A         OF THE            OF

             ,- A -J

                           FINAL DRAFT


                         March 31, 1988
                          Prepared for:

              U.S. Environmental Protection Agency
                      Office of Solid Waste
                       401 M Street,  S.W.
                     Washington, D.C.  20460
                          Prepared by:

                 CDM  Federal Programs Corporation
                13135 Lee-Jackson Memorial Highway
                            Suite 200
                     Fairfax, Virginia  22033
Technical Preparation completed under EPA Contract No. 68-01-6939
      Final  Submittal  only under  EPA Contract No.  68-01-7374

                                FINAL DRAFT


              Camp Dresser & McKee, Inc
Approved by:
              Linda Ji/ Brown
              Work Assignment Manager
              CDM Federal Programs Corporation
Approved by:
                      A. Koski
              Project Manager
              CDM Federal Programs Corporation

             This  report was developed  and prepared by CDM Federal Programs Corporation,
             and reviewed  by EPA under  EPA Contract No. 68-01-6939, Performance of
             Remedial  Responses  Activities at Uncontrolled Hazardous Waste Sites (REM
             II).   Just prior  to the actual  submittal of this report to EPA Office of
             Solid Waste,  CDM's  work was  shifted  from the REM II Contract to the RCRA
             Implementation Support, EPA  Contract No. 68-01-7374.

 Kearney/Ceniaur Division         Managemem
 A.T. Kearney. Ini:              Consultants
 Suite ~IH>
March 31. 1988

Mr. Benjamin W. Haynes
U.S. Environmental Protection Agency
401 M Street, S.W.   (WH-565)
Washington, D.C.  20460

Reference:     EPA Contract No. 68-01-7374; Work Assignment  No.  H20-20-
               01; Support for Mining Waste Regulation Development;
               Delivery of Final Draft of  "Bevill Beport"

Dear Mr. Haynes:

Enclosed please find one unbound copy and  two  bound  copies of the final
draft report entitled, "A Review of the  Exclusion of Mining  Waste from
Subtitle C Regulation" (i.e., Bevill Report).   The purpose of this review
is to provide an overview of the legislative and administrative record on
the implementation of the mining waste exclusion - often referred to as
the Bevill amendment - and to propose a  definition for characterizing
those wastes that are subject to regulation under this section [Section
3001(b)(3)] of the law.  Specifically this report:

     o    Expands on the key issues that EPA has identified  with respect
          to the implementation of the Bevill  amendment, particularly
          with respect to determining which wastes are within the scope
          of the 1980 amendment;

     o    Provides an historical overview  and  the current status of each
          issue; and

     o    Proposes a definition for determining which wastes should be
          considered "Bevill wastes," that is, subject  to the exclusion
          from regulation under the Subtitle C "Hazardous Waste
          Management" provisions of RCRA.

I would like to  take this opportunity to again confirm  that  development,
preparation, internal technical reviews, and Agency  reviews  of this
document were performed under the  REM II contract  (Work  Assignment 354-
HOOH).  To date, A.T. Kearney, Inc. has  had no direct involvement in the
preparation of this  report.  The report  is being submitted under the RCRA
Implementation Support Contract  {Work Assignment H20-20-01), rather than
under REM II, because all the capacity available  to  COM  Federal Programs
Corporation for  this task under REM had  been used prior  to COM completing
its final steps  to submit the report  to  EPA.   This report has been
completed as directed and is being transmitted to you for submittal to
the EPA docket.

Mr* Benjamin W. Haynes
U.S. Environmental Protection Agency
March 31. 1988
Page 2

Please feel free to call Linda Brown, the Work Assignment Manager  (who
can be reached at 703/968-0900), or me, if you have any questions.

Arthur Glazer
Technical Director
cc:  J. Levin
     J. Grieve
     L. Brown, CDM
     B. Koski, CDM

                             TABLE OF CONTENTS
Letter of Transmittal
Table of Contents
Exhibits List
Section A
Section B
Section C
Section D
Section E
Issue I   Direct Line/Auxiliary Processes
Issue 2   End Point of Processing
Issue 3   Fifty Percent Rule for Secondary Materials  8
Issue 4   Treatment and Processing of Bevill Wastes   9
Issue 5   Alloying/Fabrication/Manufacturing Wastes  11
Issue 6   Off-site/Sale                              12
SUGGESTED DEFINITION                                 13
GENERIC PROCESS FLOW DIAGRAM                         14
GLOSSARY                                             20

Figure 1

1.  January 24, 1981
2.  September 24, 1982
3.  November 17, 1982

4.  June 25, 1983
5.  August 22, 1983
6.  April 4, 1984
7.  April 4, 1984
8.  April 19, 1984
9.  May 9, 1984
10. August 15, 1984
11. May 16, 1985
12. June 10, 1986
13. June 16, 1986
14. September 15, 1987
15. Copper Processing Flow Diagrams
Alfred W. Lindsey Memorandum
John Lehman Memorandum
Letter to Rita Lavelle from Kennecott
Donald Shosky Letter
John Lehman Letter
John Lehman Memorandum
John Lehman Memorandum
Thomas J. Fronapfel Memorandum
John Lehman Letter
John Skinner Memorandum
John H. Skinner Memorandum
Marcia Williams Memorandum
Margaret Silver Letter
Marcia E. Williams Memorandum


The Environmental Protection Agency first proposed to exempt mining wastes
from regulation as hazardous wastes under Subtitle C of the 1976 Resource
Conservation and Recovery Act (RCRA), PL 94-580, in its 1978 proposed
hazardous waste rules (43 FR 58992, Dec. 18, 1978).  The Agency
acknowledged having
              very little information on the composition,
              characteristics, and the degree of hazard
              posed by these wastes, nor [did] the Agency
              yet have data on the effectiveness of current
              or potential waste management technologies or
              the technical or economic practicality of
              imposing the Subpart D standards on facilities
              jaanaging such waste (43 FR 58991).
EPA considered these wastes "special wastes" and proposed a later
rulemaking to provide substantive standards for regulating special wastes
(43 FR 58992).  However, in its May 19, 1980 Hazardous Waste Management
System rules, EPA decided to provide an exemption only to mining overburden
returned to the mine site; the remainder of mining wastes would be
regulated as any other solid or hazardous waste (45 FR 33100).  The Agency
stated that it did not believe mining wastes should be excluded from
Subtitle C regulation until completion of studies required under Section
8002 (f) of RCRA.

When Congress amended RCRA later in 1980, it included a provision in
Section 7 (the so-called Bevill Amendment) which excluded from Subtitle C
regulation all hazardous solid wastes from the  ...

              extraction, beneficiation, and processing of
              ores and minerals, including phosphate rock
              and overburden from the mining of uranium ore,
              and cement kiln dust.

Congress recognized a need to study mining wastes prior to the imposition
of Subtitle C regulations because of the many outstanding questions
regarding the need for federal regulation, the economic impacts, and the
past and current effects of mining wastes on public health and the
environment.  The temporary exclusion from Subtitle C regulation was
                                     1 -

            provided to give EPA the time to study and, if necessary, develop a
            regulatory program flexible enough to deal with the range of mining and
,            processing wastes.
            Since its enactment, there has been considerable uncertainty concerning the
            precise scope of the Amendment.  EPA has considered first broad, and later,
            narrow interpretations and has encountered difficulties with both.  EPA
            first responded to the Amendment with an interim final amendment to its
            Subtitle C regulations and a request for comments, and proposed to
            incorporate into its regulations the language of the Amendment (45 FR
            76618, Nov. 19, 1980).  The Agency initially took a broad interpretation of
            the exclusion because, according to a January 2_, 1981 memo from Alfred W.
            Lindsey, Deputy Director of the Hazardous and Industrial Waste Division to
            Terry Thoem of EPA Region VIII (Exhibit 1),

                          [t]he question quickly became how far down the
                          production line did Congress mean for
                          "processing of ores and minerals" to extend.
                          Since there was significant disagreement on
                          the issue, Congress was not in session, and
                          the Agency was consumed in trying to produce
                          the mainframe Phase II regulations, EPA
                          decided for the time being to take a broad
                          interpretation of the Congressional mandate.

            The attempt to narrow the scope of wastes excluded as "processing wastes"
            (Notice of proposed rulemaking, 50 FR 40292, October 2, 1985) was later
            withdrawn (Withdrawal of proposed rule, final action, 51 FR 36223, October
            9, 1986) because the proposed reinterpretation had not

                          set out practically - applicable criteria for
                          distinguishing processing from non-processing

            The net effect of this withdrawal was to retain the interpretation of
            November 19,  1980  (45 FR 76618).
                                               -  2  -

The purpose of this review is to summarize the evolution of thought and
decisions concerning the scope of the excluded mining wastes.  Based on
this review, a generic flow diagram and a definition of Bevill wastes are
then suggested.  These will provide a framework within which EPA can make
consistent decisions on the regulatory status of mining and processing
wastes, and thus reduce the need for case-by-case determinations.

Whether or not a waste is covered by the mining waste exclusion determines
its regulatory status.  Non-excluded wastes are subject to regulation under
the Subtitle C hazardous waste requirements of RCRA if they are determined
to be hazardous; excluded wastes are not subject to Subtitle C regulation
until at least six months after the date of submission of the studies of
excluded wastes required by Sections 8002(f) and (p) of RCRA and after a
determination of whether or not promulgation of new regulations under
Subtitle C of RCRA is warranted.  In other words, the exclusion is
temporary.  However, a potentially long-term effect of Bevill waste
designation is that Section 3001(b)(3)(A) requires that the regulatory
determination be

              based on information developed or accumulated
              pursuant to [the section 8002 studies], public
              hearings, and comment...

In 51 FR 24497 (July 3, 1986), EPA stated that

              Congress envisioned that the determination
              would be based on all the factors enumerated
              in Sections 8002(f) and (p).  Congress already
              knew that some mining waste was hazardous  ...
              [but] apparently believed ... that EPA should
              obtain and consider additional information,
              not just data on which types of mining wastes
              are hazardous, before imposing Subtitle C
              regulation on these wastes.

As a  result, wastes for which 8002(f) and (p) studies have been conducted
may not be  subsequently regulated under Subtitle C solely on  the basis of
having been found to have hazardous characteristics; EPA must also look  at
those factors listed in 8002(f) and  (p).  This provides  the  agency with
                                   - 3 -

           some flexibility  in its regulation of mining wastes since it allows consid-
           eration of other  factors affecting the need for regulatory safeguards.

           For purposes of this discussion, wastes conditionally excluded from
           regulation under  Subtitle C of RCRA are referred to as "Bevill wastes," a
           definition of which is proposed in Section C.  "Bevill boundary" refers to
           those  lines drawn on an operational flow diagram within which hazardous
           wastes generated  by extraction, beneficiation, milling, smelting, refining,
           and other processing are conditionally excluded from regulation under
           Subtitle C.

           The term "exclusion," as used in this discussion, is the conditional
           exemption from regulation under Subtitle C of RCRA per 3001(b)(3)(A) and 40
           CFR 261.4(b)(7).   It has occasionally been used in the past interchangeably
           with the word "exemption" in related memoranda and Federal Register

           Numerous questions have arisen  from attempts to apply the language of  the
           Bevill Amendment  to a variety of real world situations.  These questions
1           continue to  surface in the  form of exclusionary determination requests made
           by industry.  Few administrative decisions or case law are available to
           provide guidance  for their  resolution.  The major issues identified in this
            review are discussed below.

            ISSUE  1

i            Should excluded wastes be limited to  those operations which directly
            process ores and  minerals,  or  should  auxiliary operation processing wastes
s            also be excluded  from regulation under  Subtitle C?
            The auxiliary process wastes in question include wastes from operations
            which produce materials critical to a particular process whose wastes are
            excluded under the Bevill Amendment.  An example of these would be scrap
                                               - 4 -

anode paste from the anode baking building at a primary aluminum reduction
facility.  This waste is not derived from ore, yet anode production is an
essential ancillary operation in the reduction of alumina to aluminum.

There has been some debate as to whether wastes from such auxiliary
operations should fall within the scope of the mining waste exclusion.
However, the Bevill Amendment makes no mention of wastes from auxiliary
processes, and the prevailing opinion at present is that only wastes from
direct-line processes are excluded.  The EPA Office of General Counsel
(OGC) has emphasized that the exclusion should be applied only to those
operations directly engaged in the processing of ores and minerals.  Under
this interpretation, wastes from any auxiliary operations, however critical
and unique those operations may be to a refining process, would not be
excluded by the Bevill Amendment from regulation under Subtitle C.

This interpretation would consequently require a determination of whether a
process is in a direct line from an ore or mineral to a final refined
material.  For purposes of discussion, a direct-line operation can be
regarded as an extraction, beneficiation, or processing operation which
produces either a final, or an intermediate to a final mineral product.
This is in contrast to an ancillary operation which produces materials
later used in extraction, beneficiation, or processing operations.

Another aspect of this issue has involved the question of "uniquely
associated wastes".  The term "uniquely associated" was used by EPA as a
disqualifying term regarding the application of the exclusion to wastes
such as
              spent solvents, pesticide wastes, and
              discarded commercial chemical products that
              are not uniquely associated with  ... mining
              and allied processing operations, or cement
              kiln operations (45 FR 76619, Nov. 19, 1980).
This statement gives specific examples of wastes which are clearly not to
be considered mining wastes for the purpose of the Bevill exclusion and are
consequently described as being not uniquely associated with mining.
However, the term began to be used instead as a qualifying criterion
against which to determine whether process chemicals were or were not

            mining wastes subject to exclusion;  i.e. whether  or not a waste was
            uniquely associated with mining.   The following discussion of administra-
i            tive decisions involving the use  of  the term "uniquely associated"
            illustrates this.

            In a memo dated September 24, 1982 (Exhibit 2), to Henry Schroeder, Project
<:            Officer for Utah, EPA Region VIII, John Lehman, Director, Hazardous and
^           Industrial Waste Div., stated that spent acids and their dross generated by
            electrolytic refining of copper are  not uniquely  associated with mining  and
            allied processing operations, and thus are subject to regulation under
            Subtitle C.  In another memo dated April 4, 1984, John Lehman, as Director,
'            Waste Management and Economics Division, responded to James Scarbrough,
            Chief, Residuals Management Branch (Exhibit 6) regarding a question
            concerning a waste acid from a titanium dioxide plant.  Mr. Lehman deter-
            mined that the acid was conditionally excluded from  regulation, since it
            was present in the wastestream as a  by-product of a  chlorination process,
            rather than having been added to  the process to extract metal.  He pointed
            out that this was in contrast to

                          solid wastes, such  as  spent  solvents,  pesti-
                          cide wastes, and discarded  commercial  chemical
                          products, that are  not uniquely associated
                          with these mining and allied processing
'                         operations ... (45  FR 76619).

            Shortly thereafter, in response to a question posed  by Thomas Fronapfel,
            Environmental Engineer, Nevada Department of Conservation and Natural
 •           Resources  (Exhibit 8), John Lehman,  in a  letter dated May 9,  1984  (Exhibit
            9) determined that nitric acid wastes from a commercial assay lab are
            excluded by the Bevill Amendment since the wastes are uniquely associated
 1           with mining operations.  In this instance, the nitric acid  is added to the
 r          process to extract silver, after which it is discarded.
            In summary, the confusion surrounding the use of the term "uniquely
            associated" appears to have resulted to a large degree from its attempted
            use by some decision makers as a broad criterion for mining waste designa-
            tion.  Its initial use appears instead to have been intended as a modifier
            of several specific wastes clearly not affected by the exclusion.
                                               - 6 -


At what point does further processing of a mineral product remove the
resulting wastes from the mining waste exclusion?

In reply to a request from the State of Utah for a regulatory decision,
John Lehman, Director of EPA's Hazardous and Industrial Waste Division,
declared in a memo dated September 24, 1982 (Exhibit 2), that the subject
refining process was a step beyond the initial basic processing of mined
ore and was instead a process for upgrading an already usable commercial
product (i.e. upgrading of copper from 98% to 99% purity).  Thus, he
concluded that the wastes were subject to Subtitle C regulation.

Subsequent correspondence revolved in part around whether 98% copper is a
usable commercial product and thus exempt from regulation.  In a letter
(Exhibit 3) dated November 17, 1982, to Rita Lavelle, EPA Assistant
Administrator for Solid Waste and Emergency Response, Edwin H. Seeger and
Carl B. Nelson, Jr., attorneys for Kennecott, took exception to Mr.
Lehman's interpretation.  They pointed out that EPA's 1980 rulemaking (45
FR 76619, November 19, 1980) made no distinction between initial and
"further processing?" it excluded wastes from all processing activities,
from exploration through refining.

In its notice of proposed rulemaking, 50 FR 40293, October 2, 1985, the EPA
observed that

              It has been particularly difficult to deter-
              mine what operations constitute 'processing of
              ores and minerals.'  As a general rule, EPA
              has interpreted this phrase to include any
              operation which further refines or purifies
              the product being mined (often a metal).
              Combining the product with another material
              (e.g., alloying) and fabrication  (any sort of
              shaping that does not cause a change in
              chemical composition) is not considered
              "processing of ores or minerals."
                                   - 7 -

The EPA Office of General Counsel has taken the position that no specific
level of refinement can be imposed as a condition for exclusion from
hazardous waste regulation (Meg Silver, OGC, personal communication, April
16, 1987).


What is the status of wastes derived from processes utilizing both primary
and secondary feed stocks?

According to Norm Huey, EPA Region VIII Air Branch (personal communication,
March 24, 1987), process wastes are excluded when the percentage of
secondary (scrap) materials in the processing feedstock is less than 50%,
such that at least 50% of the final product derives from primary feedstock.

This concept, which is referred to as the 50% Rule, developed from the need
to formulate a consistent policy regarding the addition of secondary
materials into process feedstock.  In a memo dated April 4, 1984 (Exhibit
7), to Phil Bobel, Chief, Toxics and Waste Programs Branch, Region IX, John
Lehman, Director, Waste Management and Economics Division, stated that
process wastes at the Timet (titanium) facility were excluded from regula-
tion because

              the amount of titanium sponge far outweighs
              the amount of alloys (and scrap recycle) in
              the [feedstock) mixture.

More recently, Marcia Williams, Director, EPA Office of Solid Waste, stated
In a June 10, 1986 memo to David Wagoner, Director, Waste Management
Division, EPA Region IX (Exhibit 12), that

              if the predominant input to the process is
              steel scrap, the waste from the ferroalloy
              facility does not qualify for the mining waste
              exclusion. This ferroalloy facility would be
              in the same category as a secondary lead
              smelter, reclaiming lead from old batteries,
              or other secondary processes; their wastes are
              not excluded from regulation either.
                                   - 8 -

The 50% Rule provides a definitive cutoff on the amount of secondary
materials allowed in a process feedstock while retaining the waste exclu-
sion.  It thus provides an answer to the question of Bevill status for
wastes deriving from processes utilizing both primary and secondary
feedstock materials.


Are residuals of Bevill waste treatment and processing excluded from

This issue involves several elements:  (a) the exclusion of treated Bevill
wastes, including pollution control residues; (b) the exclusion of wastes
derived from the processing of Bevill wastes for the extraction of useful
products; and (c) the relationship between this issue and the 50% rule
(Issue 3).  These elements are discussed below.

  a.  Bevill wastes treated prior to disposal.

      Bevill wastes which are treated prior to disposal are excluded from
      regulation under Subtitle C.  Treatment generally involves volume
      reduction, toxicity reduction, and/or stabilization.  Such treatment
      is often accomplished through the use of pollution control equipment.

      In its Interim Final Amendment to Rule with Request for Comments (45
      FR 76619; November 19, 1980), EPA intitially questioned whether
      Congress had intended to exclude, among other things, wastewater
      treatment and air emission control sludges generated by the mining
      and mineral processing industry.  However, in an August 22, 1983
      letter to D. M. Friedman, Division of Hazardous Waste Management,
      Pennsylvania, John Lehman, Director, EPA Hazardous and Industrial
      Waste Division, stated that baghouse dust generated by an ore
      reduction furnace was exempted by 40 CFR 261.5(b)(7)  (Exhibit 5).  In
                                   _ 9 _

    answer to the same question, John Skinner,  Director,  EPA Air and
    Waste Management Division, in a letter dated August 15,  1984,  that
    the mining exclusion includes air emission control wastes (Exhibit

    Therefore, it appears generally accepted that Bevill wastes which are
    treated prior to disposal are excluded from Subtitle C regulation.
    This includes wastes collected and treated by pollution control

b.  Bevill wastes processed for recovery of useful products.

    Past decisions have precluded wastes from the Bevill exclusion if
    they resulted from the processing of Bevill wastes for additional
    recovery of useful products.  A recent decision concluded that such
    wastes should in fact be excluded from Subtitle C regulation.

    In a May 16, 1985 memorandum to Harry Seraydarian, Chief, Toxics and
    Waste Management Division, EPA Region IX (Exhibit 11), John Skinner,
    Director, EPA Office of Solid Waste, stated that smelter waste (slag
    and clinker) and leachate derived from it are excluded wastes.  On
    the other hand, if the smelter waste is used as a raw material for an
    extractive process, the resulting wastes are not excluded since the
    wastes in such an instance would not have derived directly from the
    processing of an ore or mineral.

    A contrary position was established in a September 15, 1987 memo-
    randum regarding the applicability of the Bevill Amendment to the
    American Natural Gas Coal Gasification Facility.  In the memorandum
    to Robert Duprey, Director, EPA Region VIII, Waste Management
    Division  (Exhibit 14), Marcia Williams, Director, EPA Office of Solid
    Waste, and Christina Kaneen, EPA Asst. General Counsel for RCRA,
    observed that
                                 - 10 -

i                            EPA has previously recognized that residues
                            are excluded from regulation if they derive
4                            from treatment of wastes generated from mining

                    They did not believe that wastes from the subject operations were
i                   subject to RCRA Subtitle C if the process yielded a useful
r                   by-product.
                    Regarding the Hay 16, 1985 memorandum from John Skinner  to Harry
|l                   Seraydarian (Exhibit 11), they felt that such a position was contrary
                    to waste reduction goals.  They went on to say that

i                            [i)t is not environmentally beneficial to
                            create a situation in which treating a waste
                            for recovery of useful materials is subject to
                            Subtitle C regulations whereas disposal of the
*                           untreated wastes would be exempt from RCRA.

'i                   On the other hand, wastes produced  by aluminum refining operations
                    when recovering cryolite from spent potliners are not excluded.
                    These wastes (black and white muds) are subject to regulation  under
                    Subtitle C since they clearly are derived  from the processing  of  a
                    waste, not from processing an ore or mineral.
              ISSUE 5

              Are wastes produced by alloying, fabrication, or other manufacturing
 •             operations excluded by the Bevill Amendment?

 /             In its notice of proposed rulemaking, published  in 50 FR 40292,  October 2,
f             1985, the Agency stated that its interpretation  of "processing of ores  and
 ,             minerals" did not include operations which combined the  processed ore or
 ^i             mineral

 '•:                           with another material (e.g.,  alloying)  and
 5                           fabrication  (any sort of shaping that does not
                            cause a change in chemical composition)  ....
                                                 -  11  -

In a nemo dated April 4, 19B4, to Phil Bobel,  Chief,  Toxics and Waste
Programs Branch, Region IX (Exhibit 7), John Lehman,  Director,  Waste
Management and Economics Division, noted that  the mining exclusion does not

              cover metal forming (such as rolling) or
              working (cutting) vaste.

Likewise, in her June 16, 1986 letter to David Lamm,  Indiana Assistant
Commissioner for Hazardous Waste Management, Margaret Silver, Attorney, EPA
Office of General Counsel (OGC), stated that the OGC  and the EPA Office of
Solid Waste had concluded that the mining waste exclusion does  not apply  to
slag generated during the steelmaking process  since steel is an alloy
(Exhibit 13).

An exception to the non-exclusion of fabrication-generated wastes would
logically include wastes resulting from the casting of intermediate  metal
products into anodes and from cathodes into a shape suitable for shipping.
Casting into anodes is a necessary step in the refinement of some metals
and does not constitute the production of cast products in the sense
apparently implied in the notice of proposed rulemaking (50 FR 40292).  The
melting and recasting of cathodes represents the final step in the produc-
tion process since copper in the form of cathodes can not be readily


Does a waste which would normally be excluded from regulation  lose that
exclusion if it derives from a process located off-site from the principal
processing operation?  And secondly, do otherwise excluded wastes derived
from the refining of intermediate products lose their status if those
intermediate products have been sold to another party for  refining?

These two issues were raised  in a memo dated June 25, 1983,  from Donald
Shosky, Physical Scientist, EPA Region VIII, to Louis Johnson, Chief, Waste
Management Branch, EPA Region VIII  (Exhibit 4).  The subject of the memo
was the question of exclusion  for wastes derived  from further  refining of
                                   - 12 -

;             copper.  The stated conclusion was that the exclusion did not apply,
              apparently, at least  in part, because the intermediate copper product was
i              sold, and  thus, was no longer part of a primary extraction process.  The
1             fact  that  the intermediate product was further refined at an off-site
.             facility was also  suggested as an important determinant.
              According  to Meg Silver, Office of General Counsel  (personal communication,
I              April 16,  1987), the  two issues are irrelevant.  The mining exclusion
              applies  to wastes  from direct-line processing operations.  There is nothing
              to suggest that who processes the material or where it is processed affects
Li             the exclusion.  This  view is consistent with the fact that no one has
              suggested  that the sale of a raw ore or mineral to  a beneficiation/refining
              operation  results  in  the loss of exclusion for subsequent processing


 i'             Based upon the foregoing review of Bevill waste issues,  the following
              definition of Bevill  waste is suggested.
                 A Bevill waste (a waste excluded by Section 3001(b)(3)(A)(ii)
                 of RCRA  from  regulation under Subtitle C) is any solid waste
 «                which  is produced in the course of exploration, mining,
 •                milling, smelting,  or  refining of ores or minerals,  and:

                 a.   Is not the product of processes designed to enhance
 '                     an already usable  commercial mineral product, e.g.,
 ]                     alloying,  fabrication  (any sort of shaping  that  does
                      not  cause a change  in chemical composition), or
                      other manufacturing activity;
 '                b.   Is not produced by a mining or allied processing
                      operation other than one which lies  in a direct  line
 1                     from ore  or mineral to a  final refined product;
                  c.   Is not a  spent solvent, pesticide waste, or other
                      discarded commercial chemical; and
 '                 d.   Results  from a processing stream in  which at  least
                      50%  of  the feedstock  is primary  (ore or mineral)
 '                     material.
                                                - 13 -


A generic flow diagram for determination of wastes excluded under Section
3001(b)(3)(A)(ii) is provided in Figure 1.

Following is a step-by-step evaluation of copper ore processing operations
using the proposed generic process flow diagram (Figure 1).  Information on
copper processing was taken from the study conducted by PEI Associates,
Inc. for the EPA Office of Research and Development, December, 1984,
entitled Overview of Solid Waste Generation, Management, and Chemical
Characteristics.  The two copper process flow diagrams developed in the
study (Figures 3-1 and 3-2) are included as Exhibit 14.

Two methods of processing are considered:  the conventional, pyrometallur-
gical method and the increasingly used hydrometallurgical ( elect rowinning)
technique .


1.  Roasting and drying of the copper concentrate:
    Roasting and drying prepares the copper concentrate for smelting.
    Particulates collected from the off-gases are recycled to the roaster
    or dryer, or are charged to the smelter.
    Wastes produced:
    a.  Particulates.  If not recycled, they are Bevill wastes since they
        derive from air pollution control devices.
    b.  Acid plant blowdown.  This is an air pollution control waste and as
        such Is a Bevill waite.
2.  Matte Smelting:
    Copper concentrates are smelted to remove most of the iron and  some of
    the other impurities and to separate the feed into a slag and a copper-
                                   - 14 -

           ON- OR OFF-SITE
                                                                                          MATERIAL >50%
                                                                                        OF TOTAL FEEDSTOCK
                                                                                          MATERIAL *50%
                                                                                        OF TOTAL FEEDSTOCK
                                  /] TREATMENT

                      WASTE PROCESSING
                                                     SOLD FOR FURTHER PROCESSING
                                                   REFINED PRODUCT
                                   OTHER METALS



                                                   FINISHED PRODUCT
                                                          FIGURE I

                                         BEVILL BOUNDARY DECISION  FLOWCHART

                 iron-sulfide matte that can be efficiently processed  in subsequent
                 operations.  During smelting,  the concentrate  separates into three
 *                fractions.  Some sulfur converts to sulfur dioxide, which leaves with
                 the combustion gases.  Iron oxides and silica  combine to form an iron-
                 silica slag.  Iron sulfides and copper sulfides  form  a molten matte.
 ,                The matte continues in the process; the slag is  disposed of.

                 Wastes produced:

 ,'                a.  Acid plant blowdown.  This is an air pollution control waste and as
                     such is a Bevill waste.

                 b.  Iron-Silica Slag.  After all recoverable copper is removed, the
                     slag is disposed of at an on-site dump. This is  a Bevill waste.

             3.  Matte Conversion:

                 Conversion is a two-step process in which most of the remaining
                 impurities are removed and crude blister copper is produced.   In  the
                 first step, air is blown into the matte where  it oxidizes  the  iron
                 sulfide.  The resulting iron-silicate slag is  returned to  the  smelter.
                 The oxidized sulfur leaves in the off-gas stream. Additional  air is
                 blown into the charge as the second step and converts the  copper
 ,                sulfide to blister copper.

                 Wastes produced:

                 a.  Participates.  These are Bevill wastes since they derive from air
 <                    pollution control devices.

 :                b.  Acid plant blowdown.  This is a sulfur dioxide air pollution
                     control waste and as such is a Bevill waste.

             4.  Fire-Refining and Anode Casting:

                 Air is blown into the molten blister copper to oxidize the remaining
'                 sulfur, other impurities, and some of the copper.  The impurities
 ?                combine with silica to form slag, which is recycled to the converter.
I'                The cuprous oxide remaining in the copper is deoxidized by adding coke,
 *                by poling, or by injection of reformed natural gas.   Copper is then
                 poured into molds, generally in the shape of anodes,  for further
 f                processing in an electrolytic refinery.
                 Wastes produced:

 1                a.  Contact cooling water from anode casting operation.   Casting is
 1                    generally considered to be a process outside of  the Bevill
                     boundary.  However, casting of anodes  is a necessary intermediate
 '                    step  in the refinery process and does not represent the production
 I                    of a  refined commodity.  Therefore, cooling water is a Bevill

 ]                b.  Slag.
                                                - 16 -

        i.  If slag is disposed of it is a Bevill waste.

       ii.  If additional products, such as iron, zinc, and tin,  are
            extracted, resulting wastes are Bevill wastes.

5.  Electrolytic Refining.  Includes three steps:

    a.  Electrolysis:

        Copper anodes are refined electrolytically to remove additional
        impurities that can affect the electrical conductivity of the
        copper.  The operation takes place in lead- or plastic-lined
        concrete cells.  During the process, the copper and impurities
        dissolve in the electrolyte.  The copper is deposited on the
        cathode; the impurities stay in solution or fall  to the bottom as

        Wastes produced:

        i.  Slime.  This may or may not be a waste depending on whether it
            contains additional valuable constituents, the recovery of
            which is often an important part of the refinery operation.

            A.  If they are considered wastes, then they are Bevill wastes.

            B.  If the slimes are processed for recovery of other consti-
                tuents, the wastes produced are Bevill wastes.

       ii.  Spent Acids.  These are Bevill wastes since they are produced
            during the refining process.

    b.  Melting and casting:

        Cathodes are washed with water and a surfactant to remove electro-
        lyte; they are then melted in preparation for casting.  Any
        resulting slags and dusts are returned to the smelter.  The molten
        copper is cast into commercial shapes since the copper cannot be
        sold or shipped in the form of a cathode.

        Wastes produced:

        i.  Contact cooling water.  Electrolytically purified copper
            cathodes are melted in preparation for casting into a saleable
            bulk shape.  Although the copper is at this point of saleable
            purity, it cannot be sold in the shape of the cathode.
            Therefore, it must first be cast into a form suitable for
            shipment such as wire-bars.  Because this casting operation
            represents a step in the production of the refined product, the
            contact cooling water is a Bevill waste.

       ii*  Wash Water.  Wash water consists primarily of dilute electro-
            lyte, water, surfactant, and traces of metals.  The water is
            generally sent to a wastewater  treatment plant prior to
            discharge.  This water  is a Bevill waste.
                                   - 17 -

                 c.  Electrolyte Purification:

                     Spent electrolyte contains dissolved copper and impurities.   Puri-
                     fication takes place in liberator cells, which are similar to
                     normal electrolytic cells.  An electric current causes the copper
                     and other metal impurities to deposit on the cathode,  which is then
^                    sent back to the smelter.  Purified electrolyte is recycled to the
 4                    electrolytic cells.  Sludge which forms in the liberator cell is
k                     either returned to the smelter or sold for metal recovery.

 I,                    An alternate means of electrolyte purification involves the use of
 J                    dialysis to recover some sulfuric acid for recycling to the
                     electrolysis cells.  Following removal of copper, the electrolyte
.]                    is dewatered, leaving a sludge of nickel, iron and zinc.  A "black
                     acid" liquor results from the dewatering process which is either
'*                    used in leaching operations, or is sold to fertilizer

!                     *•  Nickel, iron and zinc sludge.

                         A.  If disposed of, the sludge is a Bevill waste.

                         B.  If the sludge is processed for metals recovery, then the
                             wastes produced by the recovery operation are Bevill
I                             wastes.

*                    ii.  Bleed electrolyte.  Is neutralized with mill tailings and
                         disposed of in a tailings pond.  It is a Bevill waste.

I                   iii.  "Black acid" liquor.

I                         A.  If used in leaching operations, it remains in the process
                             and is not a waste.
                          B.  If sold to fertilizer manufacturers it is not a waste,  and
                              it is not a Bevill waste.

                     iv.  Spent acid.  Most acid in circuit is returned to the electro-
                          lyte stream to maintain the acid balance in the refinery.   A
                          small portion must be neutralized and discarded to prevent
                          buildup of calcium, magnesium,  potassium, and sodium ions in
                          the electrolyte.  This spent acid is a Bevill waste.

              6.  Fire Brick

                  Fire bricks are replaced periodically.   The used bricks are either
                  treated for additional copper recovery and recycled or disposed of  on a
                  waste pile.  If disposed of they are Bevill wastes.
                                                - 18 -


The three major steps are:

1.  Leaching

    Leaching methods include dump leaching, vat leaching,  and agitated
    leaching.  An acidic solution (usually weak sulfuric acid) is recir-
    culated through the crushed ore.  The pregnant solution is treated by
    solvent extraction.

    Wastes produced:

    a.  Crud.  Goes to tailing pond and is a Bevill waste.

    b.  Barren Ore.  Isa Bevill waste.

    c.  Spent Raffinate.  Only a small amount is produced which is not
        recycled. Is a Bevill waste.

2.  Solvent Extraction

    Solvent extraction employs an organic chelating agent dissolved in an
    organic solvent (usually kerosene).  The chelate combines with the
    dissolved copper to form a copper-organic complex.  This, in turn, is
    treated with a strong acid (spent tankhouse electrolyte) which strips
    the copper from the chelating agent, and regenerates the solvent.  The
    pregnant electrolyte is then pumped to the electrowinning tankhouse.

    Waste produced:

    a.  Spent organic solvent.  Is recycled until end of process.
        Remainder is disposed of and is a Bevill waste.

3.  Electrowinning

    Electrowinning cells are similar to electrolytic refining cells except
    that the anodes are generally made of lead.  When electric current is
    applied, copper is deposited on copper starting sheets.  Spent electro-
    lyte is recycled to the solvent extraction plant.

    Wastes produced:

    a.  Tankhouse slimes.  May contain base and precious metals.  If
        disposed of, they are Bevill wastes.

    b.  If procesed to recover other metals, resulting wastes are Bevill
                                   - 19 -

                                GLOSSARY *
BENEFICIATION - the treatment of ore to concentrate its valuable

DUMP LEACHING - a beneficiation process in which sub-ore-grade material is
    leached by acid to recover copper.  The material to be leached is
    placed directly on the ground and the leaching may continue for years
    or decades.

DUMP LEACH WASTE - a large-volume waste that results from the dump leaching

ELECTROWINNING - recovery of a metal from an ore by means of electro-

HAZARDOUS WASTE - a solid waste, or combination of solid wastes, which,
    because of its quantity, concentration, or physical, chemical, or
    infectious characteristics, may (1) cause, or significantly contribute
    to, an increase in mortality or an increase in serious irreversible, or
    incapacitating reversible illness; or (2) pose a substantial present or
    potential hazard to human health or the environment when improperly
    treated, stored, transported, disposed of, or otherwise managed.

HEAP LEACHING - an extraction process in which ore is leached by cyanide to
    recover gold and silver, or by other reagents to recover uranium.  The
    material to be leached is placed on a pad; the volume of material
    leached is smaller than in the dump leaching process.  Leaching
    continues for months.

LEACHATE - 1) the beneficiation solution (pregnant liquor) obtained from
    heap leach and dump leach processes; 2) the liquid resulting from water
    percolating through, and dissolving materials in, waste.

MATTE ** - A metallic sulfide mixture made by melting the roasted product
    In smelting sulfide ores of copper, lead, and nickel.

MATTE SMELTING *** - The smelting of copper - bearing materials, usually in
    a reverberatory furnace.  The valuable product is a liquid, copper-iron
    sulfide called matte.

MILL TAILINGS - the waste rock (gangue) discarded after ore milling.  See

MINE WASTE - a large-volume waste consisting of the soil or rock generated
    by mining operations during the process of gaining access to an ore or
    mineral body.  The waste includes the overburden from surface mines,
    underground mine development rock, and other waste rock.

SLIMES - a material of extremely fine particles encountered in the
    treatment of ore.  Primary slimes are extremely fine particles derived
    from ore, associated rock, or clay.  They are usually found in old
                                     20 -

    dumps and in ore deposits that have been exposed to climatic action;
    they include clay, alumina, hydrated iron, near-colloidal common
    earths, and weathered feldspars.  Secondary slimes are very finely
    ground minerals from the true ore.

SMELTER SLAG - the rough vesicular 1avalike waste remaining after the
    processing of ore and minerals.

TAILINGS - a large-volume waste consisting of the materials remaining after
    the valuable constituents (also termed values) of the ore have been
    removed by physical or chemical beneficiation, including crushing,
    grinding, sorting, and concentration by a variety of methods.

VALUE - the valuable constituents of an ore.

WASTE UTILIZATION - a current mining waste disposal practice that involves:
    (1) the extraction of economically valuable amounts of metals or
    minerals in the waste, and (2) the use of this waste material for
    productive purposes.
  * Definitions taken from Report to Congress on Mining Waste, December 31,
    1985, except where otherwise noted.

 ** ASM Glossary

*** Ency. of Chem. Tech., v.8
                                   - 21 -


          • I
          i I
                           OFFICE 0? SOLID WASTE
7~ """^CBA Joining Sxenption and Synfuel Plants

. ________ Alfred  H.  Lindsey, Deputy Director
 _•_». _• .Hazardous  t Industrial Waste Division  (WR-555)

                  r BegiazTviIi    "-*   "   ~   ~   —

           Your neao of December 30, eeelcs  clarification of the *CRA
              waste—e*»«ptio^ o£-ltorezib«r..19«  as  ap^ii*^ to
    — operations*.- Your interpretation appears to b* *3*«i?i
      correct in that nany, if not most,  svnfuela operations will
     --.b«-taapoxarily ejteapted fron itCRA control.  x
              As  you aay know the November  19  regulatory a
        'which exemots "solid waste from  the extraction, henefi elation
        and  processing of ores and rcineraln  (Inclu^ino coal),, ,nr*»qnl
        directly from a Congressional  asiemlwent t» TT7W.  Ir.  f-.-fc.  iu-s
        regulatory lanquaae is the sa^e  as the le«isTati.v? 1 ?.«"".•; ?.'?••>
        except that coal was not specif icsll-' er.clvtiv?''. ir t>!r-> l"~:.^ln
        (The Aqency st^cif icallv inrlud*'!  coal in *:h» r»c:ilntnrv arn»n
        begaus^-if- is sra»3»n-lv -ja-«ln«»r«l)- -  Tba aucst-ion auic^ly H^r^
        how  far  down the production  line did  Concr*** *n<»*n for  "r!T-onf"
        of ores  and ain»rals* to extend.  Sine* there was
                                                                      ns inn
       disaqre«went on the  issue.  Congress was not in session,  zr.*
       the Aqen^
                                                                        •* ..-

       • The breadth of this interpretation of Congrassional
   intentj'and in fact the exemption itself, will he reviewed
  'la the future to determine if son* of thes* waste*
  .enter the RCRA systera.  If BO, th*y way simply be
...Jtbl.the existing regulatory program, or tnore probablv, a
   Affected.  Current plans call for a quicX (6 nos.) evaluation
   ofr-the leaislati*« history and consents received on the
 — interpret at ion of Jfov. 19, to. «*tabliah the proper «en«?» of
 " Congr»»«iosal intent. - Then later, a» called for in «S002
 --of the> Act, a aajor report is beinq prepared for ouhaission
   to Congress In 1983 outlining which mining related vastes
                                               EXHIBIT 2



    RCRri Mining  Exclusion  as Applied to
    Kennecott  Copper  Wastes -  Request
      by State of  Utah  for Interpretation

    John P.  Lehman, Director    £*F£&M*tA**~'
    Hazardous  and  Industrial Waste Division-(WH-5G5)

T0  Henry Schroeder,  Region VIII
    Project  Officer for  Utah
1                This  memorandum  will  respond  to  requests from you and
]           Sharon Metcalf  for  an interpretation  of the ftCRA mining exclusion
            as it applies to  spent  acids  and dross generated by the Kennecott
I           Copper Company.

                 EPA amended  40 CFR 2bl.4(b) on November 19, 1980, (see 45 Fj*
""          76618) to  exclude from  the definition of  hazardous waste, "solid
            waste from the  extraction,  beneficiation  and processing of ores
            and minerals  (including coal),  including  phosphate rock and over-
            burden from the mining  of  uranium  ore."   In the preamble to the
            amendment, we stated  our intent to interpret the amendment to
            Include solid waste from the  exploration, mining, milling, smelt-
            ing and refining  of ores and  minerals.  However, the  preamble
            also states that  the  exclusion  does not 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,  or cement kiln operations.
            The preamble  continues, "should either industry generate any of
            these non-indigenous  wastes and the waste is  identified or listed
            as Hazardous  under  Part 261 of  the regulations, the waste  is
            hazardous  and must  be managed in conformance with the Subtitle  C
            regulations."                                                   »

                 We have  reviewed the description of  the  Kennecott process
            which Sharon  Metcalf  provided in her  July 9 memorandum to Jon
            Yeagley.   Based on  that description and our familiarity  with
            the industry, it  is our opinion that  in the Kennecott process,
            spent acids and their dross are not uniquely  associated  with
            the mining and  allied processing operations.  Rather, they  are
            common to  other ej_ec_tropjj>ting  prpcesses. Therefore, the
            exclusion  does" not  apply,  and "the  wastes  roust be  regulated
            under RCKA.

                 We also  reviewed this situation  with regard  to  whether
            the wastes result from the initial processing of  the  mined
            ore, in which case  the wastes would be excluded  from  regulation.
            We find that  the  waste in question results  not  from  the

Initial basic processing  of the mined ore.  but  from  further
processing designed  to  upgrade the quality  of  an  already
usable commercial  product.   In the Kennecott process, sheets
of 98 * pure copper  are upgraded to 99+ 5  copper.  It is
apparent that the  resulting wastes are derived  from  this further
processing which  is  designed to upgrade product quality.  Thus,
the wastes produced  are non-exempted and must  be  regulated.

cc:  Sharon Hetcalf, Assistant Regional Counsel,  Region VIII
     Steve tingle, OSW
     Alan Corson,  OSW
     Bruce Weddle, OSW
     A1r and Hazardous  Waste Management Division  Directors,
       Regions I-X

                                               EXHIBIT 3

I   ;   ,
 -.  T-r7-v;;'.^v.
 •--•-.•*£-£.  *.-'^:A
     V. J. OUATMf*
COWIN M. »eeocH
   •. NEL»ON. JR.

                              WASHINGTON, D.C. -COO36
                                          T7  1OO9
                                          i/f 1982
                                                              „     .
            ». ONCCN
     KURT c. »LA*C
             Ms.  Rita M. Lavelie
             Assistant Administrator for Solid
              Haste-and Emergency Response        -..  .   .--,.   ...
             Environmental Protection Agency
             401  M Street, S.H., Room S360
             Washington, D.C.  20460

                       Re:  RCRA Mining Exclusion

             Dear Ms. Lavelle:

                       On behalf of Kennecott Minerals Company, we
             urge reconsideration of the conclusion in the September
             25,  1982, memorandum from Mr. John Lehman to Region VIII
             that the RCRA mining exclusion does not apply to Kennecott's
             copper refinery-wastes.

                       EPA has previously stated that, pending further
             rulemaking action, it would interpret Section 7  (the
             Bevill Amendment) of the Solid Haste Disposal Act Amend-
             ments to exclude solid waste from the "exploration, mining,
             milling, smelting, and refining of ores and minerals"
             <45  Fed* £££• 76619, November 19, 1980).  Hastes from
             Kennecott's Utah refinery are accordingly excluded fiom

                       In the memorandum, Mr. Lehman noted that the
             1980 rulemaking did not exclude "non-indigenous wastes"
             such as spent solvents, pesticide wastes, and discarded
             commercial chemical products that are "not uniquely
             associated with these mining and allied processing opera-
             tions."  He stated that in Kennecott's case "spent acids
             and  their dross are not uniquely associated with mining
             and  allied processing operations" but are instead "common
             to other electroplating processes" and thus the exclusion
             is inapplicable.  Kennecott respectfully disagrees with
             this analysis.

             -T- Rita-M . -ia ve 1 1-e  -
           Page Two
           November 17, 1982
                     At Kennecott's Utah refinery, 98 percent pure
           anode copper produced by the smelter is electrolytically
           refined in a sulfuric acid/copper sulfate solution to
           remove and recover impurities including silver, gold,
           selenium, platinum, antimony, bismuth, arsenic, nickel,
           and other metals.  The result is 99+ percent pure cathode
           copper.  The electrorefining solutions, electrolyte,
           and residues are recycled through precious metals
           recovery plants and electrolyte purification facilities
           in which by-products and metals are recovered and spent
           acid is removed.  The refining process is quite dissimilar
           from electroplating, as it serves as both a metals
           extraction and a purification process.  The spent acid
           is indigenous to the refining process, and is clearly not
           akin to spent solvents, pesticide wastes, or discarded
           commercial chemical products subject to regulation.

                     Mr. Lehman also states that while wastes from
           the "initial processing of the mined ore" should be excluded,
           wastes from "further processing designed to upgrade the
           quality of an already useable commercial product" are not
           exempt.  Kennecott also disagrees with these statements.
           First, EPA's 1980 rulemaking makes no reference to "initial
           processing" but excludes wastes from all processing
           activities from exploration through refining.  Second,
           the assertion that copper is a useable commercial product
           prior to refining is in error.  All of the anode copper
           produced at Kennecott's Utah facility is subsequently
           refined by Kennecott into cathode copper which is then
           sold.  Kennecott sells no unrefined copper, and does
           not believe that a commercial market exists for such

                     Accordingly, we ask EPA to withdraw the recent
           memorandum and to reaffirm the conclusion in the 1980
           rulemaking that copper refinery wastes are excluded from
           RCRA by the Bevill Amendment.

                                      Very truly yours,
                                         •  '•>•

                                      Edwin H. Seeger
                                      'Carl B. Nelson, Jr.

                         • •-'•*'•'  -    -..-'.   v.  Attorneys for
                         •V-",1 .     .  .-'.Kennecott Minerals Company


        £Uit.£ l.i-port en tl.t fctnr.Ltctt
         Lewis Jchnsw,, CMif
         l.titc l,£ji£yfcr,cnt


             UK A; »11 7, ii-te, F.occrt  Utllir.e (I?*) tnc Steve HcUfl (I'ttf. f'tttr
         t^r.litj) r.c-t v.Ufi J.cr.nc-Cotl tt  the. Ktr.;,ccc-U ItLh Cvpje-r Division.  Ir. tut
         r-ittli-s, titty rivieue kornccctt 's her «* ling cf liquid  er.tf solid vtstts frcr..
         tt.c.  Ccj.j:cr l;ci"iM.r,y.  7i;c  puTLcie  cf this i..vr.c 1s tc cescritc l^L cuircrt
         Vvtstc cir,eccir,tr,t prtctict  *t  the Ker,r,tc(,tt Cc-ppcr ncfinor> cnc' hov. U.:t
         rcincs tc ti.-:- ovcrcll *.ertc  r.ij.cr^v.rt tl tf*".c fccllity.
             l«»r  Kti.nt.cott tttl; Ccpf-rr r-lvliicr 1s trr 1r,ttcr\-ti'L f«ci!U> iMtf-
             ttfrs i ccpper r,.irt=t nil, irclur, cU rif1r«r,j.   frcr. tb*. ftrsp-ctlvc;  tf
                tnerieccr.!, the r.ine  1s scperite frc;.i tht rest  cf tr.c ticilitics.   U.t
        taste- fru tin- i?;ir,c- trt her.clct U the. Mr.?.  Is.-:-  rtrrir.irr li.r?: crcrgtl'.-r.r..
        ti.t  ccnccntrclcrs. the src-Utr, *r:r the rtfiivf^,  vlllizc erf Ittcrrrtcc  s;itc...
        1cr  fji-rulific thilr vtiUv.ftcrs cr:1 tc'tit i.ci
             The  refiner.) (pr.ctos ti,  c,  i,  4) prcrutCi c types  if V.
                       Dcccppcrizec £lt-ctrcl,>tc (ifcrt Acit)  ».;»ic:; is •: Licit ci  tr.c
                       sp^r.i tcic electrolyte sclftic/n frc<-.  ti;c  Ktirlr.^,- Cvlli;

                       Slic:es which' accun.ulttc 1r. the tetter  cf  the cclU;

                       Keflncr.v cr*1r,  ^ftcr  v.,.lcl. consist* cf ti>i^:t ct:tlir.r i.itcr,
                       «r,r. teller pUi.t  rc
             7r.t  ettecl cd Ktstc Flw  D lifer sr.«v-s hrv; trt rrfln:r> t-cstcs ere  hcr.cHcc
        *:.j  tikir  vclur-ts in rtlttion to the ctl;tr testt s
f            Iti*:  irC"t *CiC, l,i;iCJ.  1l  tfx Icitv CtrCc'..: it  itilli, CU'.StittttS  C.i,'* Cf
I        th£ ti;-c.r£uiic ICbC'ric tc- tr.c  ctu.icfl »cstc\.ctci  ir-_LL'.C!.t pUrt.  K.-c
              '-^tcr i»Tiu:c;A pUnt  is a ,7«.cr;i.1ce.l ivitt-r ccr.sUtir.c, cf stctccc
                . tinks tr.c; r^chenicc« cirri ficr; (r^cto ti).
            As  a result tf iiPtES rc^iMrejr^pr.ts fine; crsolng KPCIS pcrc:1t rer.tv.tl
        n«roti5ticn5, Kenr.ccott has been revising the cvcrill t.'ssiei'itcr tves-trcrt  c
        .vficling fcr the er.tlrc car.plcx.  /.s e result cf tl.csc cftrr.ccs the fccc'  tc  tht
        *.estCi»st£r trcetrent pUr.t ii.ti th5 cfcfitiro ccr.cltiers c-f the pUnt  l.pva
        cj.inrcc in t»:c Itst >e£r.  As e rc-iuit tf tr.c clftcrrfit r.tt*.rt cf tU fcv:  to
        t(t- treefc'iinl pUnt (ccnctnirtior i.cctcs cc tc- * nc%.. tret tr.c nt ftcilii^; £i c
        ti.c U;tei lir.t. prfee1pit«ticT«  i;.&ce cf crcrttlcr V'«  i2.t tc If.5) c;c-siciaC fcr
        1i..?rtvcc arstnlc rLravel, the slucfrc fr«. t^ vi,i,lc'.tter trcctr.-cnt r.is
        thur.rdc.  The treetir.crct plcnt ilutt^? currently tdrr prefect vill f?il  1:5  Li
        tcxiclt.v ttst for /.s, Pi', Se, enc K».  Kfcnnccctt  is currertlj t!.r.;.inr tr.r
        sicxct, iO to!!S/ce^» to £ Ur.porfr^1 f.ulcinc pciic  (pl-cto ttj urti* twiir;

frciJUits t»x ccr.structc-c to pusp tf.c  siuc.c  tc irix i.Hfc  tht  ccr.ct.rir tier
ttiiiit:,  iCO.tuG tons/tfy.  lr-e- IretUcfit  r-lcnt Sii^occ i.ill  represent.C-.Cl* cf
the  IctcJ trlic v.t'.t?  fisc!'£rr^ tc tftc t.-ilinr- r-rr.c  If  1t  1i i:1*r.cr v1t»»  t'.c
tr11lt)£,£.  htCtC ii $/;Di;S tf:C TClCtlVt  Silt Of'tf.i; tCr.pCTCry sU'C-fC pCHd  fr.
rciclior.  tc ir; irrslr.rs  pcr.o.
               ru'.s iuvs  U-er, ruiscc! ever  t?.i  fist fo.; ia.r.t!;s.  Ifccse  issuts
             cr r.ot lJ;c r;i:.irif. t>xsr-t«tT. tprJi-.-s tr this  f«cility, ic  the.
     ilnc  f-roctss tnipc  to the rir.irr.  Irc-ustr^-, t.1il it  Lc ecccptcble tc  rt-Jx
     injjS  >;«th ^.zcrccus  i.-tste slutcci.  drx tirctly, c&ts  li.is tccilU^ r.ctt U.L
            fcxu.pt iur.?
    1?.f  Mnlrir. Exert tlon

    it  1s  t*,c- cpinicr\ tf  ti.is ilfpicr* tfct  li.c t.ininr,  r.xcf.vfiuj ctc;S  not  c»T'b'
tc tLt  topper rkfininc  process.  turrL'tlv ttxrt ot  ct  h.-^st 11 t^cllitics
:.: 1cfr r?.fifi-;- ccp;cr  tc  r. hir.!:tr pv-rit>.  './ii:. fev wet 7! lens, ell ol  UK
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titc.   ifi  crccr fr;  t rtl iTicr^ tc prc-cc^s  Ci.fj\r j. lvtti  to c iiriri  piriiy c
t;.i-ii-csL trcr.ii.cticr. I&KCS p'uct in >.i:1ci;  t!>: rif;j£. \  'lu.vi11 t« 'trcccs"  icr
t:;c to^fir pUici.   Since- c trenscciicr.  tc^cs piece ticrc  L rrc^tct  is
••;.»!• -^.i*- cr *!cUtfc i.;.c  e.£ tMs prc-Ci:^  n  »:-.; £ pi:  i....  ixirici-.f.i
li.i  <*".;: ir... excretion trt.s rut tpplj.
    *!//.  pxccss cf electrolytic rtfiiilr:  cr.t elcctrcj trtisif
Vc.-,;  sir. lit!  processes.   Tf.c cnl> ne^cr  tiMirt:;cc i'.irtn, tu tvt- Pttf.c-s is
il.i^  ii-.p^-rUus 1ii ti.i cctp&r plftcs i.:£y Lc rc-luScv  curlnc, tf;f;
      i cfcn/.ir.f prtctsi.   IV.* rtLscri tor  tnls e-ifitrtrcfr is ttLfeUit  ir.  £r
      rrrictiiir prcccss,  st£i;ti£rc cntn.ic£is, stcj;^i.rc  plctin9 rctcrials  tr>^
           ittiru sc-!i;tiorjs trc fst-c.   Jii £» c-kcci er&.f ifiiri;.- prcccii.  hr.vt.vcr,
trt fU-iir.i; 5ciuti*.r-s *r.c pinlnc t.ttciiils r.;-;
    The  ccr«pi;r:y desires  to itix tr.t wrsteifttr UtiU.cnt vioc>-.s i;ith t».t- rill
tf.ninrs if.u cxposit  the- rtsifitJrtt, rixturc it. t^  tr.lir.tc t^^5i?:r£  pc:;?o.  (ur
pciitlcr, en tnU Issue  Is tiut citct tlic  i.eitt t*cco;. es  rt-r,ul*tc»., tUutU:. c.t
        trcoLS »este ilt-dccs snc-ilc not L6 dHcwc-c,  urritss ivictnce  ccr  be
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    Trcttr.ir.t Sysicr.  Excn.pt 1 cr i
       .                                           •
    Itit  fctsteuetfer trc*tt,cr,t systet-.  implies only  tc-  tcr.fcs, rot survtce
ji.pccr.cr..c.r.ts (sec ci.1 Ir.itic:. cf e  fciotevUer trc?t/ crt t-r.ltj.  ir. ml*
       iu.,  tnc %»6Stei.*.Ur trtetRtr.t  txcr.pticn li  r.it

       hoS I'.to t:1scfs*to  \i,  li>:  cciTtSi&nctnct on the Ktnnccctt Refinery
       Usuo, t!.t- e^iicctilit^ cf  ti't  r.inusr v<£sle c-xc^pHcn to rc.fu.cr>
»»itti is tr, ir.E;-::.  ;.t::-.;cUss tr  tf.e  sf-crt ter^ rtcUt-rj of ton: rtfintry
..biles cri. »;»;.cUJ turirj  thj txa j.ticr. fcrioci, ErA tactic )CCK it tr.t  Ic^
Urt. rt-rv-ittu-.v ci ti/it »£*U» in  liit  amttxt cf ctner r.lninr fccste
it .Icc/fitw fbCilitUs.  l:»t «r-iii1i:p  v,uStts study cr.i the rtJfcltlPc
     .•.st.nc.'fclt.r.i t: Cc-r/rcss sUtk'  i«-cotnuc fie irter-reUticnsMfS
     i iri»,c t rite *tcr.  £5  UUing CT;C ctii«r ^cter-tiel)> h&z&rc'ous »tstc5
     i«ici*i;Ui« li.a n.'.ttls inw'fStri such ts trc£tt»Lr>t slvJres, sr-tUor  tcit*
                                        LCi:£iC S
                                               l icitr.tut



                    c                          c
                                                                     e- s
                                                                     H-. 5:

                                  AUG 2 2 1983                        > S
                                                                     3 Ui
                                                                     rr >
                                                                     N Ci
                                                                     N .*"
                                                                     O 3
                                                                     D >
                                                                     H- 3
                                                                     CO rr
                                                                     7T *••
Mr. D. M. Friedman                                                   **• N
Division of Hazardous Waste Hanagenent                               w \
Department of Environnental Resources                                  fj
Commonwealth of Pennsylvania                                           n
P.O. Box 2063                                                          *£
harrisburg, PA  17120                                                  JJ
Denr Mr. Friedman:                                                     &
     I an writing to you to follow-up on recent conversations          3"
between members of your office and ray staff regarding your letter      w"
of June 24, 1983 concerning the regulatory exclusion requested by      §
PEMACOR for the bayhouse dust generated from their ore reduction       ^
furnace.  The Agency considers the solid waste, in the form of         3
baghouse dust, generated by the REMACOR subraerged-arc furnace to       w
be e_xem£ted by 40 CFR Section 261.4(b)(7) from federal regulation      £
under Subtitle C of RCRA.  The use of steel turnings rather than       »o
iron ore as a source of iron does not prevent application of the       ^
exemption because the steel scrap is a relatively minor component      ®
of the charge to the furnace (i.e., steel turnings represent            i
less than 20 percent of the charge to the furnace as calculated         $
from the REMACOR enclosure entitled "Gas Cleaning Calculations       *  &
for Ferroalloy Plant Baghouse at New Castle, Pennsylvania").           \
Other smelting operations that have been found by EPA to be             f
eligible for the exclusion also use small quantities of scrap           £
along with ore.                                                         i
     As discussed in previous conversations, the Agency currently
is re-evaluating the interpretation of the wining ana mineral
processing waste exclusion set forth in  the Federal Register of
November 19, 1980.  That exclusion includes, "solid waste trora
the exploration, raining, milling, smelting, and refining of ores
and minerals.*  45 76619.  The Agency could take action to lessen
the scope of the exclusion with respect  to smelting and refining
waste.  This could effect the regulatory status of the REMACOR
waste.  In such an event, determination  as to whether or not
the REMACOR waste is a hazardous waste would be in accordance          :
with 40 CFR $262.11.                                                  • <'-,.
                                                                  .v. >M •

                    f                          C
                              - 2 -
     The State of Pennsylvania, of course, nay  choose  to establish
more stringent requirements concerning  such wastes  than the federal
EPA requirements.

                              John  P.  Lehnari
                  Hazardous and  Industrial  Waste Division
                                                                       f .;..•»


           A.PH  4 ISO-

        Hazardous Vaste Determination on the nupont Titanium
        Pioxide  Plant Near Nev Johnsonville, Tennessee

        John P.  I-ebf.an, Director
        Kaste Management and Fconomics rivision (V*K-5fS)

        Janes H. Scarbrough, Chief
        Residuals Management Branch, Peg ion IV

,;             In  response to your request of November 2n, 19R3, we havA         •£
1        reviewed the processes that t»ke place at the Dupont titaniur.          ^
*        dioxide  plant near Few Johnsorvi lie, Tennessee,  we conclude           *•
,        that the solid wartcs from these processes are excluded fror-           £
I        regulation undrr Fubtitle C of PCFA by Section 3H01(b)(3)(A)(ii)       2
[        of the Act, which excludes wastes "frop the extraction, ben.e-   •
        ficiation, and processing of ores and minerals, including              2
i        phosphate rock and overburden from the mining of uranium ore.*         ?

             In  the Federal Peqistcr of November 19, 19PO (45 ^FP 7P6ir),       £
        FTA tentatively interpreted the mining waste exclusion to include      "^
        •solid waste from the exploration, mining, milling, smelting,  arO      if
«        refining of ores and minerals."  However, FPA r-ade it clear  that       -
        it intended to reconsider its interpretation of the exclusion:         £
j        "The Agency fully intends to consider the appropriate scope  of         *
I        the statutory exclusion and may well take rulemaking action  to        «
        lessen the scope of the exclusion....  In particular, F.PA quos-        i;
(:       tions whether Congress actually intended to exclude... waster          ~
:.!       generated in the smelting, refining, and other processing of          5
        ores and minerals that are further removed from the mining and        "^
        beneficiation of such crer. and minerals.*  To date, however,          c
,        EPA has  not changed its 1980 interpretation.                           i
1              '                                                              •>  s.
             Since Dupont is processing concentrated (i.e., beneficiated)      *
p^       ore, wastes produced are excluded from Subtitle C regulation by        £
|       the mining waste exclusion.  It is true that the mining waste          ^
        exclusion does not apply to "solid wastes, such as spent  solvents,     =
 |       pesticide wastes, and discarded commercial chemical products,          Y
        that are not uniquely associated with these mining and allied          ^
        processing operations ..." 45 FP at 76*1°.  However,  thisjro-        *•
 i       vision only__applies to materiaTs used  in, not produced by,  the
                   > ben<
              enef iciation, and processing of ores and mjne^raj_g.
TKeretore, Fince the acid presefit in the wastestream fron~this
process is not added to extract the metal but is produced as a
by-product of the chlorination process, Dupont's wastestream is
pot con-parable to spent pickle liquor produced by the steel

     FPA is now in the process of reevaluating its earlier
interpretation of the mining waste exclusion to more accurately
define the wastes that Congress intended to exclude from Sub-
title C regulation.  In addition, several studies are underway

tr- chararterire  the  ore r-rocoFPinr, jnrii'fitriep, and  to detnrr-inc
the volures  ?nri  potential hazard's of the waste?  they producr.
The titaniur riioxirio industry falls within t»^


Hazardous i-'asto Peternl nation on the Tir.pt Facility in
John P. Lehr»an, Ciroctor
Waste Management and Economics Division (VH-SF5)

Phil Bohel, Chief
Toxics and Haste Prograirs branch. Peg ion ix

     In response to your reriorandum of February 24, 1984, and        §
subsequent conversations with Fey ion IX staff, we have examined       i
the available information on the Tinet facility and have con-        S
eluded that its primary waste streams are currently excluded         i£
from regulation under Subtitle C of PCPA by the so-called "nining    \
waste exclusion" In Section 3001(b) (3)( A.) ( ii) of PCPA.  As you       ?
know, this provision excludes wastes "froro the extraction, bene-     •£
ficiation, and processing of ores and irinerals."                     3
     In our June 24, 1983 memorandum to you, we indicated that       %
while solid waste from the processing of the titanium ore            *<_
("titanium sponge,* in this case) would b« excluded, it was          tt!
unclear whether solid waste fro.T, the mixture of titanium ore         -,
and purchased alloys would be excluded.  Based on data Tir*et         £•
recently provided to EPA, It in evident that the arount of           x
titaniun sponge far outweighs the »arount of alloys {and scrap        ^
recycle) in the rdxture.  Therefore, we conclude that Tinet is       ^
•refining" titanium ore in the cielt shop.  Consequently, the         TI
solid wastes from this process fall under the mining waste           £
exclusion, which was defined to include wastes refining in the       \
November 19, 1980 interpretation (45 ££.76610).       "               O
     This exclusion would not apply to waste solvents, since
they ere not "uniquely associated with these r.ininc and Allied        »
procnssing operations."  (See 45 £P nt 76fl9, rovenber 19r l^SO.)     J^
Nor would the exclusion cover metal forning (such as rolling) or     \
working (cutting) wastes.                                             »

     The Agency is now in the process of reevaluating its             jJ
earlier interpretation of the nining waste exclusion to define        *-
rore accurately the wastes which Congress intended to exclude        \
fror Subtitle C pending completion of the mining waste study.         ^
V-'e will keep you advised on the progress of the reevaluation and      *o
its supporting studies.                                               7*

,;                                                  EXHIBIT 8

                                STATE OF NEVADA
                                 Capitol Comolex
                            CARSON CITY. NEVADA  39710
                                                              Telephone i702) 235-4570
                              April ..19, 1984


     TO:'     John P. Lehman, Director
              VI a. ~ e Management and  Economics  Division
              U.S. Environmental Protection Agency  -  Headquarters

     FROM:    Thomas J. Fronapfel,  P.E.
              Environmental Engingeer

,     THROUGH :^.L.TH. Dodgion, P.E., Administrator
]   -          Division of Environmental Protection

j              EXCLUSION OF 40 CFR 251.4(b)(7)
! '                               •.
         On April 18, 1984, I was instructed  by Jim Antizzo to send you a
il     brief memorandum outlining  the concerns  we  have in reference to wastes
     produced by mining laboratories, both  on and off-site.  A summary of
     our concerns foliow s.'

         (1)  Precious metals (gold and  silver) mining operations, and
              their on-site assay laboratories,  produce wastes consisting*
              of nitric acid  containing  silver and  fire assay cupels con-
I              taining substantial quantities  of  lead from the fire assay
•              proce'ss.  At larger mining  operations, the quantities of
              wastes generated are  generally  much greater than the
I*              1000 kg/month small quantity  generator limit.  If these
:              wastes are  not  exempt or  excluded  under 261.4(b)(7), then
              are they regulated along  with,  and  in addition  to,  any
!       .       waste solvents, etc., that  may  be  produced during equipment
I              maintenance and repair?

I       ,  (2)  For the smaller precious  metals operations that cannot afford
j              the capital necessary to  build  an-on-site assay laboratory,
              and use commercial laboratories for the same purpose, do the
              wastes from these  off-s"ite  facilities also meet the exclusion
!              criteria under  251.4(b)(7)?   These  facilities may or may not
*       '       fall under  small quantity  generator status.

      John P.  Tinman
      April 19, 1984
      Page 2
    The lead added  In the fire  assay  process  is  added  as  litharge  (PbO)
to act as a carrier for the  small  quantities  of  gold and  si 1 ver'which
are or may be present in the  ore  sample.   It  is  not  found  in  the ore
body, and is added  specifically for this  purpose.  The  litharge  is
mixed with the  ore  sample, along  with  borax,  silica, flour,  and  other
necessary fluxing agents.  The  fixture  is  melted  in  a  furnace, poured
into steel molds and  allowed  to cool.   The lead  "button"  which settles
to the bottom of the  mold is  placed on  a  bone  ash  cupel and  placed  in
a furnace and melted.  The lead is absorbed  by the cupel,  leaving  a
gold/silver dore1 "33".  The  cupels are then  discarded.

    The dore' "S3"  is weigned ana placed  in  a  crucible  1 n  wh i en  n i -. r •! c
acid is ad d e d to dissolve tne silver.   The nitric  acio  is  rei.iovec  r'rc;"
Th~e cruel ble and generally discarded.   The silver  concentration  is
generally much  in excess of  5 ppm.

    We would appreciate  a response to these issues  as  quickly as
possible, s'ince Nevada has a  substantial  nu~bar  of  precious metals
operati ons .
    Should you
please contect
require any
me at (7C21
                                       information on this matter
                                         ihornas  j.  rronaprei,  ?.c.
                                         Environmental  Engineer
                                         Waste  Management  Section
                                         Division  of  Environmetnal  Protection



                       WASHINGTON, O.C. 20460
                             MAY  9 1S84
                                                       CFF1CE O^
                                              SOLID WASTS AND EMERGENCY RESPCN5E
Mr.-Thomas J. Fronapfel, P.E.
State of Nevada
Department of Conservation
  and Natural Resources
Division of Environmental Protection
Capitol Complex
Carson City, Nevada  89710                     ^

Dear Mr. Fronapfel:

     I am writing in response to your memorandum of April 19, 1984
regarding the status of mining laboratory wastes under the
exclusion of 40 CFR 261.4(b)(7).

     Based upon the information submitted in your memorandum, the
Agency has determined that both the nitric acid waste and the fire
assay cupels are solid waste from the extraction, beneficiation and
processing of ores and minerals.  As such, the wastes temporarily
are excluded by Section 3001 (b)(3)(A) of the Resource Conservation
and Recovery Act (RCRA) from regulation as hazardous wastes under
Subtitle C of RCRA.  The exclusion is effective-until at least
six months after the date of submission to Congress of the mining
waste study being conducted under Sections 8002(f) and (p) of
RCRA and after promulgation of regulations in accordance with
Section 300"! (b) (3) (C) of. RCRA... These wastes are excluded regardless
of whether they are: generated by. mining, operations or- commercial
laboratories.     -
     The Agency is now- in- the process of. re-evaluating its-
November 19, 1980 interpretation (See 45 FR 76618) of the mining
waste exclusion to define more accurately the wastes that Congress
intended to exclude from regulation under" Subtitle C pending
completion of the mining waste, study.  If the Agency modifies its
interpretation, we will notify you..

     If you have any questions or require any further information
on this matter, please contact James Antizzo of my staff at  (202)

                                       John P.  Lehman
                            Waste Management &  Economics  Division


                       WASHINGTON. O.C. *04«0       ^	
                                               '*'.'.      .  r«
                                              I "
                                              •OLIO WASTI AMD tMIMGINCv MEt'OMSI
SUBJECTS  Regulatory Interpretation on Mineral Processing
          Residuals Generated by Combustion Units Burning
          Hazardous Waste Fuel

   FROM:'  John H.  Skinner,  Director
          Office of solid Waste (WH-5
     TO: .Conrad Simon, Director
          Air and Waste Management Division (2AWM)

     I -am writing in response to your memorandum of  May  25, 1984, '
in which you requested a regulatory interpretation regarding mineral
processing residuals generated from the thermal  expansion of shale
in rotary kilns that are fired with hazardous waste  fuels.  The '
issue is whether these mineral processing residuals, i.e.* shale
fines sludge, which would otherwise be  exempt from Subtitle C  of
RCRA under, the mining "extraction, beneficiation, and processing"
exclusion of 40 CFR $261.4(b)(7), are subject to regulation as a
hazardous waste due to the use of listed hazardous waste as a  fuel
source for the process.  This letter resporids to the questions
that you raised in your request, and also addresses  the  points
that Norlite Corporation has made in response to the Region's
complaint against them.

     In response to one of your questions, we are not aware of any
•xplicit precedent or policy that has been established regarding
the applicability of either the mining  waste exemption or  the
cem*nt kiln dust exemption where waste  solvents  are  employed as
fuels.  Therefore, we have consulted with the office of  General
Counsel and the Office of Waste Programs Enforcement in  developing
the following responses.

Background                      .     •   .

     Norlite Corporation, located in Cohoes, New York, mines shale
and thermally expands it to produce a lightweight aggregate that
is used in construction products.  The  thermal expansion takes
place in two rotary kilns that are fired by listed  hazardous waste
fuels (hazardous waste nos. F001-F005,  according to Norlite) that
are purchased from waste generators and fuel blenders.  Before
            FihibH B

  I   .


          entering the stack, the kiln gases  are  scrubbed with an alkaline
          aqueous slurry*  The shale fines captured  by  the scrubber are
          collected in surface impoundments from  which  they are subsequently
          dredged at a rate of 40,000 tons year.  The shale fines sludge
          dredgings are accumulated in waste  piles at Norlite's facility.
                                               '                •
                                    .                            »
               Question li  Is Norlite's shale  fines sludge exempt from
                            regulation under  Subtitle C of RCPA by virtue
                            of the mining waste exclusion in f261.4(b) (7)?

               Answer:      Yes, the waste is currently exempt.

               Section 261.4 (b) (7) provides an  exemption  from Subtitle C
          control for "Solid wastes from the  extraction,  benef iciation, and
          processing of ores and minerals...".   In the  preamble to the rule
          providing this exemption, the Agency  said  we  would  interpret the
          •xclusion to include solid waste from the  exploration, mining,
          milling, smelting, and refining of ores and minerals  (see 45
          Federal Register 76618-76619, November  19, 1980).   This interpre-
          tation include* residuals from mineral  processing,  including air
          •mission control wastes.

               The process that Norlite uses involves  heating shale to produce
          a lightweight aggregate, thus enhancing its  value.  This approach
          'is analogous to many other thermal processes used  to  dry, smelt,
          or otherwise upgrade an ore or mineral. Therefore, the Norlite
          process would be considered benef iciation  or processing, and the
          wastes from that process fall within  EPA's current: interpretation
          of the $261. 4(b) (7) exclusion.  The use of hazardous  waste_fuels
          •s the total or partial energy source does not, in our  opinion,
          change the status of the waste as benef iciation or processing
          waste.  EPA made it clear in the November  19, 1980, preamble that
          the exclusion does not apply to solid wastes, such as spent solvents,
          pesticide wastes t and discarded commercial chemical products,  that
          are not uniquely associated with the  mining snd allied  processing
          industries.  The solvents that we were addressing  in  the  1980
          notice are those that night be generated as s result  of equipment
          maintenance or some other general plant operations, but not as a
          result of extraction, benef iciation,  or processing operations.

               Me arrive at the same conclusion for cement kiln dust  waste
          that may be generated during a cement manufacturing process that
          employs hazardous waste fuels as an energy source.  Cement  kiln
          dust waste is currently exempt from Subtitle C by $261 .4(b) (8) .
          The use of hazardous waste fuels in this process would not  negate
          the exclusion.

               We emphasize that this interpretation of the mining  waste
          exclusion does not necessarily exclude all solvents from regulation
                     ExhibttB       EihibHC

under Subtitle C.  As described above, wastes that  are  not generated
from extraction, beneficiation, or processing operations, e.g.,
•pent solvents generated during equipment maintenance,  are not
•xcluded from Subtitle C regulation.  Therefore,  if Norlite mixes
its shale fines sludge with nonexcluded listed hazardous waste,
the resulting waste is subject to the 'mixture rule" in $261.3(b)(2),
     The Office of Solid Waste is currently reviewing i'ts 1980
interpretation of the Mining waste exclusion to define  more
accurately the wastes that Congress intended to exclude from Sub-
title C pending completion of the mining waste study.  We will
keep you advised on the progress of the reevaluation and the
supporting studies.

     Question 2t  Is Norlite's shale fines sludge exempt under
                  the beneficial reuse exemption  provided for
                  by $261.6?
                  No.  Hastes resulting from a beneficial reuse
                  process are not covered by the $261.6 exemption,
     Sections 261.3(0 and (d) state that any solid waste generated
from the treatment (which includes some recycling)* storage, or
disposal of hazardous waste, including any sludge or emission
control dust, is a hazardous waste until the generator proves
otherwise.  In the case of s waste that is derived from s listed
hazardous waste, the solid waste is considered hazardous unless
and until it is delisfd in accordance with $5260.20 and 260 22.
     In the case of Noilite Corporation, the shale fines? sluc-je is
considered to be derived from the treatment of hazardous wastss,
i.e.* the solvents that are used as fuel.  Burning of hazardous
wastes, albeit for legitimate energy recovery, is still considered
treatment.  If the shale fines sludge had not been considered a
beneficiation or processing waste under f261.4(b}(7), and therefore
excluded from regulation, it would be classified as listed hazardous

     The beneficial reuse exemption contained in $261.6 applies to
the beneficial reuse process only, and not to any wastes that may
be generated as s result of such processes.  This exemption thus
applies solely to hazardous wastes prior to and during legitimate '

     It should be noted that listed hazardous wastes, such as the
solvents that Norlite uses, are subject to certain transportation
and storage requirements prior to reuse.  These requirements are
contained in $261.6(b).  I assume that Norlite's tanks used for
storage of these listed hazardous wastes prior to firing in the
kiln are subject to these provisions.

     Question 3;  Is Norlite's shalt fines sludge exempt  under
                  the wastewater exemption of f261.3(a)(2)(iv)?

     Answer:      No, this exemption does not apply to the  shale
     ———-   .    fines sludge.

 Discussion;                                         5

     The wastewater exemption contained in $261.3(a)(2)(iv)(A)
 applies only if solvents are commingled with process wastewater as
 part of routine housekeeping procedures (e.g.* minor release  of
 solvents during degreasing operations that would  collect  in the
 wastewater sewer).  The provision has no applicability to sludges
 that are nixed or otherwise commingled with wastewater, or to
 sludges that, in affect* generate a wastewater through the settling
 of solids from the sludge.

     -.You expressed concern that the mining wasta and cement kiln
.dust exclusions could lead to burning hazardous waste fuels with
 high levels of toxic organic or metals constituents, resulting  in
 the generation of hasardous residues.  We are presently developing
 standards to regulate burning of hazardous wasta in boilers and in
 cement and aggregate kilns, and intend to require that these units
 generally meet the same performance standards applicable  to incin-
 erators.  The residues from burning hazardous waste in these units
 may contain high levels of toxic compounds, particularly  metals.
 Consequently, if we find through our research that aggregate kiln
 residuals or cement kiln dusts pose a substantial hazard, we will
 consider eliminating their respective exemptions under Part 261,
 and subjecting the wastes to regulation under Subtitle C of PCRA.
     Your letter and Norlite's response to the Region's complaint
necessitated this lengthy response.  However* it has enabled us to
develop a position on a highly complex regulatory interpretation
issue.  Z trust that our response can be used by the Region in
resolving the Norlite case* as well as providing advice to similar
wasta fuel/mineral processors that you mentioned*  John Heffelfinger
of my staff has discussed our findings on this issue with Bob
Karris* of your office.  You may contact him at FTS-382-7923.
For further information on the subject of burning and blending
hazardous wasta fuels and our regulatory development efforts,
please contact Bob Holloway at rTS-382-7936.

cc:  Regional Waste Management Division Directors* Regions I-X
       w/attachment (Region ZI Itr. dated 5/25/84)



                     WASHINGTON, D.C. 20460
                                                     OFFICE OF
                                            •OLID WASTE AND EMERGENCY RESPONSE

SUBJECT:  Clarification of Mining Waste Exclusion     —

FROM:     John H. Skinner, Director  /$/
          Office of Solid Waste

TO:       Harry Seraydarian, Chief
          Toxics and Waste Management Division
          Region 9

     In your memorandum of April 4, 1985, and a telephone call
from Bill Wilson on April 15, 1985, you have asked whether
leachate derived from smelter waste, in this case pyritic cinders
and fragmented slag, is subject to regulation under the mining
waste exclusion in RCRA Section 3001(b)(3)(A(ii) and 40 CFR
Section 261(b)(7).

     The leachate is under the exclusion because it is derived
from slag and clinker wastes, i.e., excluded wastes, and moved
through the groundwater into the impoundments.  It has not been
subject to further processing and, therefore, is still a waste
from "processing of ores and minerals."

     The situation would be different if the slag or clinker were
used as a raw material for some extractive process and a listed or
characteristic waste resulted.  Under this scenario, the hazardous
waste would fall outside the mining waste exclusion, even as it
is now broadly applied, and could be regulated under Subtitle C,
because it is derived from processing slag or clinker, not an
ore or mineral*

     The mining waste exclusion has, since November 19, 1980,
been interpreted as including "solid waste from the exploration,
mining, milling, smelting, and refining of ores and minerals".
The Agency is planning to propose a reinterpretation of this
exclusion before December 31, 1985, which would 'narrow its scope
but slag would remain within the exclusion because it is a large

volume, relatively inert, and generally non-hazardous waste.
The pyritic clinkers, which are produced in the roaster used  to
prepare ore for smelting, also would remain exempt.   Leachates
from the clinkers and slag would remain excluded after the

     Slag, and other large volume primary ore processing wastes,
will be addressed in a Report to Congress, to be submitted as a
sequel to Report to Congress on mining and beneficiation scheduled
for submission December 31, 1985.  In the Report to Congress  on   ~
ore processing wastes, problems such as the one described in your
memorandum will be addressed and appropriate recommendations  will
be made.

     Meanwhile, the facility should manage the disposal of sludges
from the impoundment in a prudent fashion, preferably sending
them to a RCRA secure landfill.

     If you have further questions, please call Dexter Hinckley
at 382-3388.

                                             EXHIBIT 12

                        JUN  10
SUBJECTi  P.CRA Regulatory Internretation \ssistance
          Request-A.rjplication of Mining Waste Exclusion
          to a Ferroalloy Facility

PHQMt     Garcia Williams, Director
          Office of Solid Haste  (KH-5C2)

TOi       David Wagoner, Director
          Waste Management Civicion
          Reqion VII

     In your memorandum of May 13, 19&C, you sought guidance
on the regulatory statue of a ferroalloy facility and the wastes
it generates in the production of ferrosilicon (silvery iron).
The ferrosilicon alloy is produced by mixing quartxite ore,
metallurgical coal, and steel scrap in submerged arc electric
furnaces*  Based on telephone conversations between our respective
staffs, I understand that steel scrap is the predominant input*
Wastes generated by this process are kish reclaim system rejects,
venturi scrubber sludge, and baghouae dost.  The scrubber sludge
has been identified as being EP toxic for lead.

     The ferroalloy sector was included in the studies supporting
the reinternretation of the mining waste exclusion*  Most
ferroalloys are produced from various combinations of ores*
metal oxides, line, and coke or other reducing agents*  However,
ferrosilicon is made from scran steel and quartzite in the
presence of netallurgical coal as the reducing agent*

     As you know, the Bevill exclusion for raining waste only
applies to wastes from the extraction, beneficiation, and
processing of ores and minerals*  The Agency has consistently
held that ratal scrap is neither an ore nor a mineral.  Therefore,
if the predominant input to the process is steel scrap, the
waste from the ferroalloy''facility does not qualify for the
mining waste exclusion*  This ferroalloy facility would be in
the sa»e eateoory as a secondary lead smelter, reelaiaing  lead

from old batteries* or other secondary processes* their wastes
aro not excluded from regulation either*   (In fact, there are
two listed hazardous wastes (K069 and K100) generated by
secondary lead snelt*rs.)

     As you also know* last October the Agency proposed to
reinterpret the mining waste exclusion as it applies to processinn
wastes so only large-volu?ne wastes would qualify for the exclusion.
Un-Jor this rulamaking, all ferroalloy facilities using ore (rather
tuan scrap) and exonerating hazardous waste would become subject to
the Subtitle C regulations because none would qualify individually
or collectively as generators of large-volume processing wastes.
Altogether* the 10 plants producing ferrosilicon in 1934 generated
about 10,000 metric tons of slag; 36,000 metric tons of furnace
etoiaaion control dust? 3,000 metric tons of product crushing and
sizing enission control dusti and unknown quantities of emission
control sludge.  The sludge quantities are believed to be in the
3,000 - 36,000 tons/year range.  It should be noted that the
emission control dust tested EP toxic for selenium at one
ferrosilicon facility (not at Keokufc).

     In summary, it would appear that the facility in question
is currently subject to RCRA requirements.  Its status will be
further clarified by promulgation of the final rule on the
reintorpretation of the mining waste exclusion'.



                     WASHINGTON, D.C. 20460
                        JUN I 6 1986
                                                       OFFICE OF
                                                    GENERAL. COUNSEL
Mr. David D. Lamm
Assistant Commissioner for Solid
 and Hazardous Waste Management
Department of Environmental Management
105 South Meridian
Indianapolis, Indiana   46204

Dear Mr. Lamm:

     In your letter of April 22, 1986, you asked whether the
mining waste exclusion in Section 3001(b)(3)(A) of the Resource
Conservation and Recovery Act (RCRA), codified at 40 C.F.R.
$ 261.4(b)(7), applies to the slag generated by a basic oxygen
furnance (BOF) during steelmaking when a listed hazardous
waste is used in the steelmaking process.  I have consulted
with staff in the Office of Solid Waste, and we have concluded
that the mining waste exclusion does not apply to this waste.

     As stated in EPA's proposed reinterpretation of the mining
waste exclusion, alloying is not considered "processing of ores
and minerals."  See 50 Fed. Reg. 40293 (October 2, 198^6^  Since
steelmaking  is an alloying process, the wastes from this process
are not excluded from RCRA Subtitle C regulation (regardless of
whether a listed hazardous waste was used in the steelmaking
process).  In fact, EPA has listed emission control dust/sludge
from the primary production of steel in electric furnaces  (K061),
another steelmaking waste, as a hazardous waste and currently
regulates it as such.  See 40 C.F.R. § 261.32.

     If you have any questions, please feel free to call me at
                                  Margaret  B.  Silver


               RECEIVED FEB 2 9
                        WASHINGTON. O.C. 20460
 SEP I 5
                                              OFFICE OF
                                      SOLID WASTE AND EMERGENCY RESPONSE
SUBJECT:  Applicability of Bevill Amendment to the
          American Natural Gas Coal Gasification Facility
Marcia E. Williams, Director ':A/VCX*-
Office of Solid Waste         :
Assistant General Counsel for RCRA

Robert L. Duprey, Director
Region VIII, waste Management Division
     We have reviewed your memorandum of May 1, 1987, your undated
memorandum received June 17, 1987, and the Planning Research
Consultants (PRO report, regarding the applicability of the RCRA
mining waste and the combustion ash waste ("utility waste") exclu-
sions (which are both part of the "Bevill Amendment") to the
American Natural Gas (ANG) coal gasification facility.  We have
also reviewed ANG's May 13, 1987, letter on this subject and our
staff met with Larry wapensky of your staff.

     Regarding the applicability of the combustion ash waste
exclusion (Section 3001(b)(3)(A)(i)) to the ANG operation, ANG's
operations include controlled oxygen-starved combustion of coal.
Coal ash produced in the gasifiers from this combustion is equiva-
lent to coal ash (from the same coal type) produced in utility
operations.  In Gary Dietrich's letter to Paul Emler, dated
January 13, 1981, he stated that combustion wastes were excluded
from Subtitle C regulation by the Bevill Amendment providing
fossil fuel constituted at least 50 percent of the fuel mix.
Assuming that coal constitutes at least 50% of ANG's  fuel mix,
the combustion ash waste exclusion would apply to the ash from
the ANG operation.

      Regarding the applicability of the mining waste exclusion
to ANG's operations, we agree with you that the exclusion for
"solid waste from the extraction, beneficiation, and  processing

                                      - 2 -

         of ores or minerals" (the "mining waste  exclusion")  in RCRA Section
         3001(b)(3)(A)(ii), applies to the coal gasification  process.  This
         is consistent with the position taken in the  January 21,  1981,
         memorandum from Alfred Lindsey to Terry  Thoem in which Mr. Lindsey
         stated that the mining waste exclusion clearly extends to retorting
         of shale and "to direct gasification and liquefaction of  coal or
         the wastes produced by those operations."
              Analyzing ANG's wastes under the mining  waste  exclusion, we
         agree with your conclusion that wastes from the  following  units
 •        are generated from the primary beneficiation  or  processing of a
I         mineral (i.e., coal), and are, therefore,  excluded  from  regulation
'         under RCRA Subtitle C by the mining waste  exclusion:

:                   The Gasification Units
, *                  The Raw Gas Cooling and Shift
                     Conversion Units
                   The Rectisol Unit
I                   The Methanation Unit

i \        t-hafr «
              However, we disagree with your analysis of the regulatory
         status of wastes resulting from operations that are not in the
         direct line of producing synthetic natural gas.  We believe that.
         the ANG operations that treat the gas liquor, the waste gases,
         and the cooling tower blowdown are also exempt from Subtitle C.
         We note that EPA has previously recognized that residues are
         excluded from regulation if they derive from treatment of wastes
         generated from mining waste.   For instance, EPA suspended the
         listings of several such wastes when Congress enacted the
         mining waste exclusion.  See 46 FR 4614 (January 16, 1981) and
         46 FR 27473 (May 20, 1981).  See also the attached letter from
         James Scarbrough, EPA Region IV, to John Stubbs.

              We do not believe the wastes from these units become subject
         to RCRA Subtitle C if the treatment yields a useful by-product.
         Certain units at ANG's plant produce, from the liquid waste
         streams, materials which are to varying extents reused in the
         plant or sold.  These include sulfur, tar oils, phenol and
         ammonia.  In his May 16, 1985, memorandum.to Harry Seraydarian,
         John Skinner stated that leachate generated from slag and clinker
         wastes was exempt under the mining waste exclusion because the
         leachate was derived from an exempt waste.  He stated further
         that "the situation would be different if the slag or clinker
         were used as a raw material for some extractive process and a
         listed or hazardous waste resulted.  Under this scenario, the
         hazardous waste would fall outside the mining waste exclusion."
         We feel that this position is contrary to waste reduction goals.
         It is not environmentally.beneficial to create a situation in
         which treating a waste for recovery of useful materials is subject
         to Subtitle C regulations whereas disposal of the untreated wastes

. *
                              - 3 -

would be exempt from RCRA.  We believe that wastes  from the
following units are exempt from Subtitle C because  these opera-
tions constitute treatment of mining wastes:

          The Stretford Unit
          The Gas Liquor Separation Unit
          The Phenosolvan Unit
          The Phosam W Unit

     Similarly, we believe the cooling tower blowdown and related
wastes are also exempt as wastes from ore processing.  The
January 21, 1981, memorandum from Alfred W. Lindsey regarding the
RCRA status of wastes from synfuels processes,  including coal
gasification, states that the mining waste exclusion "extends to
wastes produced from the process ... provided they  are unique to
the 'ore* processing operation.  [However the]  ...  exemption
does not extend to wastes...  which are not unique  to synfuels
operations like spent cleaning solvents, cooling tower blowdown,
and ion exchange regeneration wastes."

     We believe Mr. Lindsey's statement regarding cooling tower
blowdown is best interpreted as only applying to blowdown from
industrial cooling apparatus which is incidental to making
synfuels.  The composition of the blowdown from such cooling
towers is not dictated by (i.e., is not "uniquely associated
with") the extraction, beneficiation, and processing of ores and
minerals.  ANG's cooling tower receives the liquid  treated waste
stream from a mining process.  The blowdown procedure is used to
remove from the cooling tower contaminants contributed by this
liquid waste stream.  In the case of the ANG operation, the ANG
cooling tower blowdown is a pollution control residue which is
derived from waste produced in the coal gasification process (and
is thus "uniquely associated" with the coal gasification process).
As such, it is excluded from regulation.

     This is consistent with our position on other  large volume
wastes.  For example, cooling tower blowdown from fossil-fuel
fired electric utility cooling towers is currently exempt and is
under study in a forthcoming Report to Congress.  Thus, the ANG
units listed below treat an excluded waste, i.e., cooling tower
blowdown, so the wastes from these units are also excluded from

          The Cooling Tower Unit
          The Multiple Effect Evaporator Unit
          The Liquid Waste  Incineration Unit
          The Gasifier Ash  Handling System

     From this analysis, we conclude that two of the ten wastes
you list on page 2 of your  May 1,  1987, memorandum  attachment as
"potentially regulated" are not excluded from potential  regulation
under RCRA Subtitle C:

               1.  Wastes  from cleaning operations, vehicle maintenance
                  operations, container storage areas and laboratory
                  areas,  and wastes from the oily water separation

               2.  Spent methanol catalyst from the methanol plant.

               Regarding the flue gas and ash wastes from the steam
         generation system, insufficient data are available from the PRC
         report to determine the status of these wastes.

               Finally, you requested our view on the reinjection of the
         Multiple Effect  Evaporator liquid waste concentrate into the
         gasifiers.  Since the vast majority of the input to 'the gasifier
         is an ore or mineral (i.e. coal), the waste from this unit would
 J        remain excluded  from regulation even if the NEE waste gas were
 *        not exempt from  Subtitle C.  This is consistent with pur position
         in previous correspondence regarding the status of ore processing
         with  mixed feedstocks (e.g, memorandum from Marcia Williams to
         David Wagoner, dated June 10, 1986; memorandum from John Lehman
         to Phil Bobel, dated April 4, 1984; and letter from John Lehman
         to D.M. Friedman, dated August 22, 1983 (all attached)).

               In conclusion, we recognize the ANG facility is essentially
         a Bevill operation producing Bevill wastes which are currently
         excluded from RCRA Subtitle C regulations.  The two exceptions
         listed above are still potentially subject to Subtitle C

               We do want  to stress that the exemption from Subtitle C
         may be temporary.  The exemption of any wastes from processing
         an ore or mineral can be lifted by EPA after providing a Report
         to Congress that addresses the factors identified under Section
         8002(f) of RCRA.  Further, we have serious reservations as to
         whether the operations at the ANG facility would remain exempt,
1         were  the facility to be reconfigured to conduct significant
         organic chemical synthesis with the synthetic natural gas or
         the gas liquor as a feedstock.

               While we hope the above discussion clarifies our review of
         the legal status of the various units at the facility, we recog-
         nize  that exempt wastes can be of environmental concern.  There
         are other authorities under RCRA for obtaining information and
         for taking corrective actions as appropriate.  We encourage you
         to use these authorities to investigate and address health or
         environmental impacts.

               If you have any questions, please contact:  Ben Haynes
         (FTS/475-7242) of OSW or-Meg Silver  (FTS/382-7706)  of OGC.


         cc:   Regional Administrator, Regions I-X
               J. Winston  Porter
               Jack McGraw
               Ben Haynes
               Meg Silver














1 1 1
Aiinnr r AC r • uf* RCF 1 H 1 HG ... . £ ... COP r 1 n
nnuut injlinu " 	 CAbllRG


— + mm

Figure 3-1.  Simplified process flow diagram of the smelting and refining of copper.




                                                                                                      -*"- RECYCLED MITM
              Figure 3-2.   Simplified  process flow diagram depicting  electrowlnning of copper.