Frequently Asked Questions
Frequently Asked Questions |
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Common Questions and Answers for 40 CFR Part 434 Subpart H - Western Alkaline Coal Mining (WACM) Subcategory The following questions and answers are provided as a result of public Workshops to Coordinate Implementation of the Western Alkaline Coal Mining Subcategory.
Question The new subcategory has the potential to duplicate many permitting, inspection and enforcement provisions of SMCRA. How can we minimize duplication of effort and make sure that permits are issued in a timely manner? Answer As stated in the preamble, EPA does not intend for the new subcategory requirements to result in a duplication of work. Rather, EPA believes that compliance determinations under the new subcategory will encourage coordination and cooperation between SMCRA and NPDES authorities. The workshops were held largely to foster this coordination. Specifically, on permitting, EPA expects that, in general, the Sediment Control Plan required by the WACM Subcategory 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. EPA regulations also require that the Sediment Control Plan identify best management practices (BMPs) and also must describe design specifications, construction specifications, maintenance schedules, criteria for inspection, as well as expected performance and longevity of the best management practices. The requirement to use modeling techniques is also consistent with OSM reclamation plans, and mining facilities already submit a watershed model as part of their SMCRA reclamation plan. For permit issuance, EPA believes that, in many cases, the NPDES permit authority does not have the expertise or resources to adequately review sediment control plans and associated modeling efforts, and recognizes that the requirements for permit application provided under SMCRA, Section 507, reclamation plans under SMCRA section 508, and inspections and monitoring provided under SMCRA Section 517 are, in most cases, substantial and adequate. EPA stated in the preamble to the final regulation that EPA envisions that approval by OSM or the delegated authority on the modeling effort and sediment control plan will often be sufficient review to satisfy the NPDES permitting authority. This may require a memorandum of understanding to be developed between regulatory agencies, similar to what was done by the State of Wyoming, in order to implement alternative sediment control standards. However, the NPDES permit writer does retain final authority to approve the contents of the Sediment Control Plan for the NPDES permit. In order to capitalize on the CWA and SMCRA authorities, and to assist in planning and enforcement, it is critical (though not mandatory) that the Sediment Control Plan be incorporated by the mine site into one document that is satisfactory to both the CWA and SMCRA permitting authorities. On December 19, 2003 OSM/EPA have executed the MOU for coal mine sites located on Tribal lands in Arizona and New Mexico delineating the process for obtaining an NPDES permit; see Appendix I. Specifically on Inspection, SMCRA Section 517 provides requirements for inspections and monitoring. For the CWA, the frequency of inspections and monitoring is not mandated in Part 434, but the frequency should be incorporated into the NPDES permit as identified in the Sediment Control Plan. Both CWA and SMCRA inspectors will be reviewing sediment controls and documentation for compliance under their own authority. Again, EPA acknowledges that SMCRA authorities are often on-site with a greater frequency that CWA personnel, and often have greater expertise on the components of the Sediment Control Plan and mining operation. Therefore, it is encouraged that the CWA and SMCRA coordinate and share materials regarding inspections on areas subject to the WACM Subcategory. Specifically on Enforcement, A mine site that is out of compliance may be subject to enforcement by both SMCRA and CWA violations. Question How is compliance determined? Answer The WACM Subcategory does not include numeric limits for wastewater discharges to demonstrate compliance with BPT standards. For the WACM Subcategory, EPA determined that BPT for the Western Coal Mining Subcategory consists of designing and implementing BMPs to maintain the average annual sediment yield equal to or below pre-mined, undisturbed conditions. Therefore, compliance is measured by the proper design and implementation of a Sediment Control Plan. Question How will the regulatory authority evaluate the Sediment Control Plan to determine compliance? Answer The regulations at 434.82 describe that: The Sediment Control Plan must identify best management practices (BMPs) and also must describe design specifications, construction specifications, maintenance schedules, criteria for inspection, as well as expected performance and longevity of the best management practices, and that: The operator must design, implement, and maintain BMPs in the manner specified in the Sediment Control Plan. In order to conduct proper inspections, inspectors must have familiarity with both the Sediment Control Plan and the limitations inherent in the sediment model. The RUSLE model is a statistical determination of erosion, and provides long-term average estimates of soil loss. Limitations of the model include: RUSLE does not account for rills and gullies produced by excessive erosion in an unstable landscape. Significant rills and gullies may indicate non-compliance. Question What innovative approaches are encouraged by the new Subcategory? Answer The new regulations encourage the use of natural, stable landforms to control sediment rather than heavily engineered solutions. The WACM Subcategory encourages the use of BMPs to prevent erosion, rather than treat sediment after it has been eroded. This will result in significant savings to mine operators by eliminating sampling requirements, by eliminating the need for many sediment ponds (including construction, maintenance, and removal costs, and allowing timelier bond release). This is an opportunity for mine sites to adopt BMP measures that work to abate sediment loss. For more information on the use of natural, stable landforms in reclamation, please see papers from Billings Reclamation Symposium 2003. Question May a NPDES permit include numeric limitations for a discharge regulated under the WACM Subcategory? Answer Yes. Numeric limitations may be necessary in certain circumstances to protect water quality. The WACM is a technology-based standard that does not address pollutants that have the reasonable potential to cause or contribute to a violation of water quality. Question Doesn’t this violate anti-backsliding regulations? Answer No. EPA has made a new determination of BPT for the WACM Subcategory. This replaces previous BPT regulations for these discharges. Section 402(o) of the CWA (the anti-backsliding provision) prohibits the relaxation of BPJ technology-based effluent limits when new effluent guidelines are promulgated that are less stringent that the BPJ standard. Therefore, anti-backsliding may apply if a permit writer made a site-specific BPJ determination for a mine site that was more stringent than the standards established in Part 434. Question The SMCRA permit and NPDES permit are not in sync at a mine site. How can this be handled? Answer It is anticipated that NPDES permit conversions or modifications will be done at permit renewal time, and the with the increased coordination and cooperation between SMCRA and NPDES authorities the SMCRA permit will be placed in sync with NPDES permit. Question How do we handle minor changes in the sediment control plan? Answer Regulatory authorities are aware that every detail of a mine site cannot be planned in advance, and that some changes may be necessary. If changes are significant enough, the permitting authority may require an additional model run. However, BMP approaches to be used should be given in as much detail as possible to ensure that sediment yield is not increased, and minor changes may fit within the context of the approved Sediment Control Plan and approved sediment yield modeling. It is recommended that the sediment yield calculations include conservative estimates that will clearly demonstrate that the sediment yield for post-mining conditions will be less than pre-mining conditions for a variety of conditions. For example, the model run used to support the WACM predicted a pre-mine sediment yield of XX and a post-mine yield of XX after utilization of BMPs. An additional alternative would be for several modeling runs to be performed at permit issuance under a variety of assumptions. Question When is a mine released from coverage under the WACM Subcategory? Answer The new subpart for Western Alkaline Coal Mining includes the following language: The effluent limitations in this subpart apply until the appropriate SMCRA authority has authorized bond release. This language is consistent with the language in other subparts to Part 434. As defined in Section 434.11 (d) General definitions: The term “bond release” means the time at which the appropriate regulatory authority returns a reclamation or performance bond based upon its determination that reclamation work (including, in the case of underground mines, mine sealing and abandonment procedures) has been satisfactorily completed. EPA notes that this language does not necessarily mean final bond release (which may be applicable to an entire mining operation) and that reclamation work may be satisfactorily completed on a watershed or a specific part of a disturbed area before the entire mine site has been reclaimed (or even mined), i.e., partial bond release. Therefore, EPA intends this current definition to allow a facility to terminate NPDES discharge points when partial bond release is obtained. Under SMCRA, operators are held responsible for meeting numerous environmental standards including using the best technology currently available to prevent additional contributions of suspended solids to stream flow or to runoff outside the permit area and, in arid and semiarid regions, to preserve the essential hydrologic functions of alluvial valley floors (30 CFR 515). In no event shall [suspended solids] contributions be in excess of requirements set by applicable State or Federal law (30 CFR 515(b) (10) (B) (i)). In addition, prior to bond release, the regulatory authority must be satisfied that revegetation has been established on regraded mined land, and that the land released is not contributing suspended solids to stream flow or runoff outside the permit area in excess of these requirements. Question Models are constantly in a state of upgrade, thus model predictions written into an operator's permit application package can become outdated. Can a mine operator use a new model to apply for the NPDES permit? Answer The regulatory text states that: The operator must use the same watershed model that was or will be used to acquire the SMCRA permit.” EPA intends this to mean that a mine can use the upgraded version of a computer model that was used in the original application. For example, if the mine used SEDCAD 4.0 in their SMCRA application, then the mine operator could use SEDCAD 5.0 in subsequent modeling procedures without additional approvals. EPA believes that this language provides the necessary flexibility to allow use of the most recent and appropriate modeling procedure for obtaining the NPDES permit. Additionally, this does not mean that the mine operator is limited to the same model for the life of the mine. When a mine site obtains a new or renewed SMCRA permit, the operator may choose to utilize a different model than was used initially. This model would then be used for the CWA permit after it has been approved for use by the SMCRA permitting authority. Question The initial seeding essentially defines the transition of an active mining area to reclamation area and triggers the applicability of 40 CFR Part 434.80. However, in a situation where a sedimentation pond is used to control sediment from an active mining area, SMCRA regulations at 30 CFR 816.46(b)(5) currently require that the pond remain in place for at least two years after the last augmented seeding (i.e., after the active mining area has become a reclamation area). Under the SMCRA rule, a sedimentation pond must be maintained, until its removal is authorized by the SMCRA regulatory authority, and the disturbed area has been stabilized and revegetated, but in no case may it be removed in less than two years after the last augmented seeding. This may cause a problem in practice in that the removal of a sedimentation pond may be allowed only when the requirements of both 40 CFR Part 434 and 30 CFR Part 816 are met. Answer As indicated throughout the preamble, EPA intends that the new subcategory requirements be consistent with SMCRA requirements. There may be cases where SMCRA authorities require the installation and maintenance of a sedimentation pond longer than would be required under the western alkaline coal mining subcategory – upon completion of topsoil placement and seeding. EPA believes that this will not be a common occurrence, and that the SMCRA regulatory authorities will enforce the intent of the law cited under 30 USC 1265 section 515 (b) (16) “insure that all reclamation efforts proceed in an environmentally sound manner and as contemporaneously as practicable …”. The intent of SMCRA is to return the lands to their intended use as soon as practical; considering the difficulty of establishing re-vegetation in the arid semi-arid environment it would be counter productive not to remove the pond when process waters or intended use no longer demand its existence, and thus restart the re-vegetation process two years later, at the “pond removal” time, as interpreted by 30 CFR 816.46 (b) (5). Citing examples of where the two agencies came to agreement, it is anticipated that this will not significantly detract from the new subcategory requirements; in 1993, EPA concurred with OSM’s approval of Ohio Regulations amendment authorizing removal of siltation (sediment pond) structures prior to two years after the last seeding, “upon a demonstration that alternative measures are the best technology currently available for sediment control”. OSM recently agreed to North Dakota’s proposed rule change to allow pond removal only in limited circumstances before the two-year vegetation window, where State Department of Health approves the use of proposed alternative sediment control measures. Similarly, NPDES permit authorities may require the installation and maintenance of a sedimentation pond to meet water quality standards that may not be required under SMCRA. The new subcategory requirements do not create a conflict with or purport to override SMCRA requirements, rather, the regulations continue to provide that a mine operator must meet regulatory requirements as necessary to satisfy both SMCRA and NPDES permits. Question For modeling requirements, would a representative model such as using a comparable: watershed be acceptable? Or does every hill-slope and drainage area have to be modeled? Answer As stated in the response to comment document, EPA believes that the background sediment yields should be determined for the actual watershed that is to be disturbed. EPA believes that the actual data (such as vegetative cover, runoff coefficients, soil types, and slope sizes) from the disturbed watershed will provide a more accurate assessment of the sediment loadings than can be obtained from a comparable watershed. EPA believes that computer modeling procedures are sufficiently sophisticated such that the model can and should include actual site-specific data on pre-mine conditions of the watershed to be disturbed. EPA believes that the model should encompass representative geographic and geomorphological settings and the use and conditions of the land pre and post mining. Question The new regulations encourage BMPs rather than sediment ponds. Can sediment ponds still be used to control sediment? Answer Yes. As described in the preamble, EPA considers sedimentation ponds to be an appropriate BMP that may be used in addition to, or in lieu of, alternative sediment controls. However, the WACM does not require that the discharge from sediment ponds be monitored for compliance with Part 434. Note that sedimentation ponds and/or numeric standards may be required by SMCRA or NPDES control authorities when necessary to meet water quality standards or other regulatory requirements. Question Often, the most effective BMP is the establishment of vegetation. However, it can take months or even years to establish sufficient vegetative cover at a reclamation site. How can compliance be determined during the interim? Answer A sediment control plan and modeling effort must fully consider the time dependent nature of sediment control structures. For example, land that has recently been seeded may take up to several years before the vegetation becomes established enough to control erosion. Conversely, BMPs such as straw bales and contour furrows will be effective when installed, but their effectiveness will diminish over time. Computer models such as RUSLE and SEDCAD are able to account for time-dependent variables such as these and EPA expects that the sediment control plan developed by a mine will include both short-term and long-term sediment control measures. Question At some coal mines impounded surface water can be moved from impoundment to impoundment through a conduit/pipeline system. These networks of pipelines may make it conceivably possible for impounded surface water or runoff on active mining areas to be relocated to reclamation areas. Drainage on active coal mining areas will need to meet the most stringent numeric effluent limitations in part 434 but drainage in reclamation areas will be subject to the proposed Best Management Practices (BMPs) or non-numeric effluent limitations. However, mixing of drainage from active mining areas with drainage in reclamation areas could be considered as creation of a commingled waste stream that is subject to the most stringent limitations applicable. Is the piping in of active mining drainage into reclamation areas covered by the commingling clause? Answer As stated in Section 434.61 Co-mingling of Waste Streams, where waste streams from any facility covered by this part are combined for treatment or discharge with waste streams from another facility covered by this part, the concentration of each pollutant in the combined discharge may not exceed the most stringent limitations for that pollutant applicable to any component waste stream of the discharge. Any runoff that contains active mine drainage would be required to meet the most stringent effluent limitations. Question Many coal mines were developed in the 1970's and early 1980's and the sediment control ponds at these mines were built to meet the strict NPDES effluent limits in effect at the time. For this reason, most of the ponds were "over designed", and many discharge infrequently if ever. Because their ponds seldom discharge, many coal operators are actually quite content with their existing NPDES discharge permit. Because their ponds seldom discharge operators seldom need worry about meeting effluent limits and self-monitoring typically consists of reporting "no discharge" to the WQD. Can these existing permit limitations be grandfathered to allow the operator and the NPDES authority the option of retaining existing discharge points with numeric limits? Answer The regulations do not contain a grandfather clause, and EPA does not believe that a grandfather clause is necessary to address these concerns. EPA has clearly stated in the proposal and the final preamble that sedimentation ponds are considered a BMP that may be necessary in certain circumstances to protect water quality. EPA also believes that numeric limitations may be necessary in certain circumstances to protect water quality, and recognizes that the NPDES authority can impose numerical effluent limits on point source discharges where necessary to meet water quality standards. The facility would have to produce a model demonstrating that BMPs, including sediment ponds, result in the discharge of less sediment than pre-mined conditions. Question What are the requirements for operation and maintenance inspections of BMPs? Answer Regular operation and maintenance inspections of BMPs are necessary to ensure compliance. The frequency and scope of inspections by mine personnel should be a stipulation of the sediment control plan and should be based on site specific needs. Part 434 does not specify what the frequency of inspections should be, although some States have recommended once per quarter and after significant precipitation events. SMCRA (Section 517, 30 U.S.C. 1267) establishes inspection and monitoring requirements for both surface coal mining and reclamation operations. These requirements include partial inspections at least once per month and complete inspections at least once per year. The monitoring requirements include maintenance of records and monitoring equipment, monthly reports to the regulatory authority, and provision to provide additional information as the regulatory authority deems appropriate. Question How will the process for obtaining an NPDES Permit under Subpart H – Western Alkaline Mine Drainage Category be established? Answer It is anticipated that the new subcategory will encourage coordination and cooperation between SMCRA and NPDES authorities and a process eliminating multiple reviews of same permit will be reached. Office of Surface Mining, and U.S. EPA, Region IX have indeed signed a Memorandum of Understanding (MOU) for coal mine sites located on Tribal lands in Arizona and New Mexico. The MOU is provided below as Appendix I to this Question and Answer. Appendix I
Appendix I For coal mine sites located on Tribal lands in Arizona and New Mexico, the U.S. EPA Region IX is the permitting authority for the discharge of wastewater from the mine site under the National Pollutant Discharge Elimination System (NPDES), and the Office of Surface Mining Reclamation and Enforcement (OSM) is the permitting authority for the mining permit pursuant to the Surface Mining Control and Reclamation Act (SMCRA). On January 23, 2002, EPA established a new Subpart H for coverage of surface water runoff from non-processing areas of western alkaline coal mining operations. The subpart removes numeric effluent limitations at the wastewater discharge point, and instead relies on the use of Best Management Practices (BMPs) through implementation of a Sediment Control Plan and based upon sediment yield modeling to demonstrate that average annual sediment yield is not increased over pre-mining conditions. The Sediment Control Plan must identify BMPs and must describe design specifications, construction specifications, maintenance schedules, and criteria for inspection, as well as the expected performance and longevity of the BMPs. Overlap of permitting, inspection, and enforcement provisions of SMCRA with NPDES permits Subpart H establishes standards of performance for which there is a considerable overlap of requirements with SMCRA. EPA expects that the Sediment Control Plan and sediment yield modeling required for the NPDES permit will largely consist of materials generated as part of the SMCRA permit application. The SMCRA permitting process requires a coal-mining operator to submit an extensive reclamation plan with the permit application, including detailed hydrologic information and analysis, to OSM for approval. The requirements for the hydrologic reclamation plan are specified in 30 CFR 780.21(h). This regulation requires, in part, that the application include measures to be taken to prevent, to the extent possible using the best technology currently available, additional contributions of suspended solids to stream flow. In the preamble to the final regulation EPA envisioned that approval by OSM of the sediment yield modeling and Sediment Control Plan would often be sufficient review to satisfy the NPDES permitting authority. EPA and OSM believe that the Sediment Control Plan for a mine site should be incorporated into one document that is satisfactory to both the CWA and SMCRA permitting authorities. Process The following process will be used by OSM and EPA to review the Sediment Control Plan and sediment
yield modeling, issue NPDES and SMCRA permits (or revisions) and inspect and enforce those permits.
December 19, 2003 Signed: Alexis Strauss, Director, Water Division, U.S. EPA Region IX, 75 Hawthorne St., San Francisco, CA 94105 Pete Rutledge, Chief Program Support Division, Western Regional Coordinating Center, Office Surface Mining, P.O. Box 46667, Denver, CO 80201 |