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STATE WATER BOARD OPPOSES EPA ON PENN MINE CONSENT ORDER

 OAKLAND, Calif., Sept. 24 /PRNewswire/ -- The following was released today by the East Bay Municiple Utility District (EBMUD):
 In a September 22 letter to the U.S. Environmental Protection Agency (U.S. EPA), the State Water Resources Control Board (SWRCB) urged the EPA to delay issuing an order requiring East Bay Municipal Utility District to clean up the abandoned Penn Mine property in Calaveras County.
 The seven-page letter to Harry Seraydarian, director of the Water Management Division of EPA Region 9, was signed by SWRCB Executive Director Walt Pettit. In it, Pettit supports EBMUD's position that the EPA connot require EBMUD to clean up pollution sources on someone else's land.
 "We are unaware of any case where the innocent neighbor of a polluter has been ordered to clean up the pollution source," Pettit wrote. "The Water Boards never order innocent neighbors to go onto property which is the source of the pollution and clean it up. To do so would be to hold the victim responsible for the wrong done against him."
 The letter also notes that, "It does not appear that U.S. EPA has jurisdiction under the Clean Water Act to order EBMUD to clean up the entire Penn Mine property."
 A concern expressed by the State Board is that actions such as the EPA's consent order against EBMUD will prevent states and other entities from undertaking "Good Samaritan" projects "if the projects subject taxpayers, ratepayers or stockholders to unlimited liability and/or unwarranted clean-up measures."
 EBMUD Board President Katherine McKenney said, "East Bay MUD is gratified that the State Board has sent a strong letter which identifies the extensive cooperative, voluntary efforts to deal with the discharges from Penn Mine. We are heartened that the State Board, like EBMUD, questions the EPA's legal authority to issue such an order. We are hopeful that constructive discussions will lead to solutions at Penn Mine that could be applicable to the statewide problem of pollution from abandoned mines."
 Last month, the U.S. EPA issued an order placing responsibility for the Penn Mine clean up solely on EBMUD, even though the utility district does not now and never has owned or operated the mine.
 EBMUD filed suit on Aug. 18 in Washington, D.C., against the U.S. Department of Commerce to recover all costs of cleaning up the mine, which was operated by the federal government in the 1940s to produce war materials.
 On Sept. 14, Seraydarian discussed the consent order and Penn Mine issues with EBMUD's Board of Directors at its regular meeting in Oakland. On Sept. 16, EBMUD sent a letter to Seraydarian declining to sign the EPA's proposed consent order.
 "The utility district remains committed to making a substantial contribution to mitigating the pollution problems from the Penn Mine site," said McKenney. "We want to work together with the EPA and others to develop fair and workable agreements which will solve these environmental problems."
 The following is a letter dated Sept. 22, 1992, from Walt Pettit, executive director of The State Water Resources Control Board to Harry Seraydarian, director, Water Management Division, Region 9, United States Environmental Protection Agency:
 Dear Mr. Seraydarian:
 DRAFT CONSENT ORDER FOR PENN MINE
 This letter is in response to your letter dated Aug. 10, 1993, which requested the State Water Resources Control Board (State Water Board) to approve the draft "Finding of Violation and Consent Order" which requires East Bay Municipal Utility District to clean up and treat pollution discharging from the abandoned Penn Mine property.
 A decision regarding Penn Mine must take into account the statewide abandoned mine problem. As you know, approximately 15,000 abandoned mines have been identified in California. State Water Board staff have identified over 150 inactive and abandoned mines which are discharging or have a potential to discharge acid mine drainage. This acid mine drainage will continue to discharge for centuries poisoning streams and polluting rivers unless action is taken by government or private entities who are not, in the main, responsible for creating the pollution. If the pending S. 1114 legislation becomes law, states will have a funding source for abandoned mine remediation. But states and other entities cannot undertake these Good Samaritan projects if the projects subject taxpayers, ratepayers or stockholders to unlimited liability and/or unwarranted clean-up measures.
 If the problem of abandoned mine pollution is to be addressed, regulators must take a measured approach to encourage volunteers. This must include close cooperation between the United States Environmental Protection Agency and the states.
 With respect to Penn Mine, the provisions in the U.S. EPA, Region 9 CERCLA directive issued in February 1993 and the short-term Clean Water Act Section 309 orders issued in March and April 1993 represent reasonable efforts to reduce and control pollutant loading from the mine site. While it is the position of the State Water Board that Mine Run Dam (MRD) is not legally subject to regulation under Clean Water Act Section 309, the U.S. EPA directives added to the cooperative effort by establishing control methods that were approved by U.S. EPA.
 The State Water Board has also been encouraged by the willingness of USEPA to work with State Water Board staff to find a procedure to limit liability for Good Samaritan projects at abandoned mines. While U.S. EPA staff has not identified a procedure which, in their opinion, would limit liability, except for relatively small short-term projects, they continue to meet with State Water Board staff.
 Despite these efforts by U.S. EPA to work cooperatively with the State, the State Water Board is disappointed by the August 10 draft consent order. The draft consent order does not represent a measured approach. Instead, based solely on a voluntary pollution mitigation effort by the Regional Water Board, Department of Fish and Game, EBMUD and U.S. EPA, Region 9 is holding EBMUD responsible for cleaning up all Penn Mine pollutant sources and perpetually treating any residual acid mine drainage discharging from the Penn Mine site. It does not appear that Region 9 has the legal authority to issue this order. The draft consent order bears little resemblance to any NPDES permit or enforcement order issued by the State of California or U.S. EPA, Region 9 in the past. Furthermore the order would mandate specific land disposal projects which are outside the purview of the Water Management Division and which are not supported by the information on the record.
 Similar consent order drafts were submitted to the State Water Board for review in April and May of this year. The State Water Board chose not to submit written comments in hopes that personal meetings would be more likely to result in a reasonable approach. At a meeting on June 11, 1993, your staff received a copy of a draft NPDES permit to be issued by the State in the event that the Ninth Circuit Court of Appeals affirms the district court ruling. The draft NPDES permit was proposed as an alternative to a U.S. EPA enforcement order (this was a staff draft which has not been reviewed by the State Water Board members). Your staff has not responded to the provisions in that draft permit. Because we have been unable to resolve our concerns in meetings, the State Water Board is submitting these written comments on the latest draft Section 309 order.
 The following covers major problems with the draft:
 1. It does not appear that U.S. EPA has jurisdiction under the Clean Water Act to order EBMUD to clean up the entire Penn Mine property.
 Judge Karlton ruled that EBMUD and the Regional Water Board members, in their official capacity, jointly operated MRD. He ruled further that MRD was a point source subject to regulation under an NPDES permit. He did not rule that EBMUD or the Regional Water Board members were owners or operators of Penn Mine. Assuming that Judge Karlton's ruling is the basis for your jurisdiction to issue the draft order, the order extends far beyond his ruling by holding EBMUD responsible for cleaning up the entire mine site.
 There are no grounds for finding EBMUD to be an owner or operator of Penn Mine. Neither the State nor EBMUD have ever owned or operated Penn Mine. Neither the State nor EBMUD have taken exclusive possession and control of Penn Mine. Neither the State or EBMUD have altered or in any way controlled the waste piles, mine adits or any wastes except those located within the Hinkley Run and Mine Run drainages. According to State law, all actions taken at the mine site were regulatory.
 If, in the alternative, you base your authority to issue the draft order on the stormwater permit program, note that such permits can be issued for inactive mines only if there is an identifiable owner/operator. 40 C.F.R. Section 122.26 (b)(14)(iii.) This makes sense because in the case of industrial stormwater permits, the industry which collects the stormwater also owns and controls the pollution source. The only known owner of Penn Mine is New Penn Mines Inc.
 If, in the alternative, you base your authority to issue the draft order on Clean Water Act 304(l), note that your staff have advised us that the only acceptable Individual Control Strategy (ICS) would be an NPDES permit or a CERCLA Record of Decision. Either type of ICS could be adopted only after a public review process and would be subject to court review.
 2. EBMUD has argued that U.S. EPA cannot require them to clean up pollution sources on someone else's land. We are unaware of any case where the innocent neighbor of a polluter has been ordered to clean up the pollution source.
 The State and Regional Water Boards have many times ordered polluters to enter a neighbor's property and clean up pollution which had been discharged from the polluter's property. This often happens when underground storage tanks leak. If the source of pollution cannot be pinpointed, the innocent recipient of the pollution plume may be ordered to clean up pollution which is present within the limits of his own property. The Water Boards never order innocent neighbors to go onto property which is the source of the pollution and clean it up. To do so would be to hold the victim responsible for the wrong done against him.
 The position taken in the draft order gives victims of polluting neighbors two choices. Do nothing and allow your property to continue to be polluted or do something and become responsible for cleanup of the entire pollution source, if the responsible party fails to take care of it.
 3. Regulation of ground water discharge may be authorized under the Clean Water Act but such regulation is extremely rare.
 There are 1700 active NPDES permits which have been issued by the nine Regional Water Boards. I am aware of only one which regulates a ground water discharge which migrates to surface water. In that case the discharge area is mostly gravel and functions like a drain so that the discharge is very similar to a discharge directly to the surface.
 Legal counsel informs me that courts have consistently held that ground


water discharges are not covered by the Clean Water Act. The legislative history of the Act indicates that Congress intended the states to regulate ground water pollution. In one case, the federal District Court, Eastern District of California, held that a ground water plume at McClellan Air Force Base might be subject to an NPDES permit if there was sufficient evidence that the plume was entering surface waters. Despite that ruling, U.S. EPA never issued an NPDES permit or a Section 309 order to McClellan.
 4. The "short-term" project which is mandated in the order is a major land disposal project. Water Management Division staff does not normally oversee land disposal projects and the record does not support mandating this project.
 The "short-term" portion of the draft order requires EBMUD to remove and dispose of all waste rock piles and other sources of contamination into a lined and covered cell. I am not aware of any NPDES permit or NPDES enforcement order with contains a requirement like this. It is inappropriate for the Water Management Division to order and oversee this land disposal project.
 Discussions with U.S. EPA, Region 9 staff indicate that this portion of the order implements the "Penn Mine Site Technology Evaluation Report" issued by Davy Environmental in May 1993. State and Regional Water Board staff have explained to U.S. EPA staff that this is a preliminary technology screening and is only an early step in selecting and designing remediation for the site. There are many questions to be answered before this alternative can be selected; the most important being that an appropriate site for a new landfill has not been identified on Penn Mine property. Because this alternative would move wastes to a site which has not previously been polluted, great care must be taken to weigh the potential adverse environmental impacts of this proposed project and to plan to prevent these impacts. Further study may reveal that it is not possible to move the mine wastes without significant adverse environmental impacts.
 U.S EPA staff informed State Water Board staff that EBMUD has agreed to implement the landfill project described in the Davy report. However, EBMUD staff deny that they agreed to this.
 The draft order acknowledges the need to comply with the California Environmental Quality Act (CEQA). However, the order would force EBMUD to violate CEQA. CEQA requires the project proponent to consider all feasible alternatives to the proposed project, including a no project alternative. Yet the draft order pre-selects the project which must be implemented even if that project would cause significant adverse environmental consequences which could not be mitigated.
 5. This draft consent order is not consistent with U.S. EPA regulation at other abandoned mine sites.
 The briefs submitted by EBMUD and the Regional Water Board members in the federal Penn Mine litigation point out that Region 9's regulation of MRD is at odds with long established USEPA policy regarding regulation of dams. Additionally, it is inconsistent and far more stringent than USEPA and state regulations at other inactive and abandoned mine sites.
 A federal court has ruled that Iron Mountain Mine may not be regulated under CERCLA. However, USEPA has failed to issue an NPDES permit or a Section 309 order for discharges from Spring Creek Dam. Uncontrolled discharges from Spring Creek Dam are untreated and exceed the highest flows from Mine Run Dam by orders of magnitude while Iron Mountain Mine was covered by CERCLA, did USEPA require interim measures to reduce loading from Spring Creek Dam? Did the RI/FS include a plan to achieve NPDES water quality standards at Spring Creek DAM?
 Some of the nine Regional Water Boards have issued permits to the owners of inactive mines. Orders regarding waste piles and other wastes located on land are based on state law, not the Clean Water Act, and only requires remediation of wastes which are owned by the discharger. In one case, Gambonini Mine, the San Francisco Regional Water Quality Control Board plans to remove mine waste which has eroded it to a stream and return in to a waste pile on site, at state expense. That project will not proceed until liability issues are resolved.
 The draft general permit for abandoned mines on federal lands is not as stringent as the draft consent order. Jacques Landy has assured our staff that the general permit does not require remediation of all pollution sources and does not require meeting water quality standards. Even though the federal government owns those mines, USEPA would not hold them to the same standard as EBMUD which does not own or operate Penn Mine.
 The position taken by Region 9 at Penn Mine could set a precedent for regulation of Good Samaritan projects at all abandoned mines. USEPA has several choices in this case. While Penn Mine is a high priority problem, it is one of several high priority abandoned mines. Some choices can encourage state remediation at abandoned mines and other choices will stop future state activities.
 U.S. EPA, Region 8 has chosen a policy to encourage Good Samaritans by cooperating with the Colorado abandoned mine program. Colorado carries out projects to reduce pollutant loading from abandoned mines. It is understood that these reductions will not meet water quality standards but will improve water quality. The sole liability of the state and cooperating private and public entities is to remove the project if it is unsuccessful and return water quality to its pre- project (polluted) condition.
 One choice U.S. EPA can make is to treat Penn Mine like any other abandoned mine which is discharging acid mine drainage. It should be agreed that, as in Colorado, the goal of a Good Samaritan project should be to reduce pollutant loading and not necessarily achieve complete remediation. If the federal courts ultimately rule that MRD must be regulated under an NPDES permit, U.S. EPA has the discretion to regulate MRD without unreasonably undermining efforts to encourage other Good Samaritan projects. As we have discussed in several meetings, U.S. EPA can approve state authority to adopt an NPDES permit, along the lines of the draft presented to you in June 1993. That permit, if adopted, would take effect only if the Ninth Circuit Court of Appeals affirms Judge Karlton's order. U.S. EPA staff would continue to work with State Water Board and EBMUD staff to design a voluntary program to further reduce pollutant loading from the mine while limiting State and EBMUD liability for complete remediation of the site.
 Given the many technical and legal problems with the draft order, we urge you to delay issuing the order until the following have occurred:
 1. The newly appointed regional administrator has taken office and State and Regional Water Board representatives have had an opportunity to discuss this matter with her.
 2. The Ninth Circuit Court of Appeals has ruled. If they vacate the district court ruling, the consent order should be held in abeyance until the district court rules again. Note that this would be consistent with Judge Karlton's decision to stay the permanent injunction until the appellate court rules.
 3. The State Water Board has circulated a draft NPDES permit for public review and has considered adopting an NPDES after a pubic hearing. (The permit will not be effective unless the Ninth Circuit Court of Appeals affirms Judge Karlton's order)
 4. A public comment period and hearing is conducted by U.S. EPA, Region 9 prior to issuing the order to assure that there is an adequate administrative record to support the order.
 Sincerely,
 Walt Pettit
 Executive Director
 cc: Sara Drake
 Deputy Attorney General
 Office of the Attorney General
 Department of Justice
 1515 K St.
 Sacramento, CA 95814
 State Water Board Member
 State Water Resources Control Board
 901 P St.
 Sacramento, CA 95814
 William R. Crooks
 Executive Officer
 Central Valley Regional Water
 Quality Control Board
 3443 Routier Road
 Sacramento, CA 95827-3098
 Jesse M. Diaz, Chief
 Division of Water Quality
 State Water Resources
 Control Board
 901 P St.
 Sacramento, CA 95814
 -0- 9/24/93
 /CONTACT: Ida McClendon of EBMUD, 510-287-0140 or home, 510-849-3478/


CO: East Bay Municipal Utilities District; State Water Resources
 Control Board ST: California IN: ENV SU:


LH-IC -- SF013 -- 5648 09/24/93 21:37 EDT
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