[Federal Register: July 28, 2009 (Volume 74, Number 143)]
[Notices]
[Page 37213-37219]
[DOCID:fr28jy09-34]

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-SFUND-2009-0265; FRL-8931-7]
RIN 2050-AG56

Identification of Priority Classes of Facilities for Development
of CERCLA Section 108(b) Financial Responsibility Requirements

AGENCY: Environmental Protection Agency (EPA)

ACTION: Priority notice of action.

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SUMMARY: Section 108(b) of the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) of 1980, as amended,
establishes certain regulatory authorities concerning financial
responsibility requirements. Specifically, the statutory language
addresses the promulgation of regulations that require classes of
facilities to establish and maintain evidence of financial
responsibility consistent with the degree and duration of risk
associated with the production, transportation, treatment, storage, or
disposal of hazardous substances. CERCLA Section 108(b) also requires
EPA to publish a notice of the classes for which financial
responsibility requirements will be first developed. To fulfill this
requirement, EPA is by this notice identifying classes of facilities
within the hardrock mining industry for which the Agency will first
develop financial responsibility requirements under CERCLA Section
108(b). For purposes of this notice, hardrock mining facilities include
those which extract, beneficiate or process metals (e.g., copper, gold,
iron, lead, magnesium, molybdenum, silver, uranium, and zinc) and non-
metallic, non-fuel minerals (e.g., asbestos, gypsum, phosphate rock,
and sulfur).

FOR FURTHER INFORMATION CONTACT: For more information on this notice,
contact Ben Lesser, U.S. Environmental Protection Agency, Office of
Resource Conservation and Recovery, Mail Code 5302P, 1200 Pennsylvania
Ave., NW., Washington, DC 20460; telephone<PHONE_NUMBER>; or (e-mail)
<EMAIL_ADDRESS>or Elaine Eby, U.S. Environmental Protection
Agency, Office of Resource Conservation and Recovery, Mail Code
5304P,1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone
(703) 603-844; or (e-mail<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

A. How Can I Get Copies of This Document and Other Related Information?

    This Federal Register notice and supporting documentation are
available in a docket EPA has established for this action under Docket
ID No. EPA-HQ-SFUND-2009-0265. All documents in the docket are listed
on the http://www.regulations.gov Web site. Although listed in the
index, some information may not be publicly available, because for
example, it may be Confidential Business Information (CBI) or other
information, the disclosure of which is restricted by statute. Certain
material, such as copyrighted material, is not placed on the Internet
and will be publicly available only in hard copy form. Publicly
available docket materials are available either electronically through
http://www.regulations.gov or in hard copy at the RCRA Docket, EPA/DC,
EPA West, Room 3334, 1301 Constitution Avenue, NW., Washington, DC. The
Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is<PHONE_NUMBER>, and the telephone number for the
Superfund Docket is<PHONE_NUMBER>. A reasonable fee may be charged for
copying docket materials.

B. Table of Contents

I. Introduction
II. EPA's Approach for Identifying Those Classes of Facilities for
Which Requirements Will Be First Developed
III. Identification of Classes of Facilities in Hardrock Mining
IV. Hardrock Mining--Releases and Exposure to Hazardous Substances
V. Hardrock Mining--Severity of Consequences Resulting From Releases
and Exposure to Hazardous Substances
VI. EPA's Consideration of Additional Classes of Facilities for
Developing Financial Responsibility Requirements
VII. Conclusion

I. Introduction

    Section 108(b), 42 U.S.C. 9608 of the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA) of 1980, as amended,
requires in specified circumstances that owners and operators of
facilities establish evidence of financial responsibility.
Specifically, it requires

the promulgation of regulations that require classes of facilities to
establish and maintain evidence of financial responsibility consistent
with the degree and duration of risk associated with the production,
transportation, treatment, storage, or disposal of hazardous
substances. The section also instructs that the President: \1\
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    \1\ Executive Order 12580 delegates this responsibility to the
Administrator of the U.S. Environmental Protection Agency (``EPA''
or ``the Agency'') for non-transportation related facilities. 52 FR
2923, 3 CFR, 1987 Comp., p. 193.

    * * * identify those classes for which requirements will be
first developed and publish notice of such identification in the
Federal Register.\2\
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    \2\ 42 U.S.C. 9608 (b)(1).

    EPA is publishing this notice to fulfill its obligations under
CERCLA Section 108(b) to identify those classes of facilities, owners,
and operators (herein referred to as classes of facilities) for which
financial responsibility requirements will first be developed.
    For the reasons that follow, the Agency has identified classes of
facilities within the hard-rock mining industry as its priority for the
development of financial responsibility requirements under CERCLA
Section 108(b). For purposes of this notice only, hardrock mining is
defined as the extraction, beneficiation or processing of metals (e.g.,
copper, gold, iron, lead, magnesium, molybdenum, silver, uranium, and
zinc) and non-metallic, non-fuel minerals (e.g., asbestos, gypsum,
phosphate rock, and sulfur).\3\ (See Section VI of this notice for a
discussion of EPA's consideration of additional classes of facilities
for developing financial responsibility requirements under Section
108(b) of CERCLA.)
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    \3\ See memorandum to Jim Berlow, USEPA from Stephen Hoffman,
USEPA and Shahid Mahmud, USEPA. Re: Mining Classes Not Included in
Identified Classes of Hardrock Mining. June 2009.
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II. EPA's Approach for Identifying Those Classes of Facilities for
Which Requirements Will Be First Developed

    In accordance with CERCLA Section 108(b) EPA worked to determine
which classes of facilities it should identify as its priority. CERCLA
Section 108(b) directs the President to ``identify those classes for
which requirements will be first developed and publish notice of such
identification [.]'' However, this simple sentence does not spell out a
particular methodology by which the identification is to be made. While
EPA views this statutory ambiguity as allowing substantial discretion
in making the identification, EPA looked to the rest of CERCLA Section
108(b) to inform its exercise of this discretion.
    Examination of CERCLA Section 108(b) as a whole reveals repeated
references to the concept of ``risk.'' The first sentence of paragraph
(b)(1) refers to ``requirements * * * that classes of facilities
establish and maintain evidence of financial responsibility consistent
with the degree and duration of risk'' and the last sentence states
that ``[p]riority in the development of such requirements shall be
accorded to those classes of facilities * * * which the President
determines present the highest level of risk of injury.'' Paragraph
(b)(2) also states that ``[t]he level of financial responsibility shall
be initially established, and, when necessary, adjusted to protect
against the level of risk which the President in his discretion
believes is appropriate * * * .'' Accordingly, EPA chose to look for
indicators of risk and its related effects to inform its selection of
classes for which it would first develop requirements under CERCLA
Section 108(b). As a practical method of doing so, EPA reviewed
information contained in a number of studies, reports, and analyses.
This review pointed to numerous factors EPA should consider. For
example, typical elements in evaluating risk to human health and the
environment include: the probability of release, exposure, and
toxicity.\4\ While some of the considerations reflect these basic
elements of risk evaluation, others relate more closely to the severity
of consequences that result when those risks are realized, such as the
releases' duration if not prevented or quickly controlled as a result
of economic factors and the exposures that can result. Therefore, EPA
has chosen to evaluate the following factors: (1) Annual amounts of
hazardous substances released to the environment; (2) the number of
facilities in active operation and production; (3) the physical size of
the operation; (4) the extent of environmental contamination; (5) the
number of sites on the CERCLA site inventory (including both National
Priority List (NPL) sites and non-NPL sites); (6) government
expenditures; (7) projected clean-up expenditures; and (8) corporate
structure and bankruptcy potential.
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    \4\ ``Risk Assessment in the Federal Government: Managing the
Process.'' National Research Council. National Academy Press,
Washington, DC. 1983.
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    Toxicity is reflected in the designation of substances as CERCLA
hazardous substances. Current releases of hazardous substances, number
of operating facilities, the physical size of an operation, the extent
of environmental contamination, and the number of sites on the CERCLA
site inventory (non-NPL sites and NPL sites) are factors that can
relate to the probability of a release of a hazardous substance, as
well as the potential for exposure. These are discussed in detail, in
Section IV of this notice. Government expenditures, projected clean-up
costs, and corporate structure and bankruptcy potential can relate to
the severity of the consequences as a result of releases and exposure
of hazardous substances. These are discussed in Section V of this
notice.
    EPA's review of all these factors, as reflected in the information
presented in this notice and included in the docket, makes it readily
apparent that hardrock mining facilities present the type of risk that,
in light of EPA's current assessment, justifies designating such
facilities as those for which EPA will first develop financial
responsibility requirements pursuant to CERCLA Section 108(b).\5\
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    \5\ Today's identification of hardrock mining is not itself a
rule, and does not create any binding duties or obligations on any
party. Additional research, outreach to stakeholders, proposed
regulations, review of public comments, and finalization of those
regulations are needed before hardrock mining facilities are subject
to any financial assurance requirements.
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III. Identification of Classes of Facilities in Hardrock Mining

    For purposes of this notice, EPA has included the following classes
of facilities under the general title of hardrock mining: facilities
which extract, beneficiate or process metals (e.g. copper, gold, iron,
lead, magnesium, molybdenum, silver, uranium, and zinc) and non-
metallic, non-fuel minerals (e.g. asbestos, gypsum, phosphate rock, and
sulfur).\6\ As explained below, hardrock mining facilities share common
characteristics, and are thus being identified as a group. At the same
time, those facilities included in the definition above differ such
that ``hardrock mining facilities'' are properly considered to
encompass multiple ``classes'' of facilities. The various classes in
this notice's definition of hardrock mining are involved in two general
activities: (1) The extraction of an ore or mineral from the earth; and
(2) using various beneficiation activities and processing operations to
produce a targeted material product, such as a metal ingot. The
operations that comprise hardrock mining (i.e., extraction,
beneficiation, and then processing) are all part of a sequential
process of converting

material removed from the earth into marketable products, even though
the intermediate and end products differ. Extraction, beneficiation or
processing of ores and minerals can involve similar processes across
types of mining, as discussed below.
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    \6\ EPA notes that this notice does not affect the current
Bevill status of extraction, beneficiation and processing wastes as
codified in 40 CFR 261.4(b)(7).
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    However, hardrock mining is also properly considered to encompass
multiple ``classes'' that represent a range of activities and
marketable products. Extraction differs from beneficiation and both
differ from processing, and depending upon the product sought,
different types of processes are used. Extraction, also called mining,
is the removal of rock and other materials that contain the target ore
and/or mineral. The physical processes used to accomplish this vary,
but are nonetheless often shared across different types of mining.
These physical processes include surface, underground, and in-situ
solution mining. Overburden and waste rock are removed during surface
and underground extraction processes in order to gain access to the
ore. Overburden and waste rock are disposed of in dumps near the mine.
The dumps may or may not be lined or covered. In-situ mining involves
the recovery of the metal from the ore by circulating solutions through
the ore in its undisturbed geologic state and recovering those
solutions for processing. The principal environmental protection
concern with in-situ mining is the control and containment of the leach
solutions.
    Typically the next step after extraction, beneficiation involves
separating and concentrating the target mineral from the ore. There
are, however, many different ways in which beneficiation can occur.
Beneficiation activities generally do not change the mineral values
themselves other than by reducing (e.g. crushing or grinding) or
enlarging (pelletizing or briquetting) particle size to facilitate
processing, but can involve the introduction of water, other
substances, and chemicals (including hazardous substances). A common
beneficiation technique is flotation. Froth flotation involves adding
forced air and chemicals to an ore slurry causing the target mineral
surfaces to become hydrophobic and attach to air bubbles that carry the
target minerals to the top of a floatation vessel. The surface froth
containing the concentrated mineral is removed, and thus separated from
the other waste minerals. The remaining waste minerals are called
tailings. Leaching, another beneficiation technique, involves the
addition of chemicals to ores or flotation concentrates in order to
dissolute the target metal. For example, solvents, such as sulfuric
acid are used to leach copper and sodium cyanide is used to leach gold.
Following leaching, the leftover waste product is called spent ore (in
heap leaching) or tailings (in other types of leaching). There are
various other beneficiation techniques and intermediate processes that
are used and not described here. However, flotation and leaching are
the most common techniques used in the mining industry. Tailings from
beneficiation are disposed in a variety of ways, most commonly in
tailing ponds. Design of tailings ponds differ and may or may not
include liners, seepage control, surface water diversions, and final
covers. Regardless, many tailings ponds require long-term management of
waste and the impoundment dam.
    Processing is the refining of ores or mineral concentrates after
beneficiation to extract the target material. As with beneficiation,
there are many different ways of processing the ores or mineral
concentrates. For example, mineral processing operations can use
pyrometallurgical techniques (the use of higher temperatures as in
smelting), to produce a metal or high grade metallic mixture. Smelting
generates a waste product called slag. Slag is initially placed
directly on the ground to cool, and is often subsequently managed into
a wide range of construction materials (e.g., road bed or foundation
bedding).
    Both because of the ways that the facilities covered by this notice
fit together, and because of the range of activities that they cover,
EPA believes hardrock mining is properly identified as a group and
considered to include multiple classes of facilities.

IV. Hardrock Mining--Releases and Exposure to Hazardous Substances

    As discussed above, evaluations of risk typically include
considerations of the probability of a release, including its potential
scale and scope, the exposure potential and toxicity. EPA research
indicates that the hardrock mining industry typically operates on a
large scale, with releases to the environment and, in some situations,
subsequent exposure of humans, organisms, and ecosystems to hazardous
substances on a similarly large scale. Indeed, EPA estimates that the
hardrock mining industry is responsible for polluting 3,400 miles of
streams and 440,000 acres of land.\7\ The U.S. Forest Service (USFS)
estimates that approximately 10,000 miles of rivers and streams may
have been contaminated by acid mine drainage from the metal mining
industry.\8\
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    \7\ U.S. EPA. 2004. ``Cleaning Up the Nation's Waste Sites:
Markets and Technology Trends.'' EPA 542-R-04-015. Accessed at:
http://www.epa.gov/tio/pubisd.htm.
    \8\ U.S. EPA 2004. ``Nationwide Identification of Hardrock
Mining Sites.'' Office of Inspector General. Report No. 2004-P-
00005. Accessed at: http://epa.gov/oig/reports/2004/20040331-2004-p-
00005.pdf.
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    The Agency examined its 2007 Toxic Release Inventory (TRI), and
this data revealed that the metal mining industry \9\ (e.g., gold ore
mining, lead ore and zinc ore mining, and copper ore and nickel ore
mining) releases enormous quantities of toxic chemicals, at nearly 1.15
billion pounds or approximately 28 percent of the total releases by
U.S. industry that is required to report under the TRI program.\10\
\11\ This overall percentage has remained relatively stable since 2003,
ranging from 25 percent (1.07 billion pounds) of total releases in 2004
to 29 percent (1.26 billion pounds) of total releases in 2006. In 2007,
the majority of releases of hazardous substances from the metal mining
industry were to the land, with additional releases to both the air and
surface waters. Additional releases of hazardous substances were
reported to TRI from metal processing facilities (e.g., primary
smelting of copper) with significant releases to the air and land.
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    \9\ Metal mining industry is defined as NAICS Code 2122 (Metal
Mining).
    \10\ U.S. EPA 2009. Toxic Release Inventory, 2007 Updated Data
Releases, as of March 19, 2009.
    \11\ TRI estimates include all on-site and off-site releases to
the land, air and surface water, including those disposed of in RCRA
Subtitle C hazardous waste land disposal units and Safe Drinking
Water Act (SDWA) permitted underground injection (UIC) wells.
However, less than one percent of hazardous substances are managed
in this manner. Thus, the data demonstrates the enormous volume of
hazardous chemical releases reported to TRI by the metal mining
industry and is an indication of the high volume of hazardous
substances it manages, and the industry's potential for posing
health and environmental risk.
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    The potential for releases of and exposure to hazardous substances
is also reflected in the number of active facilities operating in the
U.S. While estimates of the number of active mining facilities vary, in
2004, EPA estimated that there were 1,000 metal and non-metal mineral
mines and processing facilities in the U.S. Furthermore, many mining
facilities have been in operation for decades and can exceed thousands
of acres in size.\12\ Since large mines may be operated for decades,
this can extend the time frame for potential releases and exposure of
hazardous substances. At individual facilities, hardrock mining
operations

may disturb thousands of acres of land and impact watersheds including,
to varying degrees, effects on groundwater, surface water, aquatic
biota, aquatic and terrestrial vegetation, wetlands, wildlife, soils,
air, cultural resources, and humans that use these resources
recreationally or for subsistence.\13\
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    \12\ National Research Council. 2005. Superfund and Mining
Megasites: Lessons from the Coeur d'Alene River Basin. The National
Academies Press, Washington, DC. Accessed at: http://www.nap.edu/
catalog.php?record_id=11359.
    \13\ National Research Council. 1999. Hardrock Mining on Federal
Lands. National Academies Press. Washington, DC.
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    Hardrock mining facilities also generate an enormous volume of
waste, which may increase the risk of releases of hazardous substances.
Annually, hardrock mining facilities generate between one to two
billion tons of mine waste.\14\ This waste can take a variety of forms,
including mine water, waste rock, overburden, tailings, slag, and flue
dust and can contain significant quantities of hazardous substances.
The 2007 TRI data demonstrate that hardrock mining facilities reported
large releases of many hazardous substances, including ammonia,
benzene, chlorine, hydrogen cyanide, hydrogen fluoride, toluene, and
xylene, as well as heavy metals and their compounds (e.g., antimony,
arsenic, cadmium, chromium, cobalt, copper, lead, manganese, mercury,
nickel, selenium, vanadium and zinc).\15\ Similarly, the National
Research Council (NRC) has indicated that hazardous substances of
particular concern include heavy metals, ammonia, nitrates, and
nitrites.\16\
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    \14\ U.S. EPA 2004. ``Cleaning Up the Nation's Waste Sites:
Markets and Technology Trends.'' EPA 542-R-04-015. Accessed at:
http://www.epa.gov/tio/pubisd.htm.
    \15\ See Memorandum to the Record: Toxic Release Inventory (TRI)
Releases from Hardrock Mining Operations. June 2009.
    \16\ National Research Council. 1999. Hardrock Mining on Federal
Lands. National Academies Press. Washington, DC. Also, EPA conducted
a preliminary review of the Records of Decisions (RODs) for a
selected group mining NPL sites. These substances were found to be
common contaminants at these sites. Accessed at http://
books.nap.edu/catalog.php?record_id=9682.
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    These releases, in some cases, have lead to ground and surface
water contamination from acid mine drainage and metal leachate, and air
quality issues resulting from heavy metal-contaminated dust or
emissions of gaseous metals from thermal processes.\17\ Acid mine
drainage is the formation and movement of acidic water which dissolves
and transports metals into the environment. This acidic water forms
through the chemical reaction of surface water (rainwater, snowmelt,
pond water) and shallow subsurface water with rocks (e.g., waste rock,
tailings, mine walls) that contain sulfur-bearing minerals, resulting
in the production of sulfuric acid. Metals can be leached from rocks
that come in contact with the acid, a process that may be substantially
enhanced by bacterial action.\18\ The resulting acidic and metal-
contaminated fluids may be acutely or chronically toxic and, when mixed
with groundwater, surface water and soil, may have harmful effects on
humans, fish, animals, and plants.\19\ When acid mine drainage occurs,
it is extremely difficult and often expensive to control and often
requires long-term management measures.\20\ Air, land and water
contamination may also result when waste rock dumps, tailings disposal
facilities and open pits are not maintained properly and there are
releases of hazardous substances to the environment.\21\ Additional
risks can occur with the use of cyanide in gold mining operations,
including the possible release of cyanide into soil, groundwater, and/
or surface waters or catastrophic cyanide spills.\22\ Contaminants of
concern at uranium mines include radionuclides. Due to the volume of
the hazardous substances generated and released and the potential for
long-term management of acid mine drainage, the cause for concern is
only heightened.
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    \17\ U.S EPA. 2004. ``Cleaning Up the Nation's Waste Sites:
Markets and Technology Trends.'' EPA 542-R-04-015. Accessed at:
http://www.epa.gov/tio/pubisd.htm.
    \18\ U.S. EPA. 1997. ``EPA's National Hardrock Mining
Framework.'' Accessed at: http://www.epa.gov/owm/frame.pdf.
    \19\ U.S. EPA 2009. Accessed at: http://www.epa.gov/nps/acid_
mine.html.
    \20\ The conventional approach to treating contaminated ground
or surface water produced through acid drainage involves an
expensive, multi-step process that pumps polluted water to a
treatment facility, neutralizes the contaminants in the water, and
turns these neutralized wastes into sludge for disposal. U.S. EPA.
Profile of the Metal Mining Industry. September 1995. See also:
Lind, Greg. 2007. Testimony to the Subcommittee on Energy and
Mineral Resources of the Committee on Natural Resources, U.S. House
of Representatives, One Hundred Tenth Congress. Serial No. 110-46.
    \21\ U.S. EPA. 2004. ``Cleaning Up the Nation's Waste Sites:
Markets and Technology Trends.'' EPA 542-R-04-015. Accessed at:
http://www.epa.gov/tio/pubisd.htm.
    \22\ U.S. EPA. 2004. ``Cleaning Up the Nation's Waste Sites:
Markets and Technology Trends.'' EPA 542-R-04-015. Accessed at:
http://www.epa.gov/tio/pubisd.htm.
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    Other studies and EPA's analysis of NPL data also underscores the
risk of hardrock mining facilities. The NPL is a list of national
priorities among the known or threatened releases of hazardous
substances, pollutants or contaminants throughout the U.S. The Hazard
Ranking System (HRS), the scoring system EPA uses to assess the
relative threat associated with a release from a site, is the primary
method used to determine whether a site should be placed on the
NPL.\23\ The HRS takes into account the three elements of environmental
and human health risk: (1) Probability of release; (2) exposure; and
(3) toxicity. EPA generally will list sites with scores of 28.50 or
above. The HRS is a proven tool for evaluating and prioritizing the
releases that may pose threats to human health and the environment
throughout the nation. In 2005, the NRC noted that at the largest
mining sites, or mega sites (i.e., those with projected cleanup costs
exceeding $50 million), ``wastes* * * are dispersed over a large area
and deposited in complex hydrogeochemical and ecologic systems that
often include human communities and public natural resources.'' \24\\\
For example, a molybdenum mine located near Questa, New Mexico, began
operations in 1919 and some underground mining operations are still in
operation today. The mine's operational capacity is reportedly 20,000
tons of ore processed at the facility per day, although it does not
typically operate at capacity. The site stretches over approximately
three square miles of land. Across this large area, operations include
an underground mine, a milling facility, a nine-mile long tailings
pipeline and a tailing disposal facility. There is also an open pit and
waste rock dumps at the mine site, which were created during open-pit
mining operations. Other problems at the site include subsidence areas
with a surface depression from active underground operations.\25\
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    \23\ U.S. EPA. 2007. ``Introduction to the Hazard Ranking System
(HRS).'' Accessed at: http://www.epa.gov/superfund/programs/npl_
hrs/hrsint.htm.
    \24\ National Research Council. 2005. Superfund and Mining
Megasites: Lessons from the Coeur d'Alene River Basin. The National
Academies Press, Washington, DC. Accessed at: http://www.nap.edu/
catalog.php?record_id=11359.
    \25\ USEPA Administrative Order on Consent for Molycorp RI/FS
(2001). Molycorp is proposed for listing on the NPL. More
information is at http://www.epa.gov/region6/6sf/pdffiles/
0600806.pdf.
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    In 2004, EPA's Office of Inspector General (OIG) examined 156
hardrock mining sites that are part of the CERCLA site inventory and
concluded that ecological and environmental risks are often
substantial. For the 82 Non-NPL sites that were evaluated, 64 percent
had a current high or medium ecological/environmental risk, while the
percentage of sites that were found to have low risk was only 13%.
Another 23% had an unknown level of risk.\26\
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    \26\ U.S. EPA 2004. ``Nationwide Identification of Hardrock
Mining Sites.'' Office of Inspector General. Report No. 2004-P-
00005, Figure 4.2. Accessed at: http://epa.gov/oig/reports/2004/
20040331-2004-p-00005.pdf.
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    In support of this notice, EPA examined not only sites listed on
the

NPL, but also sites proposed (including sites with Superfund
alternative approach agreements in place) and deleted from the NPL.\27\
As of April, 2009, approximately 90 hardrock mining sites have been
listed on the NPL, and another 20 facilities have been proposed for
inclusion on the list.\28\
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    \27\ A significant number of response actions have been taken by
several Federal agencies at hardrock mining facilities under CERCLA
removal and emergency response authorities. Those actions were not
evaluated for purposes of this Notice because of the lack of
immediately available data. EPA alone took non-NPL removal actions
at 99 mining sites between 1988 and October 2007. Provided to GAO
for GAO 2008, ``Hardrock Mining: Information on Abandoned Mines and
Value and Coverage of Financial Assurance on BLM Land.'' GAO-08-
574T. Other Federal agencies also use non-NPL removal authorities to
address releases from mining sites. Accessed at: http://www.gao.gov/
highlights/d08574thigh.pdf.
    \28\ Provided to GAO for GAO 2008, ``Hardrock Mining:
Information on Abandoned Mines and Value and Coverage of Financial
Assurance on BLM Land.'' GAO-08-574T. Accessed at: http://
www.gao.gov/new.items/d08574t.pdf. and updated to reflect sites
finalized on the NPL in 2008 and 2009. The 2008 and 2009 NPL updates
can be found at: http://www.epa.gov/superfund/sites/npl/status.htm.
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V. Hardrock Mining--Severity of Consequences Resulting From Releases
and Exposure to Hazardous Substances

    The severity of the consequences impacting human health and the
environment as a result of releases and exposure of hazardous
substances is evident by analyzing a number of factors. Specifically,
the past and estimated future costs associated with protecting public
health and the environment through what is often extensive and long-
term reclamation and remediation efforts, as well as corporate
structure and bankruptcy potential. This information also plays a
significant role in leading EPA to conclude that classes of facilities
involved in hardrock mining should be the first for which financial
assurance requirements are developed under CERCLA Section 108(b).
    The severity of consequences posed by hardrock mining facilities is
evident in the enormous costs associated with past and projected future
actions necessary to protect public health and the environment, after
releases from hardrock mining facilities occur. In other words, the
documented expenditures reflect efforts to correct the realized risks
from hardrock mining facilities. As noted earlier, these facilities
release large quantities of hazardous substances, often over hundreds
of square miles and, in some instances, have resulted in groundwater
and surface water contamination that requires long-term management and
treatment. Remediation of these hardrock mining facilities has
therefore been historically costly. EPA's past experience with these
sites leads it to conclude that hardrock mining facilities are likely
to continue to present a substantial financial burden that could be met
by financial responsibility requirements. These enormous expenditures
have been documented in a United States Government Accountability
Office (GAO) study, and EPA's own data confirm the large amounts of
money spent by the Federal government alone. The GAO, in its report
``Current Government Expenditures to Cleanup Hard Rock Mining Sites,''
reported that in total, the Federal government spent at least $2.6
billion to remediate hardrock mine sites from 1998 to 2007. EPA spent
the largest amount at $2.2 billion, with the USFS, the Office of
Surface Mining, and the Bureau of Land Management spending $208
million, $198 million, and $50 million, respectively.\29\ EPA's
expenditure data show that between 1988 and 2007, for mining sites with
response actions taken under EPA removal and remedial authorities
(including sites proposed, listed, and deleted from the NPL and sites
with Superfund alternative approach agreements in place), approximately
$2.7 billion was spent.\30\ \31\ Of this total, $2.4 billion was spent
at the 84 sites listed as final on the NPL list at that time.\32\
---------------------------------------------------------------------------

    \29\ U.S. Government Accountability Office. 2008. ``Information
on Abandoned Mines and Value and Coverage of Financial Assurance on
BLM Land. GAO-08-574T. Accessed at: http://www.gao.gov/highlights/
d08574thigh.pdf.
    \30\ Moreover, EPA's cost data likely underestimates true
cleanup costs, because they do not include costs borne by the States
and potentially responsible parties. These costs only reflect
expenditures to date. To reach construction completion, many sites
will require additional, substantial remediation efforts. In
addition, sites with acid mine drainage may require water quality
treatment in perpetuity. Lind, Greg. 2007. Testimony to the
Subcommittee on Energy and Mineral Resources of the Committee on
Natural Resources, U.S. House of Representatives, One Hundred Tenth
Congress. Serial No. 110-46.
    \31\ U.S. EPA. 2007. Superfund eFacts Database. Accessed:
October 24, 2007; U.S. Environmental Protection Agency. 2007
Comprehensive Environmental Response, Compensation, and Liability
Information System (CERCLIS). Provided to GAO for their report, GAO
2008, ``Hardrock Mining: Information on Abandoned Mines and Value
and Coverage of Financial Assurance on BLM Land.'' GAO-08-574T.
Accessed at: http://www.gao.gov/highlights/d08574thigh.pdf.
    \32\ U.S. EPA. 2007. Superfund eFacts Database. Accessed:
October 24, 2007; U.S. Environmental Protection Agency. 2007
Comprehensive Environmental Response, Compensation, and Liability
Information System (CERCLIS). Provided to GAO for their report, GAO
2008, ``Hardrock Mining: Information on Abandoned Mines and Value
and Coverage of Financial Assurance on BLM Land.'' GAO-08-574T,
http://www.gao.gov/new.items/d08574t.pdf.
---------------------------------------------------------------------------

    Estimated costs of remediation for all hardrock mining facilities
from several sources have generally been in the range of billions of
dollars. EPA has estimated that the cost of remediating all hardrock
mining facilities is between $20 and $54 billion. EPA's analysis showed
that if the total Federal, State, and potentially responsible party
outlays for remediation were to continue at existing levels ($100 to
$150 million annually), no more than eight to 20 percent of all cleanup
work could be completed within 30 years.\33\ In another analysis based
on a survey of 154 large sites, EPA's OIG projected that the potential
total hardrock mining remediation costs totaled $7 to $24 billion. OIG
calculated that this amount is over 12 times EPA's total annual
Superfund budget of about $1.2 billion from 1999 to 2004.\34\ The
annual Superfund budget from 2004 through 2008 remained consistent with
OIG's assessment, at approximately $1.25 billion.\35\ \36\
---------------------------------------------------------------------------

    \33\ U.S. EPA. 2004. ``Cleaning Up the Nation's Waste Sites:
Markets and Technology Trends.'' EPA 542-R-04-015. Accessed at:
http://www.epa.gov/tio/pubisd.htm.
    \34\ U.S. EPA 2004. ``Nationwide Identification of Hardrock
Mining Sites.'' Office of Inspector General. Report No. 2004-P-
00005. Accessed at: http://epa.gov/oig/reports/2004/20040331-2004-p-
00005.pdf.
    \35\ Appropriation amounts reflect an average of the
discretionary appropriation amounts in the President's Budget or
Operating Plan between 2004 and 2008.
    \36\ No single source provides information on estimated future
reclamation and remediation costs for hardrock mining facilities. In
addition, for those estimates that do exist, remediation costs are
often folded in with other reclamation activities, such as
correcting safety hazards and landscaping, which leaves the amount
attributable to remediation unknown. See U.S. EPA. 2004. ``Cleaning
Up the Nation's Waste Sites: Markets and Technology Trends.'' EPA
542-R-04-015. Accessed at: http://www.epa.gov/tio/pubisd.htm.
---------------------------------------------------------------------------

    Common corporate structures and interrelated corporate failures
within the hardrock mining industry increase the likelihood of
uncontrolled releases of hazardous substances being left unmanaged,
increasing risks. To begin with, mine ownership is typically complex,
with individual mines often separately incorporated.\37\ The existence
of a parent-subsidiary relationship can present several risks. First,
corporate structures may allow parent

corporations to shield themselves from liabilities of their
subsidiaries.\38\ In a 2005 study, the GAO cited mining facilities as
an example of businesses at risk of incurring substantial liability and
transferring the most valuable assets to the parent that could not be
reached for cleanup.\39\
---------------------------------------------------------------------------

    \37\ For example, one mining company's 2008 SEC 10-K filing
noted that its segments included ``The Greens Creek unit, a 100%-
owned joint venture arrangement, through our subsidiaries Hecla
Alaska LLC, Hecla Greens Creek Mining Company and Hecla Juneau
Mining Company. We acquired 70.3% of our ownership of Greens Creek
in April 2008 from indirect subsidiaries of Rio Tinto, PLC.'' From
this description, it appears that ownership of the mine has involved
multiple subsidiaries, under both its current owner and under the
previous ownership.
    \38\ See U.S. v. Bestfoods, 524 U.S. 51, 61 (1998) (``[i]t is a
general principle of corporate law * * * that a parent corporation *
* * is not liable for the acts of its subsidiaries.'')
    \39\ U.S. Government Accountability Office. 2005.
``Environmental Liabilities: EPA Should Do More to Ensure That
Liable Parties Meet Their Cleanup Obligations.'' Report to
Congressional Requesters. GAO-05-658, pp. 21-24. Accessed at: http:/
/www.gao.gov/highlights/d05658high.pdf.
---------------------------------------------------------------------------

    Second, many mining interests are located outside of the U.S.
According to one report, six of the top ten mining claim owners in the
U.S. are multi-national corporations with headquarters outside the
U.S.\40\ Such multi-national corporations can be difficult to hold
responsible for contamination in the U.S. because of the difficulties
of locating and then obtaining jurisdiction over the ultimate parent
company.
---------------------------------------------------------------------------

    \40\ Environmental Working Group. 2006. ``Who Owns the West?''
Accessed at: http://www.ewg.org/mining/claims/index.php.
---------------------------------------------------------------------------

    This is of particular concern since the hardrock mining industry
has experienced a pattern of failed operations, which often require
significant environmental responses that cannot be financed by
industry.\41\ The pattern of failed operations has been well
documented. GAO investigated 48 hardrock mining operations on U.S.
Department of Interior (DOI), Bureau of Land Management (BLM) Federal
lands that had ceased operations and not been reclaimed by operators
since BLM began requiring financial assurance under its regulations. Of
the 48 operations, 30 cited bankruptcy as the reason for completing
reclamation activities.\42\ Numerous other examples exist of
bankruptcies in the hardrock mining industry that resulted in or will
likely require significant Federal responses, such as:
---------------------------------------------------------------------------

    \41\ EPA notes that there are several potential explanations for
these failures, such as a boom and bust cycle in the price of
commodities, the finite life of a particular ore body or the
possibility that closure or reclamation obligations exceed the
remaining value of the operation, in addition to factors that can
cause bankruptcies in other sectors. However, regardless of the
cause, the fact remains a large number of bankruptcies and
abandonments have occurred.
    \42\ U.S. Government Accountability Office. 2005. Hardrock
Mining: BLM Needs to Better Manage Financial Assurances to Guarantee
Coverage of Reclamation Costs. GAO-05-377. Accessed at: http://
gao.gov/products/GAO-05-377.
---------------------------------------------------------------------------

     When the owner/operator filed for bankruptcy in 1992, it
left the Summitville mine in Colorado with serious cyanide
contamination and acid mine drainage. In 1994, the site was listed on
the NPL. In 2000, EPA estimated that the remediation cost at the mine
would be $170 million.\43\ As of October 2007, EPA had spent
approximately $192 million in cleanup costs.\44\
---------------------------------------------------------------------------

    \43\ U.S. Environmental Protection Agency. 2000. Liquid Assets
2000: America's Water Resources at a Turning Point. EPA-840-B-00-
001. Accessed at: http://www.epa.gov/water/liquidassest.pdf.
    \44\ U.S. Environmental Protection Agency. 2007. Superfund
eFacts Database. Accessed: October 24, 2007.
---------------------------------------------------------------------------

     In 1999, another mining company filed for bankruptcy,
leaving more than 100 million gallons of contaminated water and
millions of cubic yards of waste rock at the Gilt Edge Mine in South
Dakota.\45\ EPA listed the site on the NPL in 2000 and estimated at
that time the present value remediation costs to be $50.3 million.\46\
Even this estimate, however, does not include water collection and
treatment costs that will be handled under additional remediation
plans. As of October 2007, EPA expenditures at this site exceeded $56.1
million.\47\
---------------------------------------------------------------------------

    \45\ CDM. 2008. Final Feasibility Study Report for the Gilt Edge
Superfund Site, Operable Unit 1 (OU1). Prepared for EPA, Region
VIII. May 2008.
    \46\ U.S. EPA 2008. Record of Decision for the Gilt Edge
Superfund Site Operable Unit 1 (OU1). Accessed at: http://
www.epa.gov/region8/superfund/sd/giltedge/RODGiltEdgeVolumeOne_
Text.pdf.
    \47\ U.S. EPA. 2007. Superfund eFacts Database. Accessed:
October 24, 2007.
---------------------------------------------------------------------------

     In 1998, operators of the Zortman Landusky mine in Montana
filed for bankruptcy. Numerous cyanide releases occurred during
operations which have affected the community drinking water supply on a
nearby Tribal reservation. Acid mine drainage has also permeated the
ground and surface waters. The projected cleanup costs at the site are
estimated to be approximately $85.2 million, of which only $57.8
million will be paid for by the responsible party. State and Federal
authorities are projected to pay the remaining $27.4 million for
cleanup.\48\
---------------------------------------------------------------------------

    \48\ U.S. Government Accountability Office. 2005. Hardrock
Mining: BLM Needs to Better Manage Financial Assurances to Guarantee
Coverage of Reclamation Costs. GAO-05-377. Accessed at: http://
gao.gov/products/GAO-05-377.
---------------------------------------------------------------------------

     A large mining company filed for bankruptcy in 2005. The
company has estimated the total environmental claims filed against it
to have been in excess of $5 billion. Recently approved settlements
with the U.S. and certain State governments involving environmental
clean-up claims, when combined with settlements already approved by the
bankruptcy court for environmental clean-up claims, provide for allowed
claims and payments in the bankruptcy in an amount in excess of $1.5
billion and involve in excess of 50 sites. EPA and DOI estimate their
combined claims in the bankruptcy at the largest of these sites, an NPL
site located in Idaho and Eastern Washington, to be in excess of $2
billion.\49\
---------------------------------------------------------------------------

    \49\ Asarco, LLC, et al. U.S. Bankruptcy Court Southern District
of Texas. May 15, 2009, Case No. 05-21207, Docket No. 11343.
---------------------------------------------------------------------------

    Taking all this information into account, EPA concludes that
classes of facilities within the hardrock mining industry are those for
which EPA should first develop financial responsibility requirements
under CERCLA Section 108(b), based upon those facilities' sheer size;
the enormous quantities of waste and other materials exposed to the
environment; the wide range of hazardous substances released to the
environment; the number of active hardrock mining facilities; the
extent of environmental contamination; the number of sites in the
CERCLA site inventory, government expenditures, projected clean-up
costs and corporate structure and bankruptcy potential.

VI. EPA's Consideration of Additional Classes of Facilities for
Developing Financial Responsibility Requirements

    The Agency believes classes of facilities outside of the hardrock
mining industry also may warrant the development of financial
responsibility requirements under CERCLA Section 108(b). Therefore, the
Agency will continue to gather and analyze data on additional classes
of facilities, beyond the hardrock mining industry, and will consider
them for possible development of financial responsibility requirements.
In determining whether to propose requirements under CERCLA Section
108(b) for such additional classes of facilities, EPA will consider the
risks posed and, to do so, may take into account factors such as: (1)
The amounts of hazardous substances released to the environment; (2)
the toxicity of these substances; (3) the existence and proximity of
potential receptors; (4) contamination historically found from
facilities; (5) whether the causes of this contamination still exist;
(6) experiences from Federal cleanup programs; (7) projected costs of
Federal cleanup programs; and (8) corporate structures and bankruptcy
potential. EPA also intends to consider whether financial
responsibility requirements under CERCLA Section 108(b) will
effectively reduce these risks. While the Agency recognizes that data
for some of these factors may be unavailable or limited in

availability, it plans to consider whatever data are available.
    As part of the Agency's evaluation, it plans to examine, at a
minimum, the following classes of facilities: hazardous waste
generators, hazardous waste recyclers, metal finishers, wood treatment
facilities, and chemical manufacturers. This list may be revised as the
Agency's evaluation proceeds. EPA is currently scheduled to complete
and publish in the Federal Register a notice addressing additional
classes of facilities the Agency plans to evaluate regarding financial
responsibility requirements under CERCLA Section 108(b) by December
2009, and, at that time, will solicit public comment.

VII. Conclusion

    Based upon the Agency's analysis and review, it concludes that
hardrock mining facilities, as defined in this notice, are those
classes of facilities for which EPA should identify and first develop
requirements pursuant to CERCLA Section 108(b). EPA will carefully
examine specific activities, processes, and/or metals and minerals in
order to determine what proposed financial responsibility requirements
may be appropriate. As part of this process, EPA will conduct a close
examination and review of existing Federal and State authorities,
policies, and practices that currently focus on hardrock mining
activities.\50\
---------------------------------------------------------------------------

    \50\ As part of developing proposed and final rules the Agency
will consider whether hardrock mining facilities which have a RCRA
Part B permit or are subject to interim status under RCRA Subtitle C
and already are subject to RCRA financial assurance and facility-
wide corrective action requirements need to also be subject to the
financial responsibility requirements under Section 108(b) of
CERCLA. In addition, EPA is aware and will consider in its
development of proposed and final rules, that mining on Federal land
triggers either the Bureau of Land Management's (BLM) Part 3809
regulations (43 CFR Part 3809) and the Forest Service's Part 228
regulations (36 CFR Part 228), both have financial responsibility
requirements that cover reclamation costs. Many States also have
reclamation laws.

    Dated: July 10, 2009.
Lisa P. Jackson,
Administrator.
[FR Doc. E9-16819 Filed 7-27-09; 8:45 am]

BILLING CODE 6560-50-P


[Federal Register Volume 85, Number 42 (Tuesday, March 3, 2020)]
[Notices]
[Page 12569]
[FR Doc No: 2020-04318]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. FDA-2020-N-0001]

Preparation for International Cooperation on Cosmetics Regulation
Fourteenth Annual Meeting; Public Meeting

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice of public meeting.

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SUMMARY: The Food and Drug Administration (FDA or we) is announcing the
following public meeting entitled ``International Cooperation on
Cosmetics Regulation (ICCR)--Preparation for ICCR-14 Meeting.'' The
purpose of the public meeting is to invite public input on various
topics pertaining to the regulation of cosmetics. We may use this input
to help us prepare for the ICCR-14 meeting that will be held June 8 to
10, 2020, in Brussels, Belgium.

DATES: The public meeting will be held on April 14, 2020, from 2 p.m.
to 4 p.m. See the SUPPLEMENTARY INFORMATION section for registration
date and information.

ADDRESSES: The public meeting will be held at the Food and Drug
Administration, Center for Food Safety and Applied Nutrition, 5001
Campus Dr., Wiley Auditorium (first floor), College Park, MD 20740.
Entrance for the public meeting participants is through the Harvey W.
Wiley Federal Building, where routine security check procedures will be
performed.

FOR FURTHER INFORMATION CONTACT: Deborah Smegal, Office of Cosmetics
and Colors, Food and Drug Administration, 5001 Campus Dr. (HFS-100),
College Park, MD 20740,<PHONE_NUMBER><EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Background

    The intention of the ICCR multilateral framework is to pave the way
for the removal of regulatory obstacles to international trade while
maintaining global consumer protection. The purpose of this meeting is
to invite public input on various topics pertaining to the regulation
of cosmetics. We may use this input to help us prepare for the ICCR-14
meeting that will be held June 8 to 10, 2020, in Brussels, Belgium.
    ICCR is a voluntary international group of cosmetics regulatory
authorities from Brazil, Canada, the European Union, Japan, and the
United States of America. These regulatory authority members will
engage in constructive dialogue with their relevant cosmetics industry
trade associations and public advocacy groups. Currently, the ICCR
members are: The Brazilian Health Surveillance Agency; Health Canada;
the European Commission Directorate General for Internal Market,
Industry, Entrepreneurship, and Small and Medium-sized Enterprises; the
Ministry of Health, Labor, and Welfare of Japan; and United States Food
and Drug Administration. All decisions are made by consensus and will
be compatible with the laws, policies, rules, regulations, and
directives of the respective administrations and governments. Members
will implement and/or promote actions or documents within their own
jurisdictions and seek convergence of regulatory policies and
practices. Successful implementation will need input from stakeholders.

II. Topics for Discussion at the Public Meeting

    We will make the agenda for the public meeting available by April
7, 2020, on the internet at https://www.fda.gov/Cosmetics/InternationalActivities/ICCR/default.htm.

III. Participating in the Public Meeting

    Registration: To register for the public meeting, send registration
information (including your name, title, affiliation, address, email,
and telephone) to Deborah Smegal (see FOR FURTHER INFORMATION CONTACT)
by March 31, 2020. If you would like to listen to the meeting by phone,
please submit a request for a dial-in number by March 31, 2020 (see FOR
FURTHER INFORMATION CONTACT). If you need special accommodations due to
a disability, please contact Deborah Smegal by April 7, 2020.
    Requests for Oral Presentations: If you wish to present, you should
notify Deborah Smegal by March 31, 2020, and submit a brief statement
of the general nature of the presentation: What you wish to present,
your name, title, affiliation, address, email, and telephone, and
indicate the approximate amount of time needed to make your
presentation. You may wish to present proposals for future ICCR agenda
items, data, information, or views, in person or in writing, on issues
pending at the public meeting or a topic related to a previous meeting.
There will be no presentations by phone. Time allotted for oral
presentations may be limited to 10 minutes or less for each presenter,
depending on the number of requests received.
    Transcripts: Please be advised that as soon as a transcript of the
public meeting is available, it will be accessible at https://www.regulations.gov. It may also be viewed at the Dockets Management
Staff (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm.
1061, Rockville, MD 20850.

    Dated: February 26, 2020.
Lowell J. Schiller,
Principal Associate Commissioner for Policy.
[FR Doc. 2020-04318 Filed 3-2-20; 8:45 am]
 BILLING CODE 4164-01-P


[Federal Register Volume 88, Number 138 (Thursday, July 20, 2023)]
[Rules and Regulations]
[Pages 46691-46692]
[FR Doc No: 2023-15226]

=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2023-0104; FRL10907-03-R3]

Air Plan Approval; Virginia; Startup, Shutdown, and Malfunction
Amendments to Facility and Control Equipment Maintenance or Malfunction
Regulations; Correction

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; correction.

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SUMMARY: On June 22, 2023, the Environmental Protection Agency (EPA)
published a final rule in the Federal Register approving revisions to
the Commonwealth of Virginia state implementation plan (SIP). In that
rule, the EPA inadvertently included erroneous amendatory instructions
codifying the approved SIP amendment to be incorporated by reference
(IBR) for Article 57: Emission Standards for Industrial Solvent
Cleaning Operations in the Northern Virginia Volatile Organic Compound
Emissions Control Area, 8-hour Ozone Standard (Rule 4-57). This
document corrects the errors in the final rule's amendatory instruction
and table entry.

DATES: This correction is effective July 24, 2023.

ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2023-0104. All documents in the docket are listed on
the www.regulations.gov website. Although listed in the index, some
information is not publicly available, e.g., confidential business
information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the internet and will be publicly available only in hard
copy form. Publicly available docket materials are available through
www.regulations.gov, or please contact the person identified in the FOR
FURTHER INFORMATION CONTACT section for additional availability
information.

FOR FURTHER INFORMATION CONTACT: Sean Silverman, Planning &
Implementation Branch (3AD30), Air & Radiation Division, U.S.
Environmental Protection Agency, Region III, 1600 John F Kennedy
Boulevard, Philadelphia, Pennsylvania 19103. The telephone number is
(215) 814-5511. Mr. Silverman can also be reached via electronic mail
at [email protected].

SUPPLEMENTARY INFORMATION: In our final rule published June 22, 2023
(88 FR 40715), effective July 24, 2023, the EPA inadvertently included
errors in amendatory instructions that codified the approved SIP
amendment to be incorporated by reference for Article 57: Emission
Standards for Industrial Solvent Cleaning Operations in the Northern
Virginia Volatile Organic Compound Emissions Control Area, 8-hour Ozone
Standard (Rule 4-57). The June 22, 2023 publication states that the
entry ``8-40-8640'' is being added. The correct entry added should be
``5-40-8640.''

Correction

    In FR Doc. 2023-13147, published at 88 FR 40715 in the Federal
Register on Thursday June 22, 2023, the following corrections are made:

Subpart VV--Virginia

Sec.  52.2420  [Corrected]

0
1. On page 40718, in the second column, in amendment 2.d. for Sec.
52.2420, the instruction ``Adding the entry ``8-40-8640'' in numerical
order under the heading ``Article 57. Emission Standards for Industrial
Solvent Cleaning Operations in the Northern Virginia Volatile Organic
Compound Emissions Control Area, 8-hour Ozone Standard (Rule 4- 57)''
'' is corrected to read ``Adding the entry ``5-40-8640'' in numerical
order under the heading ``Article 57. Emission Standards for Industrial
Solvent Cleaning Operations in the Northern Virginia Volatile Organic
Compound Emissions Control Area, 8-hour Ozone Standard (Rule 4- 57)''
''.
0
2. On page 40719, in Sec.  52.2420, paragraph (c) table, under the
heading ``Article 57. Emission Standards for Industrial Solvent
Cleaning Operations in the Northern Virginia Volatile Organic Compound
Emissions Control

Area, 8-hour Ozone Standard (Rule 4-57)'', the entry is corrected to
read as follows:

Sec.  52.2420  [Corrected]

    (c) * * *

----------------------------------------------------------------------------------------------------------------
                                                  State                              Explanation [former SIP
     State citation         Title/subject    effective date  EPA approval date              citation]
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
   Article 57. Emission Standards for Industrial Solvent Cleaning Operations in the Northern Virginia Volatile
                   Organic Compound Emissions Control Area, 8-hour Ozone Standard (Rule 4-57)
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
5-40-8640..............  Facility and              2/1/2016  7/20/2023,         Added.
                          control equipment                   [INSERT FEDERAL
                          maintenance or                      REGISTER
                          malfunction.                        CITATION].
----------------------------------------------------------------------------------------------------------------

Adam Ortiz,
Regional Administrator, Region III.
[FR Doc. 2023-15226 Filed 7-19-23; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 84, Number 43 (Tuesday, March 5, 2019)]
[Notices]
[Pages 7960-7963]
[FR Doc No: 2019-03883]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-85211; File No. SR-ISE-2019-02]

Self-Regulatory Organizations; Nasdaq ISE, LLC; Notice of Filing
and Immediate Effectiveness of a Proposed Rule Change To Amend Certain
Expiration Timeframes in ISE Rule 2009

February 27, 2019.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on February 21, 2019, Nasdaq ISE, LLC (``ISE'' or ``Exchange'') filed
with the Securities and Exchange Commission (``SEC'' or ``Commission'')
the proposed rule change as described in Items I and II, below, which
Items have been prepared by the Exchange. The Commission is publishing
this notice to solicit comments on the proposed rule change from
interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to amend ISE Rule 2009, ``Terms of Index
Options Contracts,'' to amend certain expiration timeframes and make a
technical correction to this rule.
    The text of the proposed rule change is available on the Exchange's
website at http://ise.cchwallstreet.com/, at the principal office of
the Exchange, and at the Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the Exchange included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The Exchange has prepared summaries, set forth in
sections A, B, and C below, of the most significant aspects of such
statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes to amend Rule 2009, ``Terms of Index Options
Contracts,'' to amend expirations for ISE index options. The Exchange
also proposes to amend expirations related to the listing and trading,
on a pilot basis, of p.m.-settled options on broad-based indexes with
nonstandard expiration dates (``Nonstandard Program''). Finally, the
Exchange proposes a technical amendment within ISE Rule 2009. Each rule
change will be discussed below.
Expirations of Index Options
    Rule 2009(a)(3) currently provides,
    Expiration Months. Index options contracts, including option
contracts on a Foreign Currency Index, may expire at three (3)-month
intervals or in consecutive months. The Exchange may list up to six (6)
expiration months at any one time, but will not list index options that
expire more than twelve (12) months out. Notwithstanding the preceding
restriction, the Exchange may list up to seven expiration months at any
one time for any broad-based security index option contracts (e.g. NDX,
RUT) upon which any exchange calculates a constant three-month
volatility index.
    The Exchange proposes to re-title this section ``Expiration Months
and Weeks'' and remove the following rule text, ``. . . including
option contracts on a Foreign Currency Index . . .'' The Exchange
currently lists no foreign currency indexes. Further, the Exchange
proposes to modify its expiration timeframes, similar to Cboe Exchange,
Inc. (``Cboe'') Rule 24.9(a)(2), in three ways.\3\ First, the Exchange
proposes to simply reword the provision which refers to 6 standard
monthly expirations from, ``The Exchange may list up to six (6)
expiration months at any one time, but will not list index options that
expire more than twelve (12) months out'' to ``The Exchange may list:
(i) Up to six (6) standard monthly expirations at any one time in a
class, but will not list index options that expire more than twelve
(12) months out.'' The meaning of the sentence is not being altered,
rather the Exchange is simply rewording the sentence to mirror Cboe's
rule text. Second, the Exchange proposes to add additional provisions
for listing index options. The Exchange proposes to enable index
options to be listed up to 12 standard monthly expirations at any one
time for any class that the Exchange (as the Reporting Authority) uses
to calculate a volatility index; and up to 12 standard (monthly)
expirations in NDX options similar to Cboe Rule 24.9(a)(2). Third, the
Exchange proposes to remove the final sentence of Rule 2009(a)(3),
``Notwithstanding the preceding restriction, the Exchange may list up
to seven expiration months at any one time for any broad-based security
index option contracts (e.g. NDX, RUT) upon which any exchange
calculates a constant three-month volatility index.'' The Exchange
notes that the proposed new rule text would govern the listing of all
index options and the new proposed text regarding 12 standard (monthly)
expirations will govern the listing of NDX options, similar to Cboe's
VIX product.
---------------------------------------------------------------------------

    \3\ Cboe Rule 24.9(a)(2) provides, ``Expiration Months and
Weeks. Index option contracts may expire at three-month intervals,
in consecutive months or in consecutive weeks (as specified by class
below). The Exchange may:
     List up to six standard monthly expirations at any one
time in a class, but will not list index options that expire more
than 12 months out;
     list up to 12 standard monthly expirations at any one
time for any class that the Exchange (as the Reporting Authority)
uses to calculate a volatility index and for CBOE S&P 500 a.m./p.m.
Basis, EAFE, EM, FTSE Emerging, FTSE Developed, FTSE 100, China 50,
and S&P Select Sector Index (SIXM, SIXE, SIXT, SIXV, SIXU, SIXR,
SIXI, SIXY, SIXB, and SIXRE, and SIXC) options;
     list up to 12 consecutive weekly expirations in VXST
options; and
     list up to six weekly expirations and up to 12 standard
(monthly) expirations in VIX options. The six weekly expirations
shall be for the nearest weekly expirations from the actual listing
date and weekly expirations may not expire in the same week in which
standard (monthly) VIX options expire. Standard (monthly)
expirations in VIX options are not counted as part of the maximum
six weekly expirations permitted for VIX options.''
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Nonstandard Expirations Pilot Program
    The Exchange proposes to amend Rule 2009 at Supplementary Material
.07(a) to modify the maximum number of expirations that may be listed
for each Weekly expiration in the Nonstandard Program. Today, ISE Rule
2009 at Supplementary Material .07(a) provides, ``The maximum number of
expirations that may be listed for each Weekly Expiration (i.e., a
Monday expiration, Wednesday expiration, or Friday expiration, as
applicable) in a given class is the same as the maximum number of
expirations permitted for standard options on the same broad-based
index.'' The Exchange proposes to instead provide, ``The maximum number
of expirations that may be listed for each Weekly Expiration (i.e., a
Monday expiration, Wednesday expiration, or Friday expiration, as
applicable) in a given class is the maximum number of expirations
permitted for standard index options in Rule 2009(a)(3).'' This
provision would be modified to reference the proposed new rule text
proposed within Rule 2009(a)(3).
    The Exchange notes that Cboe Rule 24.9(e)(1) references Cboe Rule
24.9(a)(2) for the maximum number of expirations for weekly expirations
in the nonstandard expirations pilot program. This proposed amendment
to ISE's Nonstandard Program would amend the maximum expirations so
they would be similar to expirations on Cboe.
Technical Amendment
    The Exchange proposes to amend a sentence within Rule 2009 at
Supplementary Material .07(a) which currently provides, ``Weekly
Expirations that are first listed in a given class may expire up to
four weeks from the actual listing date.'' The Exchange proposes to
amend this sentence to replace the word ``first'' with ``initially.''
The Exchange is not proposing to amend the meaning of this sentence,
rather the Exchange proposes to make clear that the word ``initially''
applies to the four week expiration period for listing initial weeklies
in the Nonstandard Program.
2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section
6(b) of the Act,\4\ in general, and furthers the objectives of Section
6(b)(5) of the Act,\5\ in particular, in that it is designed to promote
just and equitable principles of trade, to remove impediments to and
perfect the mechanism of a free and open market and a national market
system, and, in general to protect investors and the public interest,
by expanding the permissible expirations periods for index options and
the Nonstandard Program to permit the listing of additional
expirations. This

proposal will conform ISE's ability to list index options expirations
similar to Cboe.
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    \4\ 15 U.S.C. 78f(b).
    \5\ 15 U.S.C. 78f(b)(5).
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Expirations of Index Options
    Today, the Exchange may only list up to six standard monthly
expirations at any one time in a class, but will not list index options
that expire more than twelve months out and up to seven expiration
months at any one time for any broad-based security index option
contracts. With this proposal the Exchange may still list up to six
standard monthly expirations at any one time in a class but may also
list up to twelve standard monthly expirations at any one time for any
class that the Exchange (as the Reporting Authority) uses to calculate
a volatility index; and up to twelve standard (monthly) expirations in
NDX options. This expanded ability will enable the Exchange to offer
Members additional expirations on index options and compete more
effectively with other markets to offer additional venues to trade
index options. Further, this proposal will permit the Exchange to list
similar index options as are listed by Cboe today, including in the
Nonstandard Program.
Nonstandard Expirations Pilot Program
    The Exchange's proposal to amend Rule 2009 at Supplementary
Material .07(a) to modify the maximum number of expirations that may be
listed for each Weekly expiration in the Nonstandard Program to the
proposed new expiration timeframes is consistent with the Act because
today those timeframes refer to the timeframes for standard listed
options. Providing for the maximum numbers of expirations permitted
under the Nonstandard Program within the standard index options rule
will clarify the timeframes and eliminate any potential ambiguity about
the maximum numbers of expirations permitted under the Nonstandard
Program. Additionally, this amendment will align the Exchange's
Nonstandard Program to Cboe's nonstandard program.
Technical Amendment
    The Exchange's proposal amend [sic] a sentence within Rule 2009 at
Supplementary Material .07(a) by replacing the word ``first'' with
``initially'' is consistent with the Act because it will make clear the
meaning of the term and the meaning. The Exchange is not proposing to
amend the meaning of this sentence, rather the Exchange proposes to
make clear that the word ``initially'' applies to the four week
expiration period for listing initial weeklies in the Nonstandard
Program. Also deleting a reference to foreign currency indexes will
clarify Rule 2009(a)(3).

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will
impose any burden on competition not necessary or appropriate in
furtherance of the purposes of the Act. Specifically, the Exchange does
not believe the proposal will impose any burden on intramarket
competition as all market participants will be treated in the same
manner with respect to expirations of index options. Additionally, the
Exchange does not believe the proposal will impose any burden on
intermarket competition as market participants are welcome to become
ISE Members and trade at ISE if they determine that this proposed rule
change has made ISE more attractive or favorable. Finally, all options
exchanges are free to compete by listing and trading their own broad-
based index options with similar expirations. This proposal will permit
ISE to compete with Cboe with respect to listing expirations on index
options.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

    No written comments were either solicited or received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    Because the foregoing proposed rule change does not: (i)
Significantly affect the protection of investors or the public
interest; (ii) impose any significant burden on competition; and (iii)
become operative for 30 days from the date on which it was filed, or
such shorter time as the Commission may designate, it has become
effective pursuant to Section 19(b)(3)(A) of the Act \6\ and Rule 19b-
4(f)(6) thereunder.\7\
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    \6\ 15 U.S.C. 78s(b)(3)(A).
    \7\ As required under Rule 19b-4(f)(6)(iii), the Exchange
provided the Commission with written notice of its intent to file
the proposed rule change, along with a brief description and the
text of the proposed rule change, at least five business days prior
to the date of filing of the proposed rule change, or such shorter
time as designated by the Commission.
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    A proposed rule change filed under Rule 19b-4(f)(6) of the Act \8\
normally does not become operative for 30 days after the date of
filing. However, Rule 19b-4(f)(6)(iii) \9\ permits the Commission to
designate a shorter time if the action is consistent with the
protection of investors and the public interest. The Exchange has
requested that the Commission waive the 30-day operative delay so that
the proposal may become operative immediately upon filing. The Exchange
represents that the proposed rule change will add clarity to Rule 2009
and allow the Exchange to list expirations on index options and in its
Nonstandard Program in a manner similar to another exchange. Because
the proposed rule change does not present any new or novel issues, the
Commission believes that waiving the 30-day operative delay period is
consistent with the protection of investors and the public interest.
Accordingly, the Commission designates the proposed rule change to be
operative upon filing.\10\
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    \8\ 17 CFR 240.19b-4(f)(6).
    \9\ 17 CFR 240.19b-4(f)(6)(iii).
    \10\ For purposes only of waiving the 30-day operative delay,
the Commission has also considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
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    At any time within 60 days of the filing of the proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-ISE-2019-02 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.

All submissions should refer to File Number SR-ISE-2019-02. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (http://www.sec.gov/rules/sro.shtml).
Copies of the submission, all subsequent

amendments, all written statements with respect to the proposed rule
change that are filed with the Commission, and all written
communications relating to the proposed rule change between the
Commission and any person, other than those that may be withheld from
the public in accordance with the provisions of 5 U.S.C. 552, will be
available for website viewing and printing in the Commission's Public
Reference Room, 100 F Street NE, Washington, DC 20549, on official
business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of
the filing also will be available for inspection and copying at the
principal office of the Exchange. All comments received will be posted
without change. Persons submitting comments are cautioned that we do
not redact or edit personal identifying information from comment
submissions. You should submit only information that you wish to make
available publicly. All submissions should refer to File Number SR-ISE-
2019-02, and should be submitted on or before March 26, 2019.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\11\
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    \11\ 17 CFR 200.30-3(a)(12).
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Eduardo A. Aleman,
Deputy Secretary.
[FR Doc. 2019-03883 Filed 3-4-19; 8:45 am]
 BILLING CODE 8011-01-P