Comments on Proposed Arsenic MCL
(65 Fed. Reg 38888, June 22, 2000)

To the Clerk:

The Northwest Mining Association (NWMA) appreciates the opportunity to provide comment on EPA’s proposed Arsenic MCL (65 Fed. Reg 38888, June 22, 2000).    The NWMA is a 105-year old organization with approximately 2,500 individual members representing a cross-section of the mining industry, with particular emphasis on the metal mining sector.   NWMA wishes to state its support for the detailed comments provided by the National Mining Association and the Environmental Arsenic Council, in addition to those provided below.

General Comments:

EPA is proposing to reduce the arsenic standard from 50 ppb to 5 ppb.  The agency claims this is necessary in order to better protect human health, and that the change will reduce the incidence of bladder and lung cancer deaths.  While the reduction of mortality is a laudable goal, this rule will, at best, accomplish an insignificant reduction in overall cancer death rates (less than half a percent), while imposing enormous costs that will threaten the viability of many mining operations.  As these operations provide a livelihood and health care benefits for many workers and their communities, as well as raw resources needed to maintain healthy standards of living, NWMA asserts that imposition of the 5 ppb will result in negative affects on  human health in many rural communities.   Similar adverse affects must be anticipated for the other MCL’s (3 ppb, 12 ppb, and 20 ppb) being considered in this rule making.  This is particularly true when one considers the added cost to consumers of meeting these requirements in public water treatment facilities in small communities.

Many of our members are small business mine operators who will incur significant cost as a result of the institution of such low drinking water standards.  Compliance with such low standards will require use of very expensive reverse osmosis technology in virtually all cases.   In addition, many of these operations are located in the intermountain west, in proximity to hydrothermal mineralization and geothermal systems that promote elevated natural background arsenic concentrations.  As a result, influent concentrations may exceed the 30 ppb level needed for successful reverse osmosis treatment to the desired level.  Further, the more stringent MCL will very likely have indirect impacts on other regulatory requirements that affect mining operations, such as RCRA and CERCLA criteria that are based on current drinking water MCLs.  NWMA believes that the health risk data presented by the agency are inconclusive and should be further evaluated in more pertinent North American populations, at the low concentrations of concern, before additional regulation is promulgated.  Finally, NWMA does not believe that the cost-benefit analysis presented by the agency in its proposed rule fairly represents the cost of compliance or the legitimate value of reduced cancer mortality and morbidity. 

Compliance with such low standards will require use of reverse osmosis technology

EPA has grossly underestimated the cost of complying with the proposed 5 ppb MCL.   Discussion with several NWMA member operators of mines that manage arsenic as a discharge issue indicate that none of the MCL values under consideration can be reliably met by technologies other than reverse osmosis.  Costs of implementing this level of treatment at just these few several NWMA member operations has been estimated in the tens of millions of dollars, and would be much higher if likely changes to RCRA and CERCLA regulations resulted from the proposed rule making.  To achieve the needed reduction in concentration at most operations, influent concentrations would need to be less than 30 ppb level successful reverse osmosis treatment.   This low level of influent concentration may be very difficult to meet in areas where naturally elevated background concentrations are present.  Waste brines from the RO process with almost certainly not meet RCRA hazardous waste standards, which will be reduced by an order of magnitude (being 100 times the MCL), thus creating a hazardous waste that must be managed to prevent future point source discharge at added expense to the operator.

Naturally elevated background concentrations are typical in highly mineralized areas

Arsenic is a naturally occurring element that is commonly associated with some types of mineral deposits.  Much of the state of Montana has surface and groundwater background concentrations that exceed 5, 10 and 20 ppb (Duck, Patton, and Nimick, USGS Open File 97-203, 1997).  Arsenic concentrations in the immediate Greater Yellowstone Ecosystem are relatively high in surface and groundwater.  Is it reasonable to impose a standard of 5 ppb for drinking water in such a region where background concentrations are significantly higher, but mortality due to cancer is quite low?  This would seem to defy the intent of the congressional mandate presented in the 1996 SWDAA. 

More stringent MCL will change RCRA, CERCLA and NPDES waste management requirements

Many environmental regulatory programs are based upon the drinking water MCL.  For example, the RCRA criterion for arsenic is 100x the drinking water standard.  This would reduce the hazardous waste RCRA criterion from 5 to 0.5 ppm, and thereby significantly increase the volume of waste (for a broad range of industries) that would be ineligible for land disposal.  Similarly, many ARAR’s and NPDES criteria are also predicated on drinking water MCL’s.  The potential costs of applying the proposed 5 ppb criterion to waste management indirectly could be huge and has not been addressed by EPA in its cost benefit analysis.

Health Risk Data are Inconclusive

We do not believe that the presented information represents the “best available, peer reviewed science and supporting studies conducted in accordance with sound and objective scientific practices” as required by Congress in the Safe Drinking Water Act Amendments of 1996.  Recent negative epidemiological studies of low exposure affects in populations in North America find no significant association between bladder and lung cancer at arsenic concentration exposure levels at or below the current MCL level (Bates et al, 1995; Buchet and Lison, 1998; Lewis et al, 1999).  These studies have been ignored in favor of poorly executed and controlled 30 year old studies of populations exposed to much higher concentrations of arsenic in Taiwan.  NWMA strongly supports the indepth discussion provided by the Environmental Arsenic Council in its analysis of the legitimate health risks that would be reduced by this proposed rulemaking, and further supports its assertion that nonlinear risk models are more appropriate for evaluation of arsenic carcinogenicity.  

EPA Cost/Benefit Analysis is Inadequate

The Health Risk Reduction and Cost Analysis the agency has provided is inadequate, as it fails to adequately quantify costs and health risk reduction benefits, and especially fails to identify increased health risks associated with compliance with the new MCL.  NWMA strongly supports the indepth discussion provided by the Environmental Arsenic Council in its comments on this proposed rulemaking, and incorporates them by reference as if they were our own.

Furthermore, this rulemaking by EPA requires the agency to complete a legally adequate Benefit-Cost/Unfunded Mandates Act Analysis and Initial Small Business and Regulatory Flexibility Act of 1980 Analysis (RFA), at 5 U.S.C. Sec. 601- 612, of the proposed changes.  The EPA must comply with the pertinent provisions of EO 12866 as the net adverse economic impact of the proposed rulemaking will easily exceed $100 million.  There is a very large universe of individuals and small business ‘establishments’ that will be very significantly, and adversely, affected by the rule as proposed, and the magnitude of the economic harm increases proportionally as the allowable level of arsenic decreases. 

Unfair Burden to small Businesses

Recognizing agency indifference, the Small Business Regulatory Enforcement Fairness Act (SBREFA) was enacted to amend the RFA, 5 U.S.C. 601 et seq., 1996.   The RFA now requires agencies to prepare and publish a statement providing the factual basis for such certification when proposing a regulation and a final analysis when issuing a final rule for each rule that will have a significant economic impact on a substantial number of small entities.  The facts suggest that a substantial number of mining companies will be significantly effected by the proposed change, as well as a great number of water providers in rural communities.  We remind EPA that a small entity is one with 500 employees or less, using definitions established pursuant to law by the Small Business Administration. 

NWMA respectfully requests that EPA comply fully with SBREFA and that it carefully reconsider its proposed very low standard for arsenic in light of the best available science, which does not support EPA’s position on this subject.

Sincerely,

Lisa Bithell Kirk
Co-chairperson
Federal Environmental Issues Committee