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COLORADO DEPARTMENT OF HEATH. Water Qnn(iq' Division
<br />Rntionn(e - Pnge ?, Perntil No. CO-0043648
<br />On October 11, 1996, the Water Quality Control Division ("Division) issued a final permit for the Cresson Project (CDPS
<br />Permit No. CO-0043648) which was intended to address all potential point source discharges of "mine drainage" that
<br />originated from within the Cresson Project permit area at that time. In that permit the Division determined that discharges
<br />nt Outfalls OOIA, OO2A, 003A, 004A, and OOSB, as described below, consisted of, at least in part, mine drainage as that term
<br />is defined in canjwrction wuh the application ofeffluent hinitation guideh'nes (EEGs) at 40 CFR Part 440. Descrptions of
<br />these autfalls, as they existed in the previous permit, are as follows:
<br />Outfn11001A -The dischmge to Arequa Gulch from the sediment pond, located downstream of the VLF.
<br />Outfall 002A-The discharge from the sediment pond that collected runofffi•om the mine's crusher area. Flow was to be
<br />treated in the sediment pond, and then released to the diversion channel which surrounded the leach facility and which
<br />eventually disclznrged into Arequa Gulch.
<br />Outfall 003A-The discharge from thesediment pond, which collected flowfrom the western branch of Squaw Gulch. Flow
<br />entering this pond included runofffrom the Ironclad Overburden Storage Area (a.k.a. Squaw Gulch Overburden Storage
<br />Area) that was located nt the headwaters of Squaw Gulch.
<br />Outfall 004A-The discharge from the sediment pond, which collected flow from the eastern brunch of Squaw Gulch. Flow
<br />entering this pond included some runofffrom the Ironclad Overburden Storage Area, but was comprised mostly offlow
<br />corning from the upper reaches of Squaw Gulch, which was rooted under a mine road that led to thelrortclad area. Runoff
<br />from the rnirze road also entered this pond.
<br />Outfall OOSB - to be used for arty discharges from the VLF that may have occurred either as a result of the annual
<br />precipitation falling on the VLF exceeding the annual evaporation nt the VLF or as n result of n single precipitation event
<br />exceeding the 10 year, 24 hour storm intensity. In addition, while no specific overflow outfnll had been constructed, it was
<br />assumed that any needed discharge could be acconnrnodnted relatively quickly through the installation of temporary
<br />conduits, and would eventually be directed into Arequa Gulch in the vicinity of Outfa11001A. Therefore, Outfa11005B was
<br />shown at the same location ns Outfnll OOIA.
<br />The Cripple Creek & Victor Gold Mining Company (CC&Y) challenged the permit claiming, mnwzg other things, that there
<br />was no discharge of a pollutant from n point source to State waters for which a permit was required and, even if sudz a
<br />discharge did exist, the discharge did trot consist ofmine drainage. Various portions ofthepernrit were stayed; a settlement
<br />agreement beM~een the Division mzd CC&V was executed with regard to Outfalls 002A, 003A, ar:d 004A; mtd an
<br />adjudicatory hearing oz: Outfa11001A was held.
<br />As part ofthe settlement agreement, the Division agreed to withdraw the teens and conditions for Outfalls OOIA, 003A, and
<br />009A from CDPS Permit No. CO-0043648 and the Division noticed, for public cornrnent, a new draft permit for the
<br />discharges at Outfnlls 002A, 003A, and 004A (CDPS Draft Permit No. CO-0045115) which would have required flue
<br />installation and maintenance of detention basins that, given their size, would leave effectively satisfied the requiretnents of
<br />the 40 CFR Part 440 EEGs. Comments were submitted on this new draft permit but the new permit was never issued.
<br />After the adjudicatory hearing on Outfa11001A, the Administrative Law Judge (ALJ) filed an initial decision, which upheld
<br />the Division's permit terms and conditions for that outfall. The initt'al decision was based, in part, oft portions of the
<br />Environmental Protection Agency's (EPA) September 29, 1995, "Final National DischnrgeElirnination System Storm Water
<br />Multi-Sector General Permit for Industrial Activities, " and on EPA development documents prepared in 1975 and 1978 at
<br />the time the 40 CFR Part 440 EEGs were developed. " Initial Decision, pp. 43-44. On August 7, 1998, subsequent to the
<br />filing of the ALl's initial decision, EPA issued its ' itlodification of the National Pollutant Discharge Elimination System
<br />(NPDES) Stone Water Multi-Sector General Permit for Industrial Activities (Multi-Sector General Permit) " 63 Fed. Reg.
<br />42534 (August 7, 1998) ("Modification Rule'). In the Modification Rule, EPA supplemented its interpretation ofthe mine
<br />drainageprovisionscontainedinthe1995Multi-Sector General Permit. EPA determinedthatstormflowsfromareassuch
<br />ns waste rockpiles and overburden storage areas that are outside of the "active mining area"were not "mi»e drainage"
<br />subject zo EEGs unless such water flowed to a point source acrd combined with other mine drainage. [Id., p. 41538) EPA
<br />defines active raining area ns a place where work or other activity related to the extraction, rermoval, or recovery of tnetal
<br />ore is being conducted except, with respect to surface mines, any area of land that has been reclaimed.
<br />On the basis of the Modification Rule, as it applies to the Cresson Project, the Division finds that the discharges at Outfal[s
<br />OOIA, 002A, 003A, or 004A are no longer mute drainage. In particular:
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