CHAPTER 5 RCRA AND THE MINERALS INDUSTRY
| Jurisdiction | United States |
(May 1990)
RCRA AND THE MINERALS INDUSTRY
Amax Inc.
Denver, Colorado
TABLE OF CONTENTS
Page
I. HISTORY OF RCRA AND THE MINERALS INDUSTRY
A. Establishment of Hazardous Waste Program
B. Bevill Amendment
C. 1984 Amendments
D. EPA's Report to Congress on Mining Waste
E. EPA Determination Regarding Mining & Milling Waste
II. CHANGES IN THE SCOPE OF MINERAL PROCESSING EXCLUSION
A. Environmental Defense Fund v. EPA
B. Listing of Six Smelting & Refining Wastes
C. Redefinition of "Mineral Processing"
1. Evolution of Final Rule
2. Definition of "Beneficiation"
3. Exclusive List of "Mineral Processing" Wastes
D. Required Notifications
1. Identification of Hazardous Waste
2. Notification Deadlines
E. Compliance Deadlines
1. Compliance Dates in Non-Authorized States
2. Compliance Dates in Authorized States
III. CHANGES IN DEFINITION OF HAZARDOUS WASTE
A. TCLP
B. Retroactive Application
C. New EPA Interpretations
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D. Representative Sampling
IV. CHANGES IN REGULATION OF HAZARDOUS WASTE
A. Land Disposal Restrictions
1. Statutory Requirements
2. Regulatory Framework
3. Mineral Processing Waste
4. Characteristics Waste Treatment Standards
B. Corrective Action
V. CONCLUSION
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"Lost is our old simplicity of times, The world abounds with laws, and teems with crimes."
Pennsylvania Gazette (Feb. 8, 1775)
Although most industries in the United States are entering their tenth year of regulation under the federal hazardous waste program, the minerals industry has, for the most part, not been significantly involved in this program. However, this is about to change dramatically.
Due to recent changes in the federal hazardous waste laws and regulations, many minerals industry operations will soon find themselves, not only under the hazardous waste regulations for the first time, but also under a regulatory scheme that has recently been made much more stringent. The minerals industry is, therefore, about to incur significant costs to achieve compliance with this program.
The purpose of this paper is to detail these changes and their effects on the minerals industry. This paper will specifically cover changes in the scope of the "mineral processing" waste exclusion, changes in the definition of hazardous waste, and recent developments in the hazardous waste program that will particularly affect the minerals industry.
Because many minerals industry practitioners have not had to deal with the hazardous waste program, this paper will begin with a brief review of the history of the federal hazardous waste program and its relationship to the minerals industry.
I. HISTORY OF RCRA AND THE MINERALS INDUSTRY
The federal hazardous waste program began with the Resource Conservation and Recovery Act of 19761 which completely rewrote the federal law that dealt with solid waste. This rewrite was so thorough that, even though the proper title of this law was and
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still is the "Solid Waste Disposal Act" (SWDA),2 the entire statute is now commonly referred to as "RCRA".
A. Establishment of Hazardous Waste Program
Under RCRA, Congress established different levels of control of solid waste depending on whether or not the waste was classified as hazardous. For non-hazardous waste, RCRA established under "Subtitle D"3 a state-run program whereby EPA could establish disposal criteria but could not directly enforce them. However, for waste identified as hazardous, RCRA established under "Subtitle C"4 a comprehensive program which controlled and tracked the movement of hazardous waste from generation to its ultimate disposition—from "cradle to grave".
RCRA required the U.S. Environmental Protection Agency (EPA) to establish standards for generators, transporters, and owners and operators of facilities that store, treat, or dispose of hazardous waste.5 Owners and operators of such facilities, known as "TSD" facilities, were required to obtain permits either from the EPA or from states that were authorized to administer the program.6 Facilities that were in existence as of a certain date, provided proper notification, and submitted a permit application were
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granted interim status and allowed to operate without obtaining an individual hazardous waste permit.7
Although Congress passed RCRA in 1976, it was not until May 1980 that EPA finally promulgated the regulations that first implemented the hazardous waste program.8 These regulations would have regulated as hazardous waste all "flotation tailings from selective flotation from mineral metals recovery operations" as well as specific wastes from the primary copper, lead, and zinc industries.9 However, before these regulations could become effective, the statute was amended to temporarily exempt such wastes from regulation under the hazardous waste program.
B. Bevill Amendment
On October 21, 1980, just four weeks prior to the effective date of the first hazardous waste regulations, the Solid Waste Disposal Act Amendments of 198010 were signed into law. These amendments provided relief to the natural resources industry in a number of ways. For example, Congress exempted from hazardous waste regulation all "drilling fluids, produced waters, and other wastes associated with the exploration, development, or production of crude oil or natural gas or geothermal energy" and provided that such wastes could not be regulated as hazardous waste without a specific act of Congress.11
In regard to the minerals industry which was facing imminent hazardous waste regulation, the most important provisions were those contained in what is known as the "Bevill Amendment", named for Representative Bevill of Alabama who introduced the amendment on the floor of the House.12 Under this amendment, Congress provided that EPA was to study a number of special wastes, including "solid waste from the extraction, beneficiation, and processing of ores and minerals, including phosphate rock and overburden from uranium mining".13 The Bevill Amendment then provided that such waste was not to be subject to hazardous waste regulation until at least six months after EPA submitted the
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required study to Congress and only through regulations promulgated after a hearing and opportunity for comment.14
After being urged by the American Mining Congress (AMC) and individual mining companies to implement a broad industry-wide exemption, the EPA on November 19, 1980 promulgated an exclusion from the hazardous waste regulations for "solid waste from the extraction, beneficiation and processing of ores and minerals (including coal), including phosphate rock and overburden from the mining of uranium ore".15 In the preamble to this regulation, EPA made it clear that it had, at least for the time being, adopted the broad interpretation advocated by the mining industry. EPA stated:
Until the Agency takes further rulemaking action on this matter, it will interpret the language of today's amendments, with respect to the mining and mineral processing waste exclusion, to include solid waste from the exploration, mining, milling, smelting and refining of ores and minerals. This exclusion does not, however, apply to solid wastes, such as spent solvents, pesticide wastes, and discarded commercial chemical products, that are not uniquely associated with these mining and allied processing operations....16
The breadth of this exclusion was reinforced by EPA's specific reference to the exclusion of wastewater treatment and air emission control sludges and its statement in regard to coal that the exclusion "will be interpreted broadly to include coal exploration, mining, cleaning, classification, and other processing activities".17
C. 1984 Amendments
Because of Congress' perceptions that the EPA was not adequately administering the hazardous waste program, Congress decided that EPA needed more specific legislative direction. The result of this belief was the Solid and Hazardous Waste Amendments of 1984 (HSWA).18 This law imposed very detailed and stringent requirements for TSD facilities, including severe restrictions on
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the land disposal of hazardous waste.19 These amendments also created a dual permitting system. While EPA hazardous waste regulations had not been directly effective in states that received authorization to administer the hazardous waste program, HSWA provided that any EPA regulations promulgated to carry out the requirements of HSWA were to be effective immediately in all states, whether authorized or not.20 Therefore, until authorized states adopted the particular HSWA requirements, they would be implemented by a separate EPA permit.
The one provision of HSWA that directly deals with the minerals industry is the provision known as the "Simpson Amendment" after Senator Simpson, which provides that, if solid waste from the extraction, beneficiation or processing of ores or minerals is regulated as a hazardous waste, then:
[T]he Administrator is authorized to modify the requirements of subsections (c), (d), (e), (f), (g), (o), and (u) and section 3005(j), in the case of landfills or surface impoundments receiving such solid wastes, to take into account the special characteristics of such wastes, the practical difficulties associated with implementation of such requirements, and site-specific characteristics, including but not limited to the climate, geology, hydrology and soil chemistry at the site, so long as such modified requirements assure protection of human health and the environment.21
Because this provision is specific to "mineral processing" waste determined by EPA to be regulated under the hazardous waste program, EPA's reinterpretation of the term "mineral processing" will probably limit the usefulness of this provision.22
D. EPA's Report to Congress on...
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