CHAPTER 7 REGULATION OF MINING AND MINERAL PROCESSING ACTIVITIES PURSUANT TO VARIOUS LAND QUALITY ENVIRONMENTAL PROGRAMS

• Jurisdiction: United States

Mineral Resources Permitting
(Mar 1981)
CHAPTER 7
REGULATION OF MINING AND MINERAL PROCESSING ACTIVITIES PURSUANT TO VARIOUS LAND QUALITY ENVIRONMENTAL PROGRAMS
Morris B. Hecox, Jr.
and James R. Spaanstra
Holland & Hart
Denver, Colorado

Institute on Mineral Resources Permitting

Rocky Mountain Mineral Law Foundation

March 12 & 13, 1981

Tucson, Arizona

I. RCRA Subtitle D Solid Waste (Non-hazardous) Regulations As They Affect The Minerals Industry

A. State Solid Waste Plans.

1. RCRA Subtitle D to be implemented through state solid waste plans. RCRA § 4001.

2. Plan shall consider many factors (e.g. regional characteristics affecting ground and surface water; methods and techniques available to store, process or dispose a particular waste; method available to close or upgrade open dumps; profile of industries; population density; etc.) RCRA § 4002.

3. EPA issued guidelines for development of state plans. 44 Fed. Reg. 45065, (July 31, 1979).

4. Six requirements for approval of state plans include implementing a prohibition on new open dumps and requirements for closing or upgrading existing open dumps. RCRA § 4003.

B. Criteria For Distinguishing "Sanitary Landfills" From "Open Dumps". RCRA § 4004.

1. Sanitary landfill presents "no reasonable probability of adverse effects on health or the environment from disposal of solid waste."

2. EPA established criteria for sanitary landfills. 44 Fed. Reg. 53437, (September 13, 1979). These criteria cover flood plains, endangered or threatened species, surface water, ground water, application of cadmium and PCB wastes on farmland, disease vectors, air pollution, and safety.

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3. Mining overburden exclusion. 45 Fed. Reg. 72079, (proposed, November 3, 1980).

C. Application of Criteria.

1. Upgrading of open dumps. RCRA § 4005.

(a) EPA to publish national inventory of all open dumps.

(b) Authority delegated to individual states to prepare the inventory.

(c) States can develop compliance schedules for existing open dumps.

2. Prohibition of establishment of new open dumps.

3. Citizen suits to enforce the Criteria.

D. Conclusions.

1. May be only RCRA Subtitle applicable to mining operations.

2. Companies should carefully examine Subtitle D applicability to own operations.

II. RCRA Subtitle C Hazardous Waste Regulations As They Affect The Minerals Industry.

A. Hazardous Waste Identification and Listing. RCRA § 3001.

1. Hazardous waste listings. 40 C.F.R. Part 261.

2. Hazardous waste characteristics. 40 C.F.R. Part 261.20 et seq.

(a) Ignitability. Flash point of 140° F. 40 C.F.R. 261.21.

(b) Corrosivity. pH less than 2 or greater than 12.5, or corrodes steel at specified rates. C.F.R. 261.22.

(c) Reactivity. Who knows. 40 C.F.R. 261.23.

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(d) EP (extraction procedure) toxicity. Leachate test incorporating 100 times NPDWS standard. 40 C.F.R. 261.24.

3. Exclusions. 40 C.F.R. 261.6.

(a) Mining overburden.

(b) Mineral processing wastes.

(c) Coal waste.

(d) Oil and gas "produced waters" exemption.

B. Standards Applicable to Generators of Hazardous Waste. RCRA § 3002.

1. Determination if waste is hazardous. 40 C.F.R. Part 261.

2. Off-site shipment of hazardous wastes. 40 C.F.R. Part 262.

(a) Waste preparation and packaging.

(b) Initiate manifest.

(c) Record keeping and reporting.

3. On-site treatment, storage or disposal of hazardous waste. 40 C.F.R. Parts 264 and 265.

C. Standards Applicable to Transporters of Hazardous Waste. 40 C.F.R. Part 263.

1. Deliver to designated facility.

2. Carry manifest.

3. Report and clean up spills.

D. Standards Applicable to Owners and Operators of Treatment, Storage and Disposal Facilities. RCRA § 3004.

1. Interim status facilities. 40 C.F.R. Part 265.

(a) Existing on November 19, 1980.

(b) Can operate without a permit.

(c) Must file Part B of permit application after six months notice from EPA.

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2. New facilities. 40 C.F.R. Parts 264 and 267.

(a) Preconstruction permit requirement.

(b) Permit application procedures.

(c) Permitting and operating pursuant to Phase II regulations.

III. Mining and Mineral Processing Wastes Exclusion.

A. Solid Waste Disposal Act Amendments of 1980.

1. Section 7 excludes waste from the "extraction beneficiation and processing of ores and minerals".

2. Section 11 excludes SMCRA permitted coal mining wastes.

B. EPA Interpretation of Mining and Mineral Processing Wastes Exclusion.

1. Applies to all waste "unique to exploration, mining, milling, smelting and refining of ores and minerals". 45 Fed. Reg. 76618, (November 19, 1980).

2. Includes coal mining waste.

3. Includes synfuels waste. EPA Office of Solid Waste advisory memorandum, January 22, 1981.

4. Does not include "non-indigenous" wastes.

C. Narrowing and Elimination of Exclusion.

1. Likely to be narrowed in next two to three months.

2. Likely to be eliminated by 1983.

IV. Recent Phase II Developments.

A. Permitting Regulations for New Storage and Treatment Facilities. 46 Fed. Reg. 2801, (January 12, 1981).

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1. Provide operating standards for storage in containers, tanks, surface impoundments and waste...