63060
Federal
Register
/
Vol.
67,
No.
197
/
Thursday,
October
10,
2002
/
Proposed
Rules
Prisons,
we
propose
to
amend
28
CFR
part
549
as
follows.

SUBCHAPTER
C
 
INSTITUTIONAL
MANAGEMENT
PART
549
 
MEDICAL
SERVICES
1.
Revise
the
authority
citation
for
28
CFR
549
to
read
as
follows:

Authority:
5
U.
S.
C.
301;
18
U.
S.
C.
3621,
3622,
3624,
4001,
4005,
4014,
4042,
4045,
4081,
4082,
(
Repealed
in
part
as
to
offenses
committed
on
or
after
November
1,
1987),
4241
 
4247,
5006
 
5024
(
Repealed
October
12,
1984,
as
to
offenses
committed
after
that
date),
5039;
28
U.
S.
C.
509,
510.

2.
Add
a
new
Subpart
F
to
read
as
follows:

Subpart
F
 
Fees
for
Health
Care
Services
Sec.
549.70
Purpose
and
scope.
549.71
Inmates
affected.
549.72
Services
provided
without
fees.
549.73
Appealing
the
fee.
549.74
Inmates
without
funds.

§
549.70
Purpose
and
scope.
(
a)
The
Bureau
of
Prisons
(
Bureau)
may,
under
certain
circumstances,
charge
you,
an
inmate
under
our
care
and
custody,
a
fee
for
providing
you
with
health
care
services.
(
b)
Generally,
if
you
are
an
inmate
as
described
in
§
549.71,
you
must
pay
a
fee
for
health
care
services
of
$
2.00
per
health
care
visit
if
you:
(
1)
Receive
health
care
services
in
connection
with
a
health
care
visit
that
you
requested,
(
except
for
services
described
in
§
549.72);
or
(
2)
Are
found
responsible
through
the
Disciplinary
Hearing
Process
to
have
injured
an
inmate
who,
as
a
result
of
the
injury,
requires
a
health
care
visit.

§
549.71
Inmates
affected.

This
subpart
applies
to:
(
a)
Any
individual
incarcerated
in
an
institution
under
the
Bureau's
jurisdiction;
or
(
b)
Any
other
individual,
as
designated
by
the
Director,
who
has
been
charged
with
or
convicted
of
an
offense
against
the
United
States.

§
549.72
Services
provided
without
fees.

We
will
not
charge
a
fee
for:
(
a)
Health
care
services
based
on
staff
referrals;
(
b)
Staff­
approved
follow­
up
treatment
for
a
chronic
condition;
(
c)
Preventive
health
care
services;
(
d)
Emergency
services;
(
e)
Prenatal
care;
(
f)
Diagnosis
or
treatment
of
chronic
infectious
diseases;
(
g)
Mental
health
care;
or
(
g)
Mental
health
care;
or
(
h)
Substance
abuse
treatment.

§
549.73
Appealing
the
fee.

You
may
seek
review
through
the
Bureau's
Administrative
Remedy
Program
(
see
28
CFR
part
542)
if
you
disagree
with
either
the
fee
charge
or
the
amount.

§
549.74
Inmates
without
funds.

You
will
not
be
charged
a
health
care
service
fee
if
you
are
considered
indigent
and
unable
to
pay
the
health
care
service
fee.
The
Warden
may
establish
rules
and
processes
to
prevent
abuses
of
this
provision.

[
FR
Doc.
02
 
25850
Filed
10
 
9
 
02;
8:
45
am]

BILLING
CODE
4410
 
05
 
P
ENVIRONMENTAL
PROTECTION
AGENCY
40
CFR
Part
372
[
OEI
 
2002
 
0010;
FRL
 
6724
 
4]

Overburden
Exemption;
Toxic
Chemical
Release
Reporting;
Community
Right­
to­
Know;
Administrative
Procedure
Act
AGENCY:
Environmental
Protection
Agency
(
EPA).
ACTION:
Denial
of
petition.

SUMMARY:
EPA
is
denying
an
Administrative
Procedure
Act
(
APA)
petition
to
modify
its
definition
of
``
overburden''
to
include
both
consolidated
and
unconsolidated
material.
Currently,
unconsolidated
material
is
eligible
for
the
overburden
exemption
to
reporting
required
under
section
313
of
the
Emergency
Planning
and
Community
Right­
to­
Know
Act
of
1986
(
EPCRA)
and
section
6607
of
the
Pollution
Prevention
Act
of
1990
(
PPA).
Specifically,
EPA
is
denying
this
petition
because
EPA's
review
of
the
petition
and
available
information
resulted
in
the
conclusion
that
consolidated
rock
includes
materials
that
often
contain
toxic
chemicals
above
negligible
amounts,
often
in
significant
quantities.

FOR
FURTHER
INFORMATION
CONTACT:
Peter
South,
Petition
Manager,
U.
S.
Environmental
Protection
Agency,
Mail
Code
2844T,
1200
Pennsylvania
Ave.,
NW.,
Washington,
DC
20460,
202
 
566
 
0745,
e­
mail:
south.
peter@
epa.
gov.
For
specific
information
on
this
document,
or
for
more
information
on
EPCRA
section
313,
contact
the
Emergency
Planning
and
Community
Right­
to­
Know
Hotline,
U.
S.
Environmental
Protection
Agency,
Mail
Code
5101,
1200
Pennsylvania
Ave.,
NW.,
Washington,
DC
20460,
Toll
free:
1
 
800
 
535
 
0202,
in
Virginia
and
Alaska:
703
 
412
 
9877
or
Toll
free
TDD:
1
 
800
 
553
 
7672.
Information
concerning
this
notice
is
also
available
on
EPA's
Web
site
at
http://
www.
epa.
gov/
tri.
SUPPLEMENTARY
INFORMATION:

I.
General
Information
A.
Does
This
Action
Apply
to
Me?
This
notice
does
not
make
any
changes
to
existing
regulations.
However,
you
may
be
affected
by
this
notice
if
you
are
a
metal
mining
facility,
or
a
facility
that
carries
out
metal
mining
activities.
Potentially
affected
categories
and
entities
may
include,
but
are
not
limited
to:

Category
Examples
of
potentially
interested
entities
Industry
..........
Metal
mining
facilities
that
remove
and
manage
overburden
and
waste
rock
to
access
target
ore;
SIC
major
group
codes
10
(
except
1011,
1081,
and
1094).
Federal
Government
Federal
facilities.

This
table
is
not
intended
to
be
exhaustive,
but
rather
provides
a
guide
for
readers
regarding
entities
likely
to
be
affected
by
this
action.
Other
types
of
entities
not
listed
in
the
table
could
also
be
affected.
To
determine
whether
your
facility
would
be
affected
by
this
action,
you
should
carefully
examine
the
applicability
criteria
in
part
372,
subpart
B
of
Title
40
of
the
Code
of
Federal
Regulations
(
CFR).
If
you
have
questions
regarding
the
applicability
of
this
action
to
a
particular
entity,
consult
the
person
listed
in
the
preceding
FOR
FURTHER
INFORMATION
CONTACT
section.

B.
How
Can
I
Get
Copies
Of
This
Document
and
Other
Related
Information?
1.
Docket.
EPA
has
established
an
official
public
docket
for
this
action
under
Docket
ID
No.
OEI
 
2002
 
0010.
The
public
docket
includes
information
considered
by
EPA
in
developing
this
action,
including
the
documents
listed
below,
which
are
physically
located
in
the
docket.
In
addition,
interested
parties
should
consult
documents
that
are
referenced
in
the
documents
that
EPA
has
placed
in
the
docket,
regardless
of
whether
these
referenced
documents
are
physically
located
in
the
docket.
For
assistance
in
locating
documents
that
are
referenced
in
documents
that
EPA
has
placed
in
the
docket,
but
that
are
not
physically
located
in
the
docket,
please
consult
the
person
listed
in
the
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Federal
Register
/
Vol.
67,
No.
197
/
Thursday,
October
10,
2002
/
Proposed
Rules
preceding
FOR
FURTHER
INFORMATION
CONTACT
section.
Although
a
part
of
the
official
docket,
the
public
docket
does
not
include
Confidential
Business
Information
(
CBI)
or
other
information
whose
disclosure
is
restricted
by
statute.
The
official
public
docket
is
the
collection
of
materials
that
is
available
for
public
viewing
at
the
Overburden
Exemption
Docket
in
the
EPA
Docket
Center,
(
EPA/
DC)
EPA
West,
Room
B102,
1301
Constitution
Ave.,
NW.,
Washington,
DC.
The
EPA
Docket
Center
Public
Reading
Room
is
open
from
8:
30
a.
m.
to
4:
30
p.
m.,
Monday
through
Friday,
excluding
legal
holidays.
The
telephone
number
for
the
Reading
Room
is
(
202)
566
 
1742,
and
the
telephone
number
for
the
Overburden
Exemption
Docket
is
(
202)
566
 
1752.
2.
Electronic
Access.
You
may
access
this
Federal
Register
document
electronically
through
the
EPA
Internet
under
the
``
Federal
Register''
listings
at
http://
www.
epa.
gov/
fedrgstr/.
An
electronic
version
of
the
public
docket
is
available
through
EPA's
electronic
public
docket
and
comment
system,
EPA
Dockets.
You
may
use
EPA
Dockets
at
http://
www.
epa.
gov/
edocket/
to
view
public
comments,
access
the
index
listing
of
the
contents
of
the
official
public
docket,
and
to
access
those
documents
in
the
public
docket
that
are
available
electronically.
Although
not
all
docket
materials
may
be
available
electronically,
you
may
still
access
any
of
the
publicly
available
docket
materials
through
the
docket
facility
identified
in
Unit
I.
B.
Once
in
the
system,
select
``
search,''
then
key
in
the
appropriate
docket
identification
number.

II.
Introduction
A.
What
Is
the
Statutory
Authority
for
This
Action?

This
action
is
taken
under
the
Administrative
Procedure
Act
(
APA),
5
U.
S.
C.
secs
551
 
559,
701
 
706.

B.
What
Is
the
General
Background
for
This
Action?

Section
313
of
EPCRA
requires
certain
facilities
manufacturing,
processing,
or
otherwise
using
listed
toxic
chemicals
in
amounts
above
reporting
threshold
levels,
to
report
their
environmental
releases
of
such
chemicals
annually.
These
facilities
must
also
report
pollution
prevention
and
recycling
data
for
such
chemicals,
pursuant
to
section
6607
of
the
Pollution
Prevention
Act
of
1990
(
PPA),
42
U.
S.
C.
13106.
On
May
1,
1997,
EPA
added
metal
mining
and
six
other
industry
groups
to
the
list
of
facilities
subject
to
the
reporting
requirements
of
section
313
of
EPCRA.
62
FR
23833.
EPA
added
these
groups
in
order
to
enhance
the
public's
knowledge
about
the
use
and
disposition
of
toxic
chemicals
in
their
communities.
EPA
defines
``
overburden''
as
``
the
unconsolidated
material
that
overlies
a
deposit
of
useful
materials
or
ores.''
40
CFR
372.3.
Due
to
the
Agency's
understanding
that
overburden
contained
EPCRA
section
313
chemicals
in
negligible
amounts
and
that
reporting
was
unlikely
to
provide
the
public
with
information
valuable
enough
to
warrant
reporting,
EPA
exempted
EPCRA
section
313
chemicals
in
overburden
from
EPCRA
section
313
and
PPA
section
6607
reporting
requirements.
EPA
does
not
require
compliance
determinations
or
reporting
of
releases
or
other
waste
management
information
for
listed
chemicals
which
exist
in
overburden
removed
prior
to
removal
of
waste
rock
or
extraction
of
the
target
ore.
The
Agency's
rationale
in
providing
the
overburden
exemption,
as
defined
above,
was
dependent
on
EPA's
understanding
that
overburden
contained
toxic
chemicals
only
in
negligible
amounts,
and
therefore
was
unlikely
to
generate
any
reporting.
62
FR
23859.
The
same,
however,
could
not
be
determined
for
consolidated
rock,
and
therefore
EPA
did
not
extend
the
exemption
to
this
material.
Id.

III.
What
Does
This
Petition
Request
of
the
Agency?
EPA
received
a
petition
from
the
National
Mining
Association
(
NMA)
on
December
22,
1998,
and
additional
information
in
a
letter
on
May
7,
1999.
NMA
petitioned
the
Agency
to
modify
the
EPCRA
section
313
definition
of
``
overburden''
to
include
both
consolidated
and
unconsolidated
material.
Refs.
1
and
2.
Currently,
only
unconsolidated
material
is
considered
as
overburden
under
the
Toxics
Release
Inventory
(
TRI)
program,
and
therefore
only
unconsolidated
material
is
eligible
for
the
overburden
exemption
under
EPCRA
section
313.
NMA
asserts
that
the
EPCRA
section
313
definition
of
overburden
is
inconsistent
with
that
of
the
mining
industry,
the
body
of
technical
evidence,
leading
technical
authorities,
and
other
federal
regulatory
definitions.
Refs.
1
and
2.
NMA
considers
overburden
to
include
both
the
consolidated
and
unconsolidated
material
that
overlies
an
ore
deposit.
NMA
petitioned
EPA
to
include
consolidated
material
in
addition
to
unconsolidated
material
in
the
definition
of
overburden
under
EPCRA
section
313
and
thus
make
consolidated
material
eligible
for
the
overburden
exemption.
NMA
cites
two
technical
references:
the
American
Geological
Institute
(
AGI)
Dictionary
of
Mining,
Mineral,
and
Related
Terms,
Ref.
3,
and
the
Glossary
of
Selected
Geologic
Terms
with
Special
Reference
to
Their
Use
in
Engineering,
Ref.
4.
The
AGI
defines
overburden
as:
overburden
(
a)
Designates
material
of
any
nature,
consolidated
or
unconsolidated,
that
overlies
a
deposit
of
useful
materials,
ores,
or
coal
 
esp.
those
deposits
that
are
mined
from
the
surface
by
open
cuts.
(
Stokes,
1955)
(
b)
Loose
soil,
sand,
gravel,
etc.
that
lies
above
the
bedrock.
Also
called
burden,
capping
cover,
drift,
mantle,
surface.
See
also:
baring;
burden;
top.
(
Stokes,
1955).
Ref.
3.
The
Glossary
of
Selected
Geologic
Terms
with
Special
Reference
to
Their
Use
in
Engineering,
by
W.
L
Stokes
and
D.
J.
Varnes,
defines
overburden
as:
overburden,
n.
A
term
used
by
geologists
and
engineers
in
several
different
senses.
By
some
it
is
used
to
designate
material
of
any
nature,
consolidated
or
unconsolidated,
that
overlies
a
deposit
of
useful
materials,
ores,
or
coal,
especially
those
deposits
that
are
mined
from
the
surface
by
open
cuts.
As
employed
by
others
overburden
designates
only
loose
soil,
sand,
gravel,
etc.,
that
lies
above
the
bedrock.
The
term
should
not
be
used
without
specific
definition.
Ref.
4.
In
addition,
NMA
cites
two
EPA
definitions
and
four
other
federal
regulatory
definitions
that
define
overburden
to
include
both
consolidated
and
unconsolidated
material.
The
EPA's
National
Pollutant
Discharge
Elimination
System
(
NPDES)
(
40
CFR
122.26(
b)(
10))
defines
overburden
as:
Overburden
means
any
material
of
any
nature,
consolidated
or
unconsolidated,
that
overlies
a
mineral
deposit,
excluding
topsoil
or
similar
naturally­
occurring
surface
materials
that
are
not
disturbed
by
mining
operations.
Ref.
2.
EPA's
Office
of
Solid
Waste
(
OSW)
1985
Report
to
Congress:
Wastes
from
the
Extraction
and
Beneficiation
of
Metallic
Ores,
Phosphate
Rock,
Asbestos,
Overburden
from
Uranium
Mining,
and
Oil
Shale
defines
overburden
as:
``
consolidated
or
unconsolidated
material
overlying
the
mined
area.''
Ref.
5.
The
other
federal
agency
definitions
include:
the
Mine
Safety
and
Health
Administration
(
MSHA),
the
Office
of
Surface
Mining
(
OSM),
the
Bureau
of
Land
Management
(
BLM),
and
the
Bureau
of
Indian
Affairs
(
BIA).
Ref.
2.

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Federal
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/
Vol.
67,
No.
197
/
Thursday,
October
10,
2002
/
Proposed
Rules
IV.
What
Is
the
Regulatory
Status
of
the
Overburden
Exemption?

The
regulatory
definition
of
overburden
under
EPCRA
section
313
is
the
unconsolidated
material
that
overlies
a
deposit
of
useful
materials
or
ores.
40
CFR
372.3.
In
most
cases,
overburden
contains
EPCRA
section
313
chemicals
in
negligible
amounts
and
reporting
is
unlikely
to
provide
the
public
with
sufficient
valuable
information
to
justify
reporting.
In
contrast,
waste
rock
(
including
consolidated
rock)
may
be
acidgenerating
and
may
contain
toxic
metals
above
negligible
amounts
that
after
release
can
be
mobilized
and
be
transported
through
the
environment.
EPA
considers
waste
rock
(
including
consolidated
rock)
as
distinct
from
overburden
for
purposes
of
reporting
under
EPCRA
section
313.
62
FR
23859.
In
fact,
EPA's
definition
of
overburden
specifically
excludes
waste
rock:
``
It
[
overburden]
does
not
include
any
portion
of
the
ore
or
waste
rock.''
40
CFR
372.3.
Waste
rock
(
including
consolidated
rock)
is
generally
considered
that
portion
of
the
ore
body
that
is
barren
or
submarginal
rock
or
ore
which
has
been
mined
but
under
normal
conditions
is
not
considered
of
sufficient
value
to
warrant
treatment.
Waste
rock
is
part
of
the
ore
body
and
may,
depending
upon
economic
conditions,
become
a
valuable
source
of
metal.
Waste
rock
(
including
consolidated
rock)
may
also
be
further
distributed
in
commerce
for
other
uses
such
as
road
construction.
Although
waste
rock
(
including
consolidated
rock)
may
typically
contain
lower
concentrations
of
metals
and
other
constituents
than
the
target
ore,
it
often
contains
toxic
chemicals
above
negligible
amounts.

V.
What
Is
EPA's
Rationale
for
Denial?

In
adding
metal
mining
to
the
list
of
facilities
subject
to
the
reporting
requirements
of
EPCRA
section
313
(
62
FR
23833),
EPA
provided
the
overburden
exemption
due
to
the
Agency's
understanding
that
overburden
contained
EPCRA
section
313
chemicals
in
negligible
amounts
and
that
reporting
was
unlikely
to
provide
the
public
with
sufficient
valuable
information
to
justify
reporting.
EPA
was
not
able
to
make
the
same
determination
for
the
consolidated
rock
that
surrounds
the
ore
body
or
the
ore
body
itself.
Therefore,
the
Agency
specifically
defined
overburden
to
only
include
``
unconsolidated
material
that
overlies
a
deposit
of
useful
materials
or
ores.''
40
CFR
372.3.
The
Agency
specifically
did
not
exempt
consolidated
mining
material
(
i.
e.,
waste
rock,
including
consolidated
rock)
due
to
EPA's
understanding
that
consolidated
rock
and/
or
waste
rock
often
contains
toxic
chemicals
above
negligible
amounts.
Neither
the
petition
submitted
by
NMA
nor
the
documents
which
define
overburden
in
a
broader
manner
than
the
TRI
program
contain
information
that
would
allow
EPA
to
change
its
conclusion.
Without
that
type
of
information,
EPA
is
unwilling
to
extend
an
exemption
to
materials
which
contain
toxic
chemicals
above
negligible
amounts
and
for
which
reporting
is
likely
to
provide
the
public
with
valuable
information.
EPA's
determination
relies
on
the
legal
doctrine
of
the
de
minimis
non
curat
lex:
``
the
law
does
not
concern
itself
with
trifling
matters,''
Alabama
Power
Co.
v.
Costle,
636
F.
2d
323,
360
(
D.
C.
Cir.
1979).
The
de
minimis
principle
recognizes
that
most
regulatory
statutes
permit
the
``
implication''
that
an
agency
has
the
authority
to
craft
exemptions
``
when
the
burdens
of
regulation
yield
a
gain
of
trivial
or
no
value.''
Alabama
Power,
636
F
.2d
at
360
 
61.
EPA
has
found
no
information
to
conclude
that
consolidated
mining
material
contains
EPCRA
section
313
chemicals
in
only
negligible
amounts.
As
such,
EPA
limited
this
particular
exemption
to
include
overburden
as
defined
under
EPCRA
section
313
(
i.
e.,
unconsolidated
material)
and
did
not
extend
it
to
consolidated
material
(
i.
e.,
waste
rock
including
consolidated
rock)
which
often
contains
EPCRA
section
313
toxic
chemicals
above
negligible
amounts.
Furthermore,
after
they
are
released,
the
metals
that
are
contained
in
waste
rock
and
consolidated
rock
can
be
mobilized
and
transported
through
the
environment.
Significant
human
health
and
environmental
damages
are
caused
by
the
management
of
mining
wastes
(
i.
e.,
extraction
and
beneficiation).
Refs.
6,
7,
and
8.
Therefore,
reporting
on
these
materials
will
be
valuable
to
the
public.
In
addition,
NMA's
proposed
basis
for
expansion
of
the
TRI
definition
of
overburden
 
that
EPA's
definition
is
inconsistent
with
that
of
the
industry
 
is
not
persuasive.
Both
the
AGI
definition
and
the
Stokes
and
Varnes
definition
provide
similar
two­
part
subdefinitions
that
are
significantly
different.
Although
the
first
subdefinition
provided
by
AGI
is
consistent
with
NMA's
assertion
that
overburden
can
contain
both
consolidated
and
unconsolidated
material,
the
second
sub­
definition
clearly
supports
EPA's
understanding
that
overburden
is
also
defined
to
include
only
loose
material
(
e.
g.,
``
Loose
soil,
sand,
gravel,
etc.
that
lies
above
the
bedrock.'').
Stokes
and
Varnes
provide
a
similar
two­
part
definition
by
recognizing
two
equally
acceptable
definitions
of
the
term
overburden.
Stokes
and
Varnes
define
overburden
as
(
a)
``*
*
*
material
of
any
nature,
consolidated
or
unconsolidated
*
*
*''
and
(
b)
``
only
loose
soil,
sand,
gravel,
etc.,
that
lies
above
bedrock.''
In
addition,
Stokes
and
Varnes
highlight
the
fact
that
the
term
overburden
should
not
be
used
without
``
specific
definition,''
which
EPA
provided
in
the
initial
rule.
Although
the
term
overburden
is
used
by
certain
government
and
industry
groups
to
include
both
consolidated
and
unconsolidated
material,
EPA's
current
definition
for
the
TRI
program
that
overburden
includes
only
unconsolidated
material
is
clearly
consistent
with
the
leading
technical
industry
references.
As
was
noted
by
Stokes
and
Varnes,
the
term
overburden
can
accurately
be
defined
to
include
only
unconsolidated
material.
It
is
critical,
however,
when
using
the
term
to
provide
specific
definition.
In
addition,
NMA
asserts
that
the
EPCRA
section
313
definition
of
overburden
is
inconsistent
with
EPA's
Office
of
Solid
Waste
(
OSW)
1985
Report
to
Congress,
Wastes
from
the
Extraction
and
Beneficiation
of
Metallic
Ores,
Phosphate
Rock,
Asbestos,
Overburden
from
Uranium
Mining,
and
Oil
Shale.
The
1985
Report
to
Congress
defines
overburden
as
the
``
consolidated
or
unconsolidated
material
overlying
the
mined
area.''
Ref.
5.
From
a
regulatory
standpoint
under
the
Resource
Conservation
and
Recovery
Act
(
RCRA)
(
42
U.
S.
C.
6901
 
6992k),
all
overburden
which
is
not
returned
to
the
pit
is
a
component
of
the
term
mine
waste.
The
1985
Report
to
Congress
defines
mine
waste
as
``
the
soil
or
rock
that
mining
operations
generate
during
the
process
of
gaining
access
to
an
ore
or
mineral
body,
and
includes
the
overburden
(
consolidated
or
unconsolidated
material
overlying
the
mined
area)
from
surface
mines,
underground
mine
development
rock
(
rock
removed
while
sinking
shafts,
accessing,
or
exploiting
the
ore
body),
and
other
waste
rock,
including
the
rock
interbedded
with
the
ore
or
mineral
body.''
Ref.
5.
Mine
waste
is
a
RCRA
solid
waste,
but
is
exempt
from
regulation
as
a
hazardous
waste.
40
CFR
261.4(
b)(
7).
The
1985
Report
to
Congress
reflects
the
understanding
the
Agency
had
at
the
time
on
the
nature
and
types
of
mining
wastes.
The
1985
Report
to
Congress
did,
however,
clearly
point
out
the
Agency's
concerns
that
overburden
and
other
types
of
mine
wastes
had
caused
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/
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10,
2002
/
Proposed
Rules
significant
environmental
damages.
Since
then,
as
a
result
of
the
Bevill
rulemakings
(
54
FR
36592
September
1,
1989;
55
FR
2322,
January
23,
1990;
56
FR
27300,
June
13,
1991)
and
the
Land
Disposal
Restrictions
Phase
IV
rulemaking
(
63
FR
28556,
May
26,
1998),
the
Agency
has
significantly
improved
its
understanding
of
the
nature
and
types
of
mining
wastes.
The
Bevill
rulemakings
were
promulgated
to
establish
a
regulatory
approach
to
identify
the
differences
between
extraction/
beneficiation
wastes
from
mineral
processing
wastes.
The
Agency's
most
recent
assessment
of
the
environmental
risks
posed
by
mining
waste
confirms
the
Agency's
1985
concerns
and
indicates
that
mine
waste
continues
to
cause
environmental
damage
throughout
the
U.
S.
Refs.
7
and
8.
NMA
also
asserts
that
the
EPCRA
section
313
definition
of
overburden
is
inconsistent
with
EPA's
National
Pollutant
Discharge
Elimination
System
(
NPDES)
(
CFR
122.26(
b)(
10))
and
other
federal
agency
definitions,
including:
the
Mine
Safety
and
Health
Administration
(
MSHA),
the
Office
of
Surface
Mining
(
OSM),
the
Bureau
of
Land
Management
(
BLM),
and
the
Bureau
of
Indian
Affairs
(
BIA).
Ref.
2.
Because
the
statutes
governing
these
programs
and
the
purposes
of
these
programs
are
different
from
those
for
the
TRI
program,
it
is
reasonable
for
the
TRI
program
to
define
overburden
differently
than
other
programs.
Clearly,
the
purpose
of
each
of
these
programs
(
direct
regulation)
is
quite
different
from
the
purposes
related
to
the
reporting
of
releases
and
other
waste
management
under
EPCRA
section
313
(
information
collection
and
dissemination).
The
TRI
program
was
established
by
Congress
under
EPCRA
section
313
in
response
to
public
demand
for
information
on
toxic
chemicals
being
released
in
their
communities.
For
example,
in
a
study
of
306
of
the
approximately
1,000
operating
hard
rock
mines
in
the
U.
S.,
EPA
found
that
approximately
228,145
people
(
including
55,374
children
under
the
age
of
four)
and
89,335
households
live
within
1
mile
of
one
of
the
306
active
mine
sites.
Ref.
9.
The
entire
concept
of
the
TRI
program
is
founded
on
the
belief
that
the
public
has
the
right
to
know
about
chemical
usage
and
release
in
the
areas
in
which
they
live,
as
well
as
the
hazards
that
may
be
associated
with
these
chemicals.
As
such,
it
is
reasonable
that
the
EPCRA
section
313
program
defines
overburden
differently
than
other
federal
regulatory
programs.
In
the
TRI
Program's
final
facility
expansion
rulemaking
(
62
FR
23833),
EPA
determined
that
it
was
important
for
the
communities
that
surrounded
mining
facilities
to
have
information
on
the
releases
and
other
waste
management
activities
that
are
associated
with
those
facilities.
A
broader
interpretation
of
the
EPCRA
section
313
definition
of
overburden
would
result
in
significantly
less
information
being
transmitted
to
these
communities.
Recognizing
that
the
purpose
of
EPCRA
section
313
is
to
provide
information
to
the
public,
it
is
reasonable
for
the
TRI
program
to
have
more
narrowly
defined
the
term
overburden
 
and
therefore
the
scope
of
the
overburden
exemption
 
in
order
to
accomplish
the
goals
of
the
facility
expansion
rulemaking,
the
TRI
program,
and
the
statute.
In
conclusion,
NMA
makes
the
argument
that
the
EPCRA
section
313
definition
of
overburden
is
inconsistent
with
that
of
the
mining
industry,
the
body
of
technical
evidence,
leading
technical
authorities,
and
other
federal
regulatory
definitions.
As
stated
above,
NMA's
argument
is
not
persuasive
because
the
EPCRA
definition
of
overburden
is
actually
consistent
with
leading
technical
industry
references.
Neither
the
petition
submitted
by
NMA
nor
the
documents
which
define
overburden
in
a
broader
manner
than
the
TRI
program
contain
information
that
would
allow
EPA
to
change
its
conclusion
that
consolidated
rock
and/
or
waste
rock
often
contain
toxic
chemicals
above
negligible
amounts.
Without
that
type
of
information,
EPA
is
unwilling
to
extend
an
exemption
to
materials
which
contain
toxic
chemicals
above
negligible
amounts
and
for
which
reporting
is
likely
to
provide
the
public
with
valuable
information.
Therefore,
EPA
is
denying
this
petition.

VI.
What
Are
the
References
Cited
in
This
Notice?
1.
National
Mining
Association.
Letter
entitled:
EPA
Response
to
NMA
Queries.
December
22,
1998.
2.
National
Mining
Association.
Letter
entitled:
December
22,
1998,
NMA
Petition
on
TRI
Regulatory
Definition
of
``
Overburden.''
May
7,
1999.
3.
American
Geological
Institute.
Dictionary
of
Mining,
Mineral,
and
Related
Terms,
2nd
Edition,
American
Geological
Institute
(
1997).
4.
Stokes,
W.
L.
and
Varnes,
D.
J.
Glossary
of
Selected
Geologic
Terms
With
Special
Reference
to
Their
Use
in
Engineering,
Colorado
Scientific
Society
Proceedings,
Vol.
16,
(
1955).
5.
U.
S.
EPA.
Report
to
Congress,
Wastes
from
the
Extraction
and
Beneficiation
of
Metallic
Ores,
Phosphate
Rock,
Asbestos,
Overburden
from
Uranium
Mining,
and
Oil
Shale,
U.
S.
Environmental
Protection
Agency,
EPA
530
 
SW
 
85
 
033
(
December
31,
1985).
6.
U.
S.
EPA/
Region
10.
EPA
and
Hard
Rock
Mining:
A
Source
Book
for
Industry
in
the
Northwest
and
Alaska
(
Draft),
U.
S.
Environmental
Protection
Agency,
EPA
910
 
R
 
99
 
016
(
November
1999).
7.
U.
S.
EPA/
Office
of
Solid
Waste.
Human
Health
and
Environmental
Damages
from
Mining
and
Mineral
Processing
Wastes,
U.
S.
Environmental
Protection
Agency,
Technical
Background
Document
Supporting
the
Final
Rule:
Land
Disposal
Restrictions
Phase
IV:
Final
Rule
Promulgating
Treatment
Standards
for
Metal
Wastes
and
Mineral
Processing
Wastes;
Mineral
Processing
Secondary
Materials
and
Bevill
Exclusion
Issues;
Treatment
Standards
for
Hazardous
Soils,
and
Exclusion
of
Recycled
Wood
Preserving
Wastewaters,
RCRA
Docket
No.
F
 
98
 
2P4F
 
FFFFF
(
April
1998).
8.
U.
S.
EPA/
Office
of
Solid
Waste.
Damage
Cases
and
Environmental
Releases
from
Mines
and
Mineral
Processing
Sites,
U.
S.
Environmental
Protection
Agency,
Technical
Background
Document
Supporting
the
Final
Rule:
Land
Disposal
Restrictions
Phase
IV:
Final
Rule
Promulgating
Treatment
Standards
for
Metal
Wastes
and
Mineral
Processing
Wastes;
Mineral
Processing
Secondary
Materials
and
Bevill
Exclusion
Issues;
Treatment
Standards
for
Hazardous
Soils,
and
Exclusion
of
Recycled
Wood
Preserving
Wastewaters,
RCRA
Docket
No.
F
 
98
 
2P4F
 
FFFFF
(
April
1998).
9.
U.
S.
EPA/
Office
of
Solid
Waste.
Population
Studies
of
Mines
and
Mineral
Processing
Sites,
U.
S.
Environmental
Protection
Agency,
Technical
Background
Document
Supporting
the
Final
Rule:
Land
Disposal
Restrictions
Phase
IV:
Final
Rule
Promulgating
Treatment
Standards
for
Metal
Wastes
and
Mineral
Processing
Wastes;
Mineral
Processing
Secondary
Materials
and
Bevill
Exclusion
Issues;
Treatment
Standards
for
Hazardous
Soils,
and
Exclusion
of
Recycled
Wood
Preserving
Wastewaters,
RCRA
Docket
No.
F
 
98
 
2P4F
 
FFFFF
(
April
1998).

VII.
What
Are
the
Regulatory
Assessment
Requirements
for
This
Action?

A.
Executive
Order
12866
This
action
does
not
require
review
by
the
Office
of
Management
and
Budget
(
OMB)
under
Executive
Order
12866,
entitled
Regulatory
Planning
and
Review
(
58
FR
51735,
October
4,
1993),

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67,
No.
197
/
Thursday,
October
10,
2002
/
Proposed
Rules
because
denial
of
an
APA
rulemaking
petition
is
not
a
``
significant
regulatory
action''
subject
to
review
by
OMB
under
E.
O.
12866.

B.
Regulatory
Flexibility
Act
Pursuant
to
section
605(
b)
of
the
Regulatory
Flexibility
Act
(
RFA)
(
5
U.
S.
C.
601
et
seq.),
the
Agency
hereby
certifies
that
this
denial
will
not
have
a
significant
impact
on
a
substantial
number
of
small
entities.
This
determination
is
based
on
the
fact
that
this
denial
will
not
result
in
any
adverse
economic
impacts
on
the
facilities
subject
to
reporting
under
EPCRA
section
313,
regardless
of
the
size
of
the
facility.

C.
Paperwork
Reduction
Act
This
petition
denial
will
not
reduce
or
increase
the
overall
reporting
and
record
keeping
burden
estimate
provided
for
the
TRI
program,
and
does
not
require
any
review
or
approval
by
OMB
under
the
Paperwork
Reduction
Act
(
PRA),
44
U.
S.
C.
3501
et
seq.
As
such,
it
is
not
necessary
for
EPA
to
determine
the
total
TRI
burden
associated
with
this
action.
The
reporting
and
record
keeping
burdens
associated
with
TRI
are
approved
by
OMB
under
OMB
No.
2070
 
0093
(
Form
R,
EPA
ICR
No.
1363)
and
under
OMB
No.
2070
 
0145
(
Form
A,
EPA
ICR
No.
1704).
The
current
public
reporting
burden
for
TRI
is
estimated
to
average
52.1
hours
for
a
Form
R
submitter
and
34.6
hours
for
a
Form
A
submitter.
These
estimates
include
the
time
needed
for
reviewing
instructions,
searching
existing
data
sources,
gathering
and
maintaining
the
data
needed,
and
completing
and
reviewing
the
collection
of
information.
An
agency
may
not
conduct
or
sponsor,
and
a
person
is
not
required
to
respond
to,
a
collection
of
information
unless
it
displays
a
currently
valid
OMB
control
number.
The
OMB
control
number
for
this
information
collection
appears
above.
In
addition,
the
OMB
control
number
for
EPA's
regulations,
after
initial
display
in
the
final
rule,
are
displayed
on
the
collection
instruments
and
are
also
listed
in
40
CFR
part
9.

D.
Unfunded
Mandates
Reform
Act
and
Executive
Orders
13084
and
13132
Since
this
action
involves
the
denial
of
an
APA
rulemaking
petition,
it
does
not
impose
any
enforceable
duty,
contain
any
unfunded
mandate,
or
otherwise
have
any
effect
on
small
governments
as
described
in
the
Unfunded
Mandates
Reform
Act
of
1995
(
Pub.
L.
104
 
4).
For
the
same
reason,
it
is
not
subject
to
the
requirement
for
prior
consultation
with
Indian
tribal
governments
as
specified
in
Executive
Order
13084,
entitled
Consultation
and
Coordination
with
Indian
Tribal
Governments
(
63
FR
27655,
May
19,1998).
Nor
will
this
action
have
a
substantial
direct
effect
on
States,
on
the
relationship
between
the
national
government
and
the
States,
or
on
the
distribution
of
power
and
responsibilities
among
the
various
levels
of
government,
as
specified
in
Executive
Order
13132,
entitled
Federalism
(
64
FR
43255,
August
10,
1999).

E.
Executive
Order
12898
Pursuant
to
Executive
Order
12898,
entitled
Federal
Actions
to
Address
Environmental
Justice
in
Minority
Populations
and
Low­
Income
Populations
(
59
FR
7629,
February
16,
1994),
the
Agency
must
consider
environmental
justice
related
issues
with
regard
to
the
potential
impacts
of
this
action
on
environmental
and
health
conditions
in
low­
income
populations
and
minority
populations.
The
Agency
has
determined
that
this
action
will
not
result
in
environmental
justice
related
issues.

F.
Executive
Order
13045
Pursuant
to
Executive
Order
13045,
entitled
Protection
of
Children
from
Environmental
Health
Risks
and
Safety
Risks
(
62
FR
19885,
April
23,
1997),
if
an
action
is
economically
significant
under
Executive
Order
12866,
the
Agency
must,
to
the
extent
permitted
by
law
and
consistent
with
the
Agency's
mission,
identify
and
assess
the
environmental
health
risks
and
safety
risks
that
may
disproportionately
affect
children.
Since
this
action
is
not
economically
significant
under
Executive
Order
12866,
this
action
is
not
subject
to
Executive
Order
13045.

G.
National
Technology
Transfer
and
Advancement
Act
Section
12(
d)
of
the
National
Technology
Transfer
and
Advancement
Act
of
1995
(
NTTAA)
(
15
U.
S.
C.
272
note)
directs
EPA
to
use
voluntary
consensus
standards
in
its
regulatory
activities
unless
doing
so
would
be
inconsistent
with
applicable
law
or
impractical.
Voluntary
consensus
standards
are
technical
standards
(
e.
g.,
materials
specifications,
test
methods,
sampling
procedures,
etc.)
that
are
developed
or
adopted
by
voluntary
consensus
standards
bodies.
The
NTTAA
directs
EPA
to
provide
Congress,
through
OMB,
explanations
when
the
Agency
decides
not
to
use
available
and
applicable
voluntary
consensus
standards.
This
action
does
not
involve
technical
standards,
nor
did
EPA
consider
the
use
of
any
voluntary
consensus
standards.
In
general,
EPCRA
does
not
prescribe
technical
standards
to
be
used
for
threshold
determinations
or
completion
of
EPCRA
section
313
reports.
EPCRA
section
313(
g)(
2)
states
that
``
In
order
to
provide
the
information
required
under
this
section,
the
owner
or
operator
of
a
facility
may
use
readily
available
data
(
including
monitoring
data)
collected
pursuant
to
other
provisions
of
law,
or,
where
such
data
are
not
readily
available,
reasonable
estimates
of
the
amounts
involved.
Nothing
in
this
section
requires
the
monitoring
or
measurement
of
the
quantities,
concentration,
or
frequency
of
any
toxic
chemical
released
into
the
environment
beyond
that
monitoring
and
measurement
required
under
other
provisions
of
law
or
regulation.''

List
of
Subjects
in
40
CFR
Part
372
Environmental
protection,
Community
right­
to­
know,
Reporting
and
recordkeeping
requirements,
and
Toxic
chemicals.

Dated:
September
19,
2002.
Kimberly
T.
Nelson,
Assistant
Administrator,
Office
of
Environmental
Information.
[
FR
Doc.
02
 
25851
Filed
10
 
9
 
02;
8:
45
am]

BILLING
CODE
6560
 
50
 
P
DEPARTMENT
OF
THE
INTERIOR
Fish
and
Wildlife
Service
50
CFR
Part
17
RIN
1018
 
AH94
Endangered
and
Threatened
Wildlife
and
Plants;
Designation
of
Critical
Habitat
for
Blackburn's
Sphinx
Moth
AGENCY:
Fish
and
Wildlife
Service,
Interior.
ACTION:
Proposed
rule;
public
hearing
announcement.

SUMMARY:
The
U.
S.
Fish
and
Wildlife
Service
(
Service)
gives
notice
of
a
public
hearing
on
the
proposed
critical
habitat
designation
for
Blackburn's
sphinx
moth
(
Manduca
blackburni).
The
public
hearing
on
the
island
of
Hawaii
and
extension
of
the
comment
period
will
allow
all
interested
parties
to
submit
oral
or
written
comments
on
the
proposal.
We
are
seeking
comments
or
suggestions
from
the
public,
other
concerned
agencies,
the
scientific
community,
industry,
or
any
other
interested
parties
concerning
the
proposed
rule.
Comments
already
submitted
on
the
proposed
rule
need
not
be
resubmitted
as
they
will
be
fully
considered
in
the
final
determination.

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