Volume 3, Number 10
United States
Environmental Protection
Agency
Office of Enforcement
and Compliance
Assurance (2248A)
EPA 300-N-00-015
<>EPA Enforcement Alert
Office of Regulatory Enforcement
November 2000
Hazardous Waste Management Practices at Mineral Processing
Facilities Under Scrutiny by U.S. EPA
EPA Clarifies 'Bevill Exclusion' Wastes and Establishes Disposal Standards
Evidence gathered by the U.S. En-
vironmental Protection Agency
(EPA) indicates that some mineral pro-
cessing facilities may be failing to prop-
erly identify and manage hazardous
About
Enforcement Alert
"Enforcement Alert" \:
published periodically by the
Office of Regulatory
Enforcement to inform and
educate the public and
regulated community of
important environmental
enforcement issues, recent
trends and significant
enforcement actions.
This information should help
the regulated community
anticipate and prevent
violations of federal
environmental law that could
otherwise lead to enforcement
action. Reproduction and wide
dissemination of this
publication are encouraged.
For information on obtaining
additional copies of this
publication, contact the editor
listed below.
Eric V. Schaeffer
Director, Office of
Regulatory Enforcement
Editor: Virginia Bueno
(202) 564-8684
bueno.virginia@epamail.epa.gov
(Please Email all address and
name changes or subscription
requests for this newsletter.)
waste regulated under the Resource
Conservation and Recovery Act
(RCRA).
At some facilities, these violations
have resulted in the leaching of toxic
metals such as lead and arsenic to
ground-water and drinking water, and the
release of phosphine to the atmosphere.
Recently, violations at three different
mineral processing facilities have re-
sulted in penalties totaling $23.5 million,
and more than $200 million in additional
cleanup costs.
EPA is concerned that these viola-
tions are arising because some compa-
nies are incorrectly assuming that cer-
tain wastes are exempt from RCRA
under the so-called "Bevill exclusion,"
or are engaging in sham recycling ac-
tivities.
EPA and States with authorized haz-
ardous waste programs periodically in-
spect mineral processing facilities to de-
termine whether company waste man-
agement practices are in compliance
with RCRA. Owners and operators of
mineral processing facilities may be
subject to RCRA and applicable regula-
tions found at 40 C.F.R. Parts 260-271.
To help mineral processing facili-
ties comply with RCRA, EPA highlights
in this issue of Enforcement Alert:
RCRA regulatory requirements
applicable to mineral processing facili-
ties;
The "Bevill Exclusion" and its
applicability;
Waste management practices
potentially resulting in noncompliance;
and
Recent cases involving haz-
ardous waste violations at mineral pro-
cessing facilities.
Improper Waste Disposal
Poses Environmental
Hazards
Mineral processing wastes, if im-
properly disposed, can cause harm to
human health and substantial environ-
mental damage. Environmental damage
attributed to mineral processing opera-
tions includes:
Groundwater contamination
(e.g., arsenic, cadmium, copper, lead,
zinc) caused by the placement of min-
eral processing waste waters in un-
lined surface impoundments;
Soil contamination (e.g., ar-
senic, lead) caused by flue dust piles;
and
Surface water contamination
(e.g., cadmium, zinc) caused by re-
leases of some process wastewaters.
RCRA Regulatory
Requirements for Mineral
Processing Facilities
When Congress amended RCRA in
October 1980, it temporarily excluded
from regulation "solid waste from the
extraction, beneficiation, and process-
Continued on page 2
This publication is found on the Internet at http://www.epa.gov/oeca/ore/enfalert
-------
Enforcement Alert
Continued from page 1
ing of ores and minerals." This exclu-
sion is commonly referred to as the
"Bevill exclusion" (see box below for
more on the Bevill exclusion).
Since the 1980 amendment, EPA has
established regulatory boundaries for
the mining waste exclusion; articulated
the criteria used to define
"beneficiation" and "mineral process-
ing"; and evaluated whether individual
wastes streams are eligible for the Bevill
exclusion (54 Federal Register 36592,
Sept. 1,1989; 55 Federal Register 2322,
Jan. 23,1990). For purposes of regula-
tory classification, EPA drew a "bright
line" between beneficiation and mineral
processing in its Bevill rules.
Beneficiation involves separating
and concentrating mineral value from
extracted ore through physical activi-
ties including, but not limited to, grind-
ing or crushing. Mineral processing
involves the use of processes that cause
a significant physical/chemical change
to the ore or minerals. For example, the
smelting of copper or lead is commonly
recognized as a mineral processing ac-
tivity. While wastes from benefication
are exempt from RCRA under the Bevill
exclusion, wastes from mineral pro-
cessing are not unless they are spe-
cifically identified as exempt under 40
CFR 261.4(b)(7).
The rules established that all min-
eral processing wastes, (except the 20
wastes listed at 40 CFR 261.4(b)(7)),
are subject to RCRA Subtitle C haz-
ardous waste regulation if they are
"listed" (see definitions on page 3) or
exhibit one or more of the hazardous
waste characteristics.
The 1989 and 1990 rules also ad-
dress wastes that are "uniquely asso-
ciated" with primary mineral process-
ing operations. Uniquely associated
wastes are eligible for the mining waste
exclusion. In contrast, "non-uniquely
associated" wastes (e.g., wastes that
are generated as a result of maintain-
ing mining machinery or other facility
activities) are not. Many of the non-
uniquely associated wastes are identi-
cal to wastes generated by non-min-
eral processing industries.
In May 1998, EPA promulgated
"Land Disposal Restrictions (LDR)
Phase IV: Final Rule" (http://
www. epa. gov/fedrgstr/EPA - WASTE/
1998/May/Day-26/f989.htm). The rule
applies to all mineral processing wastes
that are discarded, except for 20 spe-
cific mineral processing wastes. The
rule establishes universal treatment stan-
dards for metal-bearing wastes from
mineral processing, and requires that
all underlying hazardous constituents in
these wastes be treated before land dis-
posal.
On April 21, 2000, the U.S. Court
of Appeals for the District of Columbia
Circuit issued a decision that vacated
that portion of EPAs LDR Phase IV rule
that dealt with the issue of when sec-
ondary materials recycled as feedstock
are solid wastes under RCRA. With re-
spect to mineral processing, the Court
left in place the part of the Phase IV
rule reducing the scope of the 1985
definition of the solid waste rule; the
result is that mineral processing spent
materials being reclaimed by the indus-
try sector are wastes if they are stored
on the land, and that listed sludges and
by-products being reclaimed are wastes
under all circumstances. In addition, the
Court upheld the Agency's use of the
Toxicity Characteristic Leaching Pro-
cedure (TCLP) to determine whether
mineral processing wastes are hazard-
ous. The Court also noted that the
Agency may continue to use "specula-
tive accumulation" and "legitimacy" as
factors in determining whether disposal
Continued on page 3
T
The Bevill Exclusion
he Bevill exclusion exempts from RCRA Subtitle C regulation solid waste from ore and mineral extrac-
tion, beneficiation, and 20 mineral processing wastes.
The 20 exempt mineral processing wastes are: 1. Slag from primary copper processing; 2. Slag from primary lead
processing; 3. Red and brown muds from bauxite refining; 4. Phosphogypsum from phosphoric acid production; 5. Slag
from elemental phosphorus production; 6. Gasifier ash from coal gasification; 7. Process wastewaterfrom coal gasifica-
tion; 8. Calcium sulfate wastewater treatment plant sludge from primary copper processing; 9. Slag tailings from
primary copper processing; 10. Fluorogypsum from hydrofluoric acid production; 11. Process wastewater from hydrof-
luoric acid production; 12. Air pollution control dust/sludge from iron blastfurnaces; 13. Iron blastfurnace slag; 14.
Treated residue from roasting/leaching of chrome ore; 15. Process wastewaterfrom primary magnesium processing by
the anhydrous process; 16. Process wastewaterfrom phosphoric acid production; 17. Basic oxygen furnace and open
hearth furnace air pollution control dust/sludge from carbon steel production; 18. Basic oxygen furnace and open hearth
slag from carbon steel production; 19. Chloride process waste solids from titanium tetrachloride production; and 20.
Slag from primary zinc processing.
NOVEMBER 2000
-------
Enforcement Alert
Continued from page 2
has taken place (Association of Battery
Recyclers v. EPA, 208 F.3d 1047 (D.C.
Cir., 2000)).
Wastes Not Covered by the
Bevill Exclusion
To restate, the Bevill exclusion ap-
plies to extraction, beneficiation, and 20
listed mineral processing wastes. The
exclusion does not apply to:
All other mineral processing
wastes;
Wastes from scrap recycling;
Wastes from chemical manu-
facturing (54 Federal Register 36592,
Sept. 1, 1989); and
Wastes such as spent solvents,
pesticide wastes, laboratory wastes, and
vehicle maintenance wastes (non
uniquely associated wastes).
EPA Investigates Waste
Management Practices
EPA estimates that approximately
500 facilities throughout the United
States process more than 50 types of
mined minerals including lead, copper,
titanium, and phosphate rock. Of those
5 00 facilities:
More than 40 percent of min-
eral processing sites are located within
one mile of a residential area.
Approximately 140 facilities
generate 118 potentially hazardous
waste streams.
Mineral processing facilities
generate 20 million metric tons of liq-
uids (wastewaters, acids, solvents) and
1.3 million metric tons of solids (slags,
ash, sludge, and filtrate) annually.
EPA has been investigating the fol-
lowing types of mineral processing
practices:
Failure to perform waste
identification: Are mineral processing
wastes being improperly characterized
as non-hazardous wastes or
beneficiation wastes?
Improper storage of wastes:
Are hazardous wastes being managed
in waste piles or unlined surface im-
poundments? Are hazardous wastes
and Bevill-exempt wastes commingled?
Sham recycling operations:
Are wastes being legitimately recycled?
Improper management of
non-uniquely associated wastes: Are
non-uniquely associated wastes (such
as spent solvents, lab wastes and used
oil) being improperly managed?
Waste impoundments clas-
sified as "process impoundments":
Are storage impoundments being used
as waste disposal units?
Agency Concerned About
Impact of Copper Smelters,
Titanium Tetrachloride
Operations
Copper smelting generates a wide
variety of exempt and non-exempt
wastes. A recent EPA evaluation of the
waste management practices at primary
copper smelters indicates that hazard-
ous wastes may be commingled and
disposed with non-hazardous wastes,
frequently resulting in environmental
damage. EPA is particularly concerned
with the handling and disposal of flue
dust, acid wastes and other metal-bear-
ing wastes.
EPA has evaluated titanium terra-
chloride acid wastestreams and is con-
cerned about practices such as com-
mingling of exempt and non-exempt
solid wastes in unlined surface im-
poundments. For example, some of
these facilities produce a waste ferric
chloride acid. EPA has previously de-
termined that ferric chloride waste acid
is a non-exempt solid waste subject to
RCRA regulation. The Agency believes
that ferric chloride waste acid is a haz-
ardous waste if disposed.
The Cost of Noncompliance
The following cases highlight how
noncompliance with hazardous waste
Continued on page 4
Regulatory
Definitions
Characteristic Waste: A char-
acteristic waste is one that exhib-
its any of four different properties:
ignitability, corrosivity, reactivity,
and toxicity (40 C.F.R. Section
261.20-24).
Listed Waste: Listed wastes
are wastes that are considered haz-
ardous under RCRA because they
meet specific listing descriptions
(40 C.F.R. Section 261.31-33).
Sham Recycling: EPA has
established guidelines for what
constitutes legitimate recycling
and has described activities it con-
siders to be illegitimate or "sham
recycling." Some considerations
in making this determination in-
clude whether the secondary ma-
terial is effective for the claimed
use, whetherthe secondary mate-
rial is used in excess of the
amount necessary, and whether or
not the facility manages the sec-
ondary material as a valued com-
modity.
Speculative Accumulation: A
material is "accumulated specula-
tively" (e.g., stored indefinitely in
lieu of recycling) if it has no viable
market or if the person accumulat-
ing the material cannot demon-
strate that at least 75 percent of
the material is recycled in a calen-
dar year (40 C.F.R Section
261.2(c)(4)).
NOVEMBER 2000
-------
United States
Environmental Protection Agency
Office of Regulatory Enforcement
(2248A)
1200 Pennsylvania Avenue, NW
Washington, DC 20460
Official Business
Penalty for Private Use $300
'Enforcement Alert' newsletter
Continued from page 3
requirements may cause significant en-
vironmental contamination:
On Oct. 16,1998, the FMC Cor-
poration reached a settlement with the
government for RCRA violations. The
FMC facility in southeastern Idaho pro-
duces elemental phosphorous. The bulk
of the wastes generated by this facility
has been managed in unlined surface
impoundments resulting in environmen-
tal contamination. The facility was cited,
in part, for failing to identify hazardous
wastes, for placing ignitable and reac-
tive hazardous waste in surface im-
poundments, and for treating hazard-
ous wastes without a permit. Under
the settlement, FMC will clean up con-
tamination, close the illegal surface im-
poundments, and construct a waste
treatment plant. FMC also will pay a
civil penalty of nearly $12 million and
spend approximately $158 million to
come into compliance with RCRA and
the Clean Air Act.
On Jan. 23, 1998, ASARCO,
Inc. reached an agreement with the gov-
ernment to correct hazardous waste and
water violations at the company's lead
smelting facility in Montana and its cop-
per mine and ore processing facility in
Arizona. The two settlements resolved
violations including failure to identify
hazardous wastes, applying process
water (containing toxic levels of arsenic
and lead) on the ground for dust sup-
pression, and illegally disposing hazard-
ous wastes including caustic slag, re-
fractory brick, filter cake, and spent car-
bon. Under the settlements, ASARCO
will pay over $6 million in penalties and
over $50 million to reduce releases of
lead, arsenic, and mercury to ground-
water and surface water; and to restore
wetlands near the Montana smelter.
On April 15, 1999, Encycle, an
ASARCO subsidiary located in Corpus
Christi, Texas, agreed to a settlement
to resolve allegations that the company
failed to comply with hazardous waste
acceptance and exporting requirements,
stored hazardous wastes on the ground,
failed to conduct waste analysis and
meet recordkeeping requirements. Un-
der the settlement, Encycle will pay
$5.5 million in civil penalties and $2 mil-
lion in additional environmental projects
at its El Paso and Corpus Christi facili-
ties.
For more information, contact Vir-
ginia Garelick, Office of Regulatory
Enforcement, RCRA Enforcement
Division, at (202) 564-2316; Email:
garelick.virginia@epa.gov; or Steve
Hoffman, Office of Solid Waste, Mu-
nicipal and Industrial Solid Waste Di-
vision, at (703) 308-8413; Email:
hoffman. stephen@epa.gov.
Useful Conrmliance
Assistance Resources
Office of Enforcement and
Compliance Assurance:
http://www.epa.gov/oeca/
Office of Regulatory Enforcement:
http://www.epa.gov/oeca/ore/
RCRA Enforcement Division:
http://www.epa.gov/oeca/ore/red/
Hazardous Waste Resource
Conservation and Recovery Act
Subtitle C:
http://www.epa.gov/epaoswer/osw/
hazwaste.htm#ldr
Office of Solid Waste (Land
Disposal Restrictions, phase IV
Treatment Standards Set for
Toxicity Characteristic Metal
Wastes, Mineral Processing
Wastes, and Contaminated Soil):
http://www.epa.gov/epaoswer/
hazwaste/ldr/ldrmetal/facts.htm
Toxic Release Inventory Website:
http://www.epa.gov/tri/index.htm
RCRA Online:
http://www.epa.gov/rcraonline/
Compliance Assistance Centers:
http://www.epa.gov/oeca/mfcac.html
Audit Policy Information:
http://www.epa.gov/oeca/ore/
apolguid.html
Small Business Gateway:
http://www.epa.gov/smallbusiness/
7" Recycled/Recyclable. Printed with Soy/Canola Ink on paperthat contains at least 30% recycled fiber
------- |