analysis
XI. Administrative Requirements
A. Executive Order 12866: Regulatory Planning and Review
B. Regulatory Flexibility Act as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601
et seq
C. Unfunded Mandates Reform Act
D. Paperwork Reduction Act
E. National Technology Transfer and Advancement Act
F. Executive Order 13132: Federalism
G. Executive Order 13045: Protection of Children from
Environmental Health and Safety Risks
H. Executive Order 13084: Consultation and Coordination with
Indian Tribal Governments
I. Plain Language Directive
XII. Solicitation of Data and Comments
A. Specific Data and Comment Solicitations
B. General Solicitation

Appendix A to the Preamble:

Definitions, Acronyms, and Abbreviations Used in This Document.

I. Legal Authority

These regulations are proposed under the authority of sections 301,
304, 306, 308, 402, 501, and 502 of the Clean Water Act, 33 U.S.C.
1311, 1314, 1316, 1318, 1342, 1361, and 1363.

II. Background

A. Statutory Authorities

1. Clean Water Act
Congress adopted the Clean Water Act (CWA) to ``restore and
maintain the chemical, physical, and biological integrity of the
Nation's waters' (section 101(a), 33 U.S.C. 1251(a)). To achieve this
goal, the CWA prohibits the discharge of pollutants into navigable
waters except in compliance with the statute. The Clean Water Act
confronts the problem of water pollution on a number of different
fronts. Its primary reliance, however, is in establishing restrictions
on the types and amounts of pollutants discharged from various
industrial, commercial and public sources of wastewater.
Direct dischargers must comply with effluent limitations in
National Pollutant Discharge Elimination System (``NPDES'') permits;
indirect dischargers must comply with pretreatment standards. These
limitations and standards are established by regulation for categories
of industrial dischargers and are based on the degree of control that
can be achieved using various levels of pollution control technology.
a. Best Practicable Control Technology Currently Available (BPT)--
Section 304(b)(1) of the CWA. Effluent limitations guidelines based on
BPT apply to discharges of conventional, toxic, and non-conventional
pollutants from existing sources. BPT guidelines are generally based on
the average of the best existing performance in terms of pollution
control by plants in a particular industrial category or subcategory.
In establishing BPT, EPA considers the cost of achieving pollution
reductions in relation to the pollution reduction benefits, the age of
equipment and facilities, the processes employed, process changes
required, engineering aspects of the control technologies, non-water
quality environmental impacts (including energy requirements), and
other factors the Administrator deems appropriate. CWA Section
304(b)(1)(B). Where the pollution control performance of existing
sources for a category or subcategory is uniformly inadequate, EPA may
set BPT by

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transferring technology used in a different subcategory or category.
b. Best Available Technology Economically Achievable (BAT)--Section
304(b)(2) of the CWA. In general, BAT effluent limitations guidelines
are based on the degree of pollution control achievable by applying the
best available technology economically achievable for facilities in the
industrial subcategory or category. The CWA requires BAT for
controlling the direct discharge of toxic and non-conventional
pollutants. The factors considered in determining BAT for a category or
subcategory include the age of the equipment and facilities involved,
the process employed, potential process changes, engineering aspects of
the control technologies, non-water quality environmental impacts
(including energy requirements), and other factors the Administrator
deems appropriate. EPA retains considerable discretion in assigning the
weight to be accorded these factors. Generally, economic achievability
is determined on the basis of total costs to the industrial subcategory
and their effect on the overall industry's (or subcategory's) financial
health. As with BPT, where existing performance is uniformly
inadequate, BAT may be transferred from a different subcategory or
category. BAT may be based upon process changes or internal controls,
such as product substitution, even when these technologies are not
common industry practice. The CWA does not require cost-benefit
comparison in establishing BAT.
c. Best Conventional Pollutant Control Technology (BCT)--Section
304(b)(4) of the CWA.
The 1977 amendments to the CWA established BCT as an additional
level of control for discharges of conventional pollutants from point
sources other than publicly owned treatment works. In addition to other
factors specified in section 304(b)(4)(B), the CWA requires that BCT
limitations be established in light of a two part ``cost-
reasonableness'' test. EPA published a methodology for the development
of BCT limitations which became effective August 22, 1986 (51 FR 24974,
July 9, 1986).
Section 304(a)(4) designates the following as conventional
pollutants: biochemical oxygen demanding pollutants (measured as
BOD5), total suspended solids (TSS), fecal coliform, pH, and
any additional pollutants defined by the Administrator as conventional.
The Administrator designated oil and grease as an additional
conventional pollutant on July 30, 1979 (44 FR 44501).
d. New Source Performance Standards (NSPS)--Section 306 of the CWA.
NSPS reflect effluent reductions that are achievable based on the best
available demonstrated control technology. New facilities have the
opportunity to install the best and most efficient production processes
and wastewater treatment technologies. As a result, NSPS should
represent the most stringent controls attainable through the
application of the best available control technology for all pollutants
(i.e., conventional, nonconventional, and priority pollutants). In
establishing NSPS, EPA is directed to take into consideration the cost
of achieving the effluent reduction and any non-water quality
environmental impacts and energy requirements.
e. Pretreatment Standards for Existing Sources (PSES)--Section
307(b) of the CWA--and Pretreatment Standards for New Sources (PSNS)--
section 307(b) of the CWA. Pretreatment standards are designed to
prevent the discharge of pollutants to a publicly-owned treatment works
(POTW) which pass through, interfere, or are otherwise incompatible
with the operation of the POTW. Since none of the facilities to which
this rule applies discharge to a POTW, pretreatment standards are not
being considered as part of this rulemaking.
f. CWA Section 304(m) Requirements. Section 304(m) of the CWA,
added by the Water Quality Act of 1987, requires EPA to establish
schedules for (1) reviewing and revising existing effluent limitations
guidelines and standards and (2) promulgating new effluent guidelines.
On January 2, 1990 (55 FR 80), EPA published an Effluent Guidelines
Plan, which established schedules for developing new and revised
effluent guidelines for several industry categories. The Natural
Resources Defense Council, Inc., challenged the Effluent Guidelines
Plan in a suit filed in the U.S. District Court for the District of
Columbia (NRDC v. Browner, Civ. No. 89-2980). On January 31, 1992, the
Court entered a consent decree (the ``304(m) Decree''), which
established schedules for EPA's proposal and promulgation of effluent
guidelines for a number of point source categories. The most recent
Effluent Guidelines Plan was published in the Federal Register on
September 4, 1998 (63 FR 47285). This plan required, among other
things, that EPA propose the Coal Mining Guidelines by December 1999
and promulgate the Guidelines by December 2001. On November 19, 1999,
the court modified the decree revising the deadline for proposal to
March 31, 2000. The deadline of December 2001 for promulgation of these
guidelines was not modified.
2. Pollution Prevention Act
The Pollution Prevention Act of 1990 (PPA) (42 U.S.C. 13101 et
seq., Pub. L. 101-508, November 5, 1990) ``declares it to be the
national policy of the United States that pollution should be prevented
or reduced whenever feasible; pollution that cannot be prevented should
be recycled in an environmentally safe manner, whenever feasible;
pollution that cannot be prevented or recycled should be treated in an
environmentally safe manner whenever feasible; and disposal or release
into the environment should be employed only as a last resort * * *''
(Sec. 6602; 42 U.S.C. 13101(b)). In short, preventing pollution before
it is created is preferable to trying to manage, treat or dispose of it
after it is created.
The PPA directs EPA to, among other things, ``review regulations of
the EPA prior and subsequent to their proposal to determine their
effect on source reduction'' (Sec. 6604; 42 U.S.C. 13103(b)(2)). Source
reduction reduces the generation and release of hazardous substances,
pollutants, wastes, contaminants, or residuals at the source, usually
within a process. The term source reduction ``includes equipment or
technology modifications, process or procedure modifications,
reformulation or redesign of products, substitution of raw materials,
and improvements in housekeeping, maintenance, training or inventory
control. * * * The term ``source reduction'' does not include any
practice which alters the physical, chemical, or biological
characteristics or the volume of a hazardous substance, pollutant, or
contaminant through a process or activity which itself is not integral
to or necessary for the production of a product or the providing of a
service'' (42 U.S.C. 13102(5)). In effect, source reduction means
reducing the amount of a pollutant that enters a waste stream or that
is otherwise released into the environment prior to out-of-process
recycling, treatment, or disposal.
In this proposed rule, EPA encourages pollution prevention by
requiring the use of site-specific Best Management Practices (BMPs)
that are integral to remining operations in abandoned mine lands and to
reclamation activities in the arid and semiarid western coal regions.
These BMPs, under each subcategory, are designed and implemented to
improve existing conditions and to reduce pollutant discharges at the
source, thereby reducing the need for treatment.

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B. Current Requirements for the Coal Mining Point Source Category

1. EPA Regulations at 40 CFR Part 434
On October 9, 1985 (50 FR 41296), EPA promulgated effluent
limitations guidelines and standards that are in effect today under 40
CFR part 434. Currently, there are four subcategories: Coal Preparation
Plants and Coal Preparation Plant Associated Areas; Acid or Ferruginous
Mine Drainage; Alkaline Mine Drainage; and Post-Mining Areas.
Additionally, there is a subpart for Miscellaneous Provisions. The
subcategories include BPT, BAT, and NSPS limitations for TSS, pH, iron,
manganese, and/or settleable solids (SS).
2. Surface Mining Control and Reclamation Act
In 1977, Congress enacted the Surface Mining Control and
Reclamation Act (SMCRA), 30 U.S.C. 1201 et seq., to address the
environmental problems associated with coal mining on a nationwide
basis. SMCRA created the Office of Surface Mining Reclamation and
Enforcement (OSM) within the Department of Interior, which is
responsible for preparing regulations and assisting the States
financially and technically to carry out regulatory activities.
Title V of the statute gives OSM broad authority to regulate
specific management practices before, during, and after mining
operations. OSM has promulgated comprehensive regulations to control
both surface coal mining and the surface effects of underground coal
mining (30 CFR parts 700 et seq). Implementation of these requirements
has significantly improved mining practices, control of water
pollution, and protection of other resources. Title IV of SMCRA
addresses the problem of presently abandoned coal mines by authorizing
and funding abandoned mine reclamation projects.
All mining operations subject to today's proposal must also comply
with SMCRA requirements. EPA has worked extensively with OSM in the
preparation of this proposal in order to ensure that the requirements
proposed today are consistent with OSM requirements.
3. Rahall Amendment
As part of 1987 amendments to the CWA, Congress added section
301(p), often called the Rahall Amendment, to provide incentives for
remining abandoned mine lands that pre-date the passage of SMCRA in
1977. Section 301(p) provides an exemption for remining operations from
the BAT effluent limits for iron, manganese, and pH for pre-existing
discharges from abandoned mine lands. Instead, a permit writer may set
site-specific, numerical BAT limits for pre-existing discharges
determined based on Best Professional Judgement (BPJ). The permit
effluent limits may not allow discharges to exceed pre-existing
``baseline'' levels of iron, manganese, and pH. In addition, the permit
applicant must demonstrate that the remining operation ``will result in
the potential for improved water quality from the remining operation.''
The Rahall Amendment defines remining as ``a coal mining operation
which began after February 4, 1987 at a site on which coal mining was
conducted before August 3, 1977,'' which was the effective date of the
Surface Mining Control and Reclamation Act. Thus, the Rahall Amendment
attempted to encourage remining by allowing operators not to treat
degraded pre-existing discharges to the levels set in EPA's current
effluent limitations guidelines for coal mining.
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. Today's Document
proposes to establish requirements for determining baseline pollutant
loadings in pre-existing discharges. It also proposes to specify how to
determine site-specific BAT requirements for remining operations and
how to demonstrate the potential for environmental improvement from a
remining operation.
4. Clean Water Action Plan
On October 18, 1997, the 25th anniversary of the enactment of the
Clean Water Act, Vice President Gore called for a renewed effort to
restore and protect water quality. EPA and other Federal agencies were
directed to develop a Clean Water Action Plan (CWAP) that would
continue to provide clean water successes and would address three major
goals: (1) Enhanced protection from public health threats caused by
water pollution; (2) more effective control of polluted runoff; and (3)
promotion of water quality protection on a watershed basis.
Based on the efforts of interagency work groups and comments from
the public, EPA and other Federal agencies developed the final CWAP on
February 14, 1998. One of several Key Actions specifically identified
to implement the goals of the CWAP was EPA's project to re-examine 40
CFR part 434 to ``better address coal mining in arid western areas''
and ``to address coal remining operations.''

III. Scope of Proposal

Today, EPA is proposing effluent limitations and performance
standards for the Coal Remining Subcategory and for the Western
Alkaline Coal Mining Subcategory. The new subcategories will be added
to the existing regulations for the Coal Mining Point Source Category
found in 40 CFR part 434. The new subcategories will create a set of
standards and requirements for the specific waste streams defined in
today's proposal.
The existing provisions will continue to apply to discharges
produced or generated in active mining areas, which include the active
mining areas of remining operations. Section 434.11(b) defines active
mining area as ``the area, on and beneath land, used or disturbed in
activity related to the extraction, removal, or recovery of coal from
its natural deposits. This term excludes coal preparation plants, coal
preparation plant associated areas and post-mining areas.'' Wastewater
discharges produced or generated by active coal mining operations will
not be affected by this proposed regulation and will remain subject to
the effluent limitations already established in part 434.
Additionally, in accordance with section 434.61, any waste stream
subject to this proposed rule that is commingled with a waste stream
subject to another subpart of part 434 will be required to meet the
most stringent limitations applicable to any component of the combined
waste stream. EPA's proposed regulatory text simply maintains the
current regulatory approach on this issue.

A. Coal Remining Subcategory

The effluent limitations and standards proposed for the Coal
Remining Subcategory apply to pre-existing discharges that are located
within areas of a coal remining operation and that are not commingled
with waste streams from active mining areas. Coal remining is the
mining of surface mine lands, underground mine lands, and coal refuse
piles that were abandoned prior to August 3, 1977.
EPA's rationale for the proposed Remining Subcategory is discussed
in Section VI.

B. Western Alkaline Coal Mining Subcategory

The effluent limitations and performance standards for the Western
Alkaline Coal Mining Subcategory apply to alkaline mine drainage from

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reclamation areas associated with western coal mining operations.
``Alkaline mine drainage'' is defined in the existing regulations
as ``mine drainage which, before any treatment, has a pH equal to or
greater than 6.0 and total iron concentration of less than 10 mg/L.''
40 CFR 434.11(c). ``Reclamation area'' is defined in the existing
regulations as ``the surface area of a coal mine which has been
returned to required contour and on which revegetation (specifically,
seeding or planting) work has commenced.'' 40 CFR 434.11(l). EPA is not
proposing to make any changes to these existing definitions.
EPA is proposing to define a ``western coal mining operation'' in
arid or semiarid areas as a surface or underground coal mining
operation located in the interior western United States, west of the
100th meridian west longitude, in an arid or semiarid environment with
an average annual precipitation of 26.0 inches or less. This definition
is consistent with the way OSM currently identifies and addresses
western coal mining operations (see 30 CFR 701.5 and 30 CFR 816.116)
and with SMCRA's provisions with respect to arid and semiarid lands
(i.e., extended liability time frames for areas with less than 26
inches of annual precipitation, protection of the alluvial valley
floors found in the western environments, and recognition of
geological, hydrological and ecological differences found in arid and
semiarid environments).
EPA discusses the rationale for the proposed Western Alkaline Coal
Mining Subcategory in Section VI.

IV. Industry Profile

A. Coal Mining Industry

The United States is divided into three major coal producing
regions termed the Appalachian, Interior, and Western regions. The
States included in each are as follows:
Western Coal Region--Alaska, Arizona, California,
Colorado, Montana, New Mexico, North Dakota, Utah, Washington, and
Wyoming;
Appalachian Coal Region--Alabama, Georgia, Eastern
Kentucky, Maryland, Ohio, Pennsylvania, Tennessee, Virginia and West
Virginia; and
Interior Coal Region--Arkansas, Illinois, Iowa, Kansas,
Western Kentucky, Louisiana, Missouri, Oklahoma, and Texas.
Historically, the Appalachian Region has been the Nation's most
important source of coal, accounting for about three-fourths of the
total annual production as recently as 1970. In 1970, most of the coal
produced domestically was mined east of the Mississippi River (567.8
million tons east of the Mississippi River, compared to 44.9 million
tons west of the Mississippi River). Appalachian coals are
predominantly bituminous, with a high Btu content and a wide range of
sulfur content. Coal in this Region generally occurs in beds that tend
to be less than 15 feet thick.
There are two distinct coal-producing areas in the Interior Region.
The Illinois Basin, which includes most of Illinois, parts of Indiana
and western Kentucky, produces high Btu bituminous coal with medium to
high sulfur content. The second major coal producing area in this
Region consists of the lignite fields within the Coastal Plain along
the Gulf of Mexico.
The Western Coal Region contains extensive deposits of sub-
bituminous, low sulfur-content coal. This coal occurs in thick coal
seams and shallow overburden conditions that enable the extraction of
large volumes at relatively low cost. Consequently, these coal
resources represent a highly competitive fuel in the power generation
market based on chemical qualities and cost per kilowatt-hour.
Production from U.S. surface coal mines has increased by more than
90 percent since 1970, and there have been dramatic changes in the
domestic production of coal due to environmental concerns and market
demands. Environmental laws have increased government regulation of the
industry. In addition, the Clean Air Act emission requirements to
reduce acid rain have shifted market demand to lower sulfur content
fuel sources. With this change in the coal market, coal production in
the west has increased, and is now nearly equal to that in the
Appalachian region (Energy Information Administration, Coal Industry
Annual, 1997). In 1970, the Appalachian Region produced a total of
427.6 million tons. The Interior Region total production was 149.9
million tons. By comparison, in 1970, the Western Region produced only
35.1 million tons. By 1993, the market share of production from eastern
coal mines had dropped to 55 percent (516.2 million tons), while
western mine output had increased to 45 percent (429.2 million tons).
In 1997 the United States produced 1.09 billion short tons of coal,
with the Appalachian Region producing approximately 468 million short
tons, the Interior Region producing approximately 172 million short
tons and the Western Region producing approximately 451 million short
tons. While domestic coal production has increased since 1970, fewer
operating mines exist today. In 1991, the number of mines producing
coal was less than half the number in 1976 (e.g., 6,553 mines in 1976
compared to 3,022 mines in 1991). Coal-fired electric power generating
plants are the largest single source of domestically produced primary
energy.

B. Coal Remining Subcategory

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. Prior to passage of SMCRA in 1977, reclamation
of coal mining sites was not a Federal requirement, and drainage from
these abandoned mine lands has become the number one water quality
problem in Appalachia.
Based on information supplied by the Interstate Mining Compact
Commission (IMCC) and OSM's Abandoned Mine Land Inventory System
(AMLIS), 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, 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.
These conditions commonly will not support fish or other aquatic life.
The flows from abandoned mine lands can range from unmeasurable to huge
torrents of thousands of gallons per minute. Ninety percent of acid
mine drainage comes from coal mines (mostly underground mines) that
were abandoned prior to the enactment of SMCRA. Many of the streams
impacted by acid mine drainage could be resources for drinking water
and the propagation and maintenance of aquatic life, and could support
water-based recreation if they were remediated. Their restoration also
would contribute to the enhancement of regional economies in areas that
have been socio-economically disadvantaged for decades.

[[Page 19445]]

Development of modern surface-mining techniques has allowed for
more efficient removal of coal deposits and more effective
implementation of BMPs that provide pollution abatement and
remediation. Consequently, mining is now feasible in areas where mining
was previously uneconomical.
More than ten years of remining under the requirements of the
Rahall Amendment have demonstrated success in improving abandoned mine
land and acid mine drainage. IMCC member States have estimated that
there are currently 150 mining companies in ten States involved in
remining operations (under either Rahall-type permits or current 40 CFR
part 434 limitations) or in operations affecting abandoned mine lands.
These companies are producing at least 25 million tons of coal
annually, and are employing approximately 3,000 people. To date,
approximately 1,072 permits that include coal remining operations have
been issued. Of these 1,072 permits, 330 (31 percent) are Rahall-type
permits where the operator is required to meet a determined baseline
limit for pre-existing discharges. Approximately 300 of these Rahall-
type permits are in Pennsylvania alone. Of the 1,072 remining permits,
742 (69 percent) are non-Rahall permits where all discharges must meet
current effluent limitations. These permits have tended to be issued at
sites where the effects of acid mine drainage are not as significant.
Remining operations are affecting approximately 270 abandoned coal
refuse piles; 1,600 abandoned surface mines; and 1,100 abandoned
underground mines. Information provided by IMCC indicates that there
are approximately 2,100 coal refuse piles; 2,000 abandoned surface
mines (plus 228,000 acres); and over 8,000 abandoned underground mines
that have the potential for remining. Information provided by IMCC is
discussed in the Coal Remining BMP Guidance Manual and is included in
Section 7.0 of the Rulemaking Record.
Many States have not been able to establish the guidelines and
procedures required to issue Rahall permits. However, IMCC member
States have indicated that they would be able to establish formal
remining programs under guidelines set forth under an EPA effluent
limitation Coal Remining subcategory. With the establishment of State
remining programs, mine operators would be more inclined to enter into
remining projects as discussed in Section VI.

C. Western Alkaline Coal Mining Subcategory

EPA is proposing to address western alkaline mines which would be
defined as mines that are (1) west of the 100th meridian, (2) have
annual precipitation of 26 inches or less, (3) are in an arid or
semiarid environment, and (4) produce alkaline mine drainage. Western
coal producing States qualifying are: Arizona, Colorado, Utah, Montana,
New Mexico, Wyoming, and all coal fields in North Dakota located west
of the 100th meridian.
Coal mining operations in arid and semiarid western regions operate
under environmental conditions that are significantly different from
those in other regions of the United States. Western arid and semiarid
areas are naturally unstable with highly eroded landscapes that are
created by flash flood runoff transporting large volumes of sediment.
Water resources are severely limited and highly valuable. Specific
differences include:
Precipitation--Annual precipitation averages 26 inches or
less, with about one-half occurring as snowfall and one-half as
rainfall. The average annual precipitation received by relevant western
coal-producing States are: Arizona--13 inches; Colorado--16 inches;
Montana--15 inches; New Mexico--13 inches; and Wyoming--13 inches.
Rainfall is commonly received during localized, high-intensity, short-
duration thunderstorms.
Temperature--Temperatures fluctuate over wide daily ranges
of 30 deg. to 50 deg.F and extreme seasonal ranges (-40 deg. to
115 deg.F). These temperature fluctuations contribute to the physical
weathering of surface materials.
Solar intensity--Solar energy is high and humidity is
characteristically very low. As a result, evapotranspiration normally
exceeds precipitation. Water infiltration and retention in soil is
limited, which results in severe soil moisture deficits, extremely
limited surface water resources, and poor vegetative growth.
Erosion--Natural soils tend to be erosion prone and soil-
forming materials frequently erode faster than they are formed. Soil
that does form can be poorly developed with low organic matter and
limited plant nutrient content. Soil moisture content is low and
precipitation easily mobilizes sediment.
Hydrology--Drainage systems are composed primarily of dry
washes and arroyos. These drainage features provide an unlimited source
of sediment that may be mobilized by flash flooding. For approximately
eleven months per year, the washes and arroyos are dry, flowing only in
response to precipitation runoff. Runoff is frequently characterized by
high volume, high velocity, sediment laden, turbulent flows with
tremendous kinetic energy. Flows can be expected to contain sediment
concentrations ranging upwards to 500,000 mg/L during flash flood
runoff events.
Vegetation--Areas are characterized by discontinuous and
sparsely distributed grasses, shrubs and trees. The major vegetation
types are desert grass and brush, and open forests with pinyon-juniper
and ponderosa pine.
EPA has identified 46 surface coal mines in the western region that
potentially will be affected by this proposed rule (two percent of the
total number of coal mines in the United States). These mines produce
approximately one-third of the total annual U.S. coal production.

V. Summary of Data Collection Activities

A. Expedited Guidelines Approach

EPA is developing this regulation using an expedited rulemaking
process. This process relies on stakeholder support to develop the
initial technology and regulatory options. At various stages of
information gathering, OSM, States, Tribes, industry, EPA and other
stakeholders have presented and discussed their preferred options and
identified differences in opinion. EPA developed this proposal more
quickly than a typical effluent guidelines proposal, and the proposal
contains less information than EPA usually provides for effluent
guidelines. EPA expects to identify any gaps and gather additional
information through the public comment process.
EPA encourages full public participation in developing the final
Coal Remining and Western Alkaline Coal Mining Guidelines. This
expedited rulemaking process relies more on open communication between
EPA, the regulated community, and other stakeholders, and less on
formal data and information gathering mechanisms. The expedited
guidelines approach is suitable when EPA, States, industry, and other
stakeholders have a common goal in regards to the purpose of the
effluent guidelines. EPA believes this is the case with the Coal
Remining and Western Alkaline Coal Mining rulemaking. EPA is proposing
to allow site-specific effluent limits for pre-existing discharges at
remining operations and alternative sediment control technologies at
western alkaline mine reclamation operations. EPA believes that this
rule will provide

[[Page 19446]]

better environmental results than the current requirements. EPA
welcomes comment on all options and issues and encourages commenters to
submit additional data during the comment period. EPA also is willing
to meet with interested parties during the comment period to ensure
that EPA considers the views of all stakeholders and the best possible
data upon which to base a decision for the final regulation.
As part of the expedited approach to this rulemaking, EPA has
chosen not to gather data using the time consuming approach of a Clean
Water Act Section 308 questionnaire. Rather, EPA is using data
voluntarily submitted by industry, permitting authorities, vendors,
academia, and others, along with data EPA can develop in a limited
period of time. Because all of the facilities affected by this proposal
are direct dischargers, EPA did not conduct an outreach survey to
POTWs.
Throughout regulatory development, EPA has worked with
representatives from the U.S. Office of Surface Mining Reclamation and
Enforcement, the Interstate Mining Compact Commission, State regulatory
authorities, the Western Interstate Energy Board (WIEB), the National
Mining Association (NMA), the coal mining industry, and research
organizations to submit data and develop effluent limitations
guidelines and standards that represent the appropriate level of
technology (e.g., BAT, BCT, BPT, and NSPS).
EPA plans to continue its data gathering efforts for support of the
final rule. EPA may publish a subsequent document of data availability
for data either generated by EPA or submitted after this proposal and
used by EPA to develop the final rule.
Databases and reports containing the information and data provided
and used by EPA in support of this rule proposal are available in the
Rulemaking Record. The following summarizes the data EPA has collected
in support of this proposal.

B. Coal Remining Data Collection Activities

Following promulgation of the final effluent limitation guidelines
for the Coal Mining industry in 1985, EPA began working with the
Pennsylvania Department of Environmental Resources (now the
Pennsylvania Department of Environmental Protection or ``PADEP''), the
Office of Surface Mining (now the Office of Surface Mining Reclamation
and Enforcement or ``OSM'') and various stakeholders to address the
remining issue.
In 1988, EPA, PADEP, Pennsylvania State University, and Kohlmann
Ruggiero Engineers developed a computer software package (Coal Remining
Best Professional Judgement Analysis, Record Section 3.2.6) to enable
best professional judgement (BPJ) analyses for remining operations. The
software includes a Surface Mine Materials Handling and Cost Module, a
Baseline Pollution Load Statistics Module, and a Water Treatment Cost
Calculation Module. It has been used by the Commonwealths of
Pennsylvania and Virginia to prepare NPDES Coal Remining Permits. The
software is designed to:
Input and revise pre-existing pollution discharge data;
Calculate baseline pollution loads and perform additional
statistical analyses on pre- and post-mining discharge data;
Calculate capital and annual wastewater treatment cost;
Input and revise mining plans;
Simulate mining operations for a production rate and the
associated mining costs;
Compare mining plans and costs with and without abatement
plans and evaluate abatement procedures; and
Calculate relative mining costs with and without
wastewater treatment costs added.
Pennsylvania DEP provided EPA with 41 remining permit application
modules submitted by Pennsylvania remining operations. These modules
are included in the Record at Section 3.2.4, and are titled Module 26:
Remining of Areas with Pre-existing Pollutional Discharges. The modules
follow the BPJ analyses provided in the EPA and PADEP Coal Remining--
Best Professional Judgement Analysis (``REMINE'') User's Manual and
Software Package. Eleven of these modules were submitted to EPA as part
of data packages demonstrating BMP implementation at remining sites.
The remaining 30 modules (ten modules from each of three Bureau Mining
Offices) were submitted to EPA as representative of approximately 10
percent of Pennsylvania's Rahall permit operations to date. The modules
include the following information:
Abandoned mine land and mine drainage quantities and
descriptions;
Baseline pollution load summaries;
Detailed descriptions of BMP abatement plans and
descriptions of how they are expected to reduce baseline pollution
loadings and improve environmental conditions;
Detailed calculations including materials costs and
handling costs for each step of the abatement plan;
Detailed calculations of construction, operation, and
maintenance costs for treatment of pre-existing discharges to current
effluent limits; and
Anticipated pollution reduction benefit resulting from
implementation of the abatement plan, including impacts on discharge
quality and quantity.
EPA reviewed information provided in these permit modules that
compared the cost of treating pre-existing discharges to existing
effluent limitations verses the implementation of site-specific BMP
plans with the potential to improve baseline pollution loading. This
cost comparison portion of Module 26 was completed in 40 of 41
respondents. In all 40 cases, remining was considered not economically
feasible if treatment of pre-existing discharges to current effluent
limits was required. In the same 40 cases, remining was economically
feasible if the abatement plan was implemented as proposed.
In 1996, IMCC, EPA, and OSM formed a Remining Task Force and
expanded investigations of opportunities to encourage remining of
abandoned coal mines consistent with the requirements of SMCRA and the
CWA. In February 1998, IMCC, EPA and OSM released a discussion paper
entitled ``Water Quality Issues Related to Coal Remining'' that is
included in the Rulemaking Record at Section 8.1. The paper provided an
overview of current discussions between State and Federal agencies
regarding water quality issues and concerns pertaining to coal remining
operations. The paper focused on opportunities to encourage remining
through adjustments to the current regulatory regime while assuring
adequate protection of surface and ground water quality. The paper also
presented several approaches for providing remining incentives,
including the use of effluent limits set at baseline discharge levels
for pre-existing discharges. IMCC collected written comments from
environmental groups, industry, Federal agencies, and State agencies.
The comments generally supported and recognized the value of remining,
although commenters expressed some differences of opinion regarding
regulatory approaches.
As discussed in Section VI, the discussion paper also presented an
alternative BMP-based remining permit approach in which the permit
focuses on implementation of BMPs, and does not include numerical
limits for pre-existing discharges. Some commenters were concerned that
reliance on the implementation of BMPs in lieu of numeric limitations
could result in backsliding from existing requirements.

[[Page 19447]]

The Remining Task Force believes that BMPs can result in improved water
quality and, in certain cases, can qualify as BAT for achieving
standards required by the Clean Water Act.
To support this rulemaking, the IMCC submitted data and information
specific to abandoned mine lands on pre-existing discharge water
quality, BMP implementation, and remining activities in the eastern
coal regions. IMCC member States and State regulatory authorities
provided sixty-one data packages from Alabama, Kentucky, Pennsylvania,
Tennessee, Virginia and West Virginia that include the following data
and information:
Remining permit applications and approved remining
permits;
Abandoned mine land reclamation project plans and results;
Descriptions of abandoned mine conditions and extent of
abandoned mine land;
BMP implementation plans targeting pre-existing discharges
and abandoned mine land;
Site geology and overburden analysis data;
Water quality data (surface water, ground water, and pre-
existing discharges);
Best professional judgement analysis of treatment and BMP
implementation plans;
Topographic maps indicating permit areas, active mining
areas, pre-existing conditions, and water quality monitoring points;
Mining operation plans; and
Unit costs of best management practices.
EPA assessed portions of these data to determine the types and
effectiveness of remining operations, abandoned mine land reclamation
projects, and BMP implementation procedures that have occurred
throughout the affected coal regions. EPA evaluated data packages from
closed remining operations as case studies of the effectiveness of BMPs
and of remining in terms of improving pre-existing water quality and
non-water quality environmental conditions. Detailed case studies are
provided in each section of the Coal Remining Best Management Practices
Guidance Manual. Information and data provided in these data packages
were compiled into a Coal Remining Database that is included in the
Rulemaking Record at Section 3.5.1.
On September 3, 1998, IMCC distributed a Solicitation Sheet to
States to collect information regarding the extent of existing
abandoned mine land, characteristics of current remining operations,
type and extent of BMP implementation, remining industry production and
employment statistics, and potential for remining operations. Twenty
States responded and IMCC submitted the responses to EPA. EPA used this
information to develop a profile of the remining industry, estimate the
potential for remining activity, and provide an indication of the types
and efficiencies of BMPs currently being implemented during remining
operations. State responses are included in the Rulemaking Record at
Section 3.2.2. A detailed summary of these responses is provided in the
Coal Remining BMP Guidance Manual, Appendix C.
In support of BMP implementation evaluation, PADEP provided EPA
with a database containing summary pre- and post-mining water quality
data and the associated BMPs for 112 closed remining sites throughout
the bituminous coal regions of Pennsylvania (Record Section 3.2.3). EPA
believes these are the most extensive data currently available for
assessment of the water quality impacts of BMP implementation at
remining operations. Data from 231 pre-existing discharges affected by
BMPs at these closed sites were used to assess the efficiencies of
remining BMPs in terms of water quality improvement. The data often
demonstrate improvement in, or elimination of, the pollution loadings
of acidity, iron, manganese, sulfate, and aluminum, and are presented
in Appendix B of the Coal Remining BMP Guidance Manual. Detailed
results of this assessment are presented in Section 6 of the Coal
Remining BMP Guidance Manual.

C. Western Alkaline Coal Mining Data Collection Activities

In developing the portion of this proposal related to western
mines, EPA has worked with a Western Coal Mining Work Group composed of
representatives from OSM, the Western Interstate Energy Board (WIEB),
State regulatory authorities, the National Mining Association (NMA),
and other industry stakeholders to identify, compile and analyze
existing information and data.
This work group has supplied EPA with data and information to
support the development of new sediment control requirements relying on
BMPs for surface reclamation activities in Western Alkaline coal mines.
NMA supplied EPA with a number of reports supporting the need for, and
feasibility of, establishing a separate Western Alkaline Coal Mining
Subcategory. The reports include the following information and
supporting data:
Performance evaluation studies to determine the
effectiveness of sediment control BMPs implemented at sites with
environmental conditions similar to those of the arid and semiarid
western coal region;
In-stream monitoring programs evaluating background
sediment;
Site-specific sediment control plans targeting arid and
semiarid western watersheds;
Cost evaluations of BMP implementation and treatment
requirements; and
Case studies of mine sites in Arizona, New Mexico, and
Wyoming.
The work group also supplied EPA with a mine modeling study
sponsored by the National Mining Association and reviewed by OSM. The
study compared the predicted performance, costs and benefits of current
40 CFR part 434 Guidelines to the requirements proposed for this
rulemaking for a representative model mine in the arid western coal
region. Characterization of background water quality, soil loss rates,
and sediment yield were predicted using computer models for both pre-
mining (undisturbed) and post-mining (reclamation) conditions. The
study estimated that the cost of compliance with the proposed
subcategory requirements for a typical western surface coal mine will
be less than the cost of meeting the existing 40 CFR part 434
guidelines. Details of this study are included in Section 3.3 of the
Rulemaking Record and are summarized in the Development Document for
Proposed Effluent Limitations Guidelines and Standards for the Western
Alkaline Coal Mining Subcategory.
EPA identified, compiled, and analyzed additional sources of
existing information and data during the development of this proposed
rule including:
Final NPDES Storm Water Multi-Sector General Permit for
Industrial Activities, 60 FR 50804, September 29, 1995. This document
includes a section on storm water discharges from inactive coal mines
and selected areas within active coal mines, and presents an overview
and descriptions of applicable BMPs;
Sediment control guidelines from State regulatory programs
(Wyoming DEQ, Land Quality Division, Guideline No. 15; New Mexico's 19
NMAC 8.2 Subpart 20, Section 2009);
Performance evaluations demonstrating effectiveness of
BMPs (Water Engineering & Technology Studies); and
Computer-based, predictive soil loss models developed by
government,

[[Page 19448]]

academia, and industry to model and assess erosion, soil loss, and
sediment yields from disturbed lands; capable of determining
effectiveness of BMPs on erosion control and sediment production prior
to field use (SEDCAD 4.0; Revised Universal Soil Loss Equation (RUSLE);
Erosion and Sediment Impacts (EASI) Model).
This information is included in Section 4.3 of the rulemaking
record, and is discussed in the Development Document for Proposed
Effluent Limitations Guidelines and Standards for the Western Alkaline
Coal Mining Subcategory.

VI. Development of Proposed Effluent Limitations Guidelines

A. Coal Remining Subcategory

The effluent limitations and standards proposed for the Coal
Remining Subcategory would apply to pre-existing discharges located in
areas of a coal remining operation that are not commingled with waste
streams from active mining areas.
As noted previously in Section III, coal remining is the mining of
surface mine lands, underground mine lands, and coal refuse piles that
were abandoned prior to the enactment of the Surface Mining Control and
Reclamation Act on August 3, 1977. Acid mine drainage from abandoned
coal mines is damaging a significant number of waterways in the
Appalachian and mid-continent Coal Regions of the Eastern United
States. Information gathered from the Interstate Mining Compact
Commission (IMCC) and OSM's Abandoned Mine Land Inventory System
(AMLIS) indicates there are over 1.1 million acres of abandoned coal
mine lands and over 9,709 miles of streams polluted by acid mine
drainage in Appalachia alone.
Acid mine drainage can result from abandoned surface and
underground coal mines and coal refuse piles. If acid-forming minerals
are present in significant quantities, exposure to air and water can
result in the formation of acid mine drainage. At abandoned underground
mines, large reservoirs of acid mine drainage can continue to be
replenished by ground water movement through the mineral-bearing rocks,
creating more acid mine drainage. Water from these ``mine pools'' seeps
through the hillsides or flows freely from abandoned mine entries,
enters streams, and deposits metal-rich precipitates downstream.
In 1977, Congress included a provision in SMCRA to establish a fund
(the Abandoned Mine Land Program) to address abandoned mine lands, with
the highest priority given to cleaning up sites that pose a threat to
the health, safety, and general welfare of people. Of the $3.6 billion
of high priority (Priority 1 and 2) coal related abandoned mine land
(AML) problems in the AML Program inventory, $2.5 billion, or 69
percent, have yet to be funded and reclaimed. Current estimates
indicate that ninety percent of the $1.9 billion coal related
environmental (Priority 3) problems in the AML inventory have not been
funded and reclaimed (OSM Abandoned Mine Land Program, 1999). Although
progress has been made in cleaning up abandoned sites, the funds
released have not been sufficient to correct the majority of the
environmental and safety problems associated with the large numbers of
abandoned mine land sites.
EPA recognizes that one of the most successful means for
improvement of 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
the abandoned mine land is lost. Once coal mining operations have
ceased on the adjacent areas, there is little incentive for operators
to return.
During remining operations, acid-forming materials are removed with
the extraction of the coal, pollution abatement BMPs are implemented
under applicable regulatory requirements, and the abandoned mine land
is reclaimed. During remining, many of the problems associated with
abandoned mine land, 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. For example, implementation of
appropriate BMPs during 112 remining operations in Pennsylvania was
effective in improving or eliminating acidity loading in 45 percent of
the pre-existing discharges, total iron loading in 44 percent of the
discharges, and total manganese in 42 percent of the discharges. This
improvement resulted in reduced annual pollutant loadings of up to 5.8
million pounds of acidity, 189,000 pounds of iron, 11,400 pounds of
manganese, and 4.8 million pounds of sulfate. The environmental
benefits associated with reclamation of abandoned mine lands are
discussed further in Section IX of this document.
The current regulations at 40 CFR part 434 create a disincentive
for remining because of their high compliance costs. Moreover, the
potential of the statutory exemption contained in the Rahall Amendment
to overcome this disincentive and derive the maximum environmental
benefits from remining operations has not been fully realized in the
absence of implementing regulations. If mining companies face
substantial potential liability or economic loss from remining, they
will continue to focus on mining virgin areas and ignore abandoned mine
lands that may contain significant coal resources. Based on information
collected in support of this proposal, EPA believes that remining
operations are environmentally preferable to ignoring the coal
resources in abandoned mine lands. EPA is soliciting comment on this
conclusion, and on potential options that may be environmentally
preferable to the new subcategory being proposed today.
As described in Section II of this document, Congress attempted to
address the problems associated with acid mine drainage at abandoned
mine lands by passing the Rahall Amendment to provide incentives to
encourage coal remining. The Rahall Amendment (section 301(p)) allows
permit writers to issue NPDES permits for remining sites with
requirements less stringent than those in the existing regulations for
some pollutant limits. Specifically, section 301(p) allows permit
writers to use best professional judgement (BPJ) to set site-specific
BAT limits determined for pre-existing discharges. These limits may not
exceed baseline levels of iron, manganese, and pH. The operator must
also demonstrate that the remining operation will result in the
potential for improved water quality. The statute does not specify how
to determine site-specific BAT, baseline pollutant discharge levels, or
the potential for improved water quality and has left these up to each
permitting authority to determine.
The statute does not allow site-specific limits for TSS. EPA also
is not proposing alternative limitations for total suspended solids
(TSS) or settleable solids (SS) in pre-existing discharges. EPA
believes 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. Except for the alternate SS effluent
limitations for 10-year, 24-hour precipitation events provided in 40
CFR 434.63, existing effluent limits for TSS and SS will

[[Page 19449]]

continue to apply to pre-existing discharges.
Since passage of the Rahall Amendment, seven States have
established formal remining programs that have issued approximately 330
Rahall permits with numerical limits for pre-existing discharges that
are less stringent than those in the existing regulations. Of these 330
Rahall Remining permits, approximately 300 were issued by the
Commonwealth of Pennsylvania. Of the remaining thirty Rahall permits,
ten were issued by Alabama, eight by West Virginia, four by Kentucky,
three by Virginia, three by Ohio, and two by Maryland. Under these
Rahall permits, remining operations must meet the alternate numeric
limits specified in the permits and must implement site-specific BMPs.
These BMPs include special handling of acid-producing materials,
daylighting of abandoned underground mines, control of surface water
and ground water, control of sediment, addition of alkaline material,
and passive treatment. Remining operations currently underway have
proven to be a viable means of remediating the environmental conditions
associated with these abandoned mine lands without imposing a
significant cost burden on industry (Skousen, Water Quality Changes and
Costs of Remining in Pennsylvania and West Virginia, 1997).
A discussion paper released by IMCC, EPA and OSM in February 1998
(Discussion Paper on Water Quality Issues Related to Remining) and
discussed further in Section V of this document, presented an
alternative BMP-based remining permit approach where implementation of
BMPs is the central focus of permitting. This alternative would not
impose any numerical limits for pre-existing discharges, but only would
require implementation of selected BMPs. The IMCC Remining Task Force
believes that BMPs can result in improved water quality and, in certain
cases, can qualify as BAT for achieving standards required by the Clean
Water Act. EPA is considering conditions under which remining permits
based solely on BMP implementation in lieu of numerical effluent limits
may be appropriate. In addition, EPA recently accepted a Coal Remining
and Reclamation Project XL proposal from the Pennsylvania Department of
Environmental Protection. Once finalized, this pilot project is
expected to provide a substantial amount of data about the feasibility
of using the BMP-based remining permit approach in eight different
watersheds throughout Pennsylvania. EPA does not currently have
sufficient information on the environmental effectiveness and potential
regulatory structure for such an approach, and is not including permits
based solely on BMPs in today's proposal. EPA is soliciting additional
comments and data supporting BMP-based remining permits and situations
for which they may be appropriate.
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. The Rahall
Amendment requires application of the best available technology
economically achievable on a case-by-case basis, using best
professional judgment to set specific numerical effluent limitations in
each permit. However, it does not provide guidelines for how to
determine baseline pollutant loadings in pre-existing discharges. It
also does not provide guidance on how to determine site-specific BAT
requirements for a remining operation, or how to demonstrate the
potential for environmental improvement from a remining operation.
Without standardized procedures for developing effluent limits for pre-
existing discharges, many States with extensive abandoned mine lands
have not initiated formal remining programs.
EPA is today proposing a new remining subcategory with effluent
limitation guidelines based on a combination of numeric limits and non-
numeric BMP requirements. EPA is proposing a standardized procedure for
determining pollutant loadings for baseline and compliance monitoring.
This procedure is described in Appendix B of this proposed regulation.
Example calculations using these procedures and further discussion of
EPA's determination of these procedures are provied in the Coal
Remining Statistical Support Document. EPA intends these proposed
regulations to control pre-existing discharges at remining operations
in a manner consistent with requirements under the Rahall Amendment. In
effect, these proposed requirements are effluent limitation guidelines
authorized under section 304(b) of the CWA, but are also implementing
regulations for section 301(p), providing EPA's interpretation of
unspecified aspects of that provision. Section 301(p) requires the
permit to establish BAT on a case-by-case basis, using best
professional judgment to set specific numerical effluent limitations
for pH, iron, and manganese in each permit. The operator must
demonstrate that the coal remining operation will result in the
potential for improved water quality, and in no event may pH, iron, or
manganese discharges exceed the levels discharged prior to the remining
operation. No discharge from, or affected by, the remining operation
may exceed State water quality standards. EPA solicits comments on the
consistency of the proposal with the Rahall Amendment and existing
State remining programs.
Under the proposed regulations, the permit would contain specific
numeric and non-numeric requirements, constituting BPT and BAT. The
numeric requirements would be established on a case-by-case basis in
compliance with standardized requirements for statistical procedures
and monitoring to establish baseline. The numeric effluent limitations
set at baseline levels would ensure that in no event will the pollutant
discharges exceed the discharges prior to remining, as required by
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 required by section 301(p)(2). Together, the numeric and non-
numeric requirements would constitute BPT and BAT.
EPA is proposing to require operators to use BMPs by proposing that
remining operators must develop and implement a site-specific pollution
abatement plan for each remining site. EPA is proposing that the
pollution abatement plan must identify the characteristics of the
remining area and the pre-existing discharges at the site; identify
design specifications for selected best management practices; and
include periodic inspection and maintenance schedules. The pollution
abatement plan must demonstrate that there is a potential for water
quality improvement, as required by the Rahall Amendment.
EPA is also proposing that this pollution abatement plan must be
developed for the entire ``pollution abatement area.'' By applying the
pollution abatement plan to the entire pollution abatement area, the
proposed Remining Subcategory effluent limitations would cover all pre-
existing discharges that are hydrologically connected to the active
mining area, but that are not commingled with active mining discharges.
EPA is proposing to define the ``pollution abatement area'' as the part
of the permit area that is causing or contributing to the baseline
pollution load, including areas that

[[Page 19450]]

would need to be affected to reduce the pollution load. This is similar
to the definition used by Pennsylvania's remining program in
Pennsylvania's Chapter 87, Subchapter F Surface Mining Regulations
(Record Section 1.3). The success of the abatement plan is premised on
a hydrological connection between the pollution abatement area and the
baseline pollutant load. If there is no hydrologic connection between
the pre-existing discharge and the operator's remining and reclamation
efforts, there can be no water quality improvement. For further
information on this rationale see The Preliminary Engineering Cost
Manual for Development of BPJ Analysis, 1986, Kohlmann Ruggiero for PA
DER and EPA. EPA is providing a supporting document, the Coal Remining
Best Management Practices Guidance Manual to assist industry and permit
writers in the development and implementation of the pollution
abatement plan.
EPA is soliciting comment on the definition of pollution abatement
area. EPA is also soliciting comment on any additional requirements for
the pollution abatement plan that would ensure the proper use, design
and implementation of BMPs.
In many cases, EPA believes that the requirements for the pollution
abatement plan will be satisfied by an approved SMCRA plan. However,
EPA or the State NPDES permitting authority will review the plan and
will retain the authority to recommend additional or incremental BMPs
as necessary to ensure that implementation of the identified BMPs is
consistent with Clean Water Act requirements.
EPA is proposing regulatory text to make it clear that the
requirements of this subcategory apply only to pre-existing discharges
that are not commingled with waste streams from active mining areas.
This will ensure that all mine drainage produced by the active mining
operation is treated to meet existing part 434 guidelines. Any
wastewater that is commingled with active mining wastewater would be
subject to the most stringent limitations applicable to any component
of the wastestream. This maintains the current regulatory approach
expressed in section 434.61, that in cases where wastestreams subject
to two different effluent limits are commingled, the combined discharge
is subject to the more stringent limitation.
During remining, it may be necessary or even preferable for an
operator to intercept and/or commingle a pre-existing discharge with
active mining wastewater. This wastewater would then be required to
meet the more stringent applicable limitations for active coal mining
operations and would not be covered by the conditions of the proposed
Coal Remining Subcategory. However, that pre-existing discharge may not
be eliminated by the remining activity and may remain after remining in
the area has been completed. In this instance the pre-existing
discharge would no longer be commingled with active mining wastewater.
EPA is proposing that a discharge that is no longer being commingled
would become subject to the Coal Remining Subcategory requirements
which bar an increase in pollutant loadings from baseline conditions.
EPA does not believe that a pre-existing discharge that has been
intercepted or commingled should have to continue to meet the more
stringent effluent limitations applicable to active mining operations
after this activity has been completed. If EPA were to require that
pre-existing discharges that are commingled with wastewater remain
subject to effluent limitations designed for active mining operations
once interception or commingling has ceased, EPA believes it would
create a significant disincentive for remining activities. Based on
anecdotal and historical evidence of current mining activities, mining
companies may try to avoid intercepting pre-existing discharges because
they do not want to assume the liability for future treatment of
discharges that were not the result of their mining operations. This
can result in a ``donut hole'' in the permitted area, to which BMPs are
not applied and from which pre-existing acid mine drainage continues to
be discharged. In many cases, EPA believes that the most
environmentally beneficial approach would be for the coal operation to
physically intercept this pre-existing discharge, treat the discharge
to current standards during active mining and reclamation, implement
BMPs, and then allow the pre-existing discharge to continue discharging
at or below baseline pollutant levels. This approach is consistent with
the way Pennsylvania has been implementing the Rahall provisions.
Another option for a remining operator would be to divert the discharge
stream away from the active mining area. In this case, the pre-existing
discharge that has been diverted would be subject to the proposed
subcategory effluent limitations, and the mine operator would have to
implement BMPs and demonstrate that the pollutant loadings of the
diverted discharge stream have not been increased.
These proposed limitations and standards would apply to coal
remining operators under new remining permits. EPA is considering
coverage of existing remining operations with Rahall-type permits and
established BPJ limitations. EPA is also considering situations where
coal remining operations seek reissuance of an existing remining
permit. In both cases, EPA believes that it may not be feasible for a
remining operator to re-establish baseline pollutant levels during
active remining. Therefore, EPA is considering an alternative where
pre-existing discharges at these operations would remain subject to
baseline pollutant levels established during the original permit
application. EPA is soliciting comment on the applicability of the
proposed Coal Remining Subcategory in regard to both cases.
EPA expects this new subcategory to provide further incentives for
industry to remine abandoned mine lands, which will result in
reclamation of abandoned mine lands that would otherwise remain
unreclaimed and hazardous. EPA solicits comment on the potential for
improving hazardous conditions and improving acid mine drainage based
on implementation of this subcategory. EPA also solicits comment on the
proposed applicability of the remining subcategory as it relates to
intercepted pre-existing discharges.
1. BPT for the Coal Remining Subcategory
EPA today proposes BPT effluent limitations for the Coal Remining
Subcategory to control identified conventional, toxic, and non-
conventional pollutants. For further information on the basis for the
limitations and technologies selected, see the Coal Remining BMP
Guidance Manual.
As previously described in Section II, section 304(b)(1)(A) of the
CWA requires EPA to identify effluent reductions attainable through the
application of ``best practicable control technology currently
available for classes and categories of point sources.'' Generally, EPA
determines BPT effluent levels based upon the average of the best
existing performance by facilities of various sizes, ages, and unit
processes within each industrial category or subcategory. In
establishing BPT, EPA considers the cost of achieving pollution
reductions in relation to the pollution reduction benefits, the age of
equipment and facilities, the processes employed, process changes
required, engineering aspects of the control technologies, non-

[[Page 19451]]

water quality environmental impacts, and other factors the
Administrator deems appropriate.
EPA is proposing that BPT for the Coal Remining Subcategory be
defined through a combination of numeric and non-numeric standards.
Specifically, EPA is proposing that the best practicable control
technology currently available for remining operations is
implementation of a pollution abatement plan that incorporates BMPs
designed to improve pH and reduce pollutant loadings of iron and
manganese, and a requirement that such pollutant levels are not
increased over baseline conditions. This is essentially the level of
treatment currently required under permits issued in accordance with
the Rahall Amendment, which has been demonstrated to be currently
available by remining facilities included in EPA's Coal Remining
database (Record Section 3.5.1) and in Pennsylvania's study of 112
closed remining sites (Record Section 3.5.3).
In order to evaluate available technologies to determine BPT, EPA
relied on data from 41 remining operations in Pennsylvania. This data
is contained in Section 3.2.4 of the regulatory record. All of these
facilities used various combinations of BMPs as their pollutant control
technology. EPA reviewed the expected performance, cost, and design of
the BMPs used by these remining operations. EPA determined that the
facilities were able to show potential for significant removals of
loading as compared to pre-existing discharge conditions. EPA also
determined that design and implementation of a BMP plan should, in most
cases, achieve reductions below baseline discharge levels.
This same data from Pennsylvania supports a conclusion that the
proposed pollution abatement plan requiring use of BMPs also represents
the best available technology economically achievable (BAT) levels of
control. Section 301(p) allows permit writers to use best professional
judgement (BPJ) to set site-specific BAT limits determined for pre-
existing discharges. Pennsylvania completed this BAT determination for
40 of 41 respondents. Pennsylvania's remining permit modules indicated
that the only more stringent technology available included chemical
addition, precipitation, and settling. In all 40 cases, remining was
considered not economically feasible if treatment of pre-existing
discharges to current effluent limits was required. In the same 40
cases, remining was economically feasible if the abatement plan was
implemented as proposed. Thus, the Pennsylvania remining permits issued
under Rahall were issued as BAT permits. This conclusion is supported
by the adoption of the Rahall Amendment by Congress in 1987. At that
time, Congress recognized that remining was not being conducted on
abandoned mine lands because of the cost and liability of requiring
treatment to meet existing regulations and authorized less stringent
requirements for remining operations.
Therefore, EPA is proposing that the implementation of a pollution
abatement plan represents BAT level of control. Furthermore, EPA is
aware that permits containing these BMPs are in place and are being
implemented by a large number of operators. Thus, EPA is proposing that
pollution abatement plans also represent the average of the best
technology currently available.
The problem with setting numeric effluent limitations representing
the reductions achieved through implementation of a pollution abatement
plan is that it is difficult to project the results, in terms of
measured improvements in pollutant discharges, that will be produced
through the application of any given BMP or group of BMPs at a
particular site. EPA believes that the Coal Remining BMP Guidance
Manual compiles the best information available on appropriate
application and projected performance of all currently identified BMPs
applicable to coal remining operations. However, the Coal Remining BMP
Guidance Manual provides only reasonable estimates of ranges of
projected performance and efficiency. There are numerous variables
associated with the design and application of a particular BMP at a
particular site, let alone multiple BMPs at a site. Additionally, all
of these estimates are subject to substantial uncertainties. In some
cases, despite appropriate design and implementation of a BMP plan,
there may be little or no improvement over baseline discharges. Thus,
it is simply not practicable to project the expected numeric
improvements that will occur for a specific pre-existing discharge
through application of a particular BMP plan. As a consequence, EPA is
proposing to establish a non-numeric requirement to implement a
pollution abatement plan incorporating implementation of BMPs designed
to reduce the pollutant levels of pH, iron and manganese in pre-
existing discharges.
EPA interprets the CWA as authorizing the Agency to establish non-
numeric effluent limitations where it is infeasible to establish
numeric effluent limitations. Section 502 of the Act defines ``effluent
limitation'' as ``any restriction established by a State or the
Administrator on quantities, rates, and concentrations of chemical,
physical, biological, and other constituents which are discharged from
point sources.'' (Emphasis added.) This language does not restrict the
form of effluent limitations to only numeric limits. The courts have
held, in the context of permits, that the CWA does not require EPA to
set numeric limits where such limits are infeasible. ``When numerical
effluent limitations are infeasible, EPA may issue permits with
conditions designed to reduce the level of effluent discharges to
acceptable levels. This may well mean opting for a gross reduction in
pollutant discharge rather than the fine-tuning suggested by numerical
limitations. But this ambitious statute is not hospitable to the
concept that the appropriate response to a difficult pollution problem
is not to try at all.'' Natural Resources Defense Council v. Costle,
568 F.2d 1369, 1380 (D.C. Cir. 1977). EPA's NPDES permit regulations
reflect this longstanding interpretation in 40 CFR 122.44(k), which
provides that permits may include BMPs to supplement, or in lieu of,
numeric effluent limitations when ``numeric effluent limitations are
infeasible'' or ``the practices are reasonably necessary to achieve
effluent limitations and standards or to carry out the purposes and
intent of [the] CWA.'' Sections 402(a)(2) and 501 further authorize EPA
to prescribe as wide a range of permit conditions as the Agency deems
appropriate to assure compliance with applicable effluent limits. EPA
believes that the same considerations underlying the court's statutory
interpretation with respect to non-numeric effluent limitations in
permits also support an interpretation that the Agency may establish
non-numeric effluent limitation regulations where numeric limitations
are infeasible. Because it is infeasible here to express the expected
performance of the identified best practicable control technology in
numeric terms, EPA believes that establishment of non-numeric effluent
limitations is authorized under, and is necessary to carry out, the
purposes and intent of the CWA.
Although it is not feasible to establish numeric limits predicting
pollutant reductions, it is possible to calculate baseline pollutant
levels in pre-existing discharges. Moreover, the record indicates that
application of appropriately designed BMPs should be able to prevent
any increase in pollutant loadings for pre-existing discharges.
Accordingly, it is feasible to set a

[[Page 19452]]

minimum numeric requirement based on baseline pollutant levels.
Therefore, EPA is today proposing to establish numeric effluent
limitations that require that the pollutant levels for pH, iron and
manganese do not increase over baseline levels. EPA is proposing a
uniform methodology to use for this calculation. Baseline level
determination and monitoring procedures are presented in the Coal
Remining Statistical Support Document.
EPA requests comment on how to describe and structure the
requirement to design and implement a pollution abatement plan to
reduce pollutant loadings from pre-existing discharges. EPA has
proposed a fairly general qualitative description of the requirement,
which leaves it up to the permit writer to determine whether in a
particular case BPT or BAT would require additional or more intensive
BMPs than identified in an applicant's proposed plan. The proposed
regulation would require that an operator identify the characteristics
of the remining area and the pre-existing discharges at the site,
identify design specifications for selected BMPs, and include periodic
inspection and maintenance schedules. These requirements are intended
to help the permit writer evaluate the likely cost and efficacy of the
proposed plan in relation to the conditions existing at the site. EPA
requests comment on whether there are additional criteria that EPA
could establish to provide applicants and permit writers further
guidance in determining whether a particular BMP plan meets the
regulatory criteria. For example, the requirement to develop and
implement a pollution abatement plan to maintain or reduce pollution in
pre-existing discharges is a fairly general directive for what the plan
should achieve. EPA requests comment on how the regulations could
better define the type of plan that would constitute BPT and BAT.
The primary alternative control technology that EPA could determine
to be BPT would be to require remining operations to treat pre-existing
discharges to meet the effluent guideline limitations for active mining
discharges. As discussed above, EPA does not believe that this is a
practical option for remining operations, given cost and liability
concerns. EPA is requesting comment and data for any other treatment
technologies that would be economically feasible and available for
control of pre-existing discharges to meet more stringent limitations.
EPA projects that the annual compliance cost for this new
subcategory will be approximately $330,000 to $759,000.
2. BCT for the Coal Remining Subcategory
In July 1986, EPA promulgated a methodology for establishing BCT
effluent limitations. EPA evaluates the reasonableness of BCT candidate
technologies--those that are technologically feasible--by applying a
two-part cost test: (1) a POTW test; and (2) an industry cost-
effectiveness test.
EPA first calculates the cost per pound of conventional pollutant
removed by industrial dischargers in upgrading from BPT to a BCT
candidate technology and then compares this cost to the cost per pound
of conventional pollutants removed in upgrading POTWs from secondary
treatment. The upgrade cost to industry must be less than the POTW
benchmark of $0.25 per pound (in 1976 dollars).
In the industry cost-effectiveness test, the ratio of the
incremental BPT to BCT cost divided by the BCT cost for the industry
must be less than 1.29 (i.e., the cost increase must be less than 29
percent).
In today's proposal, EPA is proposing to establish BCT effluent
limitations guidelines equivalent to the BPT guidelines for the Coal
Remining Subcategory. In developing BCT limits, EPA considered whether
there are technologies that achieve greater removals of conventional
pollutants than proposed for BPT, and whether those technologies are
cost-reasonable according to the BCT Cost Test. EPA identified no
technologies that can achieve greater removals of conventional
pollutants than proposed for BPT that are also cost-reasonable under
the BCT Cost Test, and accordingly EPA proposes BCT effluent
limitations equal to the proposed BPT effluent limitations guidelines.
3. BAT for the Coal Remining Subcategory
As discussed above, EPA concluded that the requirement to design
and implement a pollution abatement plan represents BAT and that there
are no more stringent technologies that are economically achievable.
The pollution abatement plan is required to be designed to control
conventional, toxic and non-conventional pollutants, and the plan must
reflect levels of control consistent with BAT for toxic and non-
conventional pollutants. Of course, EPA expects that a facility will
have a single plan to control all pollutants. In addition, EPA would
expect that the permit writer would determine the adequacy of the plan
based on the Coal Remining BMP Guidance Manual. As discussed above, EPA
concluded that it is infeasible to express BAT as a numeric limit. EPA
is proposing to set a combination of site-specific numeric and non-
numeric effluent limitation guidelines for BAT identical to those for
BPT for iron and manganese.
4. NSPS for the Coal Remining Subcategory
In today's proposal, EPA did not consider any regulatory options
for new sources for the Coal Remining Subcategory. By definition, pre-
existing discharges at abandoned mine lands covered by this proposal
were in existence prior to passage of SMCRA in 1977. Therefore, EPA is
designating pre-existing discharges existing sources. EPA is proposing
that pre-existing discharges are subject to requirements proposed for
BPT, BCT, and BAT. NSPS effluent limitations are not applicable to this
subcategory. A new discharge from remining operations that is not
designated as a pre-existing discharge must meet applicable effluent
limitations at sections 434.35, 434.45, or 434.55, as appropriate.

B. Western Alkaline Coal Mining Subcategory

The effluent limitations and performance standards for the Western
Alkaline Coal Mining Subcategory apply to alkaline mine drainage from
reclamation areas associated with western coal mining operations.
Alkaline mine drainage is defined in the existing regulations as
``mine drainage which, before any treatment, has a pH equal to or
greater than 6.0 and total iron concentration of less than 10 mg/L.''
Reclamation area is defined in the existing regulation as ``the surface
area of a coal mine which has been returned to required contour and on
which revegetation (specifically, seeding or planting) work has been
commenced.'' EPA is not proposing to make any changes to these existing
definitions.
EPA is proposing to define a western coal mining operation in arid
or semiarid areas as a surface or underground coal mining operation
located in the interior western United States, west of the 100th
meridian west longitude, in an arid or semiarid environment with an
average annual precipitation of 26.0 inches or less. This definition is
consistent with the definition for western coal mining currently used
by OSM (30 CFR 701.5 and 30 CFR 816.116).
The existing effluent guidelines for reclamation areas establish
BPT, BAT, and NSPS numeric effluent limits based on the use of
sedimentation pond technology. The discharge from

[[Page 19453]]

reclamation areas must meet effluent limitations for settleable solids
and pH. The existing guidelines apply to all reclamation areas
throughout the United States, regardless of climate, topography, or
type of drainage (i.e., acid or alkaline). The existing guidelines do
not take into consideration the dramatic differences in naturally
occurring sedimentation that can result from the different
environmental conditions in the arid and semiarid coal regions compared
to the eastern United States.
The existing guidelines establish relatively stringent controls on
the amount of sediment that can be discharged into waterways from post-
mined areas. In the arid west, data have shown that the use of
sedimentation ponds becomes necessary for compliance. Although
sedimentation ponds are proven to be effective at reducing sediment
discharge, EPA believes that there are numerous non-water quality
impacts that may harm the environment when sedimentation ponds are
necessary to meet discharge requirements for reclamation areas in the
arid and semiarid west. Sedimentation ponds in reclamation areas are
designed to capture and store water from a precipitation event and then
slowly release the water in a continuous, low-velocity discharge. EPA
believes that the slow release of water containing low amounts of
sediment has caused negative environmental impacts in arid regions. The
negative impacts caused by the predominant use of sedimentation ponds
include disruption of the natural hydrologic and sediment balance,
stream channel instability, and water loss due to evaporation.
EPA is proposing a new subcategory for reclamation areas of western
alkaline coal mines primarily because of negative impacts caused by the
predominant use of sedimentation ponds in arid regions as is necessary
to meet the current guidelines.
In arid and semiarid western coal mine regions, climate,
topography, soils, vegetation, and hydrologic components all combine to
form a hydrologic balance that is naturally sediment rich. Sediment is
defined as all undissolved organic and inorganic material transported
or deposited by water. In arid regions, the natural vegetative cover is
sparse and rainfall is commonly received during localized, high-
intensity, short-duration thunderstorms. These conditions contribute to
flash-floods and turbulent flows that readily transport large amounts
of sediment. Runoff from natural, undisturbed arid lands may contain up
to several hundred thousand milligrams per liter TSS.
Fluvial areas and receiving channels in the arid west have
developed according to the natural conditions present in arid regions.
The receiving channels are primarily ephemeral arroyos that transport
large volumes of flow and sediment. The natural conditions of these
channels may be affected by the alteration of sediment concentration
and flow volume as a result of constructed sedimentation ponds.
Discharge of sediment-free water from a sedimentation pond may actually
accelerate channel erosion because the sediment-free water will entrain
sediment from the channel immediately below the pond. Later, when the
sedimentation pond is removed, drainage from the reclaimed area will
flow uninterrupted into the downstream watershed. This return to
natural flow volumes and sediment concentrations essentially ``shocks''
the drainage channel and may be extremely disruptive to the fluvial and
hydrologic balance that has developed based on the sedimentation pond
discharge. Severe channel reconfiguration can occur at this stage,
making the area more susceptible to instability and erosion than the
pre-mining undisturbed conditions. EPA is soliciting comment on the
environmental impacts and benefits associated with the predominant use
of sedimentation ponds in the arid west for control of sediment from
post-mining areas.
For arid and semiarid western coal mines, EPA believes that the
most environmentally responsible goal is to reclaim the land such that
the natural sediment loadings and hydrologic balance of undisturbed
conditions is maintained at post-mined lands. EPA solicits comment on
this conclusion, and on the problems that are associated with
disturbing the hydrologic balance in arid regions.
Following the 1985 promulgation of the current regulations, new and
more accurate sediment control modeling, designs and plans have been
developed and evaluated for use with drainage from reclamation areas at
coal mines in the western United States. The States of Wyoming and New
Mexico have developed regulations to allow the use of sediment control
BMPs to prevent environmental problems associated with predominant use
of sedimentation ponds. These State program BMP applications are
considered to meet the sediment control provisions of SMCRA and are
sanctioned by the delegated Clean Water Act regulatory authority in
each State. These regulations include specific provisions to allow the
use of BMPs and avoid the unique environmental problems that are
associated with the predominant use of sedimentation ponds on coal mine
reclamation areas. Provisions under SMCRA related to sediment control
require coal mining operations to be conducted so as to prevent, to the
extent possible, using the best technology currently available,
additional contributions of suspended solids to streamflow, or run-off
outside the permit area. Corresponding regulations are found at 30 CFR
816.45 which include the above language and also require the permittee
to minimize erosion and meet the more stringent of applicable State and
Federal effluent standards. The standards contained in this Western
Alkaline Coal Mining Subcategory will be the framework for designing,
installing, and maintaining sediment control measures that are expected
to function as designed in a manner to meet the statutory and
regulatory provisions for sediment control and modeling predictions.
Under Wyoming's Coal Rules and Regulations, Chapter IV, alternative
sediment control measures may be used when it can be demonstrated that
drainage will either meet effluent limitation standards or will not
degrade receiving waters. Wyoming's regulations and accompanying
guidance (Wyoming Department of Environmental Quality, Land Quality
Division, Guideline No. 15, Alternative Sediment Control Measures)
state that appropriate sediment control measures shall be designed,
constructed, and maintained using best technology currently available
to prevent additional contributions of sediment to streams or to runoff
outside the affected area.
Under New Mexico's ``ASC Windows Program'' (19 NMAC 8.2 Subpart 20,
Section 2009), SMCRA requirements to pass all disturbed area runoff
through sedimentation ponds can be waived if the operator demonstrates
that erosion is sufficiently controlled and that the quality of area
runoff is as good as, or better than, that of water entering the permit
area. The operator's plan for alternative sediment control must
demonstrate that there will be no increase in the sediment load to
receiving streams. Several mine operations in New Mexico have applied
for and received reclamation liability bond releases for lands where
sediment control BMP plans were implemented. These sites demonstrated
that there was no additional annual contribution of suspended solids to
the hydrologic regime of the area and that runoff from regraded areas
had characteristics

[[Page 19454]]

similar to runoff from undisturbed areas.
In order to maintain natural conditions on reclamation areas, EPA
is proposing that non-numeric effluent limits be based on the design,
implementation, and maintenance of BMPs. Sediment control BMP
technologies for the coal mining industry are well known and
established. Common BMPs used at post-mining coal areas include
regrading, revegetation, mulching, check dams, vegetated channels, and
contour terracing as well as sedimentation ponds. The range and
implementation of available BMPs are summarized in the Development
Document for Proposed Effluent Limitations Guidelines and Standards for
the Western Alkaline Coal Mining Subcategory. All of these BMPs are
designed to stabilize the soil and control the amount of sediment
released into the environment.
Erosion and sediment control plans and technology application have
evolved since the passage of SMCRA and the promulgation of the current
40 CFR part 434 effluent limitations guidelines. Extensive monitoring
and case studies have been performed on arid and semiarid lands to
characterize the nature and extent of erosion occurring within these
areas. Computer sediment modeling of arid and semiarid fluvial systems
has advanced significantly, evolving into site-specific models that are
able to account for local environmental factors found within the
region. Under this proposed subcategory, prediction models will be used
to design site-specific BMP plans that are effective in the arid and
semiarid western coal regions. Sedimentation ponds may be used in
conjunction with other BMPs to prevent additional contributions of
sediment to streamflow or to runoff outside reclamation areas.
Specifically, EPA is proposing a requirement to develop and
implement site-specific sediment control plans that would apply in lieu
of numeric limits for pH and settleable solids applicable under current
guidelines for reclamation areas. EPA is proposing that a mine operator
must develop a site-specific sediment control plan for surface
reclamation areas. The sediment control plan must identify BMPs and
present design, construction, and maintenance specifications for the
BMPs, and their expected effectiveness. The goal of the site-specific
sediment control plan would be to specify BMPs sufficient to control
sediment discharges from the reclamation area so that they do not
exceed natural background levels. The proposed regulations would
require the operator to demonstrate, using watershed models accepted by
the regulatory authority, that implementation of the selected BMPs
would meet this goal. The permit would then incorporate the site-
specific sediment control plan and would require the operator to
implement the plan.
EPA is proposing to establish requirements for site-specific
sediment control plans based on computer modeling in lieu of nationally
applicable numerical effluent limitations. As discussed above in
Section VI.A.1, such requirements are authorized as non-numeric
effluent limitations where it is infeasible to establish numeric
effluent limitations.
EPA believes that determining compliance based on numerical
standards for runoff from BMPs is infeasible due to the environmental
conditions present in Western coal mine reclamation areas. As mentioned
previously, precipitation events are often localized, high-intensity,
short-duration thunderstorms. Rain may fall in one area of a watershed
while other areas remain dry. This makes it extremely difficult to
evaluate overall performance of the BMPs. Additionally, watersheds and
reclaimed mine lands often cover vast and isolated areas. These factors
combine to make it burdensome for a CWA permit authority to extract
periodic, meaningful samples on a timely basis to determine if a
facility is meeting effluent limitations for settleable solids. The
difficulty of sample collection is described in the Phase I Report:
Technical Information Package provided by the Western Coal Mining Work
Group (Record Section 3.3.1).
Requirements based on BMP plans would ease the implementation
burden of the rule and allow a permit authority to determine compliance
on a regular basis. A permit authority would be able to visit the site
and determine if BMPs have been implemented according to the site's
sediment control plan. The permit authority would not have to wait for
a significant precipitation event to determine compliance, and the
facility would have the opportunity to improve BMP implementation prior
to a precipitation event. EPA believes a key factor in using BMPs is
the opportunity for continual inspection and maintenance by coal mine
personnel to ensure that sediment control measures will continue to
function as designed. Under SMCRA, inspections of the coal mining
operations are conducted monthly. EPA is soliciting comments on the
appropriateness of BMP inspection to determine compliance with the
requirements of this subcategory and on recommended procedures for, and
frequency of, such inspections. Because it is infeasible here to
determine compliance and performance of the BMPs in numeric terms, EPA
believes that establishment of non-numeric effluent limitations for
this subcategory is authorized under and is necessary to carry out the
purposes and intent of the CWA.
In addition, EPA believes that there are several advantages to
establishing requirements for site-specific sediment control plans
based on computer modeling in lieu of nationally applicable numerical
effluent limitations. First, according to the applicability of the
proposed subcategory, the discharge associated with this subcategory is
alkaline, not acidic. Therefore, EPA does not believe that pH
monitoring is necessary for reclamation areas associated with alkaline
coal mines.
Also, existing regulations (40 CFR part 434.63) allow for
alternative limitations during precipitation events of the specified
magnitudes, which may generate a significant amount of sediment,
especially in the arid West. Under the proposed subcategory, the BMP
plan requirement would not allow for alternative (i.e., less stringent)
limits because computer models are able to account for precipitation
events that typically occur in the arid west. The BMP plan requirement
would be based on a demonstration that the average yearly sediment
yield will not increase over undisturbed conditions, and would consider
precipitation events. NMA's model mine study Draft Western Alkaline
Mining Subcategory--Mine Modeling and Performance Cost-Benefit Analysis
(Record Section 3.3.6) conducted in support of this proposal predicted
sediment yield and BMP effectiveness based on a 24-hour, 10-year storm
event. Under the proposed requirements, the coal mine operator would
have to design and construct sediment controls that are adequate for
high precipitation events rather than meeting the existing alternative
limitations during these events. Sediment control measures under BMP
plans would be designed to control annual sediment yield, not only the
10-year, 24-hour storm. This would result in retaining more soil on the
slopes, rather than collecting it in a sedimentation pond. At the same
time, sediment control measures under BMP plans would no longer allow
the exemptions provided during high intensity flows exceeding a 10-
year, 24-hour storm event in which only pH

[[Page 19455]]

limits apply under the current regulations (434.63(a)(2)).
The Western Coal Mining Work Group has suggested that EPA consider
applying the new subcategory to all non-process water. Non-process
water would include runoff from pre-stripping areas (i.e., development
areas where brushing, topsoil salvage, and other types of general
construction earthwork are being conducted). EPA has considered
including non-process water from other areas, but does not believe
there is sufficient data to expand the applicability of the proposed
Western Alkaline Coal Mining Subcategory at this time. EPA solicits
comment on the appropriateness of expanding the applicability of this
proposed subcategory to include the control of non-process water from
other coal mining related areas.
EPA expects that, in general, the sediment control plan will
largely consist of materials generated as part of the SMCRA permit
application. The SMCRA permit application process requires a coal
mining operator to submit an extensive reclamation plan, documentation,
and analysis to OSM or the permitting authority for approval. The
requirements of the reclamation plan are specified in 30 CFR 780.18
Reclamation plan: General requirements.
In brief summary, some of the OSM requirements that also directly
relate to this proposal include requirements for coal mining operators
to provide: A description of coal mining operations; a plan for
regrading mined lands; a plan for revegetating mined lands; a
description of baseline ground water and surface water characteristics;
and an analysis of the hydrologic and geologic impacts caused by the
reclamation activity.
Specifically, the plan requires a ``probable hydrologic
consequences (PHC) determination.'' 30 CFR 780.21 (f) (3) states:

The PHC determination shall include findings on: (i) Whether
adverse impacts may occur to the hydrologic balance; (ii) Whether
acid-forming or toxic-forming materials are present that could
result in the contamination of surface or ground water supplies;
(iii) Whether the proposed operation may proximately result in
contamination, diminution or interruption of an underground or
surface source of water within the proposed permit or adjacent areas
which is used for domestic, agricultural, industrial or other
legitimate purpose; and (iv) What impact the proposed operation will
have on: (A) Sediment yields from the disturbed area; (B) acidity,
total suspended and dissolved solids, and other important water
quality parameters of local impact; (C) flooding or streamflow
alteration; (D) ground water and surface water availability; and (E)
other characteristics as required by the regulatory authority.

Additional OSM requirements relevant to the proposed sediment
control plan are given in Section 780.2 (h) ``Hydrologic reclamation
plan.''

The application shall include a plan, with maps and
descriptions, indicating how the relevant requirements of part 816,
including Secs. 816.41 to 816.43, will be met. The plan shall be
specific to the local hydrologic conditions. It shall contain the
steps to be taken during mining and reclamation through bond release
to minimize disturbances to the hydrologic balance within the permit
and adjacent areas; to prevent material damage outside the permit
area; to meet applicable Federal and State water quality laws and
regulations; and to protect the rights of present water users. The
plan shall include the measures to be taken to: Avoid acid or toxic
drainage; prevent, to the extent possible using the best technology
currently available, additional contributions of suspended solids to
streamflow; provide water-treatment facilities when needed; control
drainage; restore approximate premining recharge capacity and
protect or replace rights of present water users. The plan shall
specifically address any potential adverse hydrologic consequences
identified in the PHC determination prepared under paragraph (f) of
this section and shall include preventive and remedial measures.

Based on these requirements, EPA believes that plans developed to
comply with SMCRA requirements will usually fulfill the requirements
proposed by EPA for sediment control plans. The requirement to use
modeling techniques also is consistent with OSM reclamation plans, and
mining facilities already submit a watershed model as part of their
SMCRA reclamation plan. EPA believes modeling is particularly valuable
in arid and semiarid areas where the infrequency of precipitation makes
it difficult to gather data. While EPA is not proposing to require that
operators use a specific model, the operator would have to use the same
model as was, or will be, used to acquire the SMCRA permit. This would
ensure that the model used will be consistent with OSM requirements and
reclamation plans. While EPA is proposing that an appropriate sediment
control plan will depend on the sediment yield calculation, these
models also typically calculate additional parameters for undisturbed
areas and reclamation areas for expected storm events including: total
runoff volume, peak sediment yield, peak sediment concentration,
average annual sediment yield and average annual peak water discharge.
A guidance manual entitled ``Guidelines for the Use of the Revised
Universal Soil Loss Equation (RUSLE) Version 1.06 on Mined Lands,
Construction Sites, and Reclaimed Lands'' published in August, 1998
describes the use of RUSLE for watershed modeling. Additionally,
SEDCAD\TM\ 4.0 is a widely accepted model for predicting BMP
performance and is currently being used by many mine sites. NMA
describes use of RUSLE 1.06 and SEDCAD 4.0 models in the Mine Modeling
and Performance Cost-Benefit Analysis (Record Section 3.3.6) to
determine the costs and loadings for a representative model mine
associated with this proposed subcategory.
EPA is proposing to define the term ``sediment yield'' to mean the
sum of the soil losses from a surface minus deposition in macro-
topographic depressions, at the toe of the hillslope, along field
boundaries, or in terraces and channels sculpted into the hillslope.
This definition is consistent with the definition established for the
RUSLE modeling program. EPA solicits comment on this definition of
sediment yield and on the appropriateness of using this parameter as
the basis for determining sediment loadings.
EPA is soliciting comment on establishing non-numeric effluent
limits in the form of a requirement to develop and implement a BMP-
based sediment control plan rather than setting numeric effluent
limitations.
1. BPT for the Western Alkaline Coal Mining Subcategory
EPA today proposes BPT effluent limitations for the Western
Alkaline Coal Mining Subcategory to control sediment discharge from
reclamation areas. For further information on the basis for the
limitations and technologies selected see the Development Document for
Proposed Effluent Limitations Guidelines and Standards for the Western
Alkaline Coal Mining Subcategory.
As previously described in Section II, section 304(b)(1)(A) of the
CWA requires EPA to identify effluent reductions attainable through the
application of ``best practicable control technology currently
available for classes and categories of point sources.'' Generally, EPA
determines BPT effluent levels based upon the average of the best
existing performance by facilities of various sizes, ages, and unit
processes within each industrial category or subcategory. In
establishing BPT, EPA considers the cost of achieving pollution
reductions in relation to the pollution reduction benefits, the age of
equipment and facilities, the processes employed, process changes
required, engineering aspects of the control technologies, non-water
quality environmental impacts,

[[Page 19456]]

and other factors the Administrator deems appropriate.
EPA is proposing that BPT for the Western Coal Mining Subcategory
consist of designing and implementing BMPs to maintain the average
annual sediment yield equal to or below pre-mined, undisturbed
conditions. EPA is proposing this new subcategory primarily because of
the negative non-water quality environmental impacts created by the
current requirements.
Current requirements for reclamation areas (40 CFR part 434,
subpart E) establish BPT, BAT, and NSPS based on the use of
sedimentation pond technology, and set effluent limitations for
settleable solids and pH. The existing guidelines apply to all
reclamation areas throughout the United States, regardless of climate,
topography, or type of mine drainage (i.e., acid or alkaline).
Existing effluent limitation guidelines establish relatively
stringent controls on the amount of settleable solids that can be
discharged into waterways from reclamation areas. Although
sedimentation ponds are proven to be effective at reducing sediment
discharge, EPA believes that there are numerous non-water quality
impacts that may harm the environment when sedimentation ponds are
required to meet current effluent limits. The negative non-water
quality impacts associated with existing regulations include:
disturbing the natural hydrologic balance of arid western drainage
areas; accelerating erosion; reducing groundwater recharge; reducing
water availability; and impacting large areas of land for pond
construction. A further discussion of these impacts can be found in
Sections IV and IX of this document.
EPA believes that the current requirements are not appropriate for
arid and semiarid western reclamation areas because of the negative
non-water quality impacts associated with the predominant use of
sedimentation ponds, as discussed above. The appropriate goal for
reclamation and discharges from post-mined lands should be to mimic the
natural conditions of the area that were present prior to mining
activities. In order to do this, it is necessary to maintain the
hydrologic balance and sediment loadings of natural, undisturbed
conditions on post-mined lands. EPA believes that use of BMPs to
control sediment discharges is the only effective alternative control
technology to sedimentation ponds. Therefore, EPA is proposing that BPT
consist of designing and implementing BMPs projected to maintain the
average annual sediment yield equal to or below pre-mined, undisturbed
conditions. This would ensure that natural conditions are maintained.
In order to achieve these results, EPA would require that the coal
mining operator develop a sediment control plan and run models.
Requirements are further described in the proposed regulatory text.
As discussed in Section X of this document, EPA estimates that
today's proposal will result in a net cost savings to all affected
surface mine operators, and will be at worst cost-neutral for affected
underground operators (although EPA believes that most will also incur
cost savings). Therefore, implementing these standards will result in
no facility closures or negative economic impact to the industry. EPA
projects that the proposed subcategory will result in annualized
monetized benefits of $43,000 to $769,000.
2. BCT for the Western Alkaline Coal Mining Subcategory
In today's proposal, EPA is not proposing effluent limitations for
any conventional pollutant and hence need not propose to establish BCT
limitations for this subcategory at this time.
3. BAT for the Western Alkaline Coal Mining Subcategory
EPA is proposing that BAT be equivalent to BPT for this subcategory
to control sediment discharge for reclamation areas. Existing effluent
limitations guidelines established BAT based upon sedimentation pond
technology. However, as previously noted, non-water quality impacts can
occur that may harm the environment when sedimentation ponds are
required to comply with current effluent limits for settleable solids.
EPA is proposing that BAT consist of designing and implementing BMPs
projected to maintain the average annual sediment yield equal to or
below pre-mined, undisturbed conditions, which is equivalent to
proposed BPT.
EPA has not identified any more stringent treatment technology that
could represent BAT level of control for maintaining discharge levels
of settleable solids consistent with natural, undisturbed conditions on
post-mined land in the arid west. EPA is therefore proposing that BAT
standards be established equivalent to BPT. Further, as discussed in
Section X of this document, EPA estimates that today's proposal will
result in a net cost savings to all affected surface mine operators,
and will be at worst cost-neutral for affected underground operators.
Therefore, implementing BAT standards will result in no facility
closures or negative economic impact to the industry.
4. NSPS for the Western Alkaline Coal Mining Subcategory
As discussed for BAT, EPA has not identified any more stringent
treatment technology option that it considers to represent NSPS level
of control for discharges from post-mined land. Further, EPA estimates
that today's proposal will result in a net cost savings to all affected
surface mine operators, and will be at worst cost-neutral to affected
underground operators. Therefore, implementing of NSPS standards will
result in no barrier to entry based upon the establishment of this
level of control for new sources. EPA is therefore proposing that NSPS
standards be established equivalent to BAT.

VII. Statistical and Monitoring Procedures for the Coal Remining
Subcategory

A. Statistical Procedures for the Coal Remining Subcategory

EPA's proposed statistical procedures are presented in Appendix B
of the proposed regulation and described in detail in the Coal Remining
Statistical Support Document. These procedures apply to the Coal
Remining Subcategory.
The objective of these statistical procedures is to provide a
method for deciding when the pollutant levels of a discharge exceed
baseline pollutant levels. These procedures are intended to provide a
good chance of detecting a substantial, continuing state of exceedance,
while reducing the likelihood of a ``false alarm.'' To do this, it is
essential to a have an adequate duration and frequency of sample
collection to determine baseline and to determine compliance.
In developing these procedures, EPA considered the statistical
distribution and characteristics of discharge loadings from pre-
existing discharges, the suitability of parametric and non-parametric
statistical procedures for such data, the number of samples required
for these procedures to perform adequately and reliably, and the
balance between false positive and false negative decision error rates.
EPA also considered the cost involved with sample collection as well as
delays in permit approval during the establishment of baseline, and is
concerned that increased sampling could potentially discourage
remining. In order to sufficiently characterize pollutant levels during
baseline determination and during each annual

[[Page 19457]]

monitoring period, EPA is requiring that at least one sample result be
obtained per month for a period of 12 months.
It is possible that one year of sampling may not accurately
characterize baseline levels, because discharge flows can vary among
years in response to inter-year variations in rainfall and ground water
flow. There is some risk that the particular year chosen to
characterize baseline flows and loadings will be a year of atypically
high or low flow or loadings. There may be a need to evaluate
differences among baseline years in loadings and flows, based on
further analysis of data. Using such information, EPA may provide
optional statistical procedures in a final rulemaking and in the final
version of the Coal Remining Statistical Support Document that could be
used to account for the uncertainty in characterizing baseline from a
one-year sample duration, or that could be used to account for the
unrepresentative character of a baseline sampling year. Such procedures
could employ modifications of the proposed statistical procedures that
use estimates of the variance among baseline years in loadings,
developed from long-term datasets. Such procedures could employ
adjustments to the baseline sample statistics to account for a baseline
sampling year that was atypical in rainfall or discharge flow; such an
adjustment could be a factor (multiplier) or a statistical equation
estimated by regression.
The proposed statistical procedures are intended to provide
environmental protection and to ensure compliance with the effluent
limitation guidelines for BPT, BAT, and BCT. EPA has not yet evaluated
quantitatively the error rates of these decision procedures. EPA
intends to evaluate the decision error rates of each procedure by
computer simulations. EPA solicits comments on the proposed statistical
procedures presented in Appendix B of the proposed regulation for
calculating limits and warning levels using baseline and post-baseline
data: Baseline Determination and Compliance Monitoring for Pre-existing
Discharges at Remining Operations. Development of these procedures is
described in the Coal Remining Statistical Support Document. In
particular, EPA solicits comments on (1) the details of the proposed
statistical methodologies, (2) the relative merits of Procedures A and
B, (3) the merits of other statistical procedures that commenters may
propose, (4) the advantages and disadvantages of the use of accelerated
monitoring and decision rules based upon accelerated monitoring, and
(5) the effectiveness of the proposed statistical procedures in
correctly indicating when baseline conditions have been exceeded and in
providing reasonable protection from incorrectly deciding that baseline
conditions have been exceeded. Depending upon comments and associated
evidence, and depending upon EPA's further evaluations, EPA may modify
or reject these procedures, or may change the recommended sample
amount, to provide suitable decision error rates.

B. Monitoring To Establish Baseline Conditions and To Demonstrate
Compliance for the Coal Remining Subcategory

EPA evaluated the duration and frequency of sampling necessary to
apply the proposed statistical procedures. Those procedures are used to
compare the levels of baseline loadings to the levels of loadings
during remining or the period when the discharge is permitted. Without
an adequate duration and frequency of sampling, the statistical
procedures would often fail to detect genuine exceedance of baseline
conditions.
Based on the considerations described below, EPA is proposing that
the smallest acceptable number and frequency of samples is 12 monthly
samples, taken consecutively over the course of one year. EPA believes
this number represents the absolute minimum.
EPA considered an adequate number of samples per year to be that
number that would allow an appropriate statistical procedure to detect
a difference, between a baseline year and a remining year, in the mean
or median loading, of one standard deviation (determined for the
baseline loadings), with a probability (power) of at least 0.75.
The t-test is an appropriate statistical procedure for a yearly
comparison because loadings from mine discharges appear to be
approximately distributed log-normally, and thus logarithms of loadings
are expected to be approximately distributed normally. The (non-
parametric) Wilcoxon-Mann-Whitney test is also appropriate for yearly
comparisons and has a power nearly equal to that of the t-test when
applied to normally distributed data. EPA determined that annual
comparisons of baseline to remining years based upon 12 samples in each
year were expected to have a power 0.75 to detect a difference of one
standard deviation.
An increase of one standard deviation can represent a large
increase in loading, given the large variability of flows and loadings
observed in mine discharges. The coefficient of variation (CV) is the
ratio of standard deviation to mean. Sample CVs for iron loadings range
approximately from 0.25 to 4.00, and commonly exceed 1.00. Sample CVs
for manganese loadings range approximately from 0.24 to 5.00. When the
CV equals 1.00, an increase of the average loading by one standard
deviation above baseline implies a doubling of the loading.
The duration, frequency, and seasonal distribution of sampling are
important aspects of a sampling plan, and can affect the precision and
accuracy of statistical estimates as much as can the number of samples.
To avoid systematic bias, sampling, during and after baseline
determination, should systematically cover all periods of the year
during which substantial discharge flows can be expected.
Unequal sampling of months could bias the baseline mean or median
toward high or low loadings by over-sampling of high-flow or low-flow
months. However, unequal sampling of different time periods can be
accounted for using statistical estimation procedures appropriate to
stratified sampling. Stratified seasonal sampling, possibly with
unequal sampling of different time periods, is a suitable alternative
to regular monthly sampling, provided that correct statistical
estimation procedures for stratified sampling are applied to estimate
the mean, median, variance, interquartile range, and other quantities
used in the proposed statistical procedures.
There may be acceptable alternatives to the proposed minimum
duration and frequency of one sample per month for twelve months. EPA
has not thoroughly evaluated the merits of alternative sampling plans.
Alternative plans could be based upon subdivision of the year into
distinct time periods that might be sampled with different intensities,
or could be based on other types of stratified sampling plans that
attempt to account for seasonal variations. Seasonal stratification has
the potential to provide a basis for more precise estimates of baseline
characteristics, if the sampling plan is designed and executed
correctly and if results are calculated using appropriate statistical
estimators.
EPA solicits comments on the requirements for the number of samples
to determine and monitor baseline, the sampling duration and frequency,
and the plan of sampling over time. In particular, EPA solicits
comments on (1) the adequacy of a sampling plan consisting of twelve
monthly observations of concentration and flow

[[Page 19458]]

to calculate a monthly loading, (2) the advantages and disadvantages of
seasonally-stratified sampling or other plans for sampling over time,
(3) the adequacy of a baseline characterization based upon one year of
sampling and the likelihood and consequences of the baseline year being
atypical of long-term baseline conditions, and (4) the effectiveness of
the proposed sampling requirements in correctly indicating when
baseline conditions have been exceeded and in providing reasonable
protection from incorrectly deciding that baseline conditions have been
exceeded.

C. Additional Pollutant Parameters in Pre-existing Discharges

Although EPA is proposing to regulate iron, manganese, and pH,
which is a subset of the parameters regulated under the current
guidelines and which are the parameters addressed by the Rahall
Amendment, EPA is considering establishing limitations or monitoring
requirements for additional parameters that may also be indicators that
a discharge is the result of coal mine operations. Acidity has been
selected in Pennsylvania preferentially to pH because a baseline load
can be calculated for acidity, whereas pH does not readily lend itself
to calculation of load. In addition, pH is a measurement of effective
hydrogen ion concentration and does not measure potential hydrogen ions
that are generated during neutralization by the hydrolysis of metals
such as iron, manganese and aluminum. Typically, the (passive)
treatment systems and chemical addition used for acid mine drainage are
designed with regards to acidity or net alkalinity (i.e., alkalinity
minus acidity) and not pH. EPA is soliciting comments and data
regarding the merits of acidity, net alkalinity, and pH as regulated
parameters, or as parameters required to be monitored but not
regulated.
Many mining operations also routinely monitor sulfate, which, in
the temperate climate of the Appalachian Basin, is considered the most
stable and reliable indicator of coal mine drainage (Lovell, 1985, The
Chemistry of Mine Drainage, and McCurry, 1986, Characterization of
Ground Water Contamination Associated with Coal Mines in West
Virginia). Under most conditions associated with mining and mine
drainage in the Appalachian Region and the Interior Basin, sulfate does
not easily leave solution and is a direct indicator of pyrite oxidation
(acid mine drainage production). EPA is soliciting comments and data
regarding the merits of using sulfate as a parameter for assessment of
pollution loading from pre-existing discharges as an unregulated
requirement for monitoring.

VIII. Non-Water Quality Environmental Impacts of Proposed
Regulations

The elimination or reduction of pollution has the potential to
aggravate other environmental problems. Under sections 304(b) and 306
of the CWA, EPA is required to consider these non-water quality
environmental impacts (including energy requirements) in developing
effluent limitations guidelines and NSPS. In compliance with these
provisions, EPA has evaluated the effect of this proposed regulation on
air pollution, solid waste, energy requirements, and safety.
Today's proposed rule does not require the implementation of
treatment technologies that result in any increase in air emissions, in
solid waste generation or in energy consumption over present industry
activities.
Non-water quality environmental impacts are a major consideration
for this rule because the rule is intended to improve or eliminate a
number of existing non-water quality environmental and safety problems.
Remining operations have improved or eliminated adverse non-water
quality environmental conditions such as abandoned and dangerous
highwalls, dangerous spoil piles and embankments, dangerous
impoundments, subsidence, mine openings, and clogged streams that pose
a threat to health, safety, and the general welfare of people. EPA
expects this proposed rule to improve or eliminate these hazardous
conditions at abandoned mine sites and believes that remining has the
potential to eliminate nearly three million feet of dangerous highwall
in the Appalachian and mid-Continent coal regions.
EPA also does not expect this proposed rule to have an adverse
impact on health, safety, and the general welfare of people in the arid
and semiarid western coal region. The intent of the rule is to allow
runoff to flow naturally from disturbed and reclaimed areas. EPA
believes this is preferable to retention in sedimentation ponds that is
accompanied by periodic releases of runoff containing sediment
imbalances potentially disruptive to land stability. Alternate sediment
control technologies in these regions address and alleviate adverse
non-water quality environmental conditions such as: quickly eroding
stream banks, water loss through evaporation, soil and slope
instability, and lack of vegetation.
Based on this evaluation, EPA prefers the options proposed under
these new subcategories over existing AML conditions in the eastern
United States and over the hydrologic imbalances produced by
application of current regulations in the western arid United States.

IX. Environmental Benefits Analysis

This section presents EPA's estimates of the environmental benefits
that would occur under the proposed regulatory options. EPA's complete
benefits assessment can be found in Benefits Assessment of Proposed
Effluent Limitations Guidelines and Standards for the Coal Mining
Industry: Remining and Western Alkaline Subcategories (hereafter
referred to as the ``Benefits Assessment''; Record Section 5.0). A
detailed summary is also contained in Economic and Environmental Impact
Analysis of Proposed Effluent Limitations Guidelines and Standards for
the Coal Mining Industry: Remining and Western Alkaline Subcategories
(hereafter referred to as the ``EA'').

A. Coal Remining Subcategory

The water quality improvements associated with the proposed rule
for remining depend on (1) changes in annual permitting rates for
remining; (2) characteristics of sites selected for remining; and (3)
the type and magnitude of the environmental improvements expected from
remining. The subcategory is designed to standardize and facilitate the
remining permitting process to increase future permitting rates.
Remining permits in Pennsylvania increased by an estimated factor of
three to eight following State implementation of a regulation that is
similar to today's proposed remining rule. EPA believes that
implementing today's proposed rule is likely to have a similar effect
on other States with remineable coal reserves and similar acid mine
drainage problems. The type and magnitude of site-specific water
quality improvements under the proposed rule are not expected to be
dramatically different than those that have occurred under existing
requirements in Pennsylvania.
Of approximately 9,500 miles of acid mine drainage impacted streams
in States where coal mining has previously occurred (Record Section
3.2.2), EPA estimates that 2,900 to 4,800 miles may be improved by
remining, with a predicted 1,100 to 2,100 miles improved significantly.
Based on the range of expected stream mile improvements per 1,000 acres
of Abandoned Mine Land (AML) reclaimed (one to six) and an average of
38 acres of AML reclamation per permit, EPA estimates

[[Page 19459]]

approximately 0.04 to 0.2 miles of stream improvement per remining
project. EPA estimates that AML sites affected by the proposed rule
have an average of 70 highwall feet per acre. EPA also estimates that
an additional 216,000 to 307,000 feet of highwall (41 to 58 miles) will
be targeted for removal each year as a result of the proposed rule. EPA
solicits comments on additional or alternative sources of data for
estimating the extent of AML affected by the proposed rule.
EPA assessed the potential impacts of remining BMPs on water
quality using pollutant loadings data from pre-existing discharges at
13 mines included in EPA's Coal Remining Database (Record Section
3.5.1). Approximately 58 percent of the post-baseline observations
showed a decrease in mean pollutant loadings. Approximately half of
these sites (27 percent of the post-baseline observations) showed a
statistically significant decrease in loadings. The 13 mines examined
by EPA are active remining operations; decreases in pollutant loads are
expected to become more significant with time. In comparison,
Pennsylvania's Remining Site Study of 112 closed remining sites (Record
Section 3.5.3) found significant decreases or elimination of loadings
for acidity, total iron and total manganese in 44 percent, 42 percent,
and 41 percent respectively, of the pre-existing discharges monitored.
The Pennsylvania Remining Site Study focused on sites reclaimed to at
least Stage II bond release standards, so that the mitigating impacts
of BMPs had ample time to take effect. EPA solicits comments on
alternative or additional data sources for assessing the impacts of
remining BMPs.
Remining generates human health benefits by reducing the risk of
injury at AML sites and reducing discharge of acid mine drainage to
waterways that are drinking water sources. However, the human health
benefits associated with consumption of water and organisms are not
likely to be significant because (1) acid mine drainage constituents
are not bioaccumulative, and adverse health effects associated with
fish consumption are therefore not expected; and (2) public drinking
water sources are treated for most acid mine drainage constituents
associated with adverse health effects. Eliminating safety hazards by
closing abandoned mine openings, regrading highwalls, stabilizing
unstable spoils, and removing hazardous waterbodies potentially
prevents injuries and saves lives.
EPA evaluated the potential impacts to human and aquatic life by
comparing the number of water quality criteria exceedances in receiving
water bodies in the baseline (pre-remining) and post-baseline sampling
periods for 11 remining sites in the Coal Remining Database for which
relevant data exist. Exceedances of the human health criterion for pH
(water plus organism consumption, field pH) were eliminated at two
sites while exceedances of chronic aquatic life criteria were
eliminated for pH (field pH) at two sites and iron at two sites.
Exceedances of the acute aquatic life criterion for manganese were
eliminated at two sites. Although surface water quality data examined
indicate changes in the number of water quality exceedances due to
remining, nine of the 11 sites consist of active remining operations
where the full environmental impacts of BMPs have yet to be realized.
Correlations between pre-existing discharge loads and pollutant
concentrations in receiving water can be used to determine the extent
to which remining BMPs are responsible for changes in surface water
quality. However, the lack of sufficient data on relevant sources of
acid mine drainage upstream from pre-existing discharges at the
selected mine sites made it difficult to estimate these correlations.
Remining and the associated reclamation of AML is expected to
generate ecological and recreational benefits by (1) improving
terrestrial wildlife habitat, (2) reducing pollutant concentrations
below levels that adversely affect aquatic biota, and (3) improving the
aesthetic quality of land and water resources. EPA was able to quantify
and monetize some of the benefits expected from increased remining
using a benefits transfer approach. The benefits transfer approach
relies on information from existing benefit studies applicable to
assessing the benefits of improved environmental conditions at remining
sites. Benefits are estimated by multiplying relevant values from the
literature by the additional acreage reclaimed under the remining
subcategory.
EPA used the following assumptions to estimate annual benefit
values for ecological improvements: (1) 3,100 to 4,400 acres will be
permitted for reclamation under the proposed subcategory; (2) 57
percent of the acres permitted will actually be reclaimed (1,800 to
2,500 acres) ; (3) 38 percent to 44 percent of acres reclaimed per year
are expected to be associated with significant decreases in AMD
pollutant loads to surface water bodies; and (4) annualized benefits
from remining begin to occur five years after permit issuance and are
calculated for a five year period. EPA assumed that 57 percent of the
acres permitted would actually be reclaimed based on a study of 105
remining permits in Pennsylvania (Hawkins, 1995, Characterization and
Effectiveness of Remining Abandoned Coal Mines in Pennsylvania). The
study found that on average, a remining site had 67 AML acres, of which
38 acres (or 57 percent), were actually reclaimed. The assumption that
38 to 44 percent of acres reclaimed would be associated with
significant decreases in AMD pollutant loads was based on the results
of Pennsylvania's study of 112 closed remining sites, which showed
significant decreases in loads of acidity (44 percent), manganese (41
percent), iron (42 percent), and aluminum (38 percent) of the
associated pre-existing discharges. A detailed explanation of all
assumptions is provided in the Benefits Assessment document.
EPA estimated water-related ecological benefits using the benefits
transfer approach with values taken from a benefit-cost study of
surface mine reclamation in central Appalachia by Randall et al. (1978,
Reclaiming Coal Surface Mines in Central Appalachia: A Case Study of
the Benefits and Costs). EPA's analysis is based on two values from the
study: (1) Degradation of life-support systems for aquatic and
terrestrial wildlife and recreation resources, valued at $37 per acre
per year (1998$); and (2) aesthetic damages, valued at $140 per acre
per year (1998$). EPA estimated nonuse benefits using a widely accepted
approach developed by Fisher and Raucher (1984, Intrinsic Benefits of
Improved Water Quality: Conceptual and Empirical Perspectives), where
nonuse benefits are estimated as one-half of the estimated water-
related recreational use benefits. The estimated water-related benefits
range from $0.53 to $0.89 million per year.
Reclaiming the surface area at AML sites will enhance the sites'
appearance and improve wildlife habitats, positively affecting
populations of various wildlife species, including game birds. This is
likely to have a positive effect on wildlife-oriented recreation,
including hunting and wildlife viewing. EPA estimated land-related
ecological benefits using the benefits transfer approach with values
taken from a study of improved opportunities for hunting and wildlife
viewing resulting from open space preservation by Feather et al. (1999,
Economic Valuation of Environmental Benefits and the Targeting
Conservation Programs). EPA's analysis is based on two values from the
study: (1) The average wildlife viewing value, $21 per acre per year;

[[Page 19460]]

and (2) the improved pheasant hunting value, $7 per acre per year.
Based on an aggregate value of $28 per acre per year, EPA estimates
land-related benefits of $0.20 to $0.29 million per year.
The sum of the estimated monetary values of the different benefit
categories results in total annual benefits of $0.73 to $1.17 million
from implementing the proposed remining subcategory. This estimate does
not include benefit categories that EPA was unable to quantify and/or
monetize, which include human health and safety impacts. A more
detailed discussion of the benefits analysis is contained in both the
EA and the Benefits Assessment.

B. Western Alkaline Coal Mining Subcategory

Only a small percentage of potentially affected western coal mines
discharge to permanent or perennial water bodies. Information about
receiving waters is available for 39 of the existing western surface
coal mines, and 30 of these discharge to intermittent or ephemeral
creeks, washes, or arroyos. Only two of the mines list a permanent
water drainage feature as the primary receiving water. It is therefore
difficult to describe the benefits of the Western subcategory in terms
of the use designations referenced in the section 101(a) goals of the
Clean Water Act.
The environmental conditions and naturally high sediment yields in
arid and semiarid coal regions are discussed in Section IV. The
potential impacts of the predominant use of sedimentation ponds to
control settleable solids in these regions include reduced sediment
loads to natural drainage features, reduced downstream flood peaks and
runoff volumes, and downstream channel bed and bank changes. The
environmental and water quality effects of these hydrologic impacts
include: (1) Reducing ground water recharge, (2) shrinking biological
communities consisting of and reliant upon riparian and hydrophytic
vegetation, (3) degrading downstream channel beds from ``clean'' water
releases, and (4) accelerating erosion.
Site-specific alternative sediment control plans incorporating BMPs
designed and implemented to control sediment and erosion have the
potential to provide both land and water-related benefits. Land-related
benefits include decreased surface area disturbance, increased soil
conservation, and improved vegetation. Surface disturbance is estimated
to decrease by approximately 1,700 acres per year across all existing
potentially affected surface mine sites in the western region.
Vegetative cover may increase by five percent when BMPs are used.
EPA was only able to monetize land-related benefits associated with
decreased surface area disturbance. Hunting benefits from increased
availability of undisturbed open space were estimated to be between
$0.37 and $2.46 per acre per year based on Feather et al. (1999) and
Scott et al. (1998). Annual land-related benefits of the proposed
subcategory range from $5,500 to $36,500 per year, based on the value
of enhanced hunting opportunities. However, this estimate does not
account for a number of benefit categories, including nonuse ecological
benefits that may account for the major portion of land-related
benefits in relatively unpopulated areas such as those affected by the
proposed rule.
Water-related benefits include improved hydrologic and fluvial
stability in the watersheds affected by western mining operations.
These benefits will be site-specific and depend upon the nature of
environmental quality changes; the current in-stream water uses, if
any, and; the population expected to benefit from increased water
quantity. EPA estimated water-related benefits using the estimated mean
``willingness to pay'' (WTP) values for preservation of perennial
stream flows adequate to support abundant stream side plants, animals
and fish from Crandall et al. (1992, Valuing Riparian Areas: A
Southwestern Case Study). The WTP value is applied to water-based
recreation consumers residing in counties affected by western mining
operations discharging to, or affecting, water bodies with perennial
flow. EPA identified seven perennial streams located in six counties
that are likely to be affected by the proposed rule. The estimated
monetary value of recreational water-related benefits for these streams
ranges from $25,000 to $488,000. As noted above, EPA estimates that
nonuse benefits are equal to one-half of the water-related recreational
benefits, or $12,500 to $244,000 per year.
Total estimated annualized benefits from implementing the proposed
subcategory range from $43,000 to $768,500. This estimate does not
include benefit categories that EPA was unable to quantify and/or
monetize, which include increased vegetative cover and some additional
recreational and non-use benefits associated with western alkaline coal
mine reclamation areas. A more detailed discussion of the benefits
analysis is contained in both the EA and the Benefits Assessment.

X. Economic Analysis

A. Introduction, Overview, and Sources of Data

This section presents EPA's estimates of the economic impacts that
would occur under the proposed regulatory options. The economic impacts
are evaluated for each subcategory for BPT, BCT, BAT, and NSPS as
applicable. The description of each proposed option and the rationale
for selection are given in Section VI of today's document. EPA's
detailed economic impact assessment can be found in Economic and
Environmental Impact Analysis of Proposed Effluent Limitations
Guidelines and Standards for the Coal Mining Industry: Remining and
Western Alkaline Subcategories (referred to as the ``EA''). EPA also
prepared the Coal Remining and Western Alkaline Mining: Economic and
Environmental Profile (Record Section 5.0) in support of today's
proposal.
This section of today's document describes the segment of the coal
industry that would be impacted by the rule (i.e., the number of firms
and number of mines that would incur costs or realize savings under the
proposed rule), the financial condition of the potentially affected
firms, the aggregate cost or cost savings to that segment, and economic
impacts attributed to the proposed rule. The section also discusses
impacts on small entities and presents a cost-benefit analysis. This
discussion will form the basis for EPA's findings on regulatory
flexibility, presented in Section XI.B. All costs are reported in 1998
dollars unless otherwise noted. As described in Section V of this
document, EPA developed this proposal using an expedited rulemaking
procedure. Therefore, EPA's economic analysis relied on industry
profile information voluntarily provided by stakeholders, on data
compiled from individual mining permits, and on data from publicly
available sources. For the Coal Remining Subcategory, EPA obtained
information on abandoned mine lands from the Abandoned Mine Lands
Information System (AMLIS) maintained by the Office of Surface Mining
(Record Section 3.5.2), the National Abandoned Lands Inventory System
(NALIS) database maintained by the Pennsylvania Department of
Environmental Protection (Record Section 3.5.5), and a survey of states
conducted by the Interstate Mining Compact Commission (Record Section
3.2.2). For Western Alkaline mines, EPA relied on industry profile data
developed and submitted to EPA by the Western Coal Mining Work Group as

[[Page 19461]]

described in Section V. Specifically, the work group provided data on:
coal mine operator, mine location, annual production, reclamation
permit numbers, acres of land reclaimed, and reclamation bond amounts.
This information is included in Section 3.3 of the Record.
Data on the coal industry as a whole, including coal production,
employment, and prices, as well as information on individual western
alkaline underground mines, were obtained from various Energy
Information Administration (EIA) sources, including the 1997 Coal
Industry Annual, the 1998 Annual Energy Outlook, and the 1992 Census of
Mineral Industries. EPA used the Security and Exchange Commission's
(SEC's) Edgar database, which provides access to various filings by
publicly held firms, such as 8Ks and 10Ks, for financial data and
information on corporate structures. EPA also used a database
maintained by Dun & Bradstreet, which provides estimates of employment
and revenue for many privately held firms, and obtained industry
financial performance data from Leo Troy's Almanac of Business and
Industrial Financial Ratios.

B. Method for Estimating Compliance Costs

The costs and savings of today's proposal are associated with
modeling requirements, BMP implementation, baseline monitoring, and
performance monitoring. For each option and geographic area, EPA
estimated economic baseline conditions based on existing State and
Federal regulations and current industry practices. For remining, EPA
assumed as economic baseline conditions remining under a Rahall permit,
pursuant to section 301(p), rather than comparing to compliance with
current Part 434 regulations. Following this, EPA estimated the
incremental compliance costs for each option proposed.
1. Coal Remining Subcategory
EPA projected costs for each remining site by calculating the cost
of increased monitoring requirements for determining baseline, the cost
of potential increases in compliance monitoring requirements, and the
potential costs associated with implementing the required pollution
abatement plan. To assess the increased monitoring requirements of the
proposal, EPA evaluated current State requirements for operations
permitted under the Rahall provision and calculated the proposed
monitoring costs that exceed the current State requirements. Current
State sample collection requirements for determining and monitoring
baseline are included in the Record at Section 3.4.
Although EPA estimated that the Remining Subcategory would be
applicable to 64 to 91 remining sites and 3,810 to 5,400 acres
annually, EPA projects that fewer sites would realize costs or benefits
from this proposal. As noted throughout this proposal, the Commonwealth
of Pennsylvania has an advanced remining program and EPA does not
believe that the proposal will have a measurable impact on
Pennsylvania's remining activities. Therefore, EPA did not include
Pennsylvania's remining sites in the estimation of costs or benefits.
EPA's cost and benefit analysis were calculated for a total of 43 to 61
sites representing 3,100 to 4,400 permitted acres each year. EPA
estimates that approximately 1,800 to 2,500 of these acres would
actually be reclaimed each year. Table X. B.1 shows the various
estimates EPA used in the estimation of costs and benefits.

Table X. B.1.--Annual Estimates of Affected Remining Sites Used in the Economic Analyses
----------------------------------------------------------------------------------------------------------------
Number of
Additional sites permitted sites Acres Used in analysis of:
----------------------------------------------------------------------------------------------------------------
All types, all states (initial estimate)... 64-91 3,812-5,401 ...................................
All types, excluding PA.................... 43-61 3,111-4,407 Monitoring costs for selected
states; NPDES permitting authority
costs.
10% of surface & under-ground sites only 3.9-5.6 309-438 Costs of additional BMPs.
(no coal refuse piles), excluding PA.
Additional acres reclaimed: (57% of acres .............. 1,773-2,512 Benefits from recreational use of
permitted, all types excluding PA). reclaimed land.
Additional acres reclaimed expected to have .............. 667-1,115 Benefits from recreational use of
significant decreases in AMD pollutant improved water bodies; Aesthetic
loads (37.6-44.4% of additional reclaimed improvements in water bodies; Non-
acres). use benefits.
----------------------------------------------------------------------------------------------------------------

2. Western Alkaline Coal Mining Subcategory
The proposed subcategory will include alkaline drainage from
reclamation areas at surface and underground coal mines located west of
the 100th meridian in arid or semiarid environments with average annual
precipitation of 26 inches or less. EPA's Coal Remining and Western
Alkaline Mining: Economic and Environmental Profile provides profile
information on the 47 surface coal mines and 24 underground coal mines
EPA initially believed to be in the scope of the proposed subcategory.
However, EPA determined that one of the surface mines profiled was
already in the final reclamation stage and would not be affected by
today's proposal; hence only the remaining 46 surface mines were
included in the analyses of costs and benefits.
The only incremental cost attributed to the proposed subcategory is
associated with the watershed modeling requirements discussed in
Section VI. Information provided by OSM (Record Section 7.2) indicates
that most coal mine operators already perform modeling (to support
their SMCRA permit applications) that is sufficient to meet today's
proposed requirements. The information also indicates that a typical
underground operator would not incur any additional modeling costs as a
result of today's proposed rule due to the small acreage and lack of
complexity associated with surface reclamation areas at underground
mines.
Although EPA believes that compliance with the proposed rule would
result in operational savings for both surface mine operators and many
underground producers, EPA did not estimate the savings for underground
producers due to data limitations. The industry profile submitted by
the Western Coal Mining Work Group did not provide information on
disturbance acreage, mine life, or bond amounts for the underground
mines, and the model mine analysis addressed conditions typical of
surface mines rather than underground mines. It was therefore not
possible to estimate cost savings associated with the proposed

[[Page 19462]]

subcategory for reclamation of surface areas at underground mines.
However, any savings are likely to be small given the limited acreage
and lack of complexity associated with these reclamation areas. Hence,
EPA assumes that today's proposal would be cost-neutral for underground
operators. EPA solicits any data or comments regarding these
assumptions. The remainder of this section considers only the 46 active
existing surface mines in its discussion.

C. Costs and Cost Savings of the Regulatory Options

1. Coal Remining Subcategory
Under the proposed rule, EPA is requiring that operators conduct
one year of monthly sampling to characterize the baseline pollutant
levels for pH, iron (total), and manganese (total). Although most
states with remining activities have similar requirements, remining
sites in Alabama and Kentucky will be required to add six samples
annually. EPA did not have data for Illinois, Indiana, or Tennessee
because the remining operations that occur in these States do not
incorporate Rahall provisions for pre-existing discharges. EPA has
conservatively assumed monitoring costs for 12 additional samples
annually for these states. Information representing current State
sampling requirements is included in the Record at Section 5.
Although EPA is not requiring a specific monitoring frequency to
demonstrate compliance, EPA has assumed monthly compliance monitoring
for costing purposes. Most states already have similar requirements,
with the exception of Ohio, which currently requires quarterly
modeling. Again, EPA did not have data for Illinois, Indiana, or
Tennessee because these states do not incorporate Rahall provisions in
their remining permits. For these states, EPA has conservatively
assumed that an additional 12 compliance monitoring samples per year
would be required for five years.
Because each remining site will typically have more than one pre-
existing discharge, EPA reviewed Pennsylvania remining sites to
estimate the average number of pre-existing discharges per site. EPA
used this calculated average of four pre-existing discharges per site
for estimating baseline determination and compliance monitoring costs
(Record Section 3.3.1). Additionally, EPA assumed that remining
operators would have to purchase and install flow weirs to comply with
the baseline monitoring requirements in the States that do not
incorporate Rahall provisions in their remining permits. These
assumptions result in an upper bound estimate of additional monitoring
costs for the 43 to 61 potentially affected sites per year.
EPA estimates the total annual incremental monitoring costs to be
in the range of $133,500 to $193,500. Of this, between $83,000 and
$120,000 is associated with incremental baseline monitoring
requirements and between $50,500 and $73,500 results from incremental
compliance monitoring during the five year mining period. Detailed
assumptions and calculations are presented in the EA.
In addition to monitoring, remining operators must develop and
implement a site-specific pollution abatement plan for each remining
site. In many cases, EPA believes that the requirements for the
pollution abatement plan will be satisfied by an approved SMCRA plan.
However, EPA recognizes that some operators may be required to
implement additional or more intensive BMPs under the proposed rule
beyond what is included in a SMCRA-approved pollution abatement plan.
EPA developed a general estimate of the potential costs of
additional BMPs based on review of the existing remining permits
contained in the Coal Remining Database (Record Section 3.5.1), and on
information provided in the Coal Remining BMP Guidance Manual. EPA
determined that the most likely additional BMP that NPDES permit
writers might require would be a one-time increase in the amount of
alkaline material used as a soil amendment to prevent the formation of
acid mine drainage. EPA assumed that an average mine facility requiring
additional BMPs would need to increase its alkaline addition by a rate
of 50 to 100 tons per acre to meet the additional NPDES permit review
requirements. EPA estimated an average cost for alkaline addition of
$12.90/ton, and assumed that 10 percent of surface and underground
remining sites would be required to incur these additional BMP costs.
Because the typical BMP for coal refuse piles is simply removal of the
pile, no incremental BMP costs would be incurred for these sites. Based
on EPA's estimate that between 309 and 438 acres could be required to
implement additional or more intensive BMPs each year, the estimated
annual cost of additional BMP requirements would range from $199,500 to
$565,000.
Based on the above assumptions, the total estimated incremental
costs associated with the proposed rule range from $333,000 to $758,500
per year. These costs are based on EPA's estimates of what is likely to
happen in the future, and they would be incurred by new remining
operations. Table X. C.1 summarizes the incremental costs associated
with the proposed subcategory.

Table X. C.1.--Annual Costs for the Remining Subcategory
----------------------------------------------------------------------------------------------------------------

----------------------------------------------------------------------------
Monitoring Costs...................... $133,500-$193,500
Additional BMPs....................... $199,500-565,000
---------------------------------------
Total Compliance Costs............ $333,000-758,500
----------------------------------------------------------------------------------------------------------------

2. Western Alkaline Coal Mining Subcategory
The cost impacts of the proposed subcategory will vary, depending
on site-specific conditions at each eligible coal mine. However, based
on data and information gathered to date, EPA believes that the costs
of reclamation under today's proposal will be less than or equal to
reclamation costs under the existing effluent guidelines for each
individual operator, and thus to the subcategory as a whole.
EPA expects that, in general, the sediment control plan will
largely consist of materials generated as part of the SMCRA permit
application. The SMCRA permit application process requires that a coal
mining operator submit an extensive reclamation plan, documentation and
analysis to OSM or the permitting authority for approval. Based on
these requirements, EPA believes that plans developed to comply with
SMCRA requirements will usually fulfill the requirements proposed by
EPA for sediment control plans.
EPA believes that the only incremental cost attributed to the
proposed subcategory is associated with the watershed modeling
requirements discussed in Section VI of today's document. The
requirement to use modeling techniques is also consistent with OSM
reclamation plans. While

[[Page 19463]]

OSM does not specifically require modeling, most coal mine operators
already perform watershed modeling to support their SMCRA permit
applications that is sufficient to meet today's proposed requirements.
However, some incremental costs may occur in cases where the rule
increases model complexity. Information provided by OSM indicates that
a typical surface mine operator may incur a one-time additional cost of
zero to $50,000 to meet the modeling requirements in today's proposal.
These figures represent the additional modeling effort attributed to
today's proposed requirements; they do not represent the total cost
associated with watershed modeling. Although most sites would not incur
additional modeling costs, EPA conservatively assumes that all 46
existing surface operators would incur additional modeling costs of
$50,000. This assumption results in a total cost estimate of $327,500
on an annualized basis. These costs would be offset by cost savings
discussed below.
EPA projects that cost savings for this subcategory would result
from lower capital and operating costs associated with implementing the
proposed BMP plans, and from an expected reduction in the reclamation
bonding period. The cost savings for controls based on BMPs were
calculated for a representative model mine and were submitted by the
Western Coal Mining Work Group. The cost model is discussed in detail
in the Development Document for Proposed Effluent Limitations
Guidelines and Standards for the Western Alkaline Coal Mining
Subcategory and is included in the Record at Section 3.3.2. The cost
estimates of the model mine relied on data taken from case study mine
permit applications, mine records, technical resources and industry
experience. The study estimated capital costs (design, construction and
removal of ponds and BMPs) and operating costs (inspection,
maintenance, and operation) over the anticipated bonding period.
Cost savings for reclamation at existing surface mines were
calculated by extrapolating the cost savings from the model mine. The
present value of savings over a 10-year period for the model mine was
calculated to be $672,000 (annualized at seven percent) or $1,764
saving per acre. EPA used the projected disturbance acreage divided by
the remaining mine life to estimate the annual acres reclaimed at each
existing mine site. This information was available for 26 mines and
totaled 9,880 acres per year, or an average of 380 annual acres per
mine. EPA assumed that the remaining 20 mines with incomplete data
would each reclaim the average 380 acres per year, resulting in a total
of 17,480 acres. Based on an average savings of $1,764 per acre, EPA
projects that the proposed subcategory will result in annual savings of
$30.8 million. EPA solicits comment on this approach for estimating
reclamation cost savings.
EPA has also calculated cost savings that may result from earlier
Phase II bond release. The OSM hydrology requirements to release
performance bonds at Phase II at 30 CFR part 800.40(c)(1), requires
compliance with the existing 0.5 ml/L effluent standard. The Western
Coal Mining Work Group, in its draft Mine Modeling and Performance Cost
Report (Record Section 3.3.2) estimates that the typical post-mining
Phase II bonding period can be ten years or more under the current
effluent guidelines. Reclamation areas must achieve considerable
maturity before they are capable of meeting the existing standard. The
BMP-based approach in today's proposal uses the inspection of BMP
design, construction, operation and maintenance to demonstrate
compliance instead of the current sampling and analysis of surface
water drainage for reclamation success evaluations. The report
estimates that the BMP-based approach would reduce the time it takes
reclaimed lands to qualify for Phase II bond release to about five
years.
EPA used the following assumptions to estimate cost savings due to
earlier Phase II bond release: (1) a Post-mining Phase II bonding
period of ten years under the current effluent guidelines and five
years under the proposed subcategory; (2) twenty-five percent of the
reported bond amount would be released at the end of Phase II; and (3)
surety bonds were used, with annual fees between $3.75 and $5.50 per
thousand. Twenty-six mines provided information necessary to calculate
associated bond savings. The total estimated savings for these mines
range from $197,000 to $289,000 when annualized at seven percent over
the five year permit period. EPA assumes that the remaining 20 mines
for which savings could not be calculated would achieve the average
savings per mine ($7,600 to $11,100) resulting in total annualized
savings between $349,000 and $511,500. Detailed assumptions and
calculations are contained in the EA.
The estimated net savings in compliance costs associated with the
proposed subcategory, considering additional modeling costs and the
savings to mining operations in sediment control and bonding costs, is
estimated to be approximately $31 million, as shown in Table X. C.2.

Table X. C.2.--Annual Costs and Cost Savings for the Western Alkaline
Subcategory
[Discounted at 7%]
------------------------------------------------------------------------

------------------------------------------------------------------------
Incremental Modeling Costs...... $327,500
Sediment Control Costs (Savings) ($30,835,000)
Earlier Phase 2 Bond Release ($349,000-$511,500)
(Savings).
---------------------------------------
Total Compliance Costs ($30,857,000-$31,019,000)
(Savings).
------------------------------------------------------------------------

D. Economic Impacts of Proposed Options

1. Economic Impacts of Proposed Coal Remining Subcategory
As discussed in Section VI, EPA is proposing BPT, BCT, and BAT that
have an equivalent technical basis and is not proposing NSPS
limitations for the Remining Subcategory. EPA believes that the
proposed option will not impact existing remining permits. For new
permits, remining operators will have the ability to choose among
potential remining sites, and will only select sites that they believe
are economically achievable to remine. Furthermore, any additional BMPs
required by the NPDES authority under the proposed rule will be site-
specific, with economic achievability considered in making a BPJ
determination. The proposed requirements will not create any barriers
to entry in coal remining, but instead are specifically designed to
encourage new remining operations. Hence, the Agency finds no
significant negative impacts to the industry associated with the
proposed subcategory.
The implementation of a pollution abatement plan containing BMPs
may impose additional costs beyond what is included in a SMCRA-approved

[[Page 19464]]

pollution abatement plan. At the same time, the proposed subcategory
may increase profits at remining sites by providing an incentive to
mine coal from abandoned mine land areas that may have been avoided in
the absence of implementing regulations. The proposed subcategory will
also affect the relative profitability of remining different types of
sites, with the potential to encourage remining of the sites with the
worst environmental impacts. An analysis by the Department of Energy
(DOE) of potential remining sites estimated an average coal recovery of
between 2,300 and 3,300 tons per acre of remined land (1993, Coal
Remining: Overview and Analysis). At these coal recovery rates, the
estimated steady state annual increase in acres being remined would
produce between 7.1 and 14.5 million tons of coal per year. This
represents only 1.5 to 3.1 percent of total 1997 Appalachian coal
production of 468 million tons. The same DOE report noted that, given
the general excess capacity in the coal market, it is likely that coal
produced from new remining sites will simply displace coal produced
elsewhere, with no net increase in production overall. The proposed
remining subcategory is therefore not expected to have a significant
impact on overall coal production or prices.
2. Economic Impacts of Proposed Western Alkaline Coal Mining
Subcategory
As discussed in Section VI, EPA is proposing BPT, BAT, and NSPS
limitations that have an equivalent technical basis for the Western
Alkaline Coal Mining Subcategory. EPA concludes that nearly all
economic impacts are positive for the proposed option and finds the
preferred option to be a cost savings to the industry and thus,
economically achievable. Because reclamation costs under today's
proposal will be less than or equal to those under the existing
effluent guidelines for all individual operators, and thus, to the
subcategory as a whole, no facility closures or direct job losses
associated with post-compliance closure are expected. However, EPA
estimated changes in labor requirements attributed to the proposed
subcategory by extrapolating from the model mine results, which
calculated changes in labor hours associated with those erosion and
sediment control structures that were used, or no longer used, under
either the existing guidelines or the proposed subcategory for the
model mine. The results indicated that the proposed subcategory would
reduce annual labor requirements by approximately 0.2 work years for
the model mine. EPA assumed that each of the 46 western alkaline
surface mines would experience the same employment impact as predicted
by the model mine study (Record Section 3.3.6), resulting in the loss
of 9.2 full-time employees (FTEs) per year. This represents 0.1 percent
of the total 1997 coal mine employment (6,862 FTEs) in the western
alkaline region States.
The cost savings associated with the proposed subcategory are not
expected to have a substantial impact on the industry average cost of
mining per ton of coal, and therefore are not expected to have major
impacts on coal prices. While the savings are substantial in the
aggregate and for some individual mine operators, on average they
represent a small portion of the total value of coal produced from the
affected mines. As described in the EA, the estimated savings from the
proposed subcategory are equivalent to only 0.6 percent of the value of
production at 25 mines for which enough information was available to
make site-specific estimates of savings. As with the Coal Remining
Subcategory, the proposed Western Alkaline Coal Mining Subcategory is
not expected to result in significant industry-level changes in coal
production or prices.
EPA is proposing NSPS limitations equivalent to the limitations
that are proposed for BPT and BAT for the Western Alkaline Coal Mining
Subcategory. In general, EPA believes that new sources will be able to
comply at costs that are similar to or less than the costs for existing
sources, because new sources can apply control technologies more
efficiently than sources that need to retrofit for those technologies.
Specifically, here, to the extent that existing sources have already
incurred costs associated with installing sedimentation ponds, new
sources would be able to avoid such costs. There is nothing about
today's proposal that would give existing operators a cost advantage
over new mine operators; therefore, NSPS limitations will not present a
barrier to entry for new facilities.

E. Additional Impacts

1. Costs to the NPDES Permitting Authority
Additional costs will be incurred by the NPDES permitting authority
to review new permit applications and issue revised permits based on
the proposed rule. Under the proposed rule, NPDES permitting
authorities will review baseline pollutant levels and proposed
pollution abatement plans for the Coal Remining Subcategory and
watershed modeling results and sediment control plans for the Western
Alkaline Coal Mining Subcategory.
EPA estimates that permit review will require an average of 35
hours of a permit writer's time per site and that permit writers
receive an hourly wage of $31.68. Based on these assumptions, total
annual costs to the NPDES permitting authorities range from $47,500 to
$67,500 for the 43 to 61 additional sites that can be expected to be
permitted under the proposed subcategory. An upper bound estimate of
costs associated with implementing the proposed western subcategory
assumes that all 46 existing surface mine permits are renewed. The
total incremental annual cost would be $12,500 per year when annualized
over the 5-year permit life (using a seven percent discount rate).
Total additional permit review costs for the proposed rule are
therefore estimated to be between $60,000 and $80,000 per year. A
detailed analysis is contained in the EA.
2. Community Impacts
The proposed rule could have community-level and regional impacts
if it significantly altered the competitive position of coal produced
in different regions of the country, or led to growth or reductions in
employment in different regions and communities. As described in the
EA, the proposed rule is not likely to have significant impacts on
relative coal production in the West versus the East. The proposed
Remining Subcategory is likely to shift the location of production and
employment toward eligible abandoned mine lands, but not to increase
national coal production and employment or affect coal prices
significantly overall.
EPA projects that impacts of the proposed Western Alkaline Coal
Mine Subcategory on mine employment will also be minor. As discussed
above, EPA estimated a reduction in labor requirements of 9.2 FTEs per
year by extrapolating from the model mine results. This represents 0.1
percent of the total 1997 coal mine employment in the western alkaline
region States. Regional multipliers relating total direct and indirect
employment to coal industry employment range from 2.6 to 3.2 for the
western alkaline region states (U.S. Bureau of Economic Analysis,
Regional Input-Output Modeling Systems, ``RIMSII''). Therefore, the
total impact on employment, direct and indirect, that may result from
the proposed western alkaline subcategory is a reduction of between 24
and 29 FTEs per year. This reduction in

[[Page 19465]]

employment might be offset if lower costs under the proposed
subcategory encourage growth in coal mining in the western alkaline
region.
3. Foreign Trade Impacts
EPA does not project any foreign trade impacts as a result of the
proposed effluent limitations guidelines and standards. U.S. coal
exports consist primarily of Appalachian bituminous coal, especially
from West Virginia, Virginia and Kentucky (U.S. DOE/EIA, Coal Data: A
Reference; U.S. DOE/EIA Coal Industry Annual 1997). Coal imports to the
U.S. are insignificant. Impacts are difficult to predict, since coal
exports are determined by economic conditions in foreign markets and
changes in the international exchange rate for the U.S. dollar.
However, no foreign trade impacts are expected given the relatively
small projected increase in production and projected lack of impact on
costs of production or prices.

F. Cost-effectiveness Analysis

Cost-effectiveness calculations are used during the development of
effluent limitations guidelines and standards to compare the efficiency
of regulatory options in removing toxic and non-conventional
pollutants. Cost-effectiveness is calculated as the incremental annual
cost of a pollution control option per incremental pollutant removal.
The increments are considered relative to another option or to a
benchmark, such as existing treatment. In cost-effectiveness analysis,
pollutant removals are measured in toxicity normalized units called
``pounds-equivalent.'' The cost-effectiveness value, therefore,
represents the unit cost of removing an additional pound-equivalent of
pollutants. In general, the lower the cost-effectiveness value, the
more cost-efficient the regulation will be in removing pollutants,
taking into account their toxicity. While not required by the Clean
Water Act, cost-effectiveness analysis is a useful tool for evaluating
regulatory options for the removal of toxic pollutants.
While cost-effectiveness results are usually reported in the Notice
of Proposed Rulemaking for effluent guidelines, such results are not
presented in today's document because of the nature of the two
subcategories. For the Coal Remining Subcategory, EPA is unable to
predict pollutant reductions that would be achieved at future remining
operations. As described in Section VI, it is difficult to project the
results, in terms of measured improvements in pollutant discharges,
that will be produced through the application of any given BMP or group
of BMPs at a particular site. EPA is therefore unable to calculate
cost-effectiveness. For the Western Alkaline Coal Mining Subcategory,
cost-effectiveness was not calculated because there are no incremental
costs attributed to the proposed option.

G. Cost Benefit Analysis

EPA estimated and compared the costs and benefits for each of the
proposed subcategories. EPA concludes that both subcategories have the
potential to create significant environmental benefits at little or no
additional cost to the industry. The cost and benefit categories that
the Agency was able to quantify and monetize for the proposed Coal
Remining Subcategory are shown in Table X. G.1. The monetized annual
benefit estimates ($734,000 to $1,175,500) substantially outweigh the
projected annual costs ($380,500 to $825,500).

Table X. G.1.--Annualized Social Costs and Benefits of Proposed Remining
Subcategory
------------------------------------------------------------------------

------------------------------------------------------------------------
Social Costs (Discounted at 7%):
Industry Compliance Costs...... $330,000-$758,500
NPDES Permitting Costs......... $47,500-$67,500
------------------------------------
Total Social Costs......... $380,500-$865,000
Monetized Social Benefits
(Discounted at 3%):
------------------------------------
Recreational use of improved $100,500-$168,000
water bodies.
Aesthetic improvements to water $380,000-$635,500
bodies.
Non-use (related to improved $51,500-$86,000
water bodies).
------------------------------------
Total Water-Related $532,000-$889,500
Benefits.
Recreational use of reclaimed $202,000-$286,000
land.
------------------------------------
Total Monetized Benefits... $734,000-$1,175,500
------------------------------------------------------------------------

In addition to the monetized benefits shown in Table X. G.1, the
increase in remining is projected to result in the removal of some
216,000 to 307,000 feet of highwall each year, with benefits in
increased public safety. The increased remining also has the potential
to recover an estimated 7.1 to 14.5 million tons of coal per year that
might otherwise remain unrecovered, with a value of approximately
$188.5 to $ 385.0 million (based on an average 1997 value per ton of
coal in Appalachia of $26.55).
The proposed Western Alkaline Coal Mining Subcategory is projected
to result in net cost savings to society while increasing environmental
benefits to society. The industry compliance costs consist of watershed
modeling costs and are offset by cost savings associated with the
proposal, specifically reduced costs for sediment control and earlier
Phase II bond release. Total annual cost savings to society are
expected to be approximately $31 million. The proposed subcategory is
also expected to result in annual environmental benefits valued between
$43,000 and $768,500--with the majority of benefits resulting from
recreational use of waters with improved water flow. Table X. G.2
summarizes the social costs and benefits of the proposed Western
Alkaline Coal Mining Subcategory.

[[Page 19466]]

Table X. G.2.--Annual Social Costs/Savings and Benefits of the Proposed
Western Subcategory
------------------------------------------------------------------------

------------------------------------------------------------------------
Social Costs and Cost Savings
(Discounted at 7%):
Associated Industry Cost ($31,183,000-$31,346,000)
Savings.
Industry Compliance Costs.. $327,500
NPDES Permitting Costs..... $12,500
----------------------------------------
Total Social Cost ($30,845,000-$31,007,000)
Savings.
Monetized Benefits (Discounted
at 3%):
----------------------------------------
Avoided surface disturbance $5,500-$36,500
Recreational benefits from $25,000-$488,000
improved water flow.
Non-use benefits........... $12,500-$244,000
----------------------------------------
Total Monetized $43,000-$768,500
Benefits.
------------------------------------------------------------------------

XI. Administrative Requirements

A. Executive Order 12866: Regulatory Planning and Review

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this proposed rule is not a
``significant regulatory action'' under the terms of Executive Order
12866 and is therefore not subject to OMB review.

B. Regulatory Flexibility Act as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et
seq.

The Regulatory Flexibility Act generally requires an agency to
prepare a regulatory flexibility analysis for any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small
entities, small entity is defined as: (1) A small business that has 500
or fewer employees (based on SBA size standards); (2) a small
governmental jurisdiction that is a government of a city, county, town,
school district or special district with a population of less than
50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
After considering the economic impact of today's proposed rule on
small entities, I certify that this action will not have significant
economic impact on a substantial number of small entities. In
determining whether a rule has significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analysis is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the proposed rule on small entities.'' 5 U.S.C. 603
and 604. Thus, an agency may certify that a rule will not have a
significant economic impact on a substantial number of small entities
if the rule relieves regulatory burden, or otherwise has a positive
economic effect on all of the small entities subject to the rule. EPA
projects that the proposed subcategory for Western alkaline mines
results in cost savings for all small surface mine operators. For all
small underground mine operators, EPA projects no incremental costs,
and the Agency believes that many are likely to experience some cost
savings. Section X of this document discusses the likely cost savings
associated with the subcategory in more detail. As described in Section
III of this document, the current regulations at 40 CFR part 434 create
a disincentive for remining by imposing limitations on pre-existing
discharges for which compliance is cost prohibitive. Despite the
statutory authority for exemptions from these limitations provided by
the Rahall Amendment, coal mining companies and States remain hesitant
to pursue remining without formal EPA guidelines. The proposed remining
subcategory provides standardized procedures for developing effluent
limits for pre-existing discharges, thereby eliminating the uncertainty
involved in interpreting and implementing current Rahall requirements.
The proposed subcategory for remining is intended to remove barriers to
the permitting of remining sites with pre-existing discharges, and is
therefore expected to encourage remining activities by small entities.
Thus, we have concluded that today's proposed rule will relieve
regulatory burden for all small entities. We continue to be interested
in the potential impacts of the proposed rule on small entities and
welcome comments on issues related to such impacts.

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-

[[Page 19467]]

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. 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 the proposed rule, if promulgated, would
not contain a Federal mandate that will 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. Although the proposed
rule will impose some permit review and approval requirements on
regulatory authorities, EPA has determined that this cost burden will
be less than $80,000 annually. Accordingly, today's proposal is not
subject to the requirements of sections 202 and 205 of UMRA. EPA has
determined that this proposal contains no regulatory requirements that
might significantly or uniquely affect small governments. Thus, is not
subject to the requirements of section 203 of the UMRA. The proposal,
if promulgated, would not establish requirements that would apply to
small governments.

D. Paperwork Reduction Act

The information collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An
Information Collection Request (ICR) document has been prepared by EPA
(ICR No.1944.01) and a copy may be obtained from Sandy Farmer by mail
at Collection Strategies Division; U.S. Environmental Protection Agency
(2822); 1200 Pennsylvania Ave., NW, Washington, DC 20460, by email at
farmer.sandy@epamail.epa.gov, or by calling (202) 260-2740. A copy may
also be downloaded off the internet at http://www.epa.gov/icr.
Today's proposed rule requires an applicant to submit baseline
monitoring and a pollution abatement plan for coal mining operations
involved in remediation of abandoned mine lands and the associated acid
mine drainage during extraction of remaining coal resources. In
addition, today's proposed rule requires an applicant involved in
reclamation of coal mining areas in arid regions to submit a sediment
control plan for sediment control activities. Information collection is
needed to determine whether these plans will achieve the reclamation
and environmental protection pursuant to the Surface Mining Control and
Reclamation Act and the Clean Water Act. Without this information,
Federal and State regulatory authorities cannot review and approve
permit application requests. Data collection and reporting requirements
associated with these activities are substantively covered by the
``Surface Mining Permit Applications--Minimum Requirements for
Reclamation and Operation Plan--30 CFR part 780'' ICR, OMB Control
Number 1029-0036. Data collection and reporting requirements from
today's proposed rule that may not be included in the 30 CFR part 780
ICR are: some incremental baseline and annual monitoring and some
sediment yield modeling.
The initial burden for coal mining and remining sites under the
proposed rule is estimated at 74,478 hours and $2,614,538 for baseline
determination monitoring at remining sites and additional sediment
yield modeling at Western Alkaline mining sites. The initial burden
associated with preparation of a site's pollution abatement plan or
sediment control plan is already covered by an applicable SMCRA ICR.
For the Western Alkaline Subcategory, EPA estimates that 46 sites per
year will experience an initial reporting burden of 72,588 hours; or an
average of 1,578 hours and $50,000 per facility. For the Remining
Subcategory, EPA estimated that 78 sites per year will experience an
initial reporting burden of 1,890 hours; or an average of 24 hours and
$4,033 per facility. The annual burden for coal mining and remining
sites under the proposed rule is estimated at 3,024 hours and $189,302
for annual monitoring at coal remining sites. There is no annual burden
associated with the Western Alkaline Subcategory. For the Remining
Subcategory, the duration of the ICR is three years. EPA estimated that
234 sites (78 sites x 3 years) will each experience an annual burden
of 13 hours and $809. Burden means the total time, effort, or financial
resources expended by persons to generate, maintain, retain, or
disclose or provide information to or for a Federal agency. This
includes the time needed to review instructions; develop, acquire,
install, and utilize technology and systems for the purposes of
collecting, validating, and verifying information, processing and
maintaining information, and disclosing and providing information;
adjust the existing ways to comply with any previously applicable
instructions and requirements; train personnel to be able to respond to
a collection of information; search data sources; complete and review
the collection of information; and transmit or otherwise disclose the
information.
An Agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15.
Comments are requested on the Agency's need for this information,
the accuracy of the provided burden estimates, and any suggested
methods for minimizing respondent burden, including through the use of
automated collection techniques. Send comments on the ICR to the
Director, Collection Strategies Division; U.S. Environmental Protection
Agency (2822); 1200 Pennsylvania Ave., NW, Washington, DC 20460; and to
the Office of Information and Regulatory Affairs, Office of Management
and Budget, 725 17th St., NW, Washington, DC 20503, marked ``Attention:
Desk Officer for EPA.'' Include the ICR number in any correspondence.
Since OMB is required to make a decision concerning the ICR between 30
and 60 days after April 11, 2000, a comment to OMB is best assured of
having its full effect if OMB receives it by May 11, 2000. The final
rule will respond to any OMB or public comments on the information
collection requirements contained in this proposal.

E. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement
Act (NTTAA) of 1995, Pub L. No. 104-113 Sec. 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, business

[[Page 19468]]

practices, etc.) that are developed or adopted by voluntary consensus
standard bodies. The NTTAA directs EPA to provide Congress, through the
Office of Management and Budget (OMB), explanations when the Agency
decides not to use available and applicable voluntary consensus
standards.
Today's proposed rule requires dischargers to monitor for TSS,
magnesium, iron, and pH. All of these analytes are required to be
measured using consensus standards that are specified in the tables at
40 CFR part 136.3.
EPA welcomes comments on this aspect of the proposed rulemaking
and, specifically, invites the public to identify potentially-
applicable voluntary consensus standards and to explain why such
standards should be used in this regulation.

F. Executive Order 13132: Federalism

Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
Under Section 6 of Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. EPA also may not issue a regulation
that has federalism implications and that preempts State law, unless
the Agency consults with State and local officials early in the process
of developing the proposed regulation.
This proposed rule does not have federalism implications. It will
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. The rule will not impose
substantial costs on States and localities. The rule establishes
effluent limitations imposing requirements that apply to coal mining
facilities when they discharge wastewater. The rule does not apply
directly to States and localities and will only affect State and local
governments when they are administering CWA permitting programs. The
proposed rule, at most, imposes minimal administrative costs on States
that have an authorized NPDES program. (These States must incorporate
the new limitations and standards in new and reissued NPDES permits).
Thus, the requirements of section 6 of the Executive Order do not apply
to this rule. Although section 6 of Executive Order 13132 does not
apply to this rule, EPA did consult extensively with State officials in
developing this proposal, as discussed in Section V of this document.
In addition, in the spirit of this Executive Order and consistent
with EPA policy to promote communications between EPA and State and
local governments, EPA specifically solicits comment on this proposed
rule from State and local officials.

G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks

The Executive Order ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children; and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency. This rule is
not subject to E.O. 13045 because it is neither ``economically
significant'' as defined under Executive Order 12866, nor does it
concern an environmental health or safety risk that EPA has reason to
believe may have a disproportionate effect on children.

H. Executive Order 13084: Consultation and Coordination With Indian
Tribal Governments

Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian Tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected officials and other
representatives of Indian tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.''
Today's rule does not significantly or uniquely affect the
communities of Indian tribal governments. Although EPA has identified
sites in the western United States with existing coal mining operations
that are located on Tribal lands, EPA projects that this proposal will
generate a net cost savings for these mine sites. Accordingly, the
requirements of section 3(b) of Executive Order 13084 do not apply to
this rule.
Nevertheless, EPA consulted with representatives of tribal
governments. EPA has identified sites in the western United States with
existing coal mining operations that are located on Tribal lands. With
assistance from its American Indian Environmental Office, EPA has
identified five Tribes as having lands in the western U.S. with, or
having an interest in, coal mining activities. The Tribes are the
Navajo Nation, the Hopi Tribe, the Crow Tribe, the Southern Ute Indian
Tribe, and the Northern Cheyenne Tribe. EPA representatives met with
Tribal officials from the Navajo Nation during coal mine site visits in
New Mexico and Arizona in August 1998 to review environmental
conditions and the applicability of the proposed regulation. In
December 1999, EPA sent meeting invitations to Tribal Chairmen,
Directors of Tribal Environmental Departments, and other
representatives of the five Tribes with existing or potential interest
in coal mining, and met with Tribal representatives from the Navajo
Nation and Hopi Tribes in Albuquerque, NM on December 16, 1999 to
consult on the proposed amendments to the existing effluent limitations
guidelines, and to discuss plans for involvement at public

[[Page 19469]]

meetings in western locations. As a result of this consultation, EPA
has agreed to a comment period on this Document of 90 days and has
agreed to provide a copy of the relevant portions of the Rulemaking
Record at the western location identified in the ADDRESSES section of
this document. EPA has also agreed to hold public meetings in three
locations that are convenient for attendance by Tribal representatives.

I. Plain Language Directive

Executive Order 12866 and the President's memorandum of June 1,
1998, require each agency to write all rules in plain language. We
invite your comments on how to make this proposed rule easier to
understand. For example, have we organized the material to suit your
needs? Are the requirements in the rule clearly stated? Does the rule
contain technical language or jargon that isn't clear? Would a
different format (grouping and order of sections, use of headings,
paragraphing) make the rule easier to understand? Would more (but
shorter) sections be better? Could we improve clarity by adding tables,
lists, or diagrams? What else could we do to make the rule easier to
understand?

XII. Solicitation of Data and Comments

A. Specific Data and Comment Solicitation

EPA has solicited comments and data on many individual topics
throughout this preamble. EPA incorporates each and every such
solicitation here, and reiterates its interest in receiving data and
comments on the issues addressed by those solicitations. In addition,
EPA particularly requests comments and data on the following issues:
1. Regulatory Proposal
a. EPA solicits comments on the data and methods used to determine
the benefit and cost impact values supporting this proposed regulation.
(Refer to Section IX and Section X)
b. EPA solicits comment on the belief that this proposed rule will
provide better environmental results than the current requirements.
(Refer to Section III, Section IV, and Section VI)
c. EPA is soliciting comments on the potential impact of the
proposed rule on small entities and on issues related to such impacts.
(Refer to Section XI.B)
2. Coal Remining Subcategory Proposal
a. EPA believes that encouraging remining operations through the
proposed subcategory has the potential for improving hazardous
conditions and improving acid mine drainage from abandoned mine lands.
EPA is soliciting comment on this conclusion and on potential options
that may be environmentally preferable to the proposed Remining
subcategory. EPA is also soliciting comments and additional data on the
extent of abandoned mine land that may be affected by the proposed
rule. (Refer to Section VI.A and Section IX.A)
b. EPA is soliciting comments on the proposed statistical
procedures presented in Appendix B of the proposed regulation for
calculating baseline limits and determining compliance with baseline
limits and on the requirements for the number of samples, the sampling
duration and frequency, and the plan of sampling over time. EPA is also
soliciting comments and data on the feasibility of using acidity, net
alkalinity, pH, and sulfate as parameters for assessment of pollution
loading from pre-existing discharges. (Refer to Section VII.B and
Section VII.C)
c. EPA is soliciting comments on the consistency of the proposed
Remining subcategory with the Rahall Amendment and with existing State
remining programs. (Refer to Section VI.A)
d. EPA is soliciting comments on the definition for pollution
abatement area and on any additional requirements of pollution
abatement plans that would ensure the proper use, design and
implementation of BMPs for compliance with the proposed regulations.
EPA also is soliciting comments on how the proposed regulations could
better define a pollution abatement plan that would constitute BPT and
on other treatment technologies that would be economically feasible and
available for control of pre-existing discharges. (Section VI.A)
e. EPA is soliciting comments on the proposed applicability of the
coal remining subcategory as it relates to commingling pre-existing
discharges with active mining wastewater. (Refer to Section VI.A)
f. EPA is soliciting comments on the legal basis and technical
support for alternative permits incorporating only BMP-based
requirements with no numeric limits and for information on conditions
to determine a site's eligibility. (Refer to Section VI.A)
g. EPA requests comment on how to describe and structure the
requirement to design and implement a pollution abatement plan to
reduce pollutant loadings from pre-existing discharges. (Refer to
Section VI.A)
h. EPA requests comment on how the regulations could better define
the type of plan that would constitute BPT and BAT. (Refer to Section
VI.A)
i. EPA is soliciting comment on the applicability of the proposed
Coal Remining Subcategory in regard to permit reissuance and Rahall-
type permits. (Refer to Section VI.A)
3. Western Alkaline Coal Mining Subcategory Proposal
a. EPA is soliciting comments and data on the appropriateness of
expanding the applicability of this proposed subcategory to include the
control of non-process water drainage from active mining areas in the
arid and semiarid region. (Refer to Section VI.B)
b. EPA is soliciting comments on the environmental impacts and
benefits associated with operating sedimentation ponds in the arid and
semiarid west and on the problems that are associated with disturbing
the hydrologic balance in arid regions. (Refer to Section VI.B)
c. EPA also is soliciting comment on the appropriateness of
establishing effluent limitations requiring only BMP plans rather than
setting numeric limitations based on treatment technologies for
drainage from reclamation areas in these regions. (Refer to Section
VI.B)
d. EPA is soliciting comment on the appropriateness of BMP
inspection to determine compliance with requirements of this
subcategory. EPA also is soliciting comment on recommended procedures
for and frequency of such inspections. (Refer to Section VI.B)
e. As applies to the Western Alkaline Coal Mining Subcategory, EPA
defines ``sediment yield'' to mean the sum of the soil losses from a
surface minus deposition in macro-topographic depressions, at the toe
of the hillslope, along field boundaries, or in terraces and channels
sculpted into the hillslope. EPA is soliciting comments on the
definition of sediment yield and on the appropriateness of using this
parameter as the basis for determining sediment loadings. (Refer to
Section VI.B)
f. EPA is soliciting comments on the approach used to estimate
reclamation cost savings that EPA expects will result from the proposed
Western Alkaline Subcategory and on EPA's assumption that today's
proposed subcategory would be cost neutral for underground operators.
(Refer to Section X)

B. General Solicitation

EPA encourages public participation in this rulemaking. EPA asks
that comments address any perceived deficiencies in the record
supporting this proposal and that suggested revisions or corrections be
supported by data. In addition, EPA requests

[[Page 19470]]

comments on the various methods of handling supporting data and
information and on the applicability of these proposed guidelines, as
they relate to the definitions for coal remining and western alkaline
coal mining.
EPA invites all parties to coordinate their data collection
activities with EPA to facilitate mutually beneficial and cost-
effective data submissions. Please refer to the FOR FURTHER INFORMATION
section at the beginning of this preamble for technical contacts at
EPA.
To ensure that EPA can properly respond to comments, EPA prefers
that commenters cite, where possible, the paragraph(s) or sections in
the document or supporting documents to which each comment refers.
Please submit an original and two copies of your comments and
enclosures (including references).

Appendix A to the Preamble: Definitions, Acronyms, and Abbreviations
Used in This Document

Act--Clean Water Act
Agency--U.S. Environmental Protection Agency
Alkaline mine drainage--mine drainage which, before any treatment,
has a pH equal to or greater than 6.0 and total iron concentration
of less than 10 mg/L
AML--Abandoned mine land
AMLIS--Abandoned Mine Land Inventory System
ASTM--American Society of Testing and Materials
BADCT--The best available demonstrated control technology, for new
sources under section 306 of the Clean Water Act
Baseline--Pre-existing pollution loading. Baseline will be
determined according to the protocol set forth by EPA in
promulgation of this proposed rule
BAT--The best available technology economically achievable, under
section 304(b)(2)(B) of the Clean Water Act
BCT--Best conventional pollutant control technology under section
304(b)(4)(B) of the Clean Water Act
BMP--Best management practices
BOD--Biochemical oxygen demand
BPJ--Best professional judgement
BPT--Best practicable control technology currently available, under
section 304(b)(1) of the Clean Water Act
CBI--Confidential Business Information
CFR--Code of Federal Regulations
Clean Water Act--Federal Water Pollution Control Act Amendments (33
U.S.C. 1251 et seq.)
Conventional pollutants--Constituents of wastewater as determined by
section 304(a)(4) of the Clean Water Act, including, but not limited
to, pollutants classified as biochemical oxygen demanding, suspended
solids, oil and grease, fecal coliform, and pH
CV--Coefficient of variation
CWA--Clean Water Act
CWAP--Clean Water Action Plan
Direct discharger--A facility that discharges or may discharge
pollutants to waters of the United States
EPA--U.S. Environmental Protection Agency
FDF--Fundamentally different factors--Variance
FR--Federal Register
FTE--Full-time employees
ICR--Information Collection Request
IMCC--Interstate Mining Compact Commission
Indirect discharger--A facility that introduces wastewater into a
publicly owned treatment works
IRFA--Initial Regulatory Flexibility Analysis
NAICS--North American Industry Classification System
NCA--National Coal Association
NMA--National Mining Association
NPDES--National Pollutant Discharge Elimination System
NRDC--Natural Resources Defense Council, Incorporated
NSPS--New source performance standards under section 306 of the
Clean Water Act
NTTAA--National Technology Transfer and Advancement Act
OMB--Office of Management and Budget
OSM/OSMRE--Office of Surface Mining, Reclamation and Enforcement
PADEP--Pennsylvania Department of Environmental Protection
PRA--Paperwork Reduction Act
PHC--Probable Hydrologic Consequence
Pollution abatement area--The part of the permit area that is
causing or contributing to the baseline pollution load, including
areas that must be affected to bring about significant improvement
of the baseline pollution load, and which may include the immediate
location of the discharges.
POTW--Publicly-owned treatment works
PPA--Pollution Prevention Act of 1990
Pre-existing discharge--Any discharge resulting from mining
activities conducted prior to August 3, 1977.
PSNS--Pretreatment standards for new sources
Reclamation area--the surface area of a coal mine that has been
returned to required contour and on which revegetation
(specifically, seeding or planting) work has been commenced.
Remining--Coal remining refers to a coal mining operation that began
after February 4, 1987 at a site on which coal mining was conducted
before August 3, 1977.
RFA--Regulatory Flexibility Act
RUSLE--Revised Universal Soil Loss Equation
SBA--Small Business Administration
SBREFA--Small Business Regulatory Enforcement Fairness Act
Sediment--All undissolved organic and inorganic material transported
or deposited by water.
Sediment Yield--the sum of the soil losses from a surface minus
deposition in macro-topographic depressions, at the toe of the
hillslope, along field boundaries, or in terraces and channels
sculpted into the hillslope.
SIC--Standard Industrial Classifications
SMCRA-- Surface Mining Control and Reclamation Act
SS--Settleable Solids
TMDL--Total Maximum Daily Loads
Toxic Pollutants--The pollutants designated by EPA as toxic in 40
CFR 401.15.
TSS--Total Suspended Solids
UMRA--Unfunded Mandates Reform Act
U.S.C.--United States Code
WIEB--Western Interstate Energy Board
WTP--Willingness to pay

List of Subjects in 40 CFR Part 434

Environmental protection, Mines, Reporting and recordkeeping
requirements, Water pollution control.

Dated: March 30, 2000.
Carol M. Browner,
Administrator.

For the reasons set forth in the preamble, 40 CFR part 434 is
proposed to be amended as follows:

PART 434--[AMENDED]

1. The authority citation for part 434 continues to read as
follows:

Authority: 33 U.S.C. 1311 1314(b), (c), (e), and (g), 1316(b)
and (c), 1317(b) and (c), and 1361.

2. Amend Sec. 434.11 by adding paragraphs (u), (v), (w), (x), (y),
and (z) to read as follows:

Sec. 434.11 General definitions.

(u) The term ``coal remining operation'' means a coal mining
operation at a site on which coal mining was conducted prior to August
3, 1977.
(v) The term ``pollution abatement area'' means the part of the
permit area that is causing or contributing to the baseline pollution
load, including areas that would need to be affected to reduce the
pollution load.
(w) The term ``pre-existing discharge'' means any discharge
resulting from mining activities conducted prior to August 3, 1977.
(x) The term ``sediment'' shall mean undissolved organic and
inorganic material transported or deposited by water.
(y) The term ``sediment yield'' means the sum of the soil losses
from a surface minus deposition in macro-topographic depressions, at
the toe of the hillslope, along field boundaries, or in terraces and
channels sculpted into the hillslope.
(z) The term ``western coal mining operation'' means a surface or
underground coal mining operation located in the interior western
United States, west of the 100th meridian west longitude, in an arid or
semiarid environment with an average annual precipitation of 26.0
inches or less.
3. Revise Sec. 434.50 to read as follows:

[[Page 19471]]

Sec. 434.50 Applicability.

The provisions of this subpart are applicable to discharges from
post-mining areas, except as provided in Sec. 434.80.
4. Add subpart G, consisting of Secs. 434.70 through 434.74, to
read as follows:

Subpart G--Coal Remining

Sec.
434.70 Applicability.
434.71 Effluent limitations attainable by the application of the
best practicable control technology currently available (BPT).
434.72 Effluent limitations attainable by application of the best
available technology economically achievable (BAT).
434.73 Effluent limitations attainable by application of the best
conventional pollutant control technology (BCT).
434.74 New source performance standards (NSPS).

Subpart G--Coal Remining

Sec. 434.70 Applicability.

This subpart applies to pre-existing discharges that are located
within pollution abatement areas of a coal remining operation and that
are not commingled with waste streams from active mining areas. Pre-
existing discharges that are commingled with waste streams from active
mining areas are subject to the provisions of Sec. 434.61. Pre-existing
dischargers that have been, but are no longer commingled with waste
streams from active mining areas, are subject to the provisions of this
part. The effluent limitations in this subpart apply to pre-existing
discharges until the appropriate SMCRA authority has authorized bond
release.

Sec. 434.71 Effluent limitations attainable by the application of the
best practicable control technology currently available (BPT).

(a) Except as provided in 40 CFR 125.30 through 125.32, the
following effluent limits apply to pre-existing discharges:

Effluent Limitations
------------------------------------------------------------------------
Pollutant Requirement
------------------------------------------------------------------------
(1) Iron, total........................ May not exceed baseline
loadings (as defined by
Appendix B).
(2) Manganese, total................. May not exceed baseline
loadings (as defined by
Appendix B).
(3) pH:................................ ...............................
(i) If all baseline observations Single observations must be in
are within the range of 6.0 to 9.0. range of 6.0 to 9.0.
(ii) If any baseline observation is Single observations must be lower limit (as
defined by Appendix B) and 9.0.
(iii) If any baseline observation Single observations must be 9.0. thn-eq> upper limit (as
defined in Appendix B) and 6.0.
(4) TSS................................ May not exceed 70.0 mg/L for
any 1 day. Average of daily
values for 30 consecutive days
may not exceed 35.0 mg/L.\1\
------------------------------------------------------------------------
\1\ Except as provided in Sec. 434.63

(b) Additionally, the operator must submit a pollution abatement
plan for the pollution abatement area to the permit authority, that in
the Best Professional Judgement (BPJ) of the permit writer, represents
the Best Available Technology (BAT) currently available. The plan must
be incorporated into the permit as an effluent limitation, and must be
designed to reduce the pollution load from pre-existing discharges. The
plan must identify characteristics of the pollution abatement area and
the pre-existing discharges, and describe design specifications for
selected best management practices (BMPs). The plan must include
periodic inspection and maintenance schedules. The BMPs must be
implemented as specified in the plan.

Sec. 434.72 Effluent limitations attainable by application of the best
available technology economically achievable (BAT).

Except as provided in 40 CFR 125.30 through 125.32, pre-existing
discharges must comply with the effluent limitations listed in
Sec. 434.71 for iron and manganese. The operator must also submit and
implement a pollution abatement plan that, in the Best Professional
Judgement (BPJ) of the permit writer, reflects BAT levels of control.

Sec. 434.73 Effluent limitations attainable by application of the best
conventional pollutant control technology (BCT).

Except as provided in 40 CFR 125.30 through 125.32, pre-existing
discharges must comply with the effluent limitations listed in
Sec. 434.71 for pH and total suspended solids. The operator must also
submit and implement a pollution abatement plan as specified in
Sec. 434.71.

Sec. 434.74 New source performance standards (NSPS).

NSPS effluent limitations are not applicable to this subcategory.
Pre-existing discharges that are located in pollution abatement areas
of a coal remining operation and are not commingled with waste streams
from active mining areas are considered existing sources and must meet
BPT, BAT, and BCT effluent limitations at Secs. 434.71 through 434.73.
5. Add subpart H, consisting of Secs. 434.80 through 434.84, to
read as follows:

Subpart H--Western Alkaline Coal Mining

Sec.
434.80 Applicability.
434.81 Effluent limitations attainable by the application of the
best practicable control technology currently available (BPT).
434.82 Effluent limitations attainable by application of the best
available technology economically achievable (BAT).
434.83 Effluent limitations attainable by application of the best
conventional pollutant control technology (BCT). [Reserved]
434.84 New source performance standards (NSPS).

Subpart H--Western Alkaline Coal Mining

Sec. 434.80 Applicability.

This subpart applies to alkaline mine drainage from reclamation
areas associated with western coal mining operations. Reclamation areas
not associated with western coal mining operations or that produce acid
mine drainage are subject to the provisions established in Subpart E-
Post-Mining Areas. The effluent limitations in this subpart apply until
the appropriate SMCRA authority has authorized bond release.

Sec. 434.81 Effluent limitations attainable by the application of the
best practicable control technology currently available (BPT).

Except as provided in 40 CFR 125.30 through 125.32, the following
effluent

[[Page 19472]]

limitations apply to alkaline mine drainage from reclamation areas of
western coal mining operations:
(a) A western coal mining operator must submit a site-specific
sediment control plan for surface reclamation areas to the permitting
authority. The sediment control plan must be incorporated into the
permit as an effluent limitation. The sediment control plan must
identify best management practices. It also must describe design
specifications, construction specifications, maintenance schedules,
criteria for inspection, as well as expected performance and longevity
of the best management practices.
(b) A western coal mining operator must run a watershed model and
submit results demonstrating that implementation of the sediment
control plan will result in average annual sediment yields that will
not be greater than background levels from pre-mined, undisturbed
conditions. The operator must use the same watershed model that was or
will be used to acquire the SMCRA permit.
(c) A western coal mining operator must design, implement, and
maintain sediment control measures in the manner specified in the
sediment control plan.

Sec. 434.82 Effluent limitations attainable by application of the best
available technology economically achievable (BAT).

Except as provided in 40 CFR 125.30 through 125.32, any existing
western coal mining operation subject to this subpart must meet the
effluent limitations listed in Sec. 434.81.

Sec. 434.83 Effluent limitations attainable by application of the best
conventional pollutant control technology (BCT). [Reserved]

Sec. 434.84 New source performance standards (NSPS).

Any new source western coal mining operation subject to this
subpart must meet the effluent limitations listed in Sec. 434.81.
6. Add appendix B to part 434 to read as follows:

Appendix B to Part 434--Baseline Determination and Compliance
Monitoring for Pre-existing Discharges at Remining Operations

I. Summary

1. This appendix presents the procedures to be used for
establishing effluent limitations for pre-existing discharges at coal
remining operations, in accordance with the requirements set forth in
this part, Coal Remining Subcategory. The requirements specify that
pollutant levels of total iron, total manganese, and pH in pre-existing
discharges shall not exceed baseline pollutant levels. The procedures
described in this appendix shall be used for determining site-specific,
baseline pollutant levels, and for determining discharge exceedances
during coal remining operations. Procedures A and B are alternatives--
either one may be selected by a permitting authority. Because pH data
examined by EPA do not appear to be well-described by a log-normal
distribution, EPA recommends the use of Procedure A for determining pH
limits and exceedances.
2. Below are the steps for running Procedures A and B for
determining baseline and compliance with baseline pollution loading.
Examples of these procedures are provided in Appendix A of EPA's Coal
Remining Statistical Support Document. In order to sufficiently
characterize pollutant levels during baseline determination and during
each annual monitoring period, it is required that at least one sample
result be obtained per month for a period of 12 months.
3. In those cases where any baseline observation is above 9.0
standard pH units, an upper limit or trigger and compliance should be
determined in the same way limits and compliance are determined for
pollutant loadings. If the upper limit determined in this manner is
less than 9.0, the limit may be set at 9.0. In cases where any baseline
observation for pH is less than 6.0 standard pH units, lower limits or
triggers and compliance determinations for pH should be determined
using transformed data (Y = 14--pH). Once the lower limit or trigger is
determined for Y, it should be transformed back (14--Limit for Y), to
apply as standard pH units. If the lower limit determined in this
manner is greater than 6.0, then the limit may be set at 6.0.

II. Procedure A for Comparing Baseline and Monitoring Loading
Observations

Procedure A implements a single observation trigger, and a subtle
trigger used for annual comparisons.

A. Calculation and Application of Single Observation Trigger (L)

Step 1. Count the number of baseline observations taken for the
parameter of interest. Label this number n.
Step 2. Order all baseline loading observations from lowest to
highest. Let the lowest number (minimum) be x(1), the next
lowest be x(2), and so forth until the highest number
(maximum) is x(n).
Step 3. If less than 17 baseline observations were obtained, then
the single observation trigger (L) will equal the maximum of the
baseline observations (x(n)). Go to step 4.
If at least 17 baseline observations were obtained, calculate the
median (M) of all baseline observations:
Instructions for calculation of M:
If n is odd, then M equals x(n/2 + \1/
2\).
For example, if there are 17 observations, then M = X(17/2
+ \1/2\) = x(9), the 9th highest
observation.
If n is even, then M equals 0.5* (x(n/2) + x(n/2
+ 1)).
For example, if there are 18 observations, then M equals 0.5
multiplied by the sum of the 9th and 10th highest observations.
(a) Calculate M1 as the median of the subset of
observations that range from the calculated M to the maximum x(n)
(b) Calculate M2 as the median of the subset of
observations that range from the calculated M1 to
x(n).
(c) Calculate M3 as the median of the subset of
observations that range from the calculated M2 to
x(n).
(d) Calculate the single observation trigger (L) as the median of
the subset of observations that range from the calculated M3
to x(n).

Note: When subsetting the data for each of steps 3a-3d, the
subset should include all observations greater than or equal to the
median calculated in the previous step. If the median calculated in
the previous step is not an actual observation, it is not included
in the new subset of observations. The new median value will then be
calculated using the median procedure, based on whether the number
of points in the subset is odd or even.

Step 4. If a monitoring observation exceeds L, immediately begin
weekly monitoring for four weeks (four weekly samples).
Step 5. If any two observations exceed L during weekly monitoring,
declare exceedance of the baseline pollution loading.

B. Calculation and Application of Subtle Trigger (T)

Step 1. Calculate M and M1 of the baseline loading data
as described in step 3 for the Single observation trigger above.
Step 2. Calculate M-1 as the median of the baseline data
which are less than or equal to the sample median M.
Step 3. Calculate R=(M1-M-1).
Step 4. The subtle trigger (T) is calculated as:
[GRAPHIC] [TIFF OMITTED] TP11AP00.000

where n is the number of baseline loading observations.
Step 5. To compare baseline loading data to observations from the
annual

[[Page 19473]]

monitoring period, repeat steps 1-3 for the set of monitoring
observations. Label the results of the calculations M' and R'. Let m be
the number of monitoring observations.
Step 6. The subtle trigger (T') of the monitoring data is
calculated as:
[GRAPHIC] [TIFF OMITTED] TP11AP00.001

Step 7. If T' > T , conclude that the median loading of the
monitoring observations has exceeded the median loading during the
baseline period, and declare an exceedance of the baseline pollution
loading.

III. Procedure B for Comparing Baseline and Monitoring Loading
Observations

Procedure B implements a single observation limit and warning
level, a Cumulative Sum limit and warning level, and the Wilcoxon-Mann-
Whitney test for annual comparisons. The Cumulative Sum test is run
each time a new observation is acquired during monitoring, to test for
an increase in the mean of the loading observations.

A. Calculation and Application of Single Observation Limit

Step 1. Count the number of baseline loading observations taken for
the parameter of interest. Label this number n.
Step 2. Take the natural logarithm of all baseline loading
observations. Label the observations y1, y2,
y31, ..., yn.
Step 3. Calculate the average of all the natural logarithms. Label
the average Ey.
Step 4. Calculate A using the equation:
[GRAPHIC] [TIFF OMITTED] TP11AP00.002

Step 5. Calculate sy² using the equation:
[GRAPHIC] [TIFF OMITTED] TP11AP00.003

Step 6. Calculate Ex using the equation:
[GRAPHIC] [TIFF OMITTED] TP11AP00.004

Step 7. Calculate the single observation limit as:
[GRAPHIC] [TIFF OMITTED] TP11AP00.005

If the single observation limit is exceeded by any monitoring
observation, then declare an exceedance of the baseline pollution
loading.

B. Single Observation Warning Level

Step 1. Calculate the warning level as:
[GRAPHIC] [TIFF OMITTED] TP11AP00.006

where Ey and sy² are calculated in
steps 3 and 5 of the single observation limit procedure. If the warning
level, but not the single-observation limit, is reached, then an
investigation and further action should be considered.
Step 2. Keep and report a graph showing the monitoring observations
plotted against month or successive observation times, and also showing
the single observation limit, warning level, and Ex.

C. Calculation and Application of Cumulative Sum (Cusum) Limit

This procedure is used to determine whether there is an increase in
the mean of monitoring observations, and should be run after each new
observation has been collected.
Step 1. Let n be the number of monitoring observations.
Step 2. Take the natural logarithm of all the monitoring loading
observations.
Step 3. Order the log-transformed observations based on collection
time, and label them so that Y1 is the first observation
taken, Y2 is the second observation taken, and so forth.
Yn is the last observation taken.
Step 4. Calculate K using the equation:
K = Ey + 0.25* sy,

where Ey is the baseline mean calculated in step 3 of the
single observation limit procedure, and sy is the square
root of the baseline variance calculated in step 5 of the single
observation limit procedure.
Step 5. Calculate C1 using the equation:
C1 = Y1-K.
Step 6. Calculate C2 using the equation:
C2 = C1 +(Y2-K)
If C2 is negative, then let C2 = 0.
Step 7. Calculate C3 using the equation:
C3 = C2 +(Y3-K)
If C3 is negative, then let C3 = 0.
Step 8. Repeat step 7 for each of the remaining times, using the
general equation (let t be some time between 3 and n):
Ct = Ct-1 + (Yt-K)
If Ct is negative, then let Ct = 0.
Step 9. Calculate H using the equation:
H = 8.0* sy
H is the Cusum limit, not to be exceeded by any Ct.
Step 10. If any Ct reaches or exceeds H, then declare an
exceedance of the baseline pollution loading.
Step 11. Keep and report a graph showing Ct versus
successive observation times and showing the Cusum limit H.

D. Cusum Warning Level

Step 1. Let W1 be the Cumulative Sum warning level for
the first observation collected, W2 be the Cumulative Sum
warning level for the second observation taken, and so forth.
Step 2. Calculate Kw and Hw using the
equations:
Kw = Ey + 0.5* sy,
Hw = 3.5* sy
Step 3. Calculate Wt by using steps 5 through 8 of the
Cusum limit procedure, replacing K with Kw.
Step 4. If any Wt reaches or exceeds Hw, then
an investigation and further action should be considered.
Step 5. Keep and report a chart Wt vs. month or
successive observation time, and showing the Cusum warning level
Hw. Consider making an investigation and taking action when
the warning level is reached.

E. Annual comparisons

Compare baseline year loadings with current annual loadings using
the Wilcoxon-Mann-Whitney test. Instructions for running the test are
below:
Step 1. Steps for running Wilcoxon-Mann-Whitney test:
(a) Let n be the number of baseline loading observations taken, and
let m be the number of monitoring loading observations taken.
(b) Order the combined baseline and monitoring observations from
smallest to largest (the observations do not need to be log-transformed
for this test).
(c) Assign a rank to each observation based on the assigned order:
the smallest observation will have rank 1, the next smallest will have
rank 2, and

[[Page 19474]]

so forth, up to the highest observation, which will have rank n + m.
If two or more observations are tied (have the same value), then
the average rank for those observations should be used. For example,
suppose the following four values are being ranked: 3, 4, 6, 4.
Since 3 is the lowest of the four numbers, it would be assigned a
rank of 1. The highest of the four numbers is 6, and would be assigned
a rank of 4. The other two numbers are both 4. Rather than assign one a
rank of 2 and the other a rank of 3, the average of 2 and 3 (i.e., 2.5)
is given to both numbers.
(d) Sum all the assigned ranks of the n baseline observations, and
let this sum be Sn.
(e) Obtain the critical value (C) from Table 1. For the case where
12 monthly samples were collected for both baseline and monitoring
(i.e., n=12 and m=12), the critical value is 121.
(f) Compare C to Sn. If Sn is less than C,
then the monitoring loadings have exceeded the baseline loadings.
Alternatively, calculate Sm as the sum of ranks for the
monitoring observations; if Sm exceeds C' = [n(n+m+1)-C],
then the monitoring loadings have exceeded the baseline loadings.

Step 2.--Example Calculations for Wilcoxon-Mann-Whitney Test
--------------------------------------------------------------------------------------------------------------------------------------------------------

--------------------------------------------------------------------------------------------------------------------------------------------------------
Baseline Data........................................... 8.0 9.0 9.0 10.0 12.0 15.0 17.0 18.0 21.0 23.0 28.0 30.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Monitoring Data......................................... 9.0 10.0 11.0 12.0 13.0 14.0 16.0 18.0 20.0 24.0 29.0 31.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Baseline Ranks.......................................... 1.0 3.0 3.0 5.5 8.5 12.0 14.0 15.5 18.0 19.0 21.0 23.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Monitoring Ranks........................................ 3.0 5.5 7.0 8.5 10.0 11.0 13.0 15.5 17.0 20.0 22.0 24.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note.--Sum of Ranks for Baseline is Sn = 143.5, critical value is Cn, m = 121.

Table 1 to Appendix B.--Critical Values (C) of the Wilcoxon-Mann-Whitney Test (for a One-Sided Test at the 95%
Level)
[In order to find the appropriate critical value, match column with correct n (number of baseline observations)
to row with correct m (number of monitoring observations)]
----------------------------------------------------------------------------------------------------------------
n m 10 11 12 13 14 15 16 17 18 19 20
----------------------------------------------------------------------------------------------------------------
10........... 83 98 113 129 147 165 185 205 227 249 273
----------------------------------------------------------------------------------------------------------------
11........... 87 101 117 134 152 171 191 211 233 256 280
----------------------------------------------------------------------------------------------------------------
12........... 90 105 121 139 157 176 197 218 240 263 288
----------------------------------------------------------------------------------------------------------------
13........... 93 109 126 143 162 182 202 224 247 271 295
----------------------------------------------------------------------------------------------------------------
14........... 97 113 130 148 167 187 208 231 254 278 303
----------------------------------------------------------------------------------------------------------------
15........... 100 117 134 153 172 193 214 237 260 285 311
----------------------------------------------------------------------------------------------------------------
16........... 104 121 139 157 177 198 220 243 267 292 318
----------------------------------------------------------------------------------------------------------------
17........... 107 124 143 162 183 204 226 250 274 300 326
----------------------------------------------------------------------------------------------------------------
18........... 111 128 147 167 188 209 232 256 281 307 334
----------------------------------------------------------------------------------------------------------------
18........... 114 132 151 172 193 215 238 263 288 314 341
----------------------------------------------------------------------------------------------------------------
20........... 118 136 156 176 198 221 244 269 295 321 349
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------

[FR Doc. 00-8533 Filed 4-10-00; 8:45 am]
BILLING CODE 6560-50-P

Notices For
2009
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Coal Mining Point Source Category; Amendments to Effluent Limitations Guidelines and New Source Performance Standards

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