AN OVERVIEW OF MINE WASTE REGULATION IN THE UNITED STATES

• Jurisdiction: Derecho Internacional

MINING LAW & INVESTMENT IN LATIN AMERICA
(April 2003)
CHAPTER 19B
AN OVERVIEW OF MINE WASTE REGULATION IN THE UNITED STATES
John D. Fognani, Esq.
Michael T. Hegarty, Esq.
FOGNANI GUIBORD HOMSY &ROBERTS, LLP
DENVER, COLORADO

PRESENTED AT

THE SPECIAL INSTITUTE ON MINING LAW &INVESTMENT IN LATIN AMERICA

CO-SPONSORED BY:

THE ROCKY MOUNTAIN MINERAL LAW FOUNDATION AND THE SECTION ON ENERGY &NATURAL RESOURCES LAW OF THE INTERNATIONAL BAR ASSOCIATION

APRIL 28-30,2003

LIMA, PERU

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INTRODUCTION

The disposition of mine wastes in the United States is governed by a complex matrix of interconnected federal and state laws and regulations. At the heart of this matrix are two voluminous federal statutes: The Resource Conservation and Recovery Act of 1976 (42 U.S.C.A. §§ 6901 et seq.), as amended ("RCRA"); and The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C.A. §§ 9601 et seq.), as amended ("CERCLA").

As the following outline describes, RCRA is primarily a forward-looking statute. While provision is made in RCRA to respond to past instances of solid waste contamination, RCRA is principally designed to regulate current and ongoing handling and disposal of solid wastes, including mine wastes. CERCLA, on the other hand, focuses on responding to past instances of hazardous substance contamination, including contamination from mine wastes. As outlined below, CERCLA provides for the cleanup of hazardous substance contamination and, wherever possible, the distribution of cleanup costs among responsible parties. Taken together, RCRA and CERCLA impose a comprehensive set of controls on the disposition of mine wastes in the U.S.

THE RESOURCE CONSERVATION AND RECOVERY ACT OF 1976

I. Overview of Act and Regulations.

a. The enactment of the Resource Conservation and Recovery Act of 1976 ("RCRA"), amending the Solid Waste Disposal Act, created comprehensive environmental regulation of solid waste disposal. 42 U.S.C.A. §§ 6901 -6992.

b. Congress had found that prior to RCRA's enactment, environmental efforts focused on removal of pollutants from air and water, with resulting pollutants oftentimes placed or disposed on land in an environmentally unsound manner. With RCRA's enactment, Congress believed it closed "the last remaining loophole in environmental law" regarding the unregulated land disposal of discarded materials and wastes. H.R. Rep. No. 1491, 94^th Cong. 1^st Sess. 4 (1976).

c. In 1984, RCRA was amended by the Hazardous and Solid Waste Amendments ("HSWA") (Pub L. No. 98-616, 98 Stat. 3221), which created more stringent requirements for managing hazardous wastes.

d. RCRA establishes a regulatory framework to:

i. Control previously unrestrained dumping of various waste materials on land in order to protect human health and environment;

ii. Provide a comprehensive management system of "cradle to grave" tracking and manifesting of hazardous wastes from point of origin to final management;

iii. Encourage economical solid waste disposal practices and conservation of natural resources directly or through management, effective reuse, or recovery of solid wastes; and

iv. Encourage States to implement equivalent programs.

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e. RCRA consists of three major operative parts:

i. Subtitle C of the RCRA addresses "hazardous waste" management (providing a distinct scheme for those solid wastes determined to be "hazardous");

ii. Subtitle D (of particular importance to the mining industry) deals with management of non-hazardous "solid waste"; and

iii. Subtitle I of RCRA pertains to regulation of "underground storage tanks" containing petroleum or hazardous substances.

II. Threshold Questions for RCRA Jurisdiction.

a. Whether a particular material or waste is a "solid waste."

b. Whether a particular solid waste is a "hazardous waste."

i. Even if a material is "hazardous," if it is not a "solid waste," RCRA jurisdiction does not exist,

ii. "Hazardous materials" are regulated under the Hazardous Materials Transportation Act. 49 U.S.C.A. § 1801 et seq.

iii. "Hazardous substances" are controlled under the Clean Water Act or the Comprehensive Environmental Response Compensation &Liability Act ("CERCLA").

c. Whether a statutory or regulatory exemption exists.

d. Whether a particular secondary material or waste can be or is recycled. 40 C.F.R. § 261.1, .2, and .4

III. The Definition of Solid Waste.

a. The basic statutory definition of solid waste (at 42 U.S.C. A. § 6903(27)) is rather broad and is used largely in determining the scope of Subtitle D provisions. It includes: "any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities...." 42 U.S.C.A. § 6903(27).

b. Excluded from the statutory definition of solid waste are the following:

i. Solid or dissolved material in domestic sewage;

ii. Solid or dissolved materials in irrigation return flows;

iii. Industrial discharges which are "point sources" permitted or subject to regulation under section 402 of the Federal Water Pollution Control Act (Clean Water Act); or

iv. Source, special nuclear, or byproduct material as defined by the Atomic Energy Act or 1954.

42 U.S.C.A. § 6903(27).

c. Regulatory Definition of Solid Waste. The regulatory definition of solid waste adopted by the United States Environmental Protection Agency ("EPA" or "Agency") is even more expansive and complex than its statutory counterpart. In essence, EPA rules define solid waste as any "discarded material" that is not excluded by EPA regulations (40 C.F.R.

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§26l,4(a)) or by variance (granted under 40 C.F.R. §§ 260.30 and 260.31). A discarded material is any material which is abandoned, recycled, considered inherently waste-like, or a military munition. 40 C.F.R. § 261.2(a)(2).

IV. The Definition of Hazardous Waste.

a. The waste must be a "solid waste." 42 U.S.C.A. § 6903(5).

b. Even if the waste is a solid waste, it will be a "hazardous waste" only if it:

i. Is "listed" by EPA as a hazardous waste. 40 C.F.R. § 261.31-33 .

ii. Is a solid waste mixed with a listed hazardous waste. 40 C.F.R. § 261.3(a)(2)(iv).

iii. Is a solid waste derived from the treatment, storage, or disposal of a listed hazardous waste. 40 C.F.R. § 261.3(c)(2)(i).

iv. Exhibits a hazardous waste characteristic-ignitability, corrosivity, reactivity, or toxicity (40 C.F.R. §§ 261.3, .20); or v. Is land or water contaminated as a result of a spill or discharge of a listed waste. 40 C.F.R. § 26l3(f) .

c. Certain solid wastes are automatically exempted from Subtitle C jurisdiction, including, for instance, the following:

i. drilling fluids, produced waters, and other wastes associated with the exploration, development, or production of crude oil, natural gas, or geothermal energy (Bentsen Amendment);

ii. fly ash waste, bottom ash waste, slag waste, and flue gas emission control waste generated from combustion of coal or fossil fuels;

iii. solid waste generated from the extraction, beneficiation. and processing of ores and minerals (although only 20 listed processing wastes remain excluded, by virtue of EPA regulatory action) (part of the Bevill Amendment, see below):

iv. cement kiln dust wastes.

42 U.S.C.A. § 692l(b)(2)(A)-(3)(A) ; 40 C.F.R. § 261.4(b).

V. The Bevill Amendment

a. The Bevill Amendment is of particular importance in understanding the regulation of mine wastes under RCRA. Essentially, the Bevill Amendment provides an exemption from Subtitle C (hazardous waste) regulation for all mining extraction and beneficiation wastes, as well as for twenty specific mining processing wastes. Such extraction and beneficiation wastes, and the twenty processing wastes, are instead subject to regulation under Subtitle D (solid waste).

b. Beneficiation and Processing Wastes Distinguished.

i. Whether a particular waste results from "beneficiation" or "processing" is not always clear; in certain instances, one might look much like the other. The distinction is important, however, because (unlike beneficiation wastes) all but twenty processing wastes are excluded from the Bevill Amendment and are thereby

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subject to regulation as "hazardous wastes" under Subtitle C of RCRA.

ii. EPA attempts to delimit the boundaries of "beneficiation" by describing specific activities that constitute beneficiation (i.e., if it is not one of the listed activities, it is not beneficiation):

beneficiation of ores and minerals is restricted to the following activities: crushing; grinding; washing; dissolution; crystallization; filtration; sorting; sizing; drying; sintering; pelletizing; briquetting; calcining to remove water and/or carbon dioxide; roasting, autoclaving, and/or chlorination in preparation for leaching (except where the roasting (and/or autoclaving and/or chlorination)/leaching sequence produces a final or intermediate product that does not undergo further beneficiation or processing); gravity concentration; magnetic separation; electrostatic separation; flotation; ion exchange; solvent extraction; electrowinning; precipitation; amalgamation; and heap, dump, vat, tank, and in situ leaching."

40 C.F.R. § 261.4(b)(7)(i).

c. Pre-Bevill Amendment Developments.

i. Initial Studies Required Under RCRA.

1. RCRA, as enacted in 1976, required EPA to conduct a detailed and comprehensive study of any adverse environmental effects of solid waste from active and abandoned surface and underground mines. 42 U.S.C.A. § 6982(f).

2. The study was to evaluate current as well as alternative methods to dispose of solid waste and to prevent or mitigate any adverse effects.

3. In considering alternatives, EPA was required to take into account the costs of

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