40 C.F.R. § 440.104

New source performance standards (NSPS)

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Except as provided in subpart L of this part any new source subject to this subsection must achieve the following NSPS representing the degree of effluent reduction attainable by the application of the best available demonstrated technology (BADT):

(a) The concentration of pollutants discharged in mine drainage from mines that produce copper, lead, zinc, gold, silver, or molybdenum bearing ores or any combination of these ores from open-pit or underground operations other than placer deposits shall not exceed:

Effluent characteristic	Effluent limitations
Effluent characteristic	Maximum for any 1 day	Average of daily values for 30 consecutive days
	Milligrams per liter
Cu	0.30	0.15
Zn	1.5	0.75
Pb	0.6	0.3
Hg	0.002	0.001
Cd	0.10	0.05
pH	(¹)	(¹)
TSS	30.0	20.0
¹ Within the range 6.0 to 9.0.

(b)(1) Except as provided in paragraph (b) of this section, there shall be no discharge of process wastewater to navigable waters from mills that use the froth-flotation process alone, or in conjunction with other processes, for the beneficiation of copper, lead, zinc, gold, silver, or molybdenum ores or any combination of these ores. The Agency recognizes that the elimination of the discharge of pollutants to navigable waters may result in an increase in discharges of some pollutants to other media. The Agency has considered these impacts and has addressed them in the preamble published on December 3, 1982.

(2)(i) In the event that the annual precipitation falling on the treatment facility and the drainage area contributing surface runoff to the treatment facility exceeds the annual evaporation, a volume of water equal to the difference between annual precipitation falling on the treatment facility and the drainage area contributing surface runoff to the treatment facility and annual evaporation may be discharged subject to the limitations set forth in paragraph (a) of this section.

(ii) In the event there is a build up of contaminants in the recycle water which significantly interferes with the ore recovery process and this interference can not be eliminated through appropriate treatment of the recycle water, the permitting authority may allow a discharge of process wastewater in an amount necessary to correct the interference problem after installation of appropriate treatment. This discharge shall be subject to the limitations of paragraph (a) of this section. The facility shall have the burden of demonstrating to the permitting authority that the discharge is necessary to eliminate interference in the ore recovery process and that the interference could not be eliminated through appropriate treatment of the recycle water.

(c)(1) Except as provided in paragraph (c) of this section, there shall be no discharge of process wastewater to navigable waters from mine areas and mills processes and areas that use dump, heap, in-situ leach or vat-leach processes to extract copper from ores or ore waste materials. The Agency recognizes that the elimination of the discharge of pollutants to navigable waters may result in an increase in discharges of some pollutants to other media. The Agency has considered these impacts and has addressed them in the preamble published on December 3, 1982.

(2) In the event that the annual precipitation falling on the treatment facility and the drainage area contributing surface runoff to the treatment facility exceeds the annual evaporation, a volume of water equal to the difference between annual precipitation falling on the treatment facility and the drainage area contributing surface runoff to the treatment facility and annual evaporation may be discharged subject to the limitations set forth in paragraph (a) of this section.

(d)(1) Except as provided in paragraph (d) of this section, there shall be no discharge of process wastewater to navigable waters from mills that use the cyanidation process to extract gold or silver. The Agency recognizes that the elimination of the discharge of pollutants to navigable waters may result in an increase in discharges of some pollutants to other media. The Agency has considered these impacts and has addressed them in the preamble published on December 3, 1982.

[47 FR 54609, Dec. 3, 1982, as amended at 53 FR 18788, May 24, 1988] Effective Date Note:At 47 FR 54609, Dec. 3, 1982, part 440 was revised. Section 440.104(b)(2)(ii) contains information collection requirements and will not become effective until approval has been given by the Office of Management and Budget.

Notes of Decisions

Cited in 6 cases (1 in the last 5 years), 2007–2024 · leading case: Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 557 U.S. 261 (2009).

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Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 557 U.S. 261 (2009). · cites it 18× “(i) SEACC contends that because the EPA’s performance stan dard forbids even minute solid waste discharges, 40 CFR §440.104 (b)(1), it also forbids Coeur Alaska’s slurry discharge, 30% of which is solid waste, into the lake.”

Se. Alaska Conservation Council v. United States Army Corps of Engineers, Coeur Alaska, Inc., Defendants-Intervenors-Appellees, 479 F.3d 1148 (9th Cir. 2007). · cites it 3× “Previously, however, EPA promulgated an effluent limitation and standard of performance (“performance standard”), pursuant to §§ 301 and 306 of the Clean Water Act, that prohibits discharges from froth-flotation mills into waters of the United States.”

Save Our Cabinets v. United States Dep't of Agric., 254 F. Supp. 3d 1241 (D. Mont. 2017). · cites it 2× “” 40 C.F.R. § 440.104 (b). Plaintiffs challenge the Project’s plan to direct discharge from the mill first through the tailings and then back through the Water Treatment Plant before discharging into Libby Creek.”

Se. Alaska Conservation Council v. United States Army Corps of Engineers, 486 F.3d 638 (9th Cir. 2007). · cites it 4× “See 40 C.F.R. § 440.104 (b)(1). Both of the regulations appear to apply in this case, yet they are at odds.”

San Carlos v. State/resolution (Ariz. 2024). · cites it 3× “See 40 C.F.R. § 440.104 . D. Procedural History ¶25 The San Carlos Apache Tribe (the “Tribe”) challenged ADEQ’s issuance of the 2017 Permit Renewal with the Arizona Water Quality Appeals Board (the “Board”).”

Se. Alaska (9th Cir. 2007). · cites it 3× “See 40 C.F.R. § 440.104 (b)(1). This very specific regulation applies to Coeur Alaska’s mill.”

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