CHAPTER 6 ENVIRONMENTAL REGULATION AFFECTING EXTRACTIVE INDUSTRY ACTIVITIES ON THE PUBLIC LANDS

• Jurisdiction: United States

Public Land Law II
(Nov 1997)
CHAPTER 6
ENVIRONMENTAL REGULATION AFFECTING EXTRACTIVE INDUSTRY ACTIVITIES ON THE PUBLIC LANDS
Louis W. Rose
Montgomery & Andrews, P.A.
Santa Fe, New Mexico

TABLE OF CONTENTS

SYNOPSIS

Page

I. CLEAN WATER ACT

A. Introduction

B. Water Quality Standards

1. Designated uses

2. Criteria

3. Anti-degradation policy

4. Indian water quality standards

C. Effluent Limitations

1. Levels of control

a. Best practicable control technology

b. Best conventional pollutant control technology

c. Best available technology economically available (BAT)

d. New source performance standards

2. Effluent limitation guidelines

D. NPDES, Permits (§ 402)

1. When is a permit necessary?

a. Discharge

b. Pollutant

c. Point source

d. Navigable waters

e. Exclusions

2. How is a permit obtained?

3. How long will it take?

E. Stormwater Permits

1. General Permits

2. Group permits

3. Individual Permits

F. Dredge and Fill Permits (§ 404)

1. Individual permit review process

2. Nationwide permit program

G. State Certification of Federal Permits (§ 401)

H. Non-point Source Regulation

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II. CLEAN AIR ACT

A. Introduction

B. National Ambient Air Quality Standards

C. Emission Limitations

1. New source performance standards

2. Emission standards for hazardous air pollutants

D. Pre-Construction Permit Programs

1. Minor new source review programs

2. Major source programs

a. Prevention of significant deterioration permitting (PSD)

b. Non-attainment area permitting

III. RESOURCE CONSERVATION AND RECOVERY ACT (RCRA)

A. Introduction

B. Does RCRA Apply?

1. Is the material solid waste?

2. Is the material hazardous waste?

a. Listed hazardous wastes

b. Hazardous Waste Characteristics

c. Mixtures of Hazardous Wastes and Solid Wastes

C. Regulation of Hazardous Waste

1. General RCRA requirements for generators of hazardous

2. General Requirements for Transporters of Hazardous Waste

3. Requirements applicable to TSD facilities under RCRA

D. Mining & Oil and Gas Exemptions

1. Mining Exemptions

2. Oil and Gas Exemptions

IV. Conclusion

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The extractive industries, like most businesses in this country, are subject to numerous federal and state laws and regulations designed to protect the environment. For those operations on federal land, the environmental requirements imposed by these laws are in addition to any developed by the federal land manager under the federal Land Policy Management Act,¹ the National Environmental Policy Act,² and other applicable laws and regulations. In general, the federal environmental laws most likely to apply to a mining operation or oil & gas production or processing operation are the Clean Air Act,³ the Clean Water Act,⁴ the Resource Conservation and Recovery Act ("RCRA"),⁵ the Safe Drinking Water Act,⁶ and the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA").⁷ Each of these federal laws, except CERCLA, has a state counterpart that will also apply to operations on federal land.

Anyone reviewing environmental regulations potentially applicable to an operation on federal lands is well advised to review all of the applicable federal and state environmental laws and regulations. The regulatory environment is

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changing quickly and is expected to change more dramatically in the coming months, with the federal Environmental Protection Agency's ("EPA") new source review reform initiatives.⁸ This paper discusses three of the major federal statutes: the Clean Water Act, the Clean Air Act, and RCRA. Because each of these statutes is complex and the programs implemented under them are detailed, this paper is limited to discussing major permitting and regulatory programs in a general, broad-brush manner.⁹

I. CLEAN WATER ACT

A. Introduction

The Clean Water Act was enacted by Congress in 1948.¹⁰ The 1948 act allowed a court to grant relief from pollution after considering the practicability and economic feasibility of abatement. The Act was amended in 1965.¹¹ The 1965 act provided for regulation of interstate water quality through the adoption of water quality standards. The approach taken by the 1965 act was regarded as ineffective in improving water quality, due in part to

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its limited scope, the difficulty in determining when a discharge violated the water quality standards, and its cumbersome enforcement mechanism.

The Act has been amended several times since. The current structure of the Act, based on federal regulation and permitting oversight, was enacted in 1972.¹² The 1972 amendments continued the state water quality standards program begun under the prior law, but established federal authority over the program. The amendments also established a federal permitting program¹³ and federal effluent limitations,¹⁴ effluent limitation guidelines,¹⁵ and national standards of performance.¹⁶

The Act was extensively amended in 1977¹⁷ and 1987.¹⁸ Those amendments kept the basic structure of the 1972 act and added more detailed provisions dealing with toxic pollutants, sludge disposal, storm water runoff, and Indian jurisdiction.

B. Water Quality Standards

The 1972 act made technology-based effluent limitations the nationwide minimum level of treatment required for discharges to surface waters. The act required additional treatment to assure that water quality-based standards were protected. Those standards were developed primarily by the states and covered the so-called conventional pollutants. In 1987, Congress amended the standards-setting requirements of the act to tighten requirements for priority and toxic pollutant discharges.

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The requirements and procedures for setting water quality standards are complex. States, or EPA if the state fails to meet the requirements, must designate uses of the water body and adopt water quality criteria to protect those uses.¹⁹ States must review, and where appropriate, revise their standards every three years.²⁰

1. Designated uses

Pursuant to the regulations, each state must specify appropriate uses to be achieved and protected for waters within the state. The designation must take into account "the use and value of water for public water supplies, protection and propagation of fish, shellfish and wildlife, recreation in and on the water, agricultural, industrial, and other purposes, including navigation."²¹ The regulations preclude a state from adopting waste transport or waste assimilation as designated uses.²² In addition, the state must take into consideration the water quality standards of downstream waters and shall ensure that the water quality standards of downstream states are met.²³

2. Criteria

The regulations also require states to adopt water quality criteria to protect the designated uses.²⁴ The adopted criteria must be based on sound scientific rationale and must contain sufficient parameters or constituents to protect the uses.²⁵ For waters with multiple use designations, the criteria must be sufficient to support the most sensitive use. Such criteria must include either numerical values based on EPA guidance or other scientifically defensible

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methods, or narrative criteria based on biomonitoring methods where numerical criteria cannot be established.²⁶

3. Anti-degradation policy

States must also develop and adopt a statewide anti-degradation policy and identify methods for implementing the policy. The policy and methods must be sufficient to maintain and protect (1) existing instream water uses and the level of water quality necessary to protect the existing uses; (2) water quality where the water quality of the waters exceeds the levels necessary to support the propagation of fish, shellfish, and wildlife and recreation in and on the water; and (3) water quality where high quality waters constitute an outstanding national resource, such as waters of national and state parks and wildlife refuges and waters of exceptional recreational or ecological significance.²⁷

4. Indian water quality standards

Pursuant to the act and regulations, Indian tribes may also adopt water quality standards for waters which are within the borders of the Indian reservation and held by the tribe, within the borders of the reservation and held by the U.S. in trust for Indians, within the borders of the reservation and held by a member of the tribe, or otherwise within the borders of the reservation.²⁸ The tribal standards may be more stringent than necessary to meet federal minimum requirements.²⁹

C. Effluent Limitations

The Clean Water Act requires all dischargers to meet effluent limits based on the performance of pollution control technologies.³⁰ These technology-based

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limits are established based on a variety of factors, including technological and economic capabilities for pollution control.

1. Levels of control

All conventional pollutants, i.e., biological oxygen demand, total suspended solids, oil and grease, pH, and fecal coliform, must be controlled through application of either the "best practicable control technology currently available" ("BPT") or "best conventional pollutant control technology" ("BCT"). BPT is the baseline level of control applicable to all discharges; BCT applies if certain cost tests are met.

a. Best practicable control technology

BPT limits are based on the average of the best performance in an industrial category or subcategory.³¹ In setting BPT effluent limits, EPA generally identifies a model technology used by a group of the best performing facilities in an industry and then sets limits based on the capabilities of that technology. However, when existing technology used by an industry is inadequate, EPA may base BPT limits on technologies not used in the industry, but transferable from other...