United States Solid Waste and EPA530-R-99-020n
Environmental Protection Emergency Response NTIS: PB99-155 954
Agency (5305W) April 1998
Response to Comments
Document: Land Disposal
Restrictions-Phase IV Final
Rule Promulgating Treatment
Standards for Metal Wastes;
Mineral Processing Secondary
Materials and Bevill Exclusion
Issues; Treatment Standards
for Hazardous Soils; and
Exclusion of Recycled Wood
Preserving Wastewaters;
Volume 14: Comments Related to
Second Supplemental Proposed Rule
(May 12, 1997): Treatment Standards
for Metal Wastes and Mineral
Processing Wastes, Mineral Processing
and Bevill Exclusion Issues, and Use of
Hazardous Waste as Fill
Printed on paper that contains at least 30 percent postconsumer fiber
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REPORT DOCUMENTATION
PAGE
11. Report No.
I
12.
EPA530-R-99-020n
13. Recipient's Accession No.
PB99-155954
4. Title and Subtitle Response to Comments Document: Land Disposal Restrictions-Phase IV: Final Rule
Promulgating Treatment Standards for Metal Wastes and Mineral Processing Wastes; Mineral Processing
Secondary Materials and Bevill Exclusion Issues; Treatment Standards for Hazardous Soils, and Exclusion of
Recycled Wood Preserving Wastes; Volume 14: Comments Related to Second Supplemental Proposed Rule,
May 12, 1997: Treatment Standards for Metal Wastes and Mineral Processing Wastes, Mineral Processing and
Bevill Exclusion Issues, and the Use of Hazardous Waste as Fill
7. Authors)
9. Performing Organization Name and Address
5. Report Date
April 1998
6.
8. Performing Organization Rept. No.
10. Project/Task/Work Unit No.
U.S. EPA
OFFICE OF SOLID WASTE
401 M STREET, SW
WASHINGTON, DC 20460
11. Contract © or Grant (G) No.
(G)
12. Sponsoring Organization Name and Address
13. Type of Report & Period Covered
Response to Public Comment
14.
15. Supplementary Notes
16. Abstract (Limit: 200 words)
Responds to public comments relevant to land storage of secondary materials, including criteria for high volumes of Bevill-exempt mining and
mineral processing wastes, containment units (tanks, containers, buildings, and approved pads), and class of materials outside of RCRA
jurisdiction. Examines restriction on using non-Bevill materials as alternative feedstocks and high-risk mining wastes excluded by the Bevill
Amendment. Addresses comments on damage cases and environmental releases, characterization of mineral processing wastes, cost of
remediation, risk posed by Bevill mining wastes, and other comments on materials supporting the proposed rule. Discusses comments on the
mineral processing regulatory impact analysis and proposed criteria for clarifying Bevill status waste.
17. Document Analysis a. Descriptors
b. Identifiers/Open-Ended Terms
c. COSATI Field Group
18. Availability Statement
RELEASE UNLIMITED
119. Security Class (This Report) | 21. No. of Pages
| UNCLASSIFIED |
I I
| 20. Security Class (This Page) | 22t Price
| UNCLASSIFIED j
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LDR Phase IV Rulemaking, Second Supplemental.Proposal;
May 12,1997 (62 FR 2338)
Commenter List
Commenter #
COMM1001
COMM1002
COMM1003
COMM1004
COMM1005
COMM1006
COMM1007
COMM1008
COMM1009
COMM1010
COMM1011
COMM1012
COMM1013
COMM1014
COMM1015
COMM1016
COMM1017
COMM1018
COMM1019
COMM1020
COMM1021
COMM1022
COMM1023
COMM1024
COMM1025
COMM1026
COMM1027
COMM1028
COMM1029
COMM1030
COMM1031
COMM1032
Commenter Name
ASARCO Incorporated
American Wood Preservers Institute
Chemical Products Corporation
Occidental Chemical Corporation (OxyChem)
American Chrome & Chemicals, L.P.
Marine Shale Processors, Inc. (MSP)
Frontier Technologies Inc. (FTI)
Florida Phosphate Council
World Resorces Company
International Metals Reclamation Company, Inc. (INMETCO) and INCO United
States, Inc.
CITGO Petroleum Corporation
The Ferroalloys Association (TFA)
GF Industries
Westinghouse Electric Corporation
Ms. Linda W. Pierce
Chemical Manufacturers Association
Battery Council International (BCI) and Association of Battery Recyclers (ABR)
Collier, Shannon, Rill & Scott, PLLC for Specialty Steel Industry of North America
(SSINA)
The Doe Run Company (DRC)
American Portland Cement Alliance (APCA)
American Petroleum Institute
Eastman Kodak Company
U.S. Department of Energy (DOE)
Lead Industries Association, Inc. (LIA)
RSR Corporation
Homestake Mining Company
Solite Corporation
Laidlaw Environmental Services
Newmont Gold Company
Chemical Products Corporation (CPC)
Florida Institute of Phosphate Research (FIPR)
Savage Zinc, Incorporated
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Commenter List (continued)
Commenter #.
COMM1033
COMM1034
COMM1035
COMM1036
COMM1037
COMM1038
COMM1039
COMM1040
COMM1041
COMM1042
COMM1043
COMM1044
COMM1045
COMM1046
COMM1047
COMM1048
COMM1048-D
COMM1048-E
COMM1049
COMM1050
COMM1051
COMM1052
COMM1053
COMM1054
COMM1055
COMM1056
COMM1057
COMM1058
COMM1059
COMM1060
COMM1061
COMM1062
COMM1063
COMM1064
Commenter Name
General Motors Corporation (GM)
ASARCO Incorporated
Utility Solid Waste Activities Group (USWAG)
Okanogan Highlands Alliance (OHA)
CF Industries, Inc.
The Fertilizer Institute
American Iron and Steel Institute (AISI)
Molycorp, Inc.
Cyprus Amax Minerals Company
Law Office of David J. Lennett (for Environmental Defense Fund, Mineral Policy
Center, Southwest Research and Information Center, North Santiam Watershed
Council, Pamlico-Tar River Foundation, Siskiyou Regional Education Project,
Okanogan Highlands Alliance, and the Louisiana Environmental Action Network
BHP Copper
National Lime Association
The Silver Council
Mineral Policy Center
American Gas Association (AGA)
National Mining Association
Mational Mining Assocation
National Mining Assocation
Lake Superior Alliance (LSA)
Reynolds Metals Company
Brush Wellman Inc.
Brush Wellman Inc.
Brush Wellman, Inc.
Kennecott
Vlr. William R. Schneider, P.E. (Consultant to Macalloy Corp.)
STexsen, Pruet, Jacobs & Pollard, LLP (Counsel to Macalloy Corporation)
Photo Marketing Association International
vlenominee Indian Tribe of Wisconsin
Lake Michigan Federation
vlr. David Isbister
Ms. Marianne Isbister
Rolling Stone Lake Protection & Rehabilitation District
Vis. Laura Furtman
Vlr. Gregory Furtman
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Commenter List (continued)
Commenter #
COMM1065
COMM1066
COMM1067
COMM1068
COMM1069
COMM1070
COMM1071
COMM1072
COMM1073
COMM1074
COMM1075
COMM1076
COMM1077
COMM1078
COMM1079
COMM1080
COMM1081
COMM1082
COMM1083
COMM1084
COMM1085
COMM1086
COMM1087
COMM1088
COMM1089
COMM1090
COMM1091
COMM1092
COMM1093
COMM1094
COMM1095
COMM1096
COMM1097
COMM1098
COMM1099
COMM1100
Commenter Name
Ms. Jennifer Pierce
Cement Kiln Recycling Coalition
Institute for Interconnecting and Packaging Electronic Circuits
Horsehead Resource Development Company, Inc.
Macalloy Corporation
Ms. Dori Gilels
Kenneth and Linda Pierce
Ms. Ellen Wertheimer
Mr. Earl Meyer
New York State Department of Environmental Conservation
United States Department of Defense (DoD)
Clean Water Action Council of Northeast Wisconsin, Inc.
Air Products and Chemicals, Inc.
EnviroSource Treatment and Disposal Services, Inc. (TDS)
Independence Mining Company Inc. (IMCI)
Uniroyal Chemical Company, Inc.
Eastman Chemical Company
Nevada Mining Association (NvMA)
Kerr-McGee Corporation
Elf Atochem North America Inc.
New Mexico Mining Association
DuPont
Waste Management
FMC Corporation
Phelps Dodge Corporation
Arizona Mining Association
Beazer East, Inc.
AlliedSignal Inc.
Placer Dome U.S., Inc.
Phosphorus Producers Environmental Council
U.S. Borax, Inc.
Appalachian Producers
Aluminum Company of America; Kaiser Aluminum & Chemical Corporation; Ormet
Corporation; and Reynolds Metals Company.
AMAX Metal Recovery, Inc.
Barrick Resources, Inc.
ECoppers Industries, Inc.
Ill
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Commenter List (continued)
Commenter #
COMM1101
COMM1102
COMM1103
COMM1104
COMM1105
COMM1106
COMM1107
COMM1108
COMM1109
COMML1001
COMML1002
COMML1003
Commenter Name
IMC-Agrico Company
Echo Bay Mines
Mining Impact Coalition of Wisconsin Inc.
Precious Metals Producers (PMP)
California Mining Association
Freeport- Me MoRan
Shoshone-Bannock Tribe Land Use Department
Texaco
Occidental Chemical Corporation (OxyChem)
Photographic & Imaging Manufacturers Association, Inc.
Phosphorus Producers Environmental Council
Environmental Technology Council
IV
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Table of Contents
1. BROAD AND GENERAL STATEMENTS ABOUT PROPOSAL 1-1
1.1 Supporting Statements 1-1
1.2 Opposing Statements 1-1
2. LAND STORAGE OF SECONDARY MATERIALS 2-1
2.1 General Discussion 2-1
2.1.1 General Issues 2-1
2.1.2 Similarity to Proposal on Oil Bearing Secondary Materials Generated by and
Recycled Within the Petroleum Industry 2-7
2.1.3 Actual and Potential Damages to Human Health and the Environment 2-8
2.1.4 EPA's Jurisdiction over Secondary Materials 2-11
2.1.5 Production-Related Necessity for Land-Based Units 2-15
2.2. Criteria for High Volumes of Bevill-Exempt Mining and Mineral Processing Wastes
2-17
2.2.1 Exemption for Large Volume Secondary Materials 2-17
2.2.2 Production-Related Necessity for Land-Based Units 2-25
2.3 Containment Units (Tanks, Containers, Buildings, and Approved Pads) 2-27
2.3.1 General Comments 2-27
2.3.2 Need for Subtitle C Requirements 2-30
2.3.3 Appropriateness of Concrete Pads 2-30
2.3.4 Unit Roofs/Covers 2-31
2.3.5 Three-sided Bunker Issues 2-31
2.3.6 Rulemaking Language 2-32
2.4 Class of Materials Outside of RCRA Jurisdiction 2-33
2.4.1 Jurisdiction 2-33
2.4.2 Need for Greater than 48-hour Storage 2-38
2.4.3 Need for In-process Exclusion 2-46
2.4.4 Definition of In-process 2-47
2.4.5 Damages Due to Land Storage of Secondary Materials 2-49
2.4.6 Only On-site Materials 2-51
2.4.7 Specific Materials that Would Qualify Under the Immediate Reuse Exemption
2-54
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3. Restriction on Using Non-Bevill Materials as Alternative Feedstocks 3-1
3.1 General Comments on the Proposed Approach 3-2
3.1.1 EPA's Authority to Regulate Alternative Feedstocks 3-3
3.1.2 Definition of Terms Used in the Proposal 3-11
3.1.3 Situations Where Wastes Would Retain the Bevill Exemption 3-12
3.1.4 Alternatives to the Alternative Feedstocks Restriction 3-14
3.1.5 Miscellaneous Issues 3-16
3.2 Applicability to Hazardous and Non-Hazardous Non-Bevill Feedstocks 3-17
3.3 Comments on Risks, Damages, and the Incentive to Maximize Waste Volume 3-18
3.3.1 Risks from Co-Processing Non-Bevill Materials 3-18
3.3.2 Uncontrolled Management has Resulted in Damage 3-21
3.3.3 Incentives to Maximize Waste Volume 3-23
3.3.4 Bevill Wastes are Not Inadequately Regulated Dumping Grounds 3-24
3.3.5 Comments on Supporting Data and Background Documents 3-24
3.4 Co-processing Has Changed Significantly Since the Bevill Determinations 3-26
3.5 Applicability of the Proposal to the BIF Rule and Other Bevill Industries 3-29
3.5.1 The Differences Between Mineral Processing Secondary Materials and CKD
Call for Different Regulatory Schemes 3-29
3.5.2 The Proposed Rule's Effect on the Fossil Fuel Industry 3-30
3.5.3 Relationship Between the Proposed Rule and the BIF Rule 3-31
3.6 Benefits of the Alternative Feedstocks Restriction 3-32
3.7 Disadvantages of the Alternative Feedstocks Restriction 3-33
3.7.1 General Impact on the Mineral Processing Industry 3-33
3.7.2 Consequences for Legitimate Recycling 3-35
3.7.3 Impact on the Environment 3-38
3.7.4 Economic Value and Production Necessity of Alternative Feedstock 3-39
3.7.5 Comments on Specific Facilities 3-42
3.8 Comments on the "Commercial Substitutes" Exemption for Water or Acid
Recycling 3-46
3.9 Non-Bevilled Material Added Directly to a Bevill Disposal Unit 3-48
4. HIGH-RISK MINING WASTES EXCLUDED BY THE BEVILL
AMENDEMENT 4-1
11
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5. Comments on Supporting Materials Not Addressed Above (Background
Documents) 5-1
5.1 Non-RCRA Tanks, Containers, and Buildings 5-1
5.2 Damage Cases and Environmental Releases 5-1
5.2.1 Damages are Not a Result of Beneficiation or Mineral Processing Operations 5-2
5.2.2 Damages Resulted from Historic Practices that are No Longer Used 5-8
5.3.3 EPA Technical Information is Incorrect 5-8
5.3 Characterization of Mineral Processing Wastes and Materials 5-15
5.4 Cost of Remediation at Mine Sites 5-16
5.5 Risk Posed by Bevill Mining Wastes 5-16
5.6 Application of Phase IV Land Disposal Restrictions to Newly Identified Mineral
Processing Wastes - Regualtory Impact Analysis (RIA) 5-17
5.7 Availability of Natural Resource Damage Assessment Modeling 5-17
5.8 CERCLA Imminent Hazard-Mining and Mineral Processing Facilities 5-17
5.9 Feasibility Analysis: A Comparison of Phosphogypsum and Uranium Mill Tailings
Waste Unit Design 5-18
5.10 Mining and Mineral Processing Sites Listed on the Superfund's NPL 5-18
5.11 Nevada Gold Cyanide Mill Tailings Regulation 5-18
5.12 Population Studies of Mines and Mineral Processing Sites 5-19
5.13 Preliminary Identification of Approaches Used in Evaluating Natural Resources
5-23
5.14 Technical Feasibility of Lining Tailings Ponds 5-23
5.15 Comments on the Uranium Section of the Identification Document 5-23
6. MINERAL PROCESSING REGULATORY IMPACT ANALYSIS 6-1
in
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7. COMMENTS ON ISSUES RAISED IN THE JANUARY 1996
PROPOSAL 7-1
7.1 Distinction Among Sludges, Byproducts, and Spent Materials 7-1
7.2 Bevill Issues 7-2
7.3 UseofTCLP 7-5
8. PROPOSED CRITERIA FOR DEFINING7CLARIFYING BEVILL
STATUS WASTE 8-1
8.1 Issues Addressing "Uniquely Associated" Criteria 8-1
8.1.1 Many Wastes Currently under the Exclusion are not Uniquely Associated
with Mining 8-1
8.1.2 EPA Cannot Limit Bevill Wastes by "Uniquely Associated" Alternative
Criteria 8-1
8.1.3 "Uniquely Associated" Definition Must Be Consistent with the Legislative
Purposes of the Bevill Amendment 8-1
8.1.4 The Administrative Record Supports a Broad Interpretation of Uniquely
Associated 8-2
8.1.5 Mixture of Hazardous Waste and Bevill Waste Occurs in an Attempt to
Avoid Regulation 8-3
8.1.6 Beneficiation Has Been Well Defined by the EPA 8-3
8.2 Contact Principle as a "Reinterpretation" Criterion 8-4
8.3 Alternative Contact Principle: Considering Pre-Contact Hazard Content 8-5
8.3.1 EPA Must Revise Its "Identification and Description" Document Prior to
Any Action on Criteria 8-6
8.3.2 EPA Incorrectly Characterizes the Examples Used to Demonstrate Its
"Contact" Concept 8-7
8.4 EPA is Bound to Use High Volume, Low Hazard to Define Bevill Wastes 8-7
8.4.1 Uniquely Associated Principle has Never Incorporated a "High Volume"
or "Lack of Inherent Hazard" Criterion 8-8
8.4.2 For a Variety of Logical, Statutory, and Policy Reasons a High Volume
Criterion Cannot Be Used 8-9
8.4.3 Eliminating Low Volume Waste from the Exclusion is Counterproductive,
8-9
8.4.4 Comments Addressing Implementation of a Volume Criterion 8-11
iv
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8.5 Waste-Specific Comments Addresing Appropriateness of the Various Criteria
8-14
8.5.1 Titanium Dioxide Wastes: Waste Acids and Solids from the Chloride-
Ilmenite Process 8-14
8.5.2 Fluorogypsum and Wastewater from Hydrofluoric Acid Production 8-14
8.5.3 Maintenance and Cleaning Wastes , 8-14
8.5.4 Lead Anodes 8-15
8.5.5 Spent Kerosene Used in Copper Solven Extraction Operations 8-15
8.5.6 Crud from Electrowinning 8-16
8.5.7 Fire Assay Wastes (Crucibles and Cupels) 8-16
8.5.8 Acid Wash Solution (Carbon Wash) 8-17
8.5.9 Loaded Carbon 8-18
8.5.10 Raffmate 8-1.8
8.5.11 Lime Kiln Dust 8-19
8.5.12 Phosphogypsum 8-19
8.5.13 Soda Ash 8-19
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1. Broad and General Statements About Proposal
1.1 Supporting Statements
Comment: One commenter generally supported the proposal, but suggested an alternative
approach to determining exclusions. The commenter opposed case-by-case rulemakings for excluding
wastestreams from RCRA regulation. Instead, the commenter believed the Agency should provide clear
criteria for distinguishing between "solid waste" and "commodity-like" secondary materials.
(COMM1035)
Response: The Agency appreciates the commenter's support and notes that today's final rule
simplifies the current regulations by clearly defining elements of a conditional exclusion that are easily
understood and operationally simple. A secondary material is in general a residual material being
recycled that might or might not be a solid waste. More specifically, a secondary material in this rule is
a sludge, by-product or spent material from mineral processing being recovered within the industry
sector. These terms are defined in 261.1 of the existing rule.
Comment: One commenter supports the Agency's decision to include toxic chemicals
associated with mining activity under Subtitle C of RCRA. (COMM1070)
Response: Comment noted. The Agency also notes that today's rule applies Subtitle C
provisions only to those materials that fail to meet the requirements of the conditional exclusion from the
definition of solid waste.
1.2 Opposing Statements
Comment: Three commenters believed that the proposed rule contains serious flaws and
should be withdrawn (COMM1056, COMM1079, COMM1090). Another commenter argued that the
Agency provides no convincing evidence or supporting data for the proposed rule (COMM1069). One
commenter also noted that the Agency failed to consider real-world impacts of the rule as proposed, thus
the rule should be reconsidered (COMM1089). One other commenter argued that the proposed rule
should be withdrawn because the Agency's claim that land-storage of secondary materials is less
common that previously believed raises questions about the need for such regulation. (COMM1048).
Response: The Agency disagrees with the commenters. First, the Agency has ample evidence
that land storage of mineral processing wastes and secondary materials poses threats to the environment
and to human health (see "Damage Cases and Environmental Releases," EPA Office of Solid Waste,
1995 and 1997). Second, the Agency disagrees that the impacts from the rulemaking will be severe.
Evidence collected by the Agency shows that mineral processing secondary materials are generated in
volumes small enough to allow the use of tanks, containers, and buildings. The RIA prepared in
conjunction with this rule likewise estimates that overall impacts will be low. Finally, while land storage
is becoming less common, it is still used and given the threats posed by these materials, the Agency feels
justified in finalizing today's prohibition on land-placement (except for approved pads).
Comment: Five commenters argued that the proposed rule will not result in benefits to the
environment (COMM1038, COMM1041, COMM1048, COMM1069, COMM1090). One commenter
Page 1-1
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noted that the proposal must be substantially revised to ensure protection of human health and the
environment (COMM1042).
Response: The Agency believes that today's rule will provide substantial benefits to the
environment and human health while simplifying existing regulations by clearly defining the elements of
a conditional exclusion. EPA believes that the rule establishes a reasonable balance among the
objectives of resource recovery, non-interference with production processes, and protection of human
health and the environment.
Page 1-2
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2. Land Storage of Secondary Materials
2.1 General Discussion
2.1.1 General Issues
Comment: A number of commenters expressed general support for EPA's proposed approach.
Three commenters expressed general support for the Agency's proposal to exclude secondary materials
that are further legitimately processed from the definition of solid waste (COMM1029, COMM1025,
COMM1082). One of these commenters supports the Agency's proposal not to subject such materials to
Subtitle C regulation so long as they are not stored in land-based units prior to, or as part of, the metals
recovery process (COMM1025). Another commenter supports the proposed exemption, but for different
reasons than those presented by the Agency in the proposed rule. The commenter argued that EPA
should focus on the nature of the recycling units and not on the nature of the materials being recycled in
determining whether discard has occurred (COMM1088).
Three commenters expressed support for the Agency's position on prohibiting land storage of
hazardous mineral processing secondary materials. The commenters believed that a conditional
exclusion for non land-based storage is acceptable and will minimize releases of hazards to the
environment. (COMM1025, COMM1029, COMM1074).
One commenter believed that the new proposal would level the "playing field" between primary
and secondary metals production facilities, as secondary production facilities are subject to full RCRA
regulation, while the primary metals industry currently enjoys exemptions from this regulation.
(COMM 1025)
Response: The Agency notes and appreciates the commenters' support. In particular, EPA
agrees that the essential focus of the rule — both for legal purposes of ascertaining the scope of the waste
disposal problem, and the policy goal of encouraging properly-conducted recycling ~ would be on land-
based units, not on particular materials.
Comment: One commenter supported the Agency's decision not to finalize the "toxics ratio
test" approach. The commenter believed this test is difficult to apply, would not provide accurate
determinations of legitimate recycling, and lacks environmental justification at an integrated facility
(COMM 1029)
Response: The Agency notes and appreciates the commenter's support on this issue.
Comment: One commenter recommended that the Agency implement stringent controls on
mining wastes under its RCRA authority because of the high costs of cleaning up contamination at mine
sites. The commenter estimates that cleaning up mine sites may cost between $32 and $72 billion dollars
of taxpayer funds and noted that even EPA estimates cleanup costs at $20 million (COMM 1046).
Response: Comment noted. The Agency agrees that in promulgating standards to ensure
legitimate recycling and the environmentally safe handling of secondary materials that it has adopted a
reasonable balance among the objectives of resource recovery, non-interference with production
processes, and protection of the human health and the environment.
Page 2-1
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Comment: Two commenters argued that the proposed rule is arbitrary and capricious because it
would impose stricter and more complex regulations on the mining mineral processing industry than
other industries (COMM1041, COMM1090). One of these commenters added that the proposal would
result in multiple sets of RCRA regulations being applied to secondary materials recycled at its facility.
The commenter also believed that regulations may be further complicated if states add requirements
beyond the Federal RCRA program (COMM1041).
Response: The Agency disagrees with commenters that today's rule would impose
unreasonable requirements on the primary mineral processing industry. Under today's rule, mineral
processing secondary materials may be stored in tanks, containers, and buildings (or in limited cases, on
approved pads) that meet certain minimum standards for as long as one year. These materials do not
need to meet RCRA Subtitle C standards. EPA believes that the conditional exclusion being
promulgated today establishes a national standard for waste disposal practices that is needed to
adequately protect human health and the environment while simultaneously encouraging recycling. The
rule also provides significant incentives for resource recovery in non-land based units. With regard to
the commenter's concern about additional state requirements, the issue is beyond the Agency's authority.
The states continue to have authority to impose more stringent regulations than the Federal RCRA
program.
Comment: One commenter asserted that the proposal is arbitrary in re-defining the definition of
solid waste as applied to the mineral processing industry only. The commenter argued that the
redefinition will cause similar materials to be regulated differently. For example, under EPA's proposal,
if a characteristic air pollution control dust from a primary metals production facility is stored on the
land prior to recycling, it would be classified as a solid waste. But if the same type of material is
generated in a secondary metals production facility, it would not be a solid waste. The commenter further
recommended that the Agency should explicitly state that any changes to the definition of solid waste in
the final rule will not affect other industries (COMM1039).
Response: The commenter is correct that today's rule will result in the application of different
requirements to primary and secondary mineral processors. The Agency believes that it is appropriate to
address issues relating to the definition of solid waste for primary mineral processors in the context of
the LDR rulemaking because determining which materials are wastes is a critical step in determining
whether the LDRs will apply to those materials. The Agency notes that while today's rule establishes a
conditional exclusion for mineral processing secondary materials produced by primary mineral
processors, secondary mineral processors and other producers of metal wastes are not eligible for the
exclusion. EPA also touches on this point further in the preamble to the final rule.
Comment: Many commenters, primarily from industry, opposed the Agency's proposal to limit
land storage of secondary materials. Four commenters expressed general opposition to the Agency's
"conditional exclusion approach" (COMM1041, COMM1019, COMM1054, COMM1090). Two of
these commenters argued that the proposed changes will not increase recycling or minimize releases of
materials into the environment, adding that the lead industry already has sufficient measures to control
releases (COMM1019, COMM1085). Another commenter believed that the Agency's proposal does not
consider whether secondary materials being stored on land are controlled by other regulations or whether
they pose an actual threat to the environment (COMM1054).
Eight commenters argued that the proposed rule would be excessively burdensome or adversely
affect industry or its facility operations (COMM 1041, COMM1043, COMM1048, COMM1054,
COMM1056, COMM1085, COMM1089, COMM1090). One commenter asserted that the Agency has
Page 2-2
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not demonstrated any environmental benefits to promulgating the proposed regulations. This commenter
added that the requirements would restrict recycling opportunities in the copper-producing industry,
referring to the Agency's own statement that the Proposed Rule could have a "profound effect" on
recycling in copper-producing operations, and could create "logistical and financial impacts" on facilities
that could be "severe." The commenter recommended that the Agency withdraw the proposed rule
(COMM1089). Another commenter believed that the proposed restrictions on "small volume" secondary
materials would adversely affect the future of copper leaching operations due to unnecessary regulatory
intrusion into these operations and requirements that could not be technically or economically feasible to
apply (COMM1043). One commenter further argues that the proposed rule will also negatively impact
the State and small communities near mining and mineral processing operations (COMM1085)
One commenter asserted that this proposal fails to take into account its comments on previous
proposals, particularly in relation to options for determining whether material is conditionally excluded.
The commenter believed the proposal should focus on legitimate re-use or recycling and intended use to
encourage minimizing the creation of hazardous waste. The commenter also stated that regulations on
secondary materials under RCRA must be based on their intended use, not how they are managed
(COMM1043). Another commenter added that it believed the proposed limitations on land storage
exceeded the Agency's authority (COMM1093).
One commenter argued that land-storage or Bevill waste issues are not relevant to the LDR
"Megadeadlines" case and should not be addressed in the rulemaking (COMM1034).
Response: The Agency disagrees with commenters that today's rule will produce no
environmental benefit, will create disincentives to recycling, and is beyond the Agency's authority. In
fact, the Agency believes that today's final rule will enhance environmental protection by promoting
further resource recovery from mineral processing secondary materials by simplifying and clarifying the
conditions under which such recovery will not be subject to RCRA Subtitle C regulations. The Agency
is establishing a minimum national standard for the control of mineral processing wastes. The states
continue to have authority to impose more stringent regulations than the Federal RCRA program.
The Agency has ample evidence of the actual and potential threats posed by storage of mineral
processing secondary materials on land. This evidence is summarized in the background documents,
Human Health and Environmental Damages from Mining and Mineral Processing Wastes (EPA, 1995)
and Damages and Environmental Releases From Mines and Mineral Processing Sites (EPA, 1997) as
well as in other background documents prepared for this rulemaking. These documents indicate that the
patchwork of existing regulatory schemes is inadequate to protect human health and the environment.
Further, the Agency has determined that mineral processing secondary materials are generated in
volumes small enough that they may be stored in non-land based units (i.e., tanks, containers, buildings,
or in limited cases, on approved pads). The Agency believes that the today's rule will not adversely
affect industry, states, or small communities. Regarding authority, the Agency is adhering to the
mandates of AMC I and AMC II. However, AMC II held the storage of secondary-materials in land
based units was not an immediate reuse and was part of the waste disposal problem so that the materials
were classified properly as solid wastes (907, F. 2d at 1186). This was so even though the materials were
generated and reclaimed at a single facility. Finally, it is appropriate to address these issues in the
context of today's LDR rulemaking. The LDRs prohibit certain wastes from being land-stored. It is
critical, therefore, that the Agency clarifies when a secondary material is considered to be a solid waste
that is subject to the LDRs.
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Comment: Two commenters argued that the Agency's proposed ban on land placement of
secondary materials does not account for the protections afforded by regulations at the state level
(COMM1043, COMM1054). One of these commenters stated that the mandatory use of tanks would
apply whether or not the state had evaluated the land placement and authorized it under state criteria for
making such determinations. The commenter believed that the Agency should offer an alternative for
states to independently determine that state environmental regulations adequately control the impact of
secondary materials management (COMM1043).
One commenter argued that the Agency should not attempt to alter the Bevill status of mining
and mineral processing wastes because it is unnecessary to protect human health and the environment;
state environmental regulation of mining and mineral processing wastes is expanding; and improvements
are being made at mining and mineral processing facilities (COMM1048).
Response: The Agency disagrees with commenters concerning the need for federal regulation
of mineral processing secondary materials. The Agency has ample evidence that demonstrates that
existing regulatory schemes are inadequate based on the damages resulting from land placement of
mineral processing wastes and secondary materials in Human Health and Environmental Damages from
Mining and Mineral Processing Wastes (EPA, 1995) and Damages and Environmental Releases From
Mines and Mineral Processing Sites (EPA, 1997). Thus, the Agency believes that a national standard for
waste disposal practices is needed to adequately protect human health and the environment and the
conditional exclusion being promulgated today provides that standard. This moreover is in keeping with
the general structure of RCRA whereby the Agency establishes a national baseline, which States may
then become authorized to implement. RCRA section 3006. Individual states will continue to have
authority to impose more stringent regulations than the Federal RCRA program. In today's rule, EPA is
adopting a provision whereby persons storing only solid mineral processing secondary materials (i.e.,
secondary materials containing no free liquids) on pads prior to legitimate reclamation in a mineral
processing process may seek a determination from an authorized State or EPA Region that the unit is
protective and the pad is not serving as a mode of discard. The rule also provides significant incentives
for resource recovery in non-land-based units. Finally, the Agency notes that today's rulemaking does
not alter the status of Bevill-exempt mining and mineral processing wastes which remain exempt under
today's rule.
Comment: One commenter expressed general support for the proposal, but noted several
provisions of the conditional exclusion for recovery of secondary materials that it believes to be overly
restrictive. The commenter argues that the exclusion: 1) should be applied to caustics in addition to
minerals, acids, or water; 2) should not be limited to streams that meet that same large volume test as
has been applied to certain Bevill-exempt wastes; and 3) facilities subject to the Clean Water Act should
not be precluded from the exemption. In addition, the commenter requested confirmation from the
Agency that the provisions for conditional exclusion are not applicable to Bevill exempt wastes such as
red and brown muds, and that these materials can be freely recycled and used as alternative feedstock
without limitation under EPA's rules (COMM1097).
Response: Based on comments received and additional research, the Agency has determined
that mineral processing secondary materials are generated in volumes small enough that land-based
storage is unnecessary. As a result, the Agency has determined that the large volume exemption it
originally proposed is no longer needed. Thus, the commenter's recommendation to allow land-based
storage of materials in addition to large-volume materials as defined under the Bevill exclusion also is
unnecessary. With regard to facilities subject to the Clean Water Act and whether the exclusion should
be expanded to them, the Agency notes that under today's rule, surface impoundments may not be used
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to store mineral processing secondary materials. Thus surface impoundments storing wastewaters and
subject to the Clean Water Act are not eligible for today's conditional exclusion. The Agency notes,
however, that when wastewaters are stored in tanks or containers that meet the provisions of the
conditional exclusion, they are excluded from the definition of solid waste.
Legitimate recycling includes recovery of other values that now are specified in today's rule
(metals, acid, water, cyanide, or other values). The Agency agrees with commenter that "other values"
may include caustic materials (as long as they are not listed hazardous wastes, which are outside the
scope of today's rule). Thus, the conditional exclusion may be applied to caustics if they are legitimately
recycled and other conditions are met. Finally, the Agency confirms that the provisions for the
conditional exclusion do not apply to Bevill exempt wastes.
Comment: Several commenters requested that the Agency clarify certain elements of the
proposed rule. One commenter asked that the Agency clarify the relationship of existing 40 CFR section
261.2(e) to Proposed 40 CFR Section 261.2(c)(3), as the phrase "unless "excluded" in the proposal may
be read to exclude only "secondary materials" reclaimed under Section 261.4(a)(15) and (15). The
commenter believed that the Agency did not intend to limit the existing exclusion of Section 261.2(e)
(COMM1052).
Response: Secondary materials from primary mineral processing must be regulated under
261.4(a)(15), today's rule. Other materials are regulated (i.e. eligible for a different exclusion) under
261.2(e). Today's rulemaking does not affect the relationship between 40 CFR 261.2(c)(3) and 261.2(e)
with the exception of 261.2 (e) (iii) which is subsumed. See preamble to the final rule..
Comment: Two commenters opposed changes to the descriptions of "solvent extraction" and
"electrowinning" in the definition of beneficiation (COMM 1029, COMM1048) and asks that
appropriate corrections be made. The commenters believed that the Agency erroneously presented the
two processes as connected by describing them as "solvent extraction/electrowinning," when the are
actually separate processes that should be separated as "solvent extraction; electrowinning." One
commenter further believes than any attempt to require connection of these two process would violate
the Bevill Amendment (COMM1048).
Response: The Agency has adopted the term "solvent extraction/electrowinning" from industry.
The Agency acknowledges the distinction between solvent extraction and electrowinning. Today's rule
addresses these two processes as separate and distinct activities.
Comment: One commenter suggested that the Agency provide definitions for several mineral
processing terms including waste, non-Bevill waste, Bevill unit, and RCRA unit to clarify that recycled
materials are not wastes (COMM 1054).
Response: The Agency does not believe that definitions of these terms are necessary.. First, the
terms non-Bevill waste, Bevill unit, and RCRA unit are all clearly defined in the regulations. In today's
rule, the Agency is clarifying the definition of the term solid waste as it pertains to mineral processing
secondary materials.
Comment: One commenter asserted that the Agency must clarify that the exclusions to the
definition of solid waste would still include secondary materials that are shown to be reused according to
40 CFR §261.2(e). The commenter believed such a clarification would reflect its understanding that the
proposed rule applies only to materials that would otherwise have been addressed in 40 CFR
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§261.2(2)(c)(3), the section of the definition of solid waste dealing with "reclaimed" materials.
(COMM1048).
Response: The rule eliminates the regulatory distinction among sludges, spent material, and
byproducts for mineral processing secondary materials. These materials are eligible for the conditional
exclusion in today's rule if all conditions are met. Today's final rule does not affect any other material
that would continue to be regulated under 40 CFR §261.2(c)(3) and §261.2(e) (with the exception of
261.2 (e) (iii), as noted above)..
Comment: Four commenters addressed generally EPA's proposed revisions to the definition of
solid waste. Two of these commenters argued that the Agency should retain the existing regulatory
definition of solid waste for the purposes of the rulemaking. The commenters suggested that a revised
definition should not be implemented until more appropriate alternative regulatory approaches are
developed that encourage recycling, do not interfere with normal production processes in the mineral
processing industry, and clarify that a material is a solid waste if and only if it has been discarded
(COMM1041 COMM1048).
Three commenters argued that the Agency's efforts to revise the definition of solid waste should
not be addressed in connection with the Land Disposal Restrictions for mineral processing wastes
(COMM1043, COMM1048, COMM1054). These commenters believed that the Agency should not
propose any new regulations on industry until the definition of solid waste is appropriately revised. The
commenters added that the definition of solid waste as proposed will not encourage recycling or resource
conservation and does not meet the mandates of the AMCI case for providing relief to the primary
mineral processing industry. (COMM1043, COMM1048, COMM1054). One commenter further
argued that the Agency should work with stakeholders to develop a revised definition of solid waste
(COMM1054).
One commenter argued that the Agency should not propose criteria for legitimate recycling for
in-process and intermediate materials in the mining and mineral processing industry. The commenter
suggested that establishing such criteria is beyond the scope of the Agency's statutory authority, does not
reflect a complete understanding of the industry, and is contrary to EPA's policy not to interfere in the
production process. The commenter stated that the Agency should instead support NMA's approach in
this area. (COMM1034)
Response: The Agency disagrees with commenters that today's rule will adversely affect
recycling of secondary materials or interfere with normal production processes. Based on comments and
additional research, the Agency has determined that mineral processing secondary materials are
generated in small enough volumes that they can be stored in tanks, containers, or buildings (or in
limited cases, on approved pads), without requiring land storage. Today's rule also eliminates
distinctions among sludges, by-products, and spent materials, thus encouraging properly conducted
recycling within the industry and reducing some of the complexity in the existing regulatory definition of
solid waste. Today's rule is appropriate for the LDR rulemaking because the LDRs prohibit certain
wastes from being disposed on land. It is therefore critical that the Agency clarify when a secondary
material is a considered to be a solid waste and, thus, subject to LDRs. Paraphrasing roughly, the AMC II
ruling barred the Agency's jurisdiction from those secondary materials that are immediately reused, but
EPA retains jurisdiction over those secondary materials that are not immediately reused, particularly
those which are part of the waste disposal problem due to management in land-based units (such as
impoundments). Thus, EPA has authority to regulate land storage of hazardous secondary materials—
i.e. hazardous wastes— that are not immediately reused to prevent these secondary materials from
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becoming part of the waste disposal problem. EPA notes further that the rule will not interfere with
production processes because the Agency specifically has disclaimed jurisdiction over actual process
units.
Comment: Six commenters argued that the proposed rule would create obstacles to recycling
and recovery of secondary materials in the mining and mineral processing industry (COMM1104,
COMM1019, COMM1037, COMM1043, COMM1054, COMM1069). One of the commenters discussed
its process, in which baghouse bags or refractory brick contaminated with lead dross or dust are
introduced back into the proces's for the recovery of the metal. The commenter believes that the
proposed rule changes could prevent this beneficial reprocessing from occurring. (COMM1019)
Another commenter added that new regulations would make it economically unfeasible to re-use certain
materials that are currently recycled, causing these materials to be sent to landfills for disposal
(COMM1069).
Response:. The Agency disagrees that today's rule will adversely affect recycling of mineral
processing secondary materials. Based on comments and further research, the Agency determined that
secondary materials are generated in such small volumes that they can be stored in tanks, containers, and
buildings. Under certain special cases where necessary, storage on engineered pads also will be
permitted. See separate memo to the administrative record. In addition, the RIA indicates that these are
low cost management options, and certainly lower cost than paying for treatment and landfill disposal.
Consequently, the Agency believes members of the regulated community will be able to comply with
today's rule without significant disruption to normal operations. Today's rule also encourages recycling
by eliminating distinctions among sludges, by-products, and spent materials.
Comment: Many commenters noted that today's rule appears to be in direct conflict with the
findings of the Agency's Definition of Solid Waste Taskforce reports.
Response: The Defintion of Solid Waste Taskforce was created to identify and discuss a wide
range of options which could been used to change the defintion of solid waste to reduce waste generation
and encourage recycling. Taskforce discussions and its resulting report issued in 1994 do not reflect
official Agency positions on any of the proposed regulatory schemes presented. None of the regulatory
options have been presented to the public as part of a proposed rule because various members of the
public could not reach consensus. It is unreasonable for the commenters to utilize the Taskforce report
as a means of rebutting the Agency's current positons taken in todays rule, because the Taskforce report
only reflects discussions held among a large group of interested parties. Todays rule only affects mineral
processing wastes, while the Taskforce evaluated a range of regualtory option which would have affected
all industries subject to RCRA jurisdiction. The Agency therefore is not bound to findings in the
Taskforce report.
2.1.2 Similarity to Proposal on Oil Bearing Secondary Materials
Generated by and Recycled Within the Petroleum Industry
Comment: One commenter disagreed with the Agency's position that the storage of secondary
materials in the mineral processing industry is comparable to that in the petroleum industry. However,
the commenter argued that the same conceptual approach (i.e., that recycling should not be
inappropriately reduced) could be applied in both cases, and that both industries should be permitted to
reinsert secondary materials into multiple-step processes. The commenter recommended that the May 12
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proposal be revised to ensure that the importance of land-based storage in the mineral processing
industry is recognized and that recovery of secondary materials be allowed to occur without regulatory
approaches designed for the oil industry (COMM1048).
Response: The Agency disagrees with the commenter regarding use of land-based storage. The
Agency recognizes that there has been a tradition of land-storage in the mineral processing industry, it
believes that mineral processing secondary materials are generated in volumes small enough that land-
storage is not necessary for storage of secondary materials. The Agency notes that prohibition of land
storage is not without precedent. As the commenter noted, in rulemaking to regulate used oil (among
others), the Agency conditioned exclusion on no land-management. The Agency cited this rulemaking,
not because used oil is like mineral processing secondary materials, but because the rule set a precedent
for today's ruling with regard to secondary materials. Prohibition of land-storage of mineral processing
secondary materials is amply justified by threats posed by those materials when stored on land, and, even
more basically, on the potential for release when uncontrolled piles and impoudments are used to store
hazardous secondary materials..
Comment: One commenter requested that the Agency clarify that the proposed rulemaking will
not affect existing RCRA exemptions for oil and natural gas hazardous waste (COMM1096).
Response: The rule will not affect the existing 40 CFR §261.4 exemptions for wastes from the
exploration and production of oil and gas.
2.1.3 Actual and Potential Damages to Human Health and the
Environment
Comment: One commenter asserted that some mining and mineral processing wastes that are
currently exempt from regulation under the Bevill amendment cause environmental damages and
threaten human health. The commenter cites several Superfund sites in mining areas in Colorado that
contain elevated levels of contaminants. The commenter asks the Agency to consider cyanide, asbestos,
and radioactive minerals from mines as hazardous wastes without an exemption. (COMM1071)
Response: The Agency appreciates the commenter's concern regarding Bevill except wastes
and agrees that Bevill exempt mining and mineral processing wastes can cause environmental damage.
The commenter's request, however, is beyond the scope of this rulemaking. Today's rule addresses only
mineral processing wastes not excluded under the Bevill Amendment. The Agency notes that cyanide
(along with secondary materials containing metal, water, acids or other values) may be recycled by
primary mineral processors if returned immediately to the process or stored in compliance with the
conditional exclusion promulgated today. The Agency believes that today's rule will provide adequate
protection of human health and the environment. The Agency concludes that asbestos and radioactive
wastes are unlikely to meet the conditional exclusion and be recycled. These wastes (asbestos and
radioactive minerals) are likely to be disposed under TSCA and under the NRC rule.
Comment: Seven commenters argued that the damage case evidence in the background
documents to the proposed rule does not provide sufficient technical data to support the Agency's
proposed regulations on land-based storage (COMM1029, COMM1041, COMM1043, COMM1048,
COMM1054, COMM1090, COMM1094.) Specifically, one commenter stated that the background
document does not support the Agency's conclusions regarding environmental impacts from land storage
of mineral processing secondary materials. (COMM1048)
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Four commenters asserted that the damage cases cited by the Agency are arbitrary and lack
relevance to land storage of secondary materials prior to recycling. (COMM1043, COMM1048,
COMM1054, COMM1094) One commenter stated that adequate evaluation of damages described in
the cases is not possible without comparison to studies of raw material and feedstock cases. Without
comparing feedstock releases to raw material releases, the Agency cannot conclude that releases from
stored feedstock pose a greater risk than releases from stored virgin material. (COMM1094) One
commenter argued that it is unclear whether the comments on releases that Agency refers to in the
preamble to the proposed rule (62 FR 20649) are based on actual events or on speculation regarding the
potential for release. (COMM1043)
One commenter, referring to an outside analysis of the damage case document that it
commissioned, believed that the damage case record does not support EPA's conclusions that regulation
of Bevill-exempt wastes under RCRA Subtitle C would prevent environmental damage, that the damages
are a result of current practices, or that RCRA regulation is necessary in addition to other federal and
state programs that currently regulate such practices. The report concluded that the Damage Cases
document does not demonstrate that the damage incidents cited by EPA are the result of land storage of
mineral processing secondary materials awaiting recycling, and that would be subjected to the regulatory
option proposed by EPA, or that land storage of such mineral processing secondary materials awaiting
recycling "increase[s] the potential for groundwater contamination, contaminated runoff, windblown
dust, and soil contamination and increases the cost of cleanup." The commenter further argued that the
Agency must consider certain elements including type of material, leachability, duration of storage on
land, location and climate of the facility, and geographic features of the area prior to concluding that land
storage presents actual risks to the environment or human health. The commenter also stated that all
land-based storage units do not "inherently pose risks to human health and the environment."
(COMM1048)
One commenter argued that only two cases presented in the report contain any evidence that
storage piles can pose actual or potential hazards to human health or the environment, and concluded that
such limited evidence is insufficient to support the Agency's proposal to regulate secondary materials
stored on land. The commenter stated that the data presented in the report do not link environmental
damage to storage of these materials, and that the secondary materials discussed in the cases were not
shown to be hazardous. The commenter specifically noted that nearly half of situations discussed in the
Damage Report involve violations of existing NPDES permits, and only a few cases which related to on-
site mineral processing and secondary materials potentially involved damages. (COMM1043)
Four commenters indicated that, due to the flawed methodology of the Agency, only two of the
damage cases presented in the background document involve releases from secondary materials stored
on land. (COMM1043, COMM1048, COMM1054, COMM1090) One commenter added that it is
unclear whether any of the cases relate to the use of alternative feedstocks (COMM1090). The
commenters also believed that the case summaries contain inaccurate information. According to two
commenters, the Agency incorrectly characterized process waste waters as secondary materials in some
cases. (COMM1043, COMM1054)
One commenter argued that the damage cases, and therefore the Agency's proposed ban on land
placement, are not based on real or potential releases. The commenter noted that the method it currently
uses at its facility to store small volumes of smelter furnace brick could be considered land placement
under the proposal, although the storage unit is structured to prevent releases. The secondary material is
managed inside a building and under a roof, but the crane aisle has an earthen floor to capture spillage of
molten metal. The commenter believes that a requirement to store this material in a separate
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containment building would be a waste of resources and that the proposed ban on land placement of
small volume secondary materials precludes any assessment of whether a release of such materials has
occurred or its actual environmental significance. (COMM1043)
One commenter objected to the Agency's use of minimal data from one case (Louisiana-Pacific
v. ASARCO) as the basis for determining that land placement leads to environmental damage, stating
that the facts of this case do not apply to the entire industry. (COMM1054)
One commenter indicated that the Damage Cases Report does not provide data to support the
Agency's conclusion that flue dusts are stored for extended periods of time and have contributed to
environmental problems. The commenter suggests that addressing problems of speculative accumulation
would be more appropriate than prohibiting short-term land placement of secondary materials.
(COMM1043)
Three commenters raised specific issues regarding the Agency's use of environmental release
cases at their facilities (COMM1043, COMM 1.041, COMM1054). One of the commenters claimed the
Agency ignored factual information, relied too heavily on historic practices that contributed to much of
the contamination, and did not account for the impact of state regulations on management practices when
presenting a case. The commenter also noted that many of the damage cases the Agency cites in its
proposal do not deal with secondary materials awaiting recycling or current practices. (COMM 1054)
Another commenter argued that the damage cases addressing the company's facilities that are
presented in the background document do not link environmental damage to the land storage of
secondary materials, and therefore, do not support the Agency's reasoning in the proposed rule. The
commenter stated that many of the alleged damage incidents were a result of mechanical problems or
other causes related to production processes and in-process materials not subject to EPA jurisdiction.
The commenter also stated that the incidents did not involve recyclable secondary materials stored on
land. The commenter further noted that the alleged damage incidents generally were a result of historical
practices, were adequately addressed under existing Federal or state programs, and presented no real
threat or damage to human health or the environment. (COMM 1041)
Response: The Agency disagrees that the damage case evidence does not support the Agency's
prohibition on land-based storage. The damage case evidence shows that land-based storage of mineral
processing wastes and secondary materials can create or exacerbate soil and groundwater contamination.
In addition, as explained in more detail in the preface to the damage incidents and in other comment
responses (see Ch. 5), damage incidents involving releases from mining/beneficiation wastes in piles and
impoundments also support the rule. This evidence is based on actual events and not speculation
regarding the potential for release. After careful reevaluation of the nature of the damages and
environmental releases described in the documents, the Agency finds that the storage on the ground of
secondary mineral processing materials continues as a management practice and has caused
environmental damage and has the potential to cause such damage. Based on the information contained
in the "Human Health and Environmental Damages from Mining and Mineral Processing Wastes "
(EPA, 1995) and "Damages and Environmental Releases from Mines and Mineral Processing Sites "
(EPA, 1997) reports, along with other supporting documents contained in the rulemaking docket, EPA
has imposed a no land placement storage condition for secondary mineral processing materials (except
on state-approved pads).
The Agency also disagrees that adequate evaluation of damage cases requires the comparison of
releases from feedstock and raw materials. In fact, the Agency is only relying on those incidents, to
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illustrate the types and extent of mineral processing wastes which may enter the environment. However,
incidents from uncontrolled piles and impoundments are particularly germane. The damage cases are
used to determine if there is evidence to support the Agency's hypothesis that land storage of hazardous
secondary materials may pose a threat to human health and the environment. The Agency believes there
is no added value in comparing raw material and feedstock releases.
The Agency acknowledges that the risks associated with land based storage of secondary
materials depend on the type of material, and climate, geographic, and geologic features of the site, as
well as other factors. However, the Agency disagrees that land-based storage units do not pose risks to
human health and the environment; the Agency believes that land-based storage of secondary materials
contributes to environmental damage and has presented evidence of these impacts. By their nature, land-
based storage units do not inhibit the migration of contaminants through the soil to groundwater or
minimize fugitive dust emissions. These are releases which can and have occurred throughout this
industry sector. Today's final rulemaking prohibits all land-based storage of secondary materials (except
on state- or EPA-approved pads) unless the land-based storage units meet RCRA Subtitle C requirements
for hazardous waste storage units. To be approved, pads must be: (1) designed of non-earthen materials
which are compatible with the chemical nature of the mineral processing secondary material being
stored; (2) capable of withstanding physical stresses associated with placement and removal; (3)
designed and operated with run-on/run-off controls; (4) operated in a manner which controls fugitive
dust; and (5) inspected and maintained by owners/operators to ensure the continued integrity of the pads.
The Agency's approach in this rulemaking seeks to encourage legitimate recycling without the
land-based storage of secondary materials. However, the Agency understands that buildings containing
smelting operations often have earthen floors. As long as secondary materials are stored in those
sections of a smelter or refinery building that have floors constructed of man-made materials, these
structures would qualify for the exclusion as non-RCRA buildings.
It should be noted that today's rule is establishing a condition that mineral processing secondary
materials may not be speculatively accumulated. The Agency believes that these materials can be
recycled within the time limits imposed by current speculative accumulation regulations.
The Agency appreciates the information that the damage case summaries may have contained
inaccurate or incomplete information and has attempted to correct such deficiencies based upon
information submitted in public comment. The Agency has determined, however, that any remaining
inadequacies in the background documents do not undermine its general conclusion regarding these
materials. The Agency's response to potential inaccuracies in the damage case summaries identified by
the commenter are contained elsewhere in this document. Finally, the Agency notes that today's rule
does not affect the status of Bevill exempt wastes.
2.1.4 EPA's Jurisdiction over Secondary Materials
Comment: The commenter supported the Agency's view that copper reverts are exempt from
itCRA jurisdiction. The commenter also noted that the final rule should explicitly state this exemption.
(COMM1041)
Response: Today's preamble to the final rule notes that molten metal spilled and returned to the
smelter is not a solid waste.
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Comment: Fifteen commenters believed that EPA is going beyond its statutory authority over
secondary materials in the proposed rule. These commenters stated that the Agency does not have
RCRA authority to regulate process units or in-process secondary materials that are not solid waste.
Further, some of the commenters argued that other authorities already adequately control these materials.
(COMM1016, COMM1019, COMM1029, COMM 103 8, COMM1041, COMM1043, COMM1048,
COMM1054, COMM1082, COMM1085, COMM1088, COMM1089, COMM1090, COMM1094,
COMM1104) Four commenters asserted that the Agency misinterprets the intent of Congress and RCRA
by applying its provisions to materials that are part of the legitimate production process, and are not
hazardous wastes. The commenters believe that RCRA is designed to reduce or eliminate the generation
of hazardous waste, not to control all releases of materials into the environment. (COMM1043,
COMM1048, COMM1088, COMM1089) Another commenter believed that EPA's regulatory authority
to regulate hazardous waste management does not apply to restrictions on the land placement of
secondary materials which are subsequently re-introduced into the mineral recovery process.
(COMM1043) Three commenters asserted that EPA cannot presume that any land management of
secondary materials indicates an intent to dispose. (COMM1041, COMM1048, COMM1094) One of
these commenters argued that the Agency must articulate the land management practices that clearly
indicate such an intent. (COMM1094) Another commenter added that the values of minerals contained
in these secondary materials can be quite significant and are not being disposed; therefore, the materials
cannot be considered a waste. (COMM1082) One commenter argued that the rule as proposed would
inappropriately extend EPA's jurisdiction to leaching operations involving storage units for "in process"
materials. (COMM1043)
Two commenters asserted that the Agency is unfair in singling out the mining and mineral
processing industry for this regulation because reclamation and recycling are a historic part of the normal
production processes of the industry. (COMM1085, COMM1089) Two commenters argued that the
proposed conditional exclusion fails to recognize the nature of the mining and primary minerals
processing industry which requires use of in-process, intermediate materials and co-products as feed
materials. According to the commenters, placement of these materials in land-based production units
does not make these materials wastes and thus regulation of these materials does not fall under EPA's
RCRA authority. (COMM1041, COMM1048) One of these commenters stated that prohibition of land
storage and new management requirements intrudes into industry's normal production processes and thus
exceeds the Agency's RCRA jurisdiction. (COMM1048)
One commenter from the lead industry believed that this proposal would improperly redefine an
industrial facility as a waste management facility. The commenter stated that blast furnace slag is
intended to be exempt under the Bevill amendment and attempts to regulate these units goes beyond the
Agency' s RCRA authority. (COMM1019)
One commenter also stated that the Agency does not have the authority to regulate many of the
tanks, containers, and buildings used in the industry and thus cannot impose regulations or conditions on
storage in these units. The commenter believed that the units that EPA has proposed to "conditionally
exclude" from regulation are used to manage in-process primary or secondary materials, an area where
EPA simply lacks regulatory authority. (COMM 1088)
Three commenters specifically opposed the proposed "conditional exclusion" for sludges and by-
products on the basis that clear definitions for certain terms have not been established. (COMM 1085,
COMM 1089, COMM 1094) Two of the commenters indicated that the Agency fails to distinguish
between discarded material that is a solid waste under RCRA and intermediates, co-products, and other
in-process materials that are part of the production process, are not discarded, and thus are not solid
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wastes. (COMM1089, COMM1094) One of the commenters disagreed with EPA's assertion that new
data on land-based storage and volumes of materials generated justify the proposed restrictions, and
stated that this new information is not adequate for the Agency to make regulatory determinations as to
which waste streams are subject to restrictions and which are in-process streams and therefore exempt.
The commenter also believed that the Agency fails to explain how management of secondary materials
on land is evidence of an intent to dispose. Specifically, the commenter indicated that management of
secondary materials that leads to groundwater contamination does not in itself lead to the conclusion that
the material is a waste. The commenter recommended that the Agency substitute the term "solid waste"
for "secondary material" in the proposed rule language and continue to progress on regulatory
redefinition of "solid waste," "secondary materials," and "by-product." (COMM1094)
One commenter argued that the Agency does not provide sufficient factual evidence for using the
"performance standard" or the "technical standard" for distinguishing between materials that fall under
the conditional exclusion from RCRA regulation. The commenter also noted that the use of these
standards does not provide sufficient evidence of whether a certain material is associated with a waste
stream or a production stream because the standards do not distinguish between how these two streams
are managed. (COMM1094)
Six commenters cite the Federal case law regarding EPA's jurisdiction over secondary materials
in opposing the Agency's position. These commenters believe that the Agency's proposal goes against
the findings ofAMC I and affirmed in American Petroleum Institute v. EPA with regard to defining
"discarded" materials which are solid wastes under RCRA and thus fall under EPA's jurisdiction. The
commenters argue that the case law establishes that materials destined for reuse or recycling, which may
be stored in piles, are not under EPA's jurisdiction for solid wastes. In addition, in-process recycling
does not fall under its RCRA authority because materials must be discarded before EPA may assert such
jurisdiction. (COMM1016, COMM1041, COMM1048, COMM 1054, COMM 1089, COMM1094) One
of these commenters also believed that the Agency wrongly claims that other cases, such as Chemical
Waste Management, Inc. v. EPA, Shell Oil v. EPA, and United States v. ILCO, Inc., and Owen Electric
Steel Co. v. Browner limit the scope ofAMC I. The commenter believes that these cases are irrelevant or
do not provide further clarification on EPA's jurisdiction of solid waste. (COMM1048) One commenter
states that recycled materials that are not stored on land should be excluded from the definition of solid
waste, because no discard is taking place. (COMM 1054)
Two commenters added that the AMCII case supports the previous court rulings and does not
narrow the scope of EPA's authority over in-process, intermediate, and secondary materials that are part
of normal processing operations. (COMM 1048, COMM 1016). Another commenter asserted that the
Agency is going beyond its authority as established in the AMC II decision concerning wastewater
sludges. (COMM1094)
Six commenters argued that other Federal or state authorities sufficiently address management of
mineral processing materials. These commenters noted that state programs in Arizona and New Mexico,
in addition to the Federal Clean Water Act, adequately address environmental problems associated with
secondary materials management. (COMM 1008, COMM 1029, COMM 1041, COMM 1048,
COMM1089, COMM1090, COMM1094)
One commenter suggested that the Agency develop voluntary guidelines for the management of
in-process hazardous primary or secondary materials that are not solid wastes in cooperation with
industry. (COMM1088)
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Response: The Agency disagrees with commenters that it is exceeding its statutory authority
over secondary materials which are stored prior to recycling. The issue is discussed in detail in the
preamble to the final rule. In brief, however, in AMC II (American Mining Congress v. EPA, 907 F.2d
1179, 1186 (D.C. Cir. 1990)) the Court found that the only absolute bar to the Agency's authority was for
"materials that are destined for immediate reuse in another phase of the industry's ongoing production
process and that have not yet become part of the waste disposal problem." The Court's decision in AMC
II, therefore, provides the Agency jurisdiction over secondary materials that are destined for recycling
and that are not immediately reused, because land placement of these materials can contribute to the
waste disposal problem through releases to soil, air, groundwater, and surface water. Consequently, the
Agency concludes that placement of secondary materials on the land prior to reuse is a form of discard;
no specific intent to dispose is necessary. (Indeed, in AMC II. 100 % of the sludges stored in the surface
impoundment were recycled in the process which generated them, and yet those materials were held to
be discarded. 907 F. 2d at 1186-87.) . Today's final rulemaking prohibits all land-based storage of
secondary materials (except state-approved pads) unless the land-based storage units meet RCRA
Subtitle C requirements for hazardous waste storage units.
The Agency disagrees with the commenter's assertion that EPA does not have jurisdiction over
storage. The Agency believes, and the courts have agreed (see AMC II) that materials stored in land-
based units can be viewed "as part of the hazardous waste disposal problem," and thus can be considered
to be "discarded." To address this issue, the Agency developed an option that would specifically define
when discard is occurring, and is today finalizing this definition. At the same time, EPA is not asserting
authority over actual process units, even if they are land-based. However, EPA's data suggest that land-
based "processing" is a rare practice, being limited to heap leaching and dump leaching in the primary
copper and gold industries, respectively.
The Agency also disagrees with the contention that it does not have jurisdiction over tanks,
containers, and buildings storing hazardous secondary materials which are to be recycled within the
industry, regardless of the construction of such units. The final rule essentially disclaims authority, but
does condition on the exclusion on these units being designed in such a manner as to prevent wholesale
releases from the units, i.e. to prevent tanks/containers/buildings from functioning as disposal units
because they cannot retain their contents.. The Agency has authority based on managing secondary
materials that are not continuously processed in a manner which will not damage the environment. The
Agency defines a building as a structure with four walls, a floor made of non-earthen materials, and a
roof. The Agency does not believe that establishing these minimal conditions exceeds its regulatory
authority.
The Agency appreciates the commenter's concerns that today's rule is unfair in singling out the
mining and mineral processing industry. However, the Agency disagrees with this characterization.
Other industries' wastes are and have been subject to full Subtitle C requirements since their inception,
without the benefit of the Mining Waste Exclusion or the conditional exclusion promulgated in today's
final rule.
The Agency acknowledges that reclamation and recycling are part of the normal operations of
the mineral processing industry. The Agency's approach in this rulemaking seeks to encourage
legitimate recycling without the land-based storage of secondary materials. The Agency believes that
many secondary materials are currently being stored off the land and that today's rule prohibiting all land
storage (except for the use of approved pads) will further stimulate legitimate, "properly conducted"
(RCRA section 1003 (a)(6)) recycling.
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The Agency disagrees with the commenter that today's rule will redefine an industrial facility as
a waste management facility. The scope of today's rule only covers newly identified mineral processing
wastes. Materials, such as slag, that are Bevill excluded wastes, are not covered under today's rule.
To reduce confusion over the definitions of by-products, sludges, and spent materials, the
Agency is eliminating these regulatory definitions for mineral processing secondary materials as they do
not serve a practical regulatory function. Today's rule clarifies the distinction of which materials are
considered in process and which materials are considered discarded. Materials that are not immediately
reused or that do not meet today's conditional exclusion are considered discarded.
The Agency has eliminated the use of "performance standards" and "technical standards" and is
focusing on how materials are stored to determine whether they contribute to the waste disposal problem.
The Agency believes that the elements of the conditional exclusion are straight forward and will reduce
confusion over which secondary materials qualify for the exclusion.
The Agency agrees with the commenter that secondary materials that are recycled and not land
stored are not solid wastes as long as they are legitimately recycled (provided they are not stored in units
which are essentially sieves, as explained above).
The Agency disagrees with the commenter that other federal or state authorities adequately
address environmental problems associated with the management of secondary materials. Today's rule
is based on the premise that land storage of secondary materials creates or exacerbates environmental
problems; this premise is based on evidence of such problems. To eliminate this source of potential
future environmental damage, the Agency believes that it must set a national standard for land storage of
secondary materials.
Finally, the Agency disagrees with the commenter regarding the development of voluntary
guidelines for the management of secondary materials in cooperation with industry. The Agency
believes that voluntary guidelines would be insufficient to protect human health or the environment.
2.1.5 Production-Related Necessity for Land-Based Units
Comment: Two commenters disagreed with the Agency's statement that land-based storage
may not be an integral part of the mineral processing industry (COMM1038, COMM1048). One of these
commenters cites previous regulatory determinations that indicate that Bevill-excluded wastes are
managed in large volumes and that land-based storage is an integral practice for the industry.
(COMM1038) Another commenter specifically disagreed with the Agency's belief that the essential
purpose of land-based units is not production related. The commenter also argued that the Agency fails
to understand the importance of land-based storage of secondary materials in the mineral processing
industry due to the volumes and types of materials used for processing. The commenter indicated that
the Agency's belief that this type of management can be replaced has not been demonstrated in the
record, and that loss of land-based storage options could result in a reduction of materials recovery and
reuse. The commenter also indicated that this belief contradicts the Agency's own Task Force Report
which concluded that reverts, molten slag, and refractory bricks are primary processing materials that are
put back through the process and are valuable because of their metal concentrations, but which "may
require the interim step of being placed on the land for short periods of time before reintroduction into
the processing operations ..." In addition, the commenter argued that the Agency's position is not
supported by substantive sources or data in the proposed rule. The commenter added that if the Agency
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were correct in its statements regarding the rarity of land-based storage, then little need would exist for a
rule regulating non land-based storage. (COMM1048)
One commenter argued that secondary materials that are further legitimately processed within
the industry in a land-based unit functioning as a process unit (including impoundments which function
to cool, clarify, or separate solids from the stream before further use) and meeting appropriate
performance or design and construction standards should be excluded from the definition of solid waste.
(COMM1037)
One commenter argued that the proposed land storage prohibition would have a significant
adverse impact on its facility's recycling operations, and would discourage recycling and limit current
recycling practices in the mining and mineral processing industry as a whole. The commenter stated that
in economically beneficial metals recovery practices, on-land storage of material is occasionally
necessary. For example, a facility's smelter includes a pneumatic conveying system that, when working
as designed, allows mineral-rich boiler and ESP dusts to be re-introduced directly into the flash smelting
and flash converting furnaces without any additional handling. This dust contains significant amounts
of valuable precious metals, but the dust must be stored before being recycled. The commenter believes
that such recycling is beneficial and should be supported by the Agency because it decreases the amount
of virgin ore extraction that needs to occur as well as material that will be disposed of as waste.
(COMM1054)
One commenter argued that the Agency's premise that land-disposal is less common than
previously believed invalidates the use of an arbitrary volumetric threshold for the proposed conditional
exclusion. (COMM1048)
Response: The Agency does not believe that land-based storage is necessary for secondary
materials. Many secondary materials are already stored off the land, and the Agency finds no practical
reason these materials can not be stored off the land. Most pertinently, other industries generate larger
volumes of hazardous secondary materials but do not need to store them on the land. At least one of
these materials, electric arc furnace dust, is largely recycled as well. The Agency has determined, based
on comments and additional research, that secondary materials are generated in volumes small enough
that non-land based storage is possible (Non-RCRA Tanks, Containers, and Buildings, EPA, 1997). The
Agency realizes that land storage of raw materials is still used in the mineral processing industry, but
believes land storage of wastes (viz. Secondary materials) is not necessary and that the industry is
already moving in the direction of storage in tanks, containers, and buildings. Therefore, today's rule
conditions exclusion from the definition of solid waste on storage in non-land based units (i.e., tanks,
containers, buildings or in limited cases, approved pads). Surface impoundments are not eligible for a
conditional exclusion from the definition of solid waste because they are considered to be waste disposal
units. Finally, no commenters submitted data that suggest that the Agency's conclusions are unfounded.
One commenter raised the issue of the Agency's Task Force Report concluding that reverts and
molten slag, which may require short term storage on the land prior to reintroduction into processing
operations, are primary processing materials. The Agency notes that the Solid Waste Definition Task
Force did not complete its work and that the recommendations of the Task Force are considered by the
Agency to be non-binding. See separate memo to the administrative record. Also, the report urged
banning of land-based storage. See report at (iv).
The Agency concludes that molten metal spilled onto smelter floors is not a solid waste if it is
picked up and is placed back into the smelting process. It is not a sludge, spent material, or by-product
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but remains in-process. Iron and steel, copper, lead, zinc, and elemental phosphorus slag are Bevill
exempt wastes not affected by this rule (see 40 CFR 261.4). Heap and dump leach piles are classified as
extraction/beneficiation activities and their regulatory status is not affected in this rule.
The Agency disagrees with the commenter that the prohibition of land storage will discourage
recycling. The Agency has found that many secondary materials are currently stored in tanks,
containers, and buildings (and on approved pads) and has found no practical reason why all secondary
material could not be stored off the land. A benefit of this proposed rule is the encouragement of safe
recycling of mineral processing secondary materials without land based storage.
The Agency has eliminated the use of a volumetric threshold as an element of the conditional
exclusion as part of today's rule. Consequently, the Agency is not finalizing that portion of the proposal.
2.2. Criteria for High Volumes of Bevill-Exempt Mining and Mineral
Processing Wastes
2.2.1 Exemption for Large Volume Secondary Materials
Comment: Seven commenters took issue with the Agency's proposed volumetric limits on land
storage of secondary materials (COMM1039, COMM1043, COMM1048, COMM1052, COMM1054,
COMM1088, COMM1094).
The first commenter objected to the Agency's classification of materials stored on land as being
"solid wastes" and noted that the Agency recognizes some practices that allow land storage of materials.
The commenter argued that the Agency should not automatically presume that land storage is equivalent
to the material being "solid waste." Moreover, land placement should not be the only consideration the
Agency uses to determine if a material is "solid waste" because some land storage may be quite
appropriate (e.g., "storage of materials on a concrete pad, with secure sides, a plastic covering, and
runoff controls") to protect human health and the environment and also may be necessary to handle the
materials. The Agency should reconsider use of the volume requirements; the original volume numbers
selected were to identify which waste streams were large enough to be considered unmanageable under
RCRA Subtitle C, not which waste streams can be managed in tanks, containers, or buildings. The
commenter asserted that such application of the volumetric requirements is evidence of the Agency's
desire to prohibit all land storage, but the Agency does not explain why such a management shift is
necessary (COMM 1039).
The second commenter asserted the proposed Agency's requirements were "arbitrary and
capricious" and "unreasonable and not rooted in fact or in science," arguing that a material's volume has
no bearing on its being a "waste." For example, material with recoverable constituents generated in large
volumes would become a waste under the Agency's volumetric requirements, even though the "rate of
generation of these materials does not necessarily affect their release to the environment or the risk they
pose to human health and the environment." Furthermore, the Agency's requirements would prevent
implementation of State programs (e.g., Arizona Aquifer Protection Permit program's regulation of
furnace bricks). The proposed requirements to ban land placement of recyclable secondary materials
will face several obstacles: any volume requirement number chosen by the Agency will necessarily be
arbitrary and therefore insupportable; will not represent "potential for impacts on human health and the
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environment;" and will prevent local officials from being able to act on their site-specific knowledge.
Finally, the commenter asserted it could not adequately comment on the proposal because it is not clear
about which options the Agency is proposing (COMM1043).
Another commenter also claimed the Agency's requirements are "arbitrary and unreasonable."
The Agency should justify why these particular volumetric cut-offs are appropriate to limit land-based
storage of secondary materials. Rather than simply referring to its prior discussions, the Agency should
state why such requirements are appropriate to apply to all types of materials and storage units. Even if
it is assumed the Agency has jurisdiction over the materials, the Agency needs, at a minimum, to
determine the amenability of each type of material to Subtitle C management and "not impose a blanket
prohibition based on volume" (COMM1048).
The remaining commenters did not see a connection between the volumetric requirements and
the Agency's distinction between "solid waste" and "in-process materials" (COMM1052, COMM1054,
COMM1088, COMM1094). They believed that Congress intended the high volume criterion only to be
applied to "solid wastes" and not to be used as a threshold between "in-process materials" and "solid
waste" (COMM1052, COMM1088). One commenter suggested that the volumetric requirements seem
counter-intuitive because the larger the quantities of generated materials, the greater the likelihood of
imposing greater environmental costs (COMM1054). Furthermore, commenters argued that these
requirements ignore the "technical and economic feasibility" of such volumetric requirements
(COMM1094) and penalize those producers seeking to minimize their waste streams (COMM1054).
Response: The Agency disagrees with the commenter's concerns with disallowing land storage
of mineral processing secondary materials. First, today's final rule no longer includes high volume
exemptions for mineral processing secondary materials. The Agency agrees with the commenters that
determining an appropriate threshold is necessarily somewhat arbitrary and difficult to enforce. There is
no high volume exemption for secondary materials in the final rule and these materials must be
contained in tanks, containers, or buildings (or in limited cases, on approved pads) in order to be
excluded from the definition of solid waste. The Agency believes this national standard in the final rule
is both straightforward and fair to the regulated community.
Second, the environmental impacts of rising large volumes of mineral processing secondary
materials are expected to be minimal under the unal rule. The requirement to manage secondary
materials in tanks, containers, or buildings (or on approved pads), unless the secondary material is
immediately reused in the production process, largely removes these materials from storage on the
ground and reduces the opportunities for damages to human health and the environment.
Today's rule prohibits land storage (except on approved pads) because the Agency finds that
land-based storage and management practices of mineral processing secondary materials and wastes can
create or exacerbate soil and groundwater contamination. The Agency issued two separate reports
(Human Health and Environmental Damages from Mining and Mineral Processing Wastes (1995), and
Damage Cases and Environmental Releases (1997)), which presented information on damage cases and
environmental releases of mineral processing and mining wastes. The Agency finds that these reports
clearly indicate that the land-based storage of mineral processing secondary materials continues as a
management practice and has caused environmental damage or has the potential to do so. These reports
identify cases where mineral processing secondary materials were eroded by rain, were carried by wind,
or, in the case of surface impoundments, migrated to contaminate groundwater. The vast majority of
newly identified mineral processing wastes are liquids and their placement in impoundments presents a
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real or potential threat to the environment. The Agency concludes that placement of mineral processing
secondary materials in impoundments may contribute to the waste management problem.
Finally, the Agency is not mandating that all mineral processing secondary materials always be
managed in tanks, containers, or buildings. In certain cases, the Agency is allowing owner/operators to
construct and use "pads," if the provisions of 40 CFR 261.4(a)(15) are met and the owner/operator
receives approval from the regional EPA administrator or an authorized state representative. The
Agency is confident that site-specific determinations can be accomplished as part of existing State
RCRA or other state mining waste regulatory programs. To be approved, pads must be: (1) designed of
non-earthen materials which are compatible with the chemical nature of the mineral processing
secondary material being stored; (2) capable of withstanding physical stresses associated with placement
and removal; (3) designed and operated with run-on/run-off controls; (4) operated in a manner which
controls fugitive dust; and (5) inspected and maintained by owners/operators to ensure the continued
integrity of the pads. The Agency will review a State's regulatory authorities to assure that an authorized
state can effectively implement this element of the rule.
Comment: Four commenters supported an exception for large volume secondary materials but
were concerned either that the Agency's proposed volume cutoff was too high or that the requirements
were too strict (COMM1039, COMM1055, COMM1056, COMM1089). Two commenters (counsel and
consultant to the same company) expressed their belief that, as proposed, the volumetric cutoff is too
high (COMM1055, COMM1056). One of the commenters reported that its client would have difficulty
containing its secondary material in tanks, containers, or buildings due to the low material bulk density
(COMM1055). The other commenter argued that the proposed cut-off does not consider site-specific
attributes that may affect the level at which waste management requirements, hazardous or otherwise,
would become burdensome. In particular, older facilities may have trouble retrofitting existing storage
units to meet the proposed requirements for tanks, containers, or buildings. Furthermore, setting such
"arbitrary" levels may discourage recycling efforts. The commenter further believed that allowing an
exclusion from the definition of solid waste conditioned upon storage on concrete pads prior to recycling
would adequately protect human health and the environment (COMM1056).
Two other commenters said that conditions for storing secondary materials in piles or surface
impoundments were too stringent (COMM1039, COMM1089). One of these commenters argued that
the Agency was too stringent in determining which types of piles and surface impoundments, even those
without liquids, were "process units." In addition, the commenter was concerned with use of the term
"corrective action" because it implies RCRA regulation, even though the materials that leaked are not
hazardous wastes. While the commenter agreed with the Agency's decision to allow site-specific
determinations as certification of compliance, it proposed that those sites already complying with
existing State groundwater regulations be considered to have met the Agency's site-specific alternative.
The commenter asserted that this would be sufficient to protect groundwater and surface water. It
believed the proposed air quality component to be unnecessary and unsupported by the Agency in its
proposal (COMM1089).
The other commenter was interested in how the Agency intended to determine compliance for
those materials stored in land-based units "whose discharge is either regulated under the CWA or has
been eliminated." The commenter acknowledged that these materials "can be considered discarded, and
therefore classified as solid wastes, in some situations" but stated this does not mean the materials are
always solid wastes. The commenter asserted the Agency provided no justification in "concluding that
characteristic wastewater treatment sludges ... should be classified as wastes, when they are managed in
such impoundments prior to reclamation." Although the Agency has not determined explicitly that all
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such materials (i.e., recyclable wastewater treatment sludges) managed in surface impoundment units
comprise "solid wastes," the commenter argued that the Agency is effectively proposing to do so with its
new proposal (COMM1039).
Response: The Agency believes that the storage of mineral processing secondary materials on
the ground contributes to soil and water contamination and continues to be part of the waste disposal
problem. Today's final rule eliminates the high-volume cutoff and establishes a clear principle that
exclusion from the definition of solid waste is conditioned on the absence of land storage. The Agency is
taking this action because it reevaluated waste volumes and determined that mineral processing wastes
are generated at volumes amenable to storage off the ground (Non-RCRA Tanks, Containers, and
Buildings, EPA, 1997). A pad may be used under certain circumstances if a facility obtains a
determination from the EPA Regional Administrator or the authorized state representative that the pad is
not serving as a mode of discard and that it has been constructed in accordance with specified design
requirements (i.e., the provisions of 40 CFR 261.4(a)(15)(b)).
To be approved, pads must be: (1) designed of non-earthen materials which are compatible with
the chemical nature of the mineral processing secondary material being stored; (2) capable of
withstanding physical stresses associated with placement and removal; (3) designed and operated with
run-on/run-off controls; (4) operated in a manner which controls fugitive dust; and (5) inspected and
maintained by owners/operators to ensure the continued integrity of the pads. The Agency believes that
these criteria including the fugitive dust control requirement, allow for adequate protection of human
health and the environment without interfering excessively with recycling activities.
Today's rule also states that wastewater treatment impoundments do not qualify for the
conditional exclusion because these units operate as waste disposal units. (Of course, no impoundments
qualify, for similar reasons). The Agency continues to believe that the storage on the ground of mineral
processing secondary materials continues as a facility management practice and has caused
environmental damage or has the potential to cause such damage. The Agency believes that the damage
case document helps to illustrate the human health and environmental damages caused by management
of wastes from extraction and beneficiation) and mineral processing, in land-based units.
Comment: Two commenters discussed how the volumetric restrictions would affect recycling
and waste minimization efforts by the Agency. Both believed that the Agency's restrictions would
provide disincentives to recycling and Waste reduction. (COMM1012, COMM1069)
Response: The Agency is not adopting a volumetric restriction in today's rule. Based on
reevalaution of generation data, mineral processing wastes are found to be generated at volumes lower
than earlier anticipated.
Comment: Two commenters addressed the Agency's material management concepts
(COMM1016, COMM1043). One commenter said the Agency should determine whether the volume of
secondary materials is at all related to the potential damages the material might cause if stored on land.
This commenter noted that the Agency seemed to be saying in its requirements that large volume
materials cannot be held to the same standard applied to smaller volume materials (COMM1043).
The other commenter asserted that the Agency is improperly applying the concept of "contingent
management" to determine, based on how a material is stored, whether a material is waste or in-process
material. The commenter argued that storage conditions simply indicate whether a material is properly
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managed. A determination that a material is solid waste needs to be based on concepts of what a waste
is, not on the impacts of potential mismanagement (COMM1016).
Response: The Agency appreciates the commenters' concerns regarding high volume versus
low volume materials, but notes they are no longer relevant, given today's final rule. EPA disagrees with
the other commenter's assertion, and believes that the managerial and operational practices applied to the
storage of materials are highly suggestive as to whether the facility operator believes that the material
has value (i.e., is an in-process material) or does not (i.e., is a waste), and whether the material can
contribute to the waste disposal problem.
Comment: The commenter requested that the Agency clarify its regulatory language associated
with Option 3 (i.e., the site-specific determination). Because the proposed rule language references
factors set out in 40 CFR 267.10, although there is no regulation codified at that section, the commenter
argued it was not possible to comment fully on the option (COMM1042).
Response: This option and associated reference has been deleted in today's final rule. EPA
regrets any confusion created by this incorrect reference.
Comment: A commenter expressed concern related to several specific topics in the Agency's
proposed regulations. These included:
• using old data to develop "high volume" threshold levels;
• commingling waste streams to develop estimates of material volumes and attain "high
volume" threshold;
• ignoring the fact that large volume containment is currently available; and
• adopting an approach in the proposed regulations that is inconsistent with the Agency's
other actions/goals;
Summarizing the comment briefly, using old data to develop threshold levels for a "high
volume" exemption ignores how the industry is currently able to manage its secondary materials.
Further, few wastes even meet the current exemption without mixing their waste streams. Even
assuming such exemptions are necessary, industry could manage its secondary materials in tanks,
containers, or buildings, which would prevent damage to the environment and human health, a likely
outcome given the industry's compliance record. Therefore, the Agency is proposing a set of regulations
that is inconsistent with its own goals.
One commenter argued that the Agency's threshold level, which is based on 1986 data, needs to
be revised to account for the industry's current, enhanced ability to manage higher volumes of materials
in tanks, containers, or buildings. The commenter asserted this action would alter the Agency's volume
requirements by eliminating the threshold for solid materials and by increasing the liquid material
threshold to at least 3,000,000 tons. The commenter also noted that the current "high volume" materials
using land-based storage were designated by using "unrealistic assumptions about the volumes of waste
that actually exhibit a hazardous waste characteristic, will be recycled, and are stored in land-based
units."
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1
The commenter asserted that when the old data are used, very few of the industry's secondary
materials (3 of 119; wastewater treatment sludges/solids from titanium production, wastewater treatment
sludges/solids from primary lead production, and zinc processing wastewaters) need to be stored on land.
Moreover, the commenter argued that even these three materials did not need to be land-based if the
Agency applied more realistic assumptions, rather than the previous "worst-case scenarios regarding
annual volume generation, amount of waste with hazardous waste characteristics, and amount of
characteristic waste actually recycled."
To support these assertions, the commenter cited specific features of the three materials. For
example, all of the wastewater treatment sludges/solids from titanium production were projected by the
Agency to exhibit toxicity characteristics for chromium but the Agency's RIA assumed only half of the
sludges/solids would exhibit toxicity characteristics for chromium. The zinc processing wastewaters
were high volume materials solely by commingling of separate facility (albeit zinc processing) waste
streams. The commenter could not understand why the Agency's regulations, which effectively
differentiate waste streams, were applied to materials that are merged, and concluded such an application
is inappropriate. The commenter also argued the Agency excluded "all wastewater treatment
impoundments from eligibility for the land-based unit exemption" in its January 1996 proposal and the
current rulemaking. If the impoundment is required to meet any provisions of the Clean Water Act, then
it is engaged in essential waste management and a land-based unit exemption is inappropriate, regardless
of whether any materials are recycled. Finally, the commenter argued that in analyzing wastewater
treatment sludges/solids from primary lead production, the Agency had commingled waste streams,
provided little evidence of the need for land-based units prior to recycling, and ignored the enhanced
capability of tanks, containers, or buildings to contain larger material volumes.
The commenter argued that the Agency's own containment building review had found that it
would be possible for tanks, containers, or buildings to contain large volumes of secondary materials.
For example, the Agency found structures in Virginia that could contain materials similar in volume to
any of the above three high volume materials. Therefore, the commenter believed no production-related
necessity exists for any land-based units. Moreover, it noted that the Agency's proposed use of tanks,
containers, or buildings is substantially less stringent than comparable management under Subtitle C
control standards.
Given the self-implementing nature of the proposed regulations, the commenter believed public
participation and regulatory oversight are necessary. In the commenter's opinion, the proposed
regulations are an "unprecedented self-implementation approach for the continuous operation of land-
based units, the least favored RCRA management practice and one that poses substantial risks to human
health and the environment." The commenter argued it is these risks to human health and the
environment that outweigh any possible administrative gain with this proposed approach. Moreover, the
Agency seemingly is ignoring the enforcement record of the industry when pursuing this approach.
Specifically, the commenter cited how the "primary nonferrous metals industry is one of three the
Agency is targeting for its non-compliance record (70 to 100 percent)." The commenter argued it is
"patently absurd that while the enforcement program seeks greater involvement with this sector to
achieve environmental improvements, the program office proposes precisely the opposite approach, in
effect rewarding the industry for its recalcitrance" (COMM1042).
Response: Most of the commenter's specific concerns are no longer relevant based on the final
rule EPA is promulgating today, including the high/large volume issues. Specifically, the final rule has
no exemption for high-volume generators of secondary materials. Because the Agency believes that
land-based storage of mineral processing secondary materials contributes to soil and water
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contamination, allowing such an exemption would continue to contribute to the waste disposal problem,
regardless of volume. Moreover, the Agency believes that all of the 119 hazardous waste streams
studied after the May 1997 proposal may be generated in volumes that are lower than the previously
proposed high volume cutoff. The Agency also notes that these volumes were conservatively estimated.
Today's final rule eliminates the high-volume cutoff and establishes a clear principle that
exclusion from the definition of solid waste is conditioned on the absence of land storage (i.e., the use of
tanks, containers, or buildings or approved pads, in certain circumstances). A pad may be used if a
facility obtains a determination from the EPA Regional Administrator or delegated state that the pad is
not serving as a mode of discard and has been constructed in accordance with specified design
requirements (i.e., the provisions of 40 CFR 261.4(a)(15)(b)). The final rule also states that wastewater
treatment impoundments do not qualify for the conditional exclusion. The net result of these changes is
that the Agency believes its final rule actually will enhance environmental protection by promoting
further resource recovery from mineral processing secondary materials through simplifying and
clarifying the conditions under which such recovery will not be regulated under RCRA.
Comment: Two commenters believed that the proposed requirements should be made more
stringent (COMM1028, COMM1042). The first sought to apply full Subtitle C regulation to any land-
based unit, regardless of the length of time the materials will be stored. This commenter further argued
that requirements should include groundwater monitoring as well as Subtitle C operating and
performance standards. Facilities would still be allowed, however, to use tanks, containers, or buildings
not meeting full Subtitle C standards (COMM1028).
The second commenter stated the Agency had not addressed its concerns from previous
comment periods about exemption conditions for land-based units. The commenter favored a ban on
land-based units but indicated that if such units are allowed, the Agency should conduct site-specific
determinations of production necessity and/or technical infeasiblity; ban construction of new land-based
units; require unit integrity tests to address issues of ground and non-groundwater pathways; and for the
few units meeting the "generic" volume requirements establish a process to resolve their production
necessity and unit integrity through "direct regulatory agency involvement and meaningful public
participation."
The fact that two of the three proposed land-based unit exemptions do not address non-
groundwater environmental releases (i.e., air emissions, pile run-off, and overtopping of surface
impoundments) concerned the commenter. The Agency, it noted, had "gathered additional damage cases
involving mineral processing secondary materials specifically and mining practices generally" that show
"the potential for groundwater contamination, contaminated runoff, windblown dust, and soil
contamination and increase the cost of cleanup." The commenter indicated these "damage cases include
a variety of instances in which run-off from piles contributed to contaminated soils and surface waters."
In addition, the commenter cited specific examples of the impacts of airborne dust, windborne dust, and
run-off from piles from industry practices that are still currently allowed by the Agency. The commenter
argued that clear evidence of the risk of these practices was provided by the fact that 200,000 people live
within one mile of 112 mineral processing facilities affected by the Agency's proposed requirements.
The Agency now addresses these risks through other authorities and programs, but one commenter
argued these alternative Agency authorities and programs are "after-the-fact" reactions that cannot
substitute for the RCRA controls necessary to prevent releases. Furthermore, the commenter asserted the
Agency is not currently meeting its RCRA objectives and its mandate to protect the environment and
human health.
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The commenter asserted that although the Agency is supposed to address releases to
groundwater, only one of the three proposed Agency alternatives "contains even minimal design or
performance standards intended to prevent or minimize groundwater releases." The other two options
simply allow free migration of material; therefore disposal, even when the materials are supposedly
being recycled, occurs. The commenter stated that such an inconsistency is "arbitrary and capricious."
Furthermore, it should not matter whether a leak occurred at a small or large unit when determining
whether discard occurred.
The commenter asserted that although the Agency proposal is based on the idea that land-based
unit exemptions are a "volumetric necessity" for materials generated in excess of the threshold
requirements, these exemptions are not necessary. Even if the assumption is granted, there is no
justifiable reason, in the commenter's view, to compromise on a unit integrity standard. The commenter
argued that the Agency's studies of lining waste rock piles and tailings ponds demonstrate such standards
are feasible, even for the highest volume exemptions. Furthermore, the Agency itself, using 1995 data in
its preliminary biennial report, identified 35 facilities generating wastewaters in excess of 1,000,000
tons/year that are "within the RCRA regulated universe." Size did not prevent compliance with RCRA
requirements for these facilities and it is reasonable to expect the use of unit integrity standards for all
units. Moreover, zinc processing wastewaters, for example, are substantially smaller than these RCRA
regulated materials. The commenter sought to indicate why unit integrity standards are important by
analyzing the risk associated with these materials. High-end Dilution and Attenuation Factor (DAF)
values indicated that 50 of 75 mineral processing waste surface impoundments samples caused
groundwater ingestion cancer risk greater than 10-6, including 4 of 11 zinc processing wastewater
samples. In terms of non-cancer risk, the commenter noted that 100 of 135 groundwater ingestion hazard
quotients were greater than 1.0, including 19 of 24 zinc processing wastewater samples. In a footnote,
the commenter suggested that because the unit's operating life probably parallels that of the facility, not
the regulatorily assumed 20 years, these values might be too low.
The commenter concluded that there is "no legal, technical, or policy basis for not requiring unit
integrity for mineral processing land-based units," because such wastes do not "pose any unique
management challenges versus other RCRA wastes."
The commenter asserted that the past argument for rejection of site-specific determinations (i.e.,
too many sites) is no longer valid because few sites remain. Perhaps 17 sites would be eligible for
"generic volume criteria" and these sites are dispersed throughout the country, so no state or region
would bear a heavy regulatory burden. Furthermore, the amount of waste actually needing a land-based
unit exemption is probably much smaller than facilities might initially suggest. Site-specific
determinations of eligibility could address this issue, especially when the Agency could determine
whether it is infeasible to manage materials in tanks, containers, or buildings. The commenter argued the
Agency's regulatory goal should be to not encourage the use of land-based units if such units are not
currently being used; no regulatory incentives should be created for the use of such units. In addition,
the commenter asserted the importance of instituting "anti-backsliding provisions" in order to prevent
facilities from constructing and using land-based units where none are currently used. (COMM1042).
Response: The Agency believes many of these comments have merit, in particular a) that there
is no volumetric necessity to utilize land-based units; b) that land-based units can pose substantial risk in
part because of their inherent inability to prevent releases, and also because of specific proximity to
populated areas, as noted by the commenter), and c) that RCRA is a preventive statute, so that relying on
remediation authorities after releases have occurred contravenes the statute's essential object. EPA
believes that today's final rule is sufficiently stringent to protect human health and the environment
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while minimizing the impacts on owner/operators because today's rule does not allow land storage
(except for the use of approved pads, with the approval process having to consider all possible release
pathways as pointed out by the commenter). The intent of today's rule is not to exempt hazardous wastes
from regulation under RCRA. Its purpose is to prevent "sham" recycling, promote the safe recycling of
mineral processing hazardous secondary materials, and ensure that such secondary materials do not
become part of the waste disposal problem. The commenters' specific concerns regarding land-based
units are generally not relevant because most sites will be utilizing tanks, containers, or buildings.
Further, the Agency has articulated specific criteria states must consider in approving pads. To
be approved, pads must be: (1) designed of non-earthen materials which are compatible with the
chemical nature of the mineral processing secondary material being stored; (2) capable of withstanding
physical stresses associated with placement and removal; (3) designed and operated with run-on/run-off
controls; (4) operated in a manner which controls fugitive dust; and (5) inspected and maintained by
owners/operators to ensure the continued integrity of the pads. As proposed in today's rule, EPA is
requiring that there be opportunity for public participation in the evaluation and approval process of pads
storing solid mineral processing secondary materials (62 FR at 2366). The Agency believes it important
that those citizens who may be directly affected by these determinations be notified of them and
participate in the process, and notes further that this requirement is fully consistent with RCRA's strong
preference for public participation. (See RCRA section 7004(b)).
2.2.2 Production-Related Necessity for Land-Based Units
Comment: Three commenters disagreed with the Agency's fundamental determination that
storage in land-based units generally is not necessary (COMM1039, COMM1048, COMM1094). One
commenter objected on the grounds that although the materials may be of smaller volume than the Bevill
"Special 20" materials, their volume may be large enough that tanks, containers, or buildings storage is
impractical. Furthermore, the materials are not "passively stored;" prior to reuse, they are processed by
methods (e.g., sizing and sorting, magnetic removal of metals) that cannot be performed in non-land
based storage units. The commenter offered the example the mixing of secondary materials with Bevill
materials in the iron/steel industry. Even if the secondary materials could be stored in tanks, containers,
or buildings, the necessary production-related mixing of the two materials would still require land
placement (COMM1039).
A second commenter asserted that the placement of materials on land is a function of the
material's form, not the material's value. After beneficiation, secondary materials often contain
concentrations of metals that are higher than virgin feedstock. The facility's choice of temporary land
placement therefore is not an indication that these materials are without value. Instead land placement is
common because of such factors as material volume and production-related necessity (as noted by the
Agency regarding molten slag). The commenter urged the Agency to designate non-land based units that
"maximize the opportunity for the recovery and reuse of in-process materials," no matter where such
opportunities occur. The commenter also added that the Agency had failed to consider site-specific
features and state and/or local regulations when it considered the need for land storage and its potential
hazards (COMM1048).
The third commenter argued that using the Bevill exemption cut-off as the determinant of
technical and economic feasibility is "essentially unsupported." It believed the Agency was making an
inappropriate assumption that one waste "from the highest range of large volume Subtitle C waste (i.e.,
K061)" represents the "technical and economic constraints applicable to mineral processing." The
Agency should not use one example to extrapolate to the entire industry. Careful individual material
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analysis is needed to distinguish "in-process materials" from "solid waste" and to assess correctly the
technical and economic feasibility of the Agency's proposed options (COMM1094).
Response: The Agency appreciates the comments but believes that land-based storage is neither
essential nor a production-related necessity. The Agency believes that there is evidence of
environmental damages and releases from land-based storage of mineral processing secondary materials
and that the record is clear that such land-based storage has and does cause environmental problems.
After the May 1997 proposal, the Agency found that all of the 119 hazardous waste streams it studied are
possibly generated in volumes lower than the previously proposed high volume cutoff. Moreover, the
Agency has found that the industry has been moving away from land-based storage and, in many cases,
already uses tanks, containers, or buildings in recycling mineral processing secondary materials. State-
approved pads can also be used for storage of mineral processing secondary materials (containing no free
liquids) being reclaimed within the industry as long as the pads are approved as protective by an
authorized State or (if the pile is located in an unauthorized State) EPA Region. Agency review of
mineral processing methods does not indicate that sorting, sizing, or magnetic removal can not be
accomplished off the land. Rather, virtually all grinding, and sizing of ores and minerals take place
inside of beneficiation mills.
The Agency does not accept the idea that land placement is "a function of the material's form,
not the material's value". Placement on the land may be the least costly method of storing materials
prior to their reentry into processes. Regardless of their form or value, these materials if placed on the
land have the potential of causing environmental damages. Today's rule allows for limited land
placement. For instance, iron and steel, copper, lead, zinc, and elemental phosphorus slags are classified
as Bevill exempt mineral processing wastes (i.e., 40 CFR 261.4) and may continue to be placed on the
land. Similarly, gold heap leach piles and copper dump leach piles are Bevill exempt, land-based
operations that also will not be affected by today's final rule. Directly addressing the molten slag
example, the Agency focuses on materials that can be accidentally spilled but are expected to re-enter the
process once workers can safely handle the materials (e.g., copper reverts spilled between smelting
processes). In these instances, the Agency concludes the materials are not solid wastes (i.e., beyond
RCRA regulation) if the materials are returned to the processes.
With the promulgation of today's final rule, the third commenter's concern with the cut-off is no
longer relevant. All secondary materials not immediately returned to the process must be stored in tanks,
containers, or buildings (or on approved pads) or they must be managed in accordance with RCRA
Subtitle C requirements if they are listed or exhibit characteristics of hazardous wastes.
Comment: Two commenters addressed the production-related necessity question (COMM 1042,
COMM 1074). One commenter encouraged the Agency not to accept any argument suggesting land-
based storage is a production-related necessity. The commenter asserted that the proposed material
volumes currently are based on 1986 data, which do not incorporate the actual capability of tanks,
containers, or buildings to contain large volumes of material. Once these thresholds have been adjusted
to reflect true containment unit capability, the commenter argued, an exemption for solids would not be
necessary and the exemption for liquids would become at the minimum 3,000,000 tons. The commenter
then argued this information eliminates the basis for any production-related need for land-based units.
The commenter added that if the Agency still retains the exemption, even after correction of the
proposed material volumes, then the exemption should be modified to require site-specific
determinations of waste volume and handling, ensure the units are justified with a production necessity,
and prohibit construction of any new land-based units to prevent back-sliding (COMM 1042).
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The second commenter opposed land-based storage based on production-related necessity,
because the Agency did not propose criteria for determining such necessity. The commenter found that
without explicit criteria, a facility would have an incentive to maximize volume in order to continue to
obtain the exemption. The commenter recommended, therefore, that such exclusions be phased out over
time until no land-based storage is allowed (COMM1074).
Response: The Agency agrees with the commenters and, in the final rule, has essentially
prohibited land storage of mineral processing secondary materials (except on approved pads in limited
cases).
2.3 Containment Units (Tanks, Containers, Buildings, and Approved
Pads)
Comment: The commenter suggested the Agency's exclusion of recycled materials from the
definition of solid waste should extend to materials stored in any non-land based unit, not just tanks,
containers, or buildings, arguing that the Agency is excluding high volume secondary materials managed
in other units that are not land-based (COMM1039).
Response: The Agency is unsure of what the commenter means by non-land based units used to
manage high volume secondary materials that are not tanks, containers, or buildings. If the commenter is
suggesting some type of asphalt or concrete pad to store solid materials, the Agency would agree that
such a unit given certain design requirements could be protective of the environment and has included a
provision in the rule allowing an authorized State or region to approve such a unit on a site-specific
basis.
Comment: The commenter believes it already meets the proposed tanks, containers, or
buildings standards for six secondary materials generated at its facility, and thus its materials would
remain exempt from the definition of solid waste for the operations that receive these materials for
further recycling (COMM1052).
Response: As it notes in the preamble to today's rule, the Agency believes many, and indeed
most facilities will be able to meet the proposed tanks, containers, or buildings standards. Facilities
should contact their State or EPA regional office to seek formal opinion on whether a particular storage
unit, using definitions, in today's rule is defined as a tank, container, or building or whether existing pads
meet the necessary conditions to be approved.
2.3.1 General Comments
Comment: One commenter argued that the Agency's characterization of containerized storage
as an industry trend was misleading because the only examples relate to the storage of hazardous wastes,
which are required to be stored in tanks, containers, or buildings. The commenter suggested that the
Agency had clearly instigated the "trend" of storing certain materials in containment buildings by listing
them as hazardous, and probably had modified management practices for other materials as a result of
listing efforts. Rather than arguing that such containment was appropriate because it is being done, the
Agency should consider the necessity and feasibility of containment. The commenter stated that few
primary feedstocks or products are stored in tanks, containers, or buildings, and virgin ore (as well as
concentrate) is most often placed on land. In its experience, the use of tanks, containers, or buildings is
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not a common practice, and buildings that comply with standards proposed by the Agency are rarely used
(COMM1043).
Response: The Agency disagrees, noting that in many mineral processing sectors secondary
materials are stored in tanks, containers, or buildings regardless of whether they were formerly classified
as spent materials, sludges, or byproducts. For instance, slag from gold processing is typically stored in
containers or buildings, due to its high economic value, despite the fact that it was formerly classified as
a by-product and could have been legitimately stored in land-based units. In addition, while primary
feedstocks would not be expected to be stored in tanks, containers, or buildings ~ and the damage
incidents note many instances of substantial environmental contamination as a result — the Agency
believes that it is not unusual for products to be stored in tanks, containers, or buildings. Finally, the
Agency reiterates that mineral processing secondary materials are generated at volumes where there is no
reason that they cannot be managed in non-land based units (i.e., tanks, containers, buildings, or in
limited cases, on approved pads).
Comment: Three commenters stressed the importance of Agency flexibility in application of
tanks, containers, or building restrictions, if the requirements are imposed (COMM1034, COMM1043,
COMM1054). All argued that a material's relative risk should be considered. One commenter argued
that the Agency does not present sufficient evidence on the risks posed by land placement to support the
requirements for storage in tanks, containers, or buildings. Moreover, the commenter asserted that the
risks are insufficient to mandate tanks, containers, or buildings in order to protect human health and the
environment, while agreeing with the Agency that the risks of the materials proposed to be stored in
tanks, containers, or buildings do not warrant full Subtitle C controls. A material's specific relative risks
should be what the Agency uses to decide the appropriate storage mechanism. The commenter added
that the risk of some materials might allow alternative storage options, such as three sided bunkers or
concrete pads, without such stored materials becoming declared wastes. For example, used bricks from
BHP's San Manuel's smelting vessels contain valuable concentrations of recoverable copper and do not
exceed the Agency's RCRA SPLP levels when tested. The commenter argued that for such bricks, tanks,
containers, or buildings are sufficient to prevent environmental releases, but the proposed standards are
not necessary to prevent such a release or to determine that the material is a legitimate feedstock and not
an improperly disposed of waste material. Furthermore, the Agency's tanks, containers, or buildings
provision fails to consider whether an environmental release may actually occur or is only a potential
occurrence because secondary materials being managed in these units should not become wastes unless
or until they are discarded (COMM1043).
Because, in another commenter's opinion, the additional requirements also may be unnecessary
when environmental factors indicate that existing structures and practices are already sufficient in some
areas, the commenter encouraged the Agency to examine these options on a case-by-case basis, and
suggested that it would be appropriate to consider establishing a variance mechanism encompassing site-
specific attributes (COMM1034). A second commenter also recommended the variance mechanism be
allowed for facilities that demonstrate legitimate recycling or hardship in meeting the new regulations
(COMM1048).
According to another commenter, the existence of these site-specific features make it almost
impossible for the Agency to develop guidance for design and construction of all tanks, containers, or
buildings units. The commenter believes instead the Agency should address these issues once evidence
of waste disposal is found (COMM1048, COMM1054). The commenter also suggested that States
determine whether a non-land based unit is appropriate for each specific site (COMM1048).
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Response: While the agency generally disagrees with the commenter's assertion that many
alternative storage units would be safe, the Agency does agree that in some cases, an asphalt or concrete
pad might be sufficient to minimize releases to environment, and as such, prevent adverse effects on
groundwater, surface water, and air quality. Today's rule includes a provision allowing a facility
operator to obtain a site-specific determination from an authorized state or Region that solid secondary
materials may be placed on pads rather than in tanks, containers, or buildings. The potential use of three-
sided bunkers is discussed in section 2.3.5. The Agency believes that most facilities will be able to meet
the standards set by today's rule. The tank, container, and building conditions are minimal and designed
to assure that these units have minimal integrity, so that they do not function like disposal units because
they are unable to retain their contents. The Agency disagrees with the commenters' assertion that the
existence of these site-specific features make it almost impossible for the Agency to develop guidance
for design and construction of all tank, container, or building units. Finally, the Agency refers the
commenter to the discussion of risks posed by land storage in section 2.1.3. The Agency wishes to
prevent these materials from contributing to the waste management problem.
The Agency also disagrees with the contention that it does not have jurisdiction over tanks,
containers, and buildings sufficient to condition exclusion on the units having minimal integrity as
explained above. The Agency concludes that mineral processing secondary materials stored in units
from which there will be wholesale release are surely part of the waste disposal problem.
Comment: Two commenters were concerned that the Agency's definition of a process unit did
not include an allowance for wastewater treatment impoundments that are "ultimately regulated under
either the section 402 or 307(b) of the Clean Water Act (including facilities which have eliminated the
discharge of wastewater)" (COMM1089, COMM1097). One commenter stated that the Agency defined
the Clean Water Act (CWA) zero-discharge requirements which are applicable to all facilities (i.e., those
that refine bauxite to alumina and use the combination process) not under federal court consent decrees.
The commenter argued that "virtually all of the waste streams produced in refining bauxite are not
discharged to surface waters," even though the materials are technically regulated under the CWA. The
treatment facilities for these secondary materials are fundamentally different because they cannot simply
treat and discharge secondary materials to a surface stream. The commenter noted it was the ability of
the bauxite refining industry to process its secondary materials which originally encouraged the Agency
to mandate the zero-discharge policy, and thereby encourage recycling. The commenter asserted that the
current proposal would both discourage recycling and undermine the regulatory requirements of the
CWA(COMM1097).
Another commenter challenged the Agency finding that impoundments' "essential purpose" is
waste management rather than mineral production because no evidence was presented to support such a
finding. The commenter also noted that "these impoundments are integral to production processes" by
recycling water and that the Agency is discouraging recycling with its proposed regulation. Further,
wastewater treatment impoundments meeting unit integrity standards should not be excluded from being
"process units" because if and when discharges occur, they are regulated under the CWA. Also, the
commenter argued it was inappropriate to assume "secondary materials" are "discarded" if they are
discharged. The commenter urged that possession of an NPDES permit solely for emergency discharges
(i.e., rainfall induced releases to maintain unit integrity) should not prevent an impoundment being
determined a process unit.
The second commenter recommended the Agency define "wastewater treatment surface
impoundment" because the term has potentially too broad a meaning to be without a definition. In
addition, they were concerned with including the word "ultimately" in the proposed regulations. They
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argued this word is "arbitrary and creates additional confusion." The Agency does not discuss why the
word is necessary and therefore it serves no apparent purpose in the rulemaking language other than
potentially to allow a future, unauthorized expansion of RCRA jurisdiction into the production process.
The commenter asserted this would occur as the Agency worked "its way 'upstream' through any
discharge which could reach the designated 'wastewater' impoundment" and stated such an expansion
was "unacceptable, contrary to law, and arbitrary and capricious" (COMM1089).
Response: While the Agency generally disagrees with the commenters arguments, the Agency
notes that in today's rule secondary materials may not be managed in any type of surface impoundment
under the conditional exclusion. EPA indicated at proposal that wastes managed in wastewater treatment
surface impoundments would never be eligible for a conditional exclusion from the definition of solid
waste. 62 FR at 2348. (A wastewater treatment surface impoundment is one whose ultimate discharge is
regulated by the Clean Water Act, and can include zero discharge facilities.) This remains Agency's
position, although the issue is no longer directly relevant to the final rule because no impoundments are
eligible for exclusion. As the Agency noted at proposal, the essential purpose of these units is waste
management rather than production. 62 FR at 2348. See also AMC II. where the D.C. Circuit held that
wastewater treatment surface impoundments can be classified as waste management units,
notwithstanding that all of the entrained solids in the unit were eventually recycled as feedstock at the
generating plant. EPA also notes an essential error in the comment, stating that discharges are regulated
under the CWA. Unfortunately, leakage to groundwater is not within the CWA control. Yet there have
been many, many damage incidents in this industry sector where impoundments have caused
groundwater contamination.
2.3.2 Need for Subtitle C Requirements
Comment: Two commenters were concerned that the Agency's proposal would subject tanks,
containers, or buildings storing secondary materials to full Subtitle C requirements. Both commenters
opposed such requirements because they viewed Subtitle C compliance as unnecessary. They also
argued that the Agency did not have jurisdiction to apply the standards (COMM1048, COMM1082).
Response: The Agency is not requiring tanks, containers, or buildings (or approved pads) to be
in compliance with full Subtitle C requirements in today's rulemaking.
Comment: Three commenters agreed with the Agency's proposal not to require tanks,
containers, or buildings meeting full Subtitle C requirements be used to store secondary materials. They
argued that because the materials in the units are process materials and not wastes, the Agency would
have no basis for applying the Subtitle C requirements (COMM1029, COMM1041, COMM1088).
Response: Comment noted. The Agency disagrees with the commenter's position on
jurisdiction. As noted earlier, the Agency finds that it has jurisdiction at least to require minimal
conditions preventing tanks, containers, buildings, and pads not to function as disposal units because of
lack of unit integrity.
2.3.3 Appropriateness of Concrete Pads
Comment: Five commenters recommended that under the proposed regulations the Agency
allow for the use of concrete pads (COMM1034, COMM1041, COMM1055, COMM1069,
COMM1082). Currently, it is not clear if concrete pads are allowed and by themselves sufficient for
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regulatory compliance. A commenter noted, however, that such pads currently are used for virgin
materials prior to the materials being processed (COMM1041). In addition, one commenter noted that
they mix secondary materials and other ores on the ground; a requirement to mix these materials in
tanks, containers, or buildings would be technically and economically infeasible but a concrete pad might
be an alternative solution (COMM 1069).
Response: The Agency agrees that in some cases, a pad might be sufficient to minimize releases
to environment, and may be designed and operated in a manner that prevents adverse effects on
groundwater, surface water, and air quality. Today's rule includes a provision allowing a facility
operator to obtain a site-specific determination from an authorized state or Region that solid (i.e.
physically solid) secondary materials may be placed on pads, rather than in tanks, containers, or
buildings.
2.3.4 Unit Roofs/Covers
Comment: Two commenters questioned whether a roof is necessary for all tanks, containers, or
buildings (COMM1019, COMM 1029). One commenter wanted to know if a separate cover is necessary
even when materials are stored indoors, and added that a cover requirement could impede the efficiency
of its production operations (COMM 1029). The other commenter described how it uses cranes to
remove material from tanks; easy overhead access therefore is critical (COMM1019).
Response: As noted in the preamble to today's rule, tanks and containers exposed to the
environment may need covers to ensure adequate management of fugitive dust, but are not a per se
condition for the exclusion. Tanks and containers placed inside buildings do not ever need covers
unless and until they are placed outside a building.
Comment: The commenter interpreted the Agency's proposed tanks, containers, or buildings
regulations as not necessarily including provisions for covers, but asserted that covers are necessary to
ensure complete containment of the materials. The commenter based its opinion on the Agency's past
distinction between containment and waste units, noting that if fugitive emissions occur (because of a
lack of containment in part due to the absence of a unit cover), then the supposed containment unit is de
facto a waste unit. The commenter argued that the Agency needs to be aware that not requiring covers is
"arbitrary and capricious," because it ignores past Agency actions and does not result from a "production
necessity or technical infeasibility" (COMM 1042)
Response: The Agency agrees that covers may be necessary to manage large-scale releases of
fugitive dust. Tanks and containers placed inside buildings do not need covers unless and until they are
placed outside a building.
2.3.5 Three-sided Bunker Issues
Comment: Two commenters stated that the Agency needs to be flexible when deciding on
appropriate tanks, containers, or buildings designs, pointing to the proposed allowance of three-sided
bunkers in some areas of the country (COMM1048, COMM1043). According to one commenter, this
flexibility needs to consider the ease of accessing the material relative to the risk of contamination, the
type of materials, and the region in which the unit is to be constructed (i.e., local environmental factors).
The commenter argued that a three-sided concrete bunker with no roof may be acceptable in many parts
of the country (COMM 1048). The second commenter supported the use of three-sided bunkers and
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stated that a flexible approach is essential for the EPA's regulations to be consistent with the State
requirements already being applied (e.g., the Arizona Aquifer Protection Permit Program)
(COMM1043).
Response: The Agency has determined that tanks, containers, or buildings must generally have
a roof, four walls, and a floor. Hence, a three sided bunker is not a tank, container, or building.
However, a facility operator could request an authorized state or Regional Administrator to grant a site-
specific determination that so that an approved pad could be used. If a pad cannot be approved due to
site conditions, only a tank, container, or building can be used to remain eligible for the conditional
exclusion from the definition of solid waste..
2.3.6 Rulemaking Language
Comment: Two commenters expressed concern with proposed regulatory language
(COMM1029, COMM1089). One commenter disagreed with the Agency's definition of "process unit,"
suggesting that the proposed language would remove certain units such as smelters with converter aisles
and leach piles from the definition of "process units" and make them no longer exempt from RCRA
regulation (COMM1089).
The second commenter argued that the proposed rule states that tanks and containment units
must have roofs, but the language in the preamble only states that containment buildings must have roofs
(see 62 FR 26.050). The commenter argued that the rule language may be an inadvertent error, because
tanks and containers are not normally characterized as having or not having roofs. The commenter also
suggested that the section requiring tanks and containers to "meet appropriate specifications such as
those established by either ASTM, API, or UL standards," (261.4 (a)(16)) should be reworked to make
clear that ASTM, API, and UL standards exist only for tanks (COMM 1029).
Response: The Agency has removed the term "process unit" from the regulatory language to
eliminate any confusion caused by the proposed rule language. In addition, the Agency has removed the
references to applicable industry standards such as ASTM, API, and UL standards from today's rule .
Comment: One commenter believed the language in the proposed regulation regarding tanks,
containers, or buildings was both inadequate and unenforceable because of vagueness. The proposed
language for tanks states only they must "meet appropriate specifications such as ASTM, API, or UL
standards" without any further delineation of minimum standards. The burden of proof that a particular
choice is not "appropriate" will fall on federal and State officials, not the regulated industry. The
commenter encouraged the Agency to specify the standards it believes necessary and/or provide a
mechanism for industry to propose alternative options, provided there is a period of public comment on
these industry-proposed alternatives.
The commenter asserted that the industry standards referenced by the Agency are themselves so
vague that it would be difficult for these "standards" to ensure appropriate tank design. Furthermore, the
commenter found the rule unclear about whether a tank owner must meet all relevant industry
specifications or whether the owner can selectively meet the specifications. If the industry only meets
selective criteria, there is a real possibility that an important design (or operation) component would be
left out.
The commenter also asserted the proposed rule language does not specify how to distinguish
between units used for in-process materials and those that de facto are disposal units. The commenter
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urged the Agency to revise the containment unit requirements in order explicitly to address containment
unit releases and clearly delineate "the minimum requirements necessary to achieve compliance." The
commenter cited New York's and Pennsylvania's rules, which incorporate industry standards into their
tank programs as well as requiring such things as corrosion control, leak detection/secondary treatment,
and unit closure, and praised these States for ensuring their regulations were written in a clear manner to
allow feasible enforcement procedures while simultaneously minimizing, or preventing, tank releases
(COMM1042).
Response: The Agency agrees that the references to applicable industry standards such as
ASTM and API are overly broad and has thus not included them in today's rule. The Agency believes
that the minimum integrity standards in the final rule language are concise and clear. The rule requires
basic integrity essentially to prevent haphazard releases of stored materials. The various terms of the
condition, such as requirements that structures be engineered, have four walls, be made of non-earthen
materials, and be manufactured from compatible materials, are readily understandable. Units covered by
today's rule are storage units. Today's rule does not affect process units.
2.4 Class of Materials Outside of RCRA Jurisdiction
2.4.1 Jurisdiction
Comment: One commenter strongly supported EPA's recognition that reverts are an in-process
material being used beneficially, and that these materials have always been outside of RCRA
jurisdiction. (COMM1043)
Response: Comment noted. The Agency noted that reverts (matte and copper) can be spilled in
the process of being transferred from one part of the smelting process to another. Such reverts are picked
up as soon as they can be safely handled and are placed directly back into the smelting process. The
Agency has reviewed smelting processes in other metal sectors and finds that spillage from ladles is
common and that these materials are routinely picked up within a short time and placed back into the
process. The Agency thus concludes that molten metal spilled onto smelter floors is not a solid waste if
it is picked up and placed back into the smelting process.
Comment: Seven commenters disagreed with EPA's proposal to use an immediacy test to
determine if a secondary material is a solid waste, arguing that this type of test is contrary to law and is
not a good determinant of whether a material is a waste. The commenters argued that use of this type of
test is an invalid interpretation of the holdings of the courts, which concluded that immediate reuse of a
material is not necessary to demonstrate that the material is not being discarded. (COMM1016,
COMM1039, COMM1042, COMM1048, COMM1054, COMM1085, COMM1088)
Response: Since most of the court's considering the issue have stressed the notion of immediacy
as part of their holding, EPA believes this consideration is a component of the jurisdictional test.
Immediate reuse is defined in today's rule as recycling back into a process without storage. The Court in
AMC II, for example, found that RCRA jurisdiction does not extend to materials destined for immediate
reuse in another phase of production and which is not part of the waste disposal problem. 907'F. 2d at
1186. The Agency agrees that secondary materials, if properly stored, also should not be considered
solid waste if they are legitimately recycled within this industry sector.
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Comment: Seven commenters stated that EPA specifically does not have authority under
RCRA to regulate secondary materials or in-process materials. (COMM1016, COMM1034,
COMM1039, COMM1048, COMM1088, COMM1090, COMM1094) Several commenters specifically
noted that EPA is not complying with the holdings of AMC I because materials that are not discarded are
outside RCRA's scope even if they are not used within 48 hours. The court, according to the
commenters, held that EPA lacked authority over "in-process materials" and clearly stated that, "in-
process secondary materials employed in an on-going manufacturing process" are not discarded (82 F.2d
at 1192). (COMM1039, COMM1048, COMM1088, COMM1090, COMM1094) One of these
commenters suggested that the Agency had incorrectly interpreted a small portion of the court's ruling
involving the phrase "immediate reuse." This commenter suggested that the court never intended the
phrase to be used as a prerequisite for determining whether a material is in-process. (COMM 1094)
Another commenter argued that use of such a test suggests that all materials that are not immediately
reused are subject to EPA's regulatory jurisdiction. (COMM 1088) Another commenter argued that EPA
is attempting to extend its jurisdiction to materials that are not only discarded, but also that are not used
within 48 hours. (COMM1048) Further, one commenter noted that the proposed exemption cannot
apply to placement in land-based units, particularly surface impoundments. (COMM1016)
Response: The Agency disagrees with commenters that it does not have statutory authority
over secondary materials that are stored in land disposal units prior to recycling. In AMC II (American
Mining Congress v. EPA, 907 F.2d 1179, 1186 (D.C. Cir. 1990)) the Court found that the only absolute
bar to the Agency's authority was for "materials that are destined for immediate reuse in another phase
of the industry's ongoing production process and that have not yet become part of the waste disposal
problem." The Court's decision in AMC II, therefore provides the Agency jurisdiction over secondary
materials that are destined for recycling and that are not immediately reused but instead placed in land
disposal units, because land placement of these materials can contribute to the waste disposal problem
through releases to soil, air, groundwater, and surface water and the materials are demonstrably no longer
part of an on-going manufacturing process. EPA thus does not accept the commenter's assertion that this
rule regulates in- process materials. By definition, a secondary material which is taken out of a process
for storage in a land disposal unit (i.e. a pile or an impoundment) is no longer in process.
Comment: Two commenters believe that EPA's overall basis for creating the in-process and
immediate reuse exclusions is based on a faulty interpretation of the AMC I mandate. These
commenters argued that AMC I made clear that "EPA need not regulate 'spent' materials that are
recycled and reused in an ongoing manufacturing or industrial process. These materials have not yet
become part of the disposal problem; rather, they are destined for beneficial reuse or recycling in a
continuous process by the generating industry" (AMC I at 1186). (COMM1048, COMM1088) Further,
one commenter noted that AMC I held that extractive metallurgy proceeds incrementally, and
consequently, materials are reprocessed in order to remove as much of the pure metal as possible from
the natural ore. Further, recycling is an inherent activity in the processing of these materials, and
secondary materials awaiting recycling must be considered "in-process." (COMM 1048) Finally, one
commenter noted that subsequent court cases held only that: (1) EPA could regulate recycled materials
that were already wastes; and (2) EPA could treat as wastes secondary materials that were speculatively
accumulated on the ground. (COMM1088)
Response: The Agency disagrees with the commenter's statement and believes that it has ample
jurisdiction to regulate secondary materials which are placed in land-based units before recovery as
discarded. In American Mining Congress v. EPA (AMC I), the court did find in some respects the rules
exceeded the statutory grant of authority because, at least with respect to the mineral processing
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industries, the rules asserted authority over secondary materials that were not discarded. That opinion,
however, did not directly address the situation of a secondary material removed from a process and
stored in a land-based unit. Subsequent judicial opinions, moreover, have sharply limited the scope of
AMC I, so that the only absolute bar on the Agency's authority to define recycled secondary materials as
solid wastes is to "materials that are 'destined for immediate reuse in another phase of the industry's
ongoing production process' and that 'have not yet become part of the waste disposal problem.'" These
are materials "passing in a continuous stream or flow from one production process to another." 824 F.
2d at 1190. The Agency is not asserting authority over this type of material (an example of such a
material would be the copper reverts discussed in the preamble to the final rule). Accordingly, the
Agency is well within its authority to establish (through an examination of the nature of land-based
storage units as well as potential and actual release pathways from such units) which materials and
practices contribute to this problem, and to promulgate requirements and conditions that address it.
Comment: One commenter stated that post-AMC I court cases do not support the Agency's
position on the distinction between discarded and non-waste materials because those cases focused on
land-based storage of secondary materials for potential future recycling, not metals recovery activities
that involve no land-based storage, and which are actively pursued by industry (AMC II 907 F.2d at
1185-6 and Owen Electric Steel Co. V. Browner 37 F.3d 146-7 (4th Cir. 1994)). (COMM1029)
Response: The Agency disagrees with the commenter that post-AMC I court cases do not
support the Agency's distinction between discarded and non-waste secondary materials. Indeed, land-
based storage prior to recycling is precisely the issue addressed by today's final rule. These are the same
facts presented in AMC II. The final rule does not affect metals recovery activities conducted in the
absence of land-based storage. See also the responses to the preceding two comments for more
explanation of the Agency's position on this issue.
Comment: One commenter argued that cases subsequent to AMC I have reaffirmed the
limitation on the meaning of the term discard, i.e., that all secondary materials that are further processed
in a continuous manner are not discarded. The commenter argued that these cases addressed specific
regulatory determinations that were not intended to alter the parameters defined in AMC I, but rather
were findings, based on facts presented, that specific materials had been discarded. For example, the
commenter stated that in American Petroleum Institute v. EPA, the court determined that K061 zinc-
bearing listed hazardous sludge from air pollution control devices used on electric arc furnaces in steel
production remained a solid waste even after burning, and thus EPA retained jurisdiction over these
materials even when the waste was recycled, because it had already become a waste. This principle was
upheld in the case of United States v. ILCO. In that case, the court found that lead plates and spent
batteries reprocessed at a secondary smelting facility were wastes because, "[s]omebody has discarded
the battery in which these components are found" (996 F.2d at 1131). (COMM1088) Two commenters
also noted that in AMC II, the court held that sludges generated from waste waters held in surface
impoundments and speculatively accumulated could be defined as wastes because the materials were
held in land disposal units that were part of the waste water treatment system and "which are not part of
on-going industrial processes," (907 F.2d at 1186). (COMM1042, COMM1088) The commenter further
noted that AMC II did not clarify or narrow the scope of AMC I, confirming that the only bar on the
Agency's authority to define recycled secondary materials as solid wastes was to "materials that are
destined for immediate reuse in another phase of the industry's ongoing production process that have not
yet become a part of the disposal problem." Thus, AMC II did not alter the broad holding of AMC I that
in-process secondary materials employed in on-going manufacturing processes are not solid wastes.
Finally, the commenter stated that the holding in Owen Electric Steel Co. v. Browner was fully
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consistent with the holding in AMC II, that speculative land-based accumulation of materials is discard.
(COMM1042, COMM1088)
Response: The Agency disagrees with the commenter's statement that cases subsequent to
AMC I have reaffirmed the limitation on the meaning of the term discard. In American Mining Congress
v. EPA (AMC I), the court did find in some respects the rules exceeded the statutory grant of authority
because, at least with respect to the mineral processing industries, the rules asserted authority over
secondary materials that were not discarded. Subsequent judicial opinions, however, have sharply
limited the scope of AMC I, so that the only absolute bar on the Agency's authority to define recycled
secondary materials as solid wastes is to "materials that are 'destined for immediate reuse in another
phase of the industry's ongoing production process' and that 'have not yet become part of the waste
disposal problem.'" Nor does EPA agree that these decisions involved materials which had already
become wastes, a characterization that appears circular to the Agency. The facts in API and other cases
involving transfers between different companies also occurs in the mineral processing industry, where
plant A recovering one metal can send its by-products, sludges and spent materials to an unrelated
mineral processing company for metal recovery (analogous to a steel mill ~ which is in the mineral
processing industry) sending its baghouse dusts to a metal recovery facility and eventually to a zinc
smelter (also in the mineral processing industry). Nor does EPA read AMC II as involving speculative
accumulation. The sludges at issue in the case were being recycled back to the process which generated
them. See EPA, Listing Background Document for 261.31 and 261. 32 (Nov. 14, 1980) p. 807-808, 50
FR at 40292, 40296; Petitioner's Brief to D.C. Circuit in AMC II at pp. 18, 29. Accordingly, the Agency
is within its authority to establish (through an examination of types of storage units and data on damages
and potential damages associated with such units) which materials and practices contribute to this
problem, and to promulgate requirements and conditions that address it, and thus which materials are
considered discarded.
Comment: One commenter described two aspects of the court's opinion in AMC II that are
relevant to EPA's current proposal. First, the commenter argued that EPA's proposal would include
the very waste waters and sludges held by the court to be solid waste, even if managed in surface
impoundments for more than 48 hours, and thus, the proposal is contrary to the court's opinion. The
commenter asserted that the constant movement of wastes into and out of a surface impoundment may
increase the propensity to discard. The commenter stated that the court relied on the Agency's finding
that material placed in waste water treatment impoundments is capable of posing a substantial threat to
human health and the environment through leaching into the ground. The commenter noted that the
court further emphasized the Congressional importance placed on the proper regulation of surface
impoundments because of their propensity to leak. The commenter also stated that element of discard
necessary to establish RCRA jurisdiction is based upon the integrity of the receiving unit. Since EPA
has firmly established the risks associated with impoundments, EPA's proposal to include the
management of materials in surface impoundments within the scope of the exclusion violates RCRA.
Second, the commenter argued that the court's opinion would extend to all land placement, since the
continuous placement of materials on piles or other land-based units would result in the same "discard"
underlying the court's opinion. The commenter further noted that nothing in AMC I or AMC II compels
EPA to allow land-based storage prior to immediate reuse, and land-based storage is neither a production
necessity nor a protective management practice. The commenter suggested that, to the extent an
immediate reuse exemption is legally compelled, it should be limited to storage not occurring in land-
based units. (COMM1042)
Response: The Agency agrees with the commenter that secondary materials should not be
stored in land-based storage units prior to reuse, including in surface impoundments. EPA further agrees
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that such placement necessarily is an interdiction of a process, so that the land-based storage is no longer
immediate reuse in a continuous process. Under today's rule secondary materials managed in land-based
storage units are subject to RCRA Subtitle C. The Agency reevaluated its position on defining
immediate reuse using 48 hours and found that recycling should not be defined by time. Today's rule did
not adopt a time frame, rather it defines immediate reuse as recycling without storage.
Comment: Two commenters argued that secondary materials are not RCRA wastes when they
are not stored or processed in land-based units because these materials are not discarded. The
commenters further stated that AMC I held that EPA lacks jurisdiction over materials that are not
discarded. (COMM1029, COMM1094) One commenter specifically cited AMC I's recognition that all
metal cannot be extracted in "one fell swoop" and that these materials are necessarily reprocessed to
remove as much of the pure metal as practicable. (COMM1029)
Response: The Agency agrees with the commenter that secondary materials are not solid waste
when they are either immediately reused or stored in tanks, containers, or buildings (or on approved
pads) and then legitimately recycled. This feature of the rule accounts for the commenter's correct
statement that all metals are wastes not immediately recoverable, so that sequential processing is a
necessity within the mineral processing industry. Nevertheless, land based storage is not a production
necessity, nor is land-based storage part of a continuous process. It is not processing at all, but rather
most closely resembles disposal, as the previous commenter notes. Under today's final rule, hazardous
secondary materials land stored prior to reuse are RCRA solid wastes. The Agency disagrees with the
commenter that it lacks jurisdiction over all secondary materials. See previous comments for further
discussion regarding the Agency's jurisdiction. ,
Comment: One commenter argued that EPA is interpreting the term "immediate reuse" too
narrowly, stating that the court case that introduced this phrase was addressing the same secondary
materials that are the subject of this rulemaking. In this case, the commenter noted that the court
concluded that these materials are immediately reused. (COMM1039)
Response: The Agency disagrees with the commenter that it is interpreting "immediate reuse"
too narrowly. The Agency is using the "plain reading" of immediate reuse, and believes that storage of
secondary materials precludes the immediate reuse of these materials. The AMC I court easily could
have had in mind materials that simply move from one step in the process to another (see 824 F.2d at
1190 (materials "passing in a continuous stream or flow from one production process to another") and
did not address the situation of hazardous secondary materials removed from a process for storage on the
land in units that can, and in fact have proven capable of environmental significant releases of hazardous
constituents into the environment.
Comment: One commenter suggested that EPA's 48-hour proposal is not based on a discard
determination. Rather, the commenter argues that it is a process-dependent judgment by EPA regarding
how quickly a well-operated facility should be able to reuse a material. Further, the commenter noted
that EPA cites no documentation for this proposal. (COMM1054)
Response: The Agency has decided not to use the 48 hour reuse time limit to determine if
secondary materials are solid wastes. The issue in question is "immediate reuse" a component of the
judicial test for determining discard. As stated above, EPA has, in today's final rule, established a
definition of this term, "immediate reuse," as the continuous recirculation of secondary materials back
into recovery processes without prior storage.
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Comment: One commenter requested that EPA identify the Congressional intent that allows it
to adopt such an expansive view of its regulatory authority. (COMM1088)
Response: The Agency believes that in promulgating standards to ensure legitimate recycling
and the environmentally safe handling of secondary materials that it has adopted a reasonable balance
between the objectives of RCRA, resource recovery and protection of human health and the environment,
and non-interference with production processes. These policy goals are found in the Congressional goal
of ensuring "properly conducted recycling and reuse", prohibition of land disposal of untreated wastes,
and the discretion to interpret the statutory term "discarded" in a manner that prevents secondary
materials from becoming part of the waste disposal problem. See RCRA sections 1003 (a) (6), 3004 (g)
(4) and 1004 (27). Although industry may interpret these efforts as an expansion of the definition of
solid waste, the Agency also is establishing criteria by which secondary materials explicitly can be
excluded from the definition of solid waste.
The Agency believes that it has ample jurisdiction to regulate secondary materials and that the
courts have upheld this jurisdiction. In American Mining Congress v. EPA (AMC I), the court did find in
some respects the rules exceeded the statutory grant of authority because, at least with respect to the
mineral processing industries, the rules asserted authority over secondary materials that were not
discarded. In AMC II (American Mining Congress v. EPA, 907 F.2d 1179, 1186 (D.C. Cir. 1990)) the
Court found that the only absolute bar to the Agency's authority was for "materials that are destined for
immediate reuse in another phase of the industry's ongoing production process and that have not yet
become part of the waste disposal problem." The Court's decision in AMC II, therefore provides the
Agency jurisdiction over secondary materials that are destined for recycling and that are not immediately
reused, because land placement of these materials can contribute to the waste disposal problem through
releases to soil, groundwater and surface water. Accordingly, the Agency is within its authority to
establish (through an examination of types of management units as well as data relating to fate of mineral
recovery industry materials placed in such units) which materials and practices contribute to this
problem, and to promulgate requirements and conditions that address it.
Comment: One commenter argued that EPA cannot rationally use a 12-month time limit for
permissible storage of solid waste while establishing a two-day limit as the boundary between storage of
solid waste and in-process secondary materials. The commenter suggested that Congress demonstrated
its intent that EPA should not be regulating production streams by limiting RCRA authority only to solid
wastes. Therefore, a two-year period for storage of process materials is more appropriate based on the
intent of Congress, the volumes of material managed, and the nature of the mineral processing industry.
At a minimum, the commenter argues that 12 months should be the limit. (COMM1094)
Response: EPA is not promulgating the 48 hour provision proposed so this comment is largely
moot. EPA is retaining a condition indicating that secondary materials may not be accumulated
speculatively if they are to remain excluded.
2.4.2 Need for Greater than 48-hour Storage
The Agency received numerous comments opposing the 48 hour time limit included iq the
January 1996 proposal to define immediate reuse. These comments have been grouped into 35 comment
summaries provided below. Because many of the Agency's responses address the same issues and
reasoning behind today's final rule, EPA is providing a general response below that addresses these
topics.
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The Agency acknowledges that the proposed 48-hour time limit to define "immediate reuse" was
not a proper reading of this term. Based on all of the 35 comments below, the Agency has decided that
time should not be a determinant criteria to judge whether reuse is taking place. The mineral processing
industry has provided information which clearly shows that some materials must be stored for large
periods of time prior to legitimate recycling. In today's rule, the Agency has therefore not adopted a 48-
hour limit. Immediate reuse has been defined as the legitimate recycling of mineral processing
secondary materials without any prior storage. The Agency is also retaining its current qualitative
criteria to determine if legitimate recycling is taking place. Therefore, commenter concerns that the
Agency was not correctly focusing on reuse versus the time it takes to legitimately recycle have now been
addressed. It should be noted that today's rule is establishing a condition that mineral processing
secondary materials may not be speculatively accumulated. The Agency believes that these materials
can be recycled within the time limits imposed by current speculative accumulation regulations. If
materials cannot be recycled within that time period, the Agency views those materials as wastes.
The following paragraphs summarize the comments received by the Agency that address the
need for storage greater than 48 hours.
Comment: Eleven commenters argued that while there may be instances where reprocessing
can be completed in two days, this is not common practice. These commenters cited specific operations,
including copper, chemical processing, gold processing, and the iron and steel industry, where one week,
several weeks, two to three months, 18 months (virgin feedstocks) or more may be required to either
accumulate sufficient material to be economically practicable for reuse, or where production delays
require additional storage time. (COMM1016, COMM1029, COMM1034, COMM1039, COMM1041,
COMM1054, COMM1056, COMM1082, COMM1085, COMM1089, COMM1104)
Comment: Five commenters do not support a specific time constraint on the reuse of secondary
materials. (COMM1Q16, COMM 1034, COMM 1056, COMM 1069, COMM 1082) Three commertters
argued that EPA's proposal to impose a specific time frame for recycling of materials would require
facilities to dispose of these materials which have recoverable mineral value. (COMM1016,
COMM1069, COMM1082) Specifically, one commenter noted that many chemical facilities processing
Bevill-exempt mining material often require 2 to 3 week outages on a 2 to 3 year cycle for equipment
maintenance. This results in material in storage awaiting recycling at the time the shutdowns occur. The
commenter further argued that a time limitation would impose an unnecessary burden on waste disposal
capacity and result in the use of additional virgin resources. (COMM1016) Another commenter
suggested that any time limitation should be evaluated on a site-specific basis. (COMM 1056)
Comment: One commenter argued that EPA's study of industry practices to determine the
applicability of a two-day storage time for secondary materials was insufficient. The commenter
asserted that an anecdotal "study" of two material streams is insufficient to characterize the practices of
the entire industry. The commenter argued that any such study should include a credible number of
mineral feedstocks and in-process materials to build a data base that could be used to analyze how such
materials are actually managed. (COMM1094)
Comment: Six commenters argued that a 48-hour time frame for immediate reuse is
impractical. The commenters provided several examples of classes of internally recycled secondary
materials in the primary lead industry, bauxite, copper industry that included reverts, refinery bleeder
solution, copper ladles, copper matte, feed sulfur, flue dust, refractory brick, acid plant blowdown, vessel
cleanout materials, converter slags, baghouse dust, waste water treatment sludge or industrial process
sludge, and plant cleanup materials as materials that often, through typical and routine operations are
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stored more than 48 hours before being reused, and that are all in-process materials that cannot be
regulated as wastes under RCRA. (COMM1019, COMM1041, COMM1043, COMM1054, COMM1089,
COMM1097)
Comment: Five commenters argued that a rigid 48-hour period may necessarily exclude some
materials that are beneficially reused without long-term storage. (COMM1016, COMM1027,
COMM1029, COMM103 7, COMM1043)
Comment: Six commenters argued that some level of flexibility in how long materials may be
stored is necessary. (COMM1027, COMM1034, COMM1057, COMM1069, COMM1082,
COMM1093) One of these commenters stated such flexibility should include provisions to allow the
generator to demonstrate that longer periods of time are appropriate. (COMM 1027)
Comment: One commenter argued that the possibility of environmental harm should be taken
into account when determining the length of time that materials can be stored prior to reuse. The
commenter noted that secondary materials that it generates would not be characteristically hazardous and
would only be considered hazardous under the "Derived From" rule as a result of use as a fuel.
(COMM 1027)
Comment: One commenter noted that certain secondary materials such as baghouse dust, and
slag, generated in the gold industry are valuable commodities whose processing nets millions of dollars
in annual revenues, and that EPA does not have the authority to regulate these materials because they are
not solid wastes. (COMM 1029)
Comment: Two commenters believed that in the preamble to the proposal, EPA appears to have
identified in-process materials as a category consisting solely of reverts, and that in-process materials
should not be limited to copper reverts. (COMM 1043, COMM1048) One of these commenters
suggested that the rationale for identifying these materials as in-process cannot be consistently used by
industry to determine what other types of secondary materials might fit this category, regardless of any
commonality with the attributes of reverts. Further, the commenter argued that EPA did not use a
technically consistent rationale when evaluating other types of materials. Specifically, EPA has
identified one single material and failed to define a consistent set of criteria for determining if other
materials were also in-process. The commenter noted that other materials, like reverts, are collected and
stored solely for the purpose of metals recovery (e.g., flue dust and furnace brick), and therefore should
clearly be considered "in-process" materials. Further, the commenter found that even reverts could lose
this "in-process" status based on the Agency's discussion of flue dust. In that discussion, the Agency
concluded that flue dust was a waste because it had been stored on land for long periods of time and
contributed to environmental problems. The commenter noted first that the Agency presented no
evidence supporting its damage allegations (see also section 1A3 of this summary document), but also
suggested that the Agency might, in the future, consider reverts to be wastes if it could discover just one
case where reverts had been stored for a prolonged time and caused "damage." The commenter
recommended that once a material is classified as "in-process," it should retain that classification.
Mismanagement at one or more facilities should not change its regulatory status. Finally, the commenter
expressed its concern that the exclusions described by EPA may be illusory because EPA has stated that
the exclusion would not apply when materials are managed in a manner constituting disposal, which
includes land placement. (COMM 1043)
Comment: The commenter, while arguing that copper reverts are outside of the Agency's
jurisdiction, noted that even reverts may be stored for periods exceeding 48 hours as the result of
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operational constraints at a facility. Also, reverts may be collected, crushed, and floated (concentrated)
prior to reprocessing in smelter operations. The commenter argued, given the high copper concentrations
of reverts, they cannot be considered to be "discarded," even if they are not reused within 40 hours.
(COMM1089)
Comment: Two commenters believe that the proposed application of exemptions for in-process
and immediate reuse materials are too narrowly defined. (COMM1043, COMM1048) One commenter
further notes that because of this narrow definition, substantial regulatory relief to the industry will not
occur. (COMM1043)
Comment: Three commenters noted that EPA is in concurrence that reverts are only one of a
number of materials that the commenter believes to be in-process. (COMM1043, COMM1048,
COMM1088) One commenter noted the conclusions of the Solid Waste Task Force that identified flue
dust, furnace brick, refinery anode slimes, and slag as being in-process, co-products, or intermediate
materials as opposed to waste materials. The commenter believes that the terminology used to describe
these materials is inconsequential, as long as they are part of the production process. The commenter
further believes that EPA should consider the findings of the Task Force and include these additional
types of materials as in-process, and also believes that expanding the concept of in-process would result
in a more appropriate regulatory approach than the current proposal. Finally, the commenter stated that
it would be agreeable to working with EPA to develop a more appropriate definition of in-process
materials that would allow an evaluation of these materials on an objective basis. (COMM1043) The
other commenter suggested that in addition to reverts, the following materials, at a minimum, should be
considered in-process materials: drosses, matte, speiss, baghouse and converter dusts, litharge, and
refractory bricks. (COMM1048)
Response: As noted earlier, the Agency does not view the work of the Task Force as
constituting a final regulatory action. The Solid Waste Definition Task Force was created to study issues
surrounding the definition of solid waste. The Solid Waste Definition Task Force's conclusions
regarding the Agency's jurisdiction are in no way binding, as their positions were never finalized in a
rulemaking. Today's rulemaking defines the limits of EPA's jurisdiction over secondary materials, and
specifies that secondary materials which are "immediately reused" are not subject to RCRA Subtitle C
regulation. The Agency is defining immediate reuse as the continuous recirculation of secondary
materials back into recovery processes without prior storage. Any mineral processing secondary material
that does not meet the definition of immediate reuse, or is not exempt from RCRA jurisdiction through
the use of other RCRA provisions (such as the Bevill exemption), or through the use of the conditional
exclusion being promulgated today, is a waste.
Comment: One commenter did not understand the significance of EPA's statement in the
current proposal suggesting that it viewed reverts as in-process, because they are not sludges, spent
materials, or by-products. The commenter suggested that materials generated from air pollution control
devices are currently considered sludges but also are considered in-process. The commenter provides an
example of flue dust captured in a smelter's gas handling system as a type of material that could not be
contained in the process simply due to the technical limitations of the process. The commenter
suggested that this example is analogous to reverts spilled in a smelter's converter aisle during hot metal
transfers. (COMM1043)
Response: In today's rule, the Agency views spilled molten metal on the ground as not being a
waste as long as it is returned to the smelter. This is the same rule applied generally to unused
commercial chemical products which for some reason have to be reprocessed. See 261.33. In this case,
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the Agency believes that storage is not taking place. The commenter's example of flue dust also could
be excluded from jurisdiction, and essentially viewed as a sludge which continues to be a non-waste
feedstock to the process, so long as it is not discarded via placement in a pile or surface impoundment (as
well as meeting the other provisions of the conditional exclusion in the final rule).
Comment: One commenter questioned EPA's lack of definitions or descriptions of what
constitutes an in-process material. The commenter noted that, for example, if flue dust is denied status
as an in-process material due to storage time, it is possible that EPA could deny in-process status to
reverts at any copper smelter if they are not fed into a furnace within some as yet undefined time period.
The commenter also noted that if such materials (flue dust) are not included as a category of in-process
material, and if prolonged storage were demonstrated to be a significant problem, that limits on
accumulation time are a more appropriate regulatory mechanism to address the issue than through a
blanket waste designation. (COMM1043)
Response: Today's rule no longer uses the "in-process" terminology. The rule defines the terms
"immediate reuse" as legitimate recycling of mineral processing secondary materials without any prior
storage, and sets limits on speculative accumulation for today's conditional exclusion.
Comment: One commenter stated that most process waste waters and other liquids would be
recycled based upon their physical, not chemical characteristics. Significant variations would not
normally be expected, due at least in part to downstream concerns regarding waste water treatment
system operations. Therefore, the commenter argued that the recycling steps requiring 48 hours to
complete, are in EPA's opinion, irrelevant in the waste of waste waters and other liquid secondary
materials. The commenter suggested that for waste waters and other liquid secondary materials that can
be conveyed through piping and other means on an instantaneous basis, an immediate reuse exclusion
should be interpreted to exclude storage of the material for any length of time, particularly in land-based
units. The commenter cited AMC II in limiting the immediate reuse exemption to a "continuous stream
or flow from one production process to another" (AMC II at 1186, fn.8, citing AMC I at 1190).
(COMM1042)
Several commenters provided specific examples of mineral processing industry operations that
require more than two days before reuse of secondary materials can occur.
Comment: One commenter suggested that the 48-hour limit would not be practical and
provided an example from the chemical industry. The commenter described situations in which off-spec
product or other secondary materials are received from off-site via drum, railcar, or truck. The
commenter noted that these materials are typically only off-loaded based on availability of the loading
station, or need for raw materials. Sampling might also be needed before the .material could be inserted
into the process. None of this could be accomplished within a two-day time limit. The commenter noted
that these materials would probably need to be manifested and the facility would be subject to RCRA
requirements if a two day time period were imposed; thus, the immediate reuse test would be
impractical. The result would be loss of recycling opportunities because facilities would not be willing
to handle these materials as hazardous wastes. (COMM1016)
Comment: One commenter noted that in many chemical processing operations, including batch
operations, reuse time may exceed several days under EPA's proposal, many of these materials would no
longer be exempt and might be disposed, even though they might otherwise be recovered and reused.
For example, certain reactions between several organic materials are followed by the addition of a
process solvent to solubilize the product from the reaction mixture. Further recovery of the product is
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undertaken through distillation in a closed loop process and then recycled back to the reaction step.
Often, these processes are batch operated and can have reaction times of 12 hours or longer. It may take
several days for sufficient solvent to be separated for purification and reuse. The commenter suggested
that preventing these types of reprocessing would result in no economic or environmental benefit, and
would impede industry's ability to legitimately recycle materials. (COMM1016)
Comment: One commenter noted that in the gold industry, it sometimes takes months to
accumulate sufficient baghouse dust to constitute a sufficiently large batch to ship off-site for smelting.
While being accumulated, the dust is stored indoors in barrels. The commenter noted that gold-bearing
slag is accumulated (sometimes over a period of weeks to make metals recovery cost effective) in a
similar fashion while awaiting further processing. (COMM1029)
Comment: One commenter requested clarification of the Agency's definition of alternative
feedstocks. The commenter stated that the proposal does not clearly indicate whether reverts or dusts
reused within 48 hours are alternative feedstocks. The commenter believed that EPA had not limited the
application of the alternative feedstock restriction to only RCRA materials and suggested that the
Agency make clear that reverts and other materials used within 48 hours are not alternative feedstocks.
(COMM1089)
Comment: One commenter noted that the average retention time in its phosphpgypsum stack
and process water impoundment system is approximately 25 days, even though the flow is large and
continuous. (COMM1037)
Comment: One commenter noted that operational realities dictate when, where, and how
materials are used as feedstocks, pointing out that some materials can be used immediately, but that other
materials which are legally legitimate feedstocks, cannot be reused within 2 days. The commenter
provided several examples of the use of secondary materials in its. smelting operations. The commenter
noted that its production process required a careful mix of materials to ensure maximum efficiency and
to prevent damage to the smelter. The materials used are blended into the process as possible, given the
demands on the smelter. For example, during slag blow activity in a converter furnace, secondary copper
materials may be added to recover copper and to cool the furnace charge. Once the iron has been
removed, the converter switches to copper blow and at this point, very high copper content materials can
be added to the furnace. Reverts, according to the commenter, cannot be immediately reused due to their
physical form. Reverts may be a mixture of converter slag and matte which is frozen to the walls and
bottom of a transfer ladle. This material is knocked loose and stored until it is cooled sufficiently to
allow equipment to move it to the crushing and sizing area. Reverts are accumulated in more than one
area and are surveyed for inventory control purposes and left undisturbed until ready to be reused in the
furnaces. Molten matte cannot be fed into converters when the converters are down for repairs, full
anode casting is backed up, or the acid plant is down. During these times, the matte is accumulated on a
slag accumulation area located on the ground. The material is chipped and then fed back into the furnace
for melting and then to the converters and eventually anode casting in order to continue copper
production during times when the Isamelt furnace is down. The commenter also noted that in some cases
in the copper smelting industry, raw materials such as converter furnace ash are produced episodically
during shutdown periods. After evaluation, these materials are mixed over time with concentrate in a
bedding facility as the smelter operators determine the optimal mix of raw materials for each charge of
materials in the smelter. (COMM1041)
Comment: Two commenters stated that converter slag must be cooled and granulated before
being sent back to the concentrator, operations that could take more than 48 hours. The commenters
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further stated that smelting operations require furnaces be maintained at certain temperatures at certain
times, which means that non-concentrate materials such as scrap copper or reverts may not be fed back
into them within 48 hours. In both cases, the materials could be determined to be an alternative
feedstock whose use would threaten the Bevill status of the tailing and smelter slag. (COMM1985,
COMM1090) Further, one commenter stated that such materials stored for future use at the site or off-
site, could also lose Bevill status as alternative feedstocks even though they never will be discarded.
(COMM1090)
Comment: One commenter demonstrated that furnace brick cannot feasibly be reused within 48
hours. The commenter noted that used furnace brick is generated when furnaces are shutdown for
maintenance and rebuilding. This material is cooled for three days prior to being removed form the steel
shell of the vessel. This procedure can take up to a week to accomplish, and in the interim, the materials
are stored on the earthen floor of the smelter's crane aisle, prior to being fed into the converter or taken
to the slag cooling pits. In total, the process can take up to 10 days from the time the material is placed
in the cooling pit to the time it enters the concentrator for milling and flotation. (COMM1043)
Comment: One commenter noted that it reuses refinery bleed solution which is piped from the
refinery to a storage tank at the site. Using tanker trucks, the solution is transferred to another tank
where it is fed into the raffinate pipeline for transport to the heap leach pad. The commenter stated that
this process takes up to 36 hours to complete. Once on the leach pad, the commenter stated that it can
take up to three weeks before the material can be used for the recovery of copper. Similarly, the
commenter noted that flue dust can take from several hours to a month to be reused. (COMM1043)
Comment: One commenter noted that secondary materials may be used in the formation of
chromite briquettes, which can be stored for somewhat more than two days prior to being fed back into
the furnace in order to allow sufficient curing and handling time. (COMM1055)
Comment: One commenter noted that the lead industry has matured significantly since RCRA
and that none of the three remaining facilities manage materials in unlined ponds or on bare ground. The
commenter stated that certain factors affect the lead sector's ability to reuse materials expeditiously,
including weather and quality of concentrate. (COMM1019)
Comment: One commenter noted, without providing specific examples, that a secondary
material may be produced and be suitable for use in another product that will be produced in a later
production run. These secondary materials therefore cannot be practicable be reinserted until the current
production run is complete. The commenter argued that the opposite case could also be true. The
material may be reusable only in the product that was manufactured when it was generated. If that
production run has been completed and another production run has begun, reuse will need to await a new
production run. While the wait is not likely to be protracted, it easily could exceed 48 hours.
(COMM 1027)
Comment: One commenter suggested baghouse dust as an example of why the 48 hour limit is
impractical. Dust collected in baghouses at one of the commenter's facilities (a smelter) accumulates in
cellars beneath the baghouse. The baghouse is taken off-line every two to four weeks so that the dust can
be removed from the cellar. This material is then stored in a containment area awaiting further
processing. The commenter argued that the material cannot be used within two days because it cannot
all be put on charge immediately. Second, the commenter noted that emptying the cellars on a
continuous or even more frequent basis is not practicable. The commenter argued that although the
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process is not continuous in the sense of the dust in the cellars constantly being removed and introduced
into the process, it is none the less part of an on-going operation. (COMM1034)
Comment: Two commenters provided an example of waste water sludge to make the point that
a two day time limit is unacceptable. The commenters stated that waste water sludge cannot be
processed until it is dry, and that this process typically takes two or more weeks to accomplish.
(COMM1034, COMM1039)
Comment: One commenter asserted that the Agency is operating under a misconception as to
how the copper industry operates based on language in the proposal related to land storage of materials
prior to reuse. Specifically, the commenter stated that copper slag is transported in metal containers
prior to storage for cooling on the ground. The commenter stated that these containers are not used for
storage. Further, the commenter was not aware of any copper smelter that could recycle slag within the
24 hour period EPA describes in its proposal as typical industry practice (e.g., the San Manuel facility
which has a standard cooling time for slag of 32 hours). In total, it may take up to 10 days for the slag to
actually reach the concentrator. (COMM1043)
Comment: Two commenters suggested that most copper slags would not result in releases
solely based on the length of time the material is stored on land because that slags do not weather
significantly over time and are not amenable to blowing or erosion. (COMM1043, COMM1054)
Comment: One commenter noted that EPA's proposal does not account for exceptions to
normal operating procedures based on system malfunctions. Further, the commenter disagreed with
EPA's proposal to deal with production stoppages. The commenter noted that in a delinked flash
smelting and flash converting process, boiler dust from flash smelting and flash converting furnaces are
reintroduced into processes in a manner that EPA would consider "on-going processing." However,
because the flash smelting and flash converting processes are delinked, flash converting can continue,
even where the flash smelting furnace is not operating for long periods of time. In such instances, the
boiler dust produced by flash converting cannot be processed by the inoperative smelting furnace within
48 hours. The material is therefore stored for recycling. No element of discard exists, and the dust is
placed back into the process as soon as capacity is available. This may take longer than 48 hours. The
commenter described another scenario where the 48-hour period is inadequate. The commenter argued
that reverts do not pose a significant environmental threat since they typically are large pieces of
solidified molten copper, incapable of leaching metals under most conditions and unlikely to erode and
deposit as sediment. Therefore, the commenter asserted that reverts are unlikely to cause environmental
damage even if stored on land for more than 48 hours. The commenter also described other sources of
reverts including those from anode casting areas — a process common to all copper smelters.
(COMM1054)
Comment: One commenter suggested that certain secondary materials related to the gold
refining industry (e.g., sump cleanouts, washdown waters, sludges, and air pollution control dusts) are
analogous to copper reverts in that they are not managed on land, they contain valuable metals that
escape during extraction and beneficiation, and are continuously returned directly to the process. The
commenter added that while these materials currently enjoy exclusion under the Bevill Amendment, it
believed that EPA's proposal to narrow the scope of the Amendment may result in this exclusion being
withdrawn. (COMM1104)
Comment: One commenter provided an example of materials that, based on EPA's description
of its jurisdiction, are not subject to RCRA. The commenter described its use of acid-containing streams
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for acid value and copper content, including spent electrolyte. The commenter stated that these materials
are used in a continuous production process and are returned to the leaching circuit. The commenter
argued that these materials are being continuously processed and that these management practices
demonstrate that discard is not occurring. (COMM1041)
Comment: One commenter described five major classes of internally recycled secondary
materials that would qualify as continuously processed materials: (1) baghouse dusts; (2) waste water
treatment sludge; (3) plant clean-up materials; (4) drosses generated from kettle operations; and (5) off-
specification by-products recycled in-process for metals recovery (COMM1019)
2.4.3 Need for In-process Exclusion
Comment: Two commenters supported EPA's recognition that some secondary materials are
outside RCRA jurisdiction, and are not wastes regardless of how they are managed, based on the
conclusions of the Solid Waste Task Force, and that some classes of materials are outside of RCRA
jurisdiction. (COMM1043, COMM1048) One commenter believes, however, that EPA should adhere
to the conclusions and recommendations of the Task Force, which recognized all of the commenter's
secondary materials as "in-process" and not wastes. (COMM 1043)
Response: The Solid Waste Definition Task Force was created to study issues surrounding the
definition of solid waste. The Solid Waste Definition Task Force's conclusions regarding the Agency's
jurisdiction are in no way binding, as their positions were never finalized in a rulemaking. Today's
rulemaking defines the limits of EPA's jurisdiction over secondary materials, and specifies that
secondary materials which are "immediately reused" are not subject to RCRA Subtitle C regulation. The
Agency is defining immediate reuse as the continuous recirculation of secondary materials back into
recovery processes without prior storage. Any mineral processing secondary material that does not meet
the definition of immediate reuse, or is not exempt from RCRA jurisdiction through the use of other
RCRA provisions, or through the use of the conditional exclusion being promulgated today, is a waste.
Comment: Three commenters noted that EPA is in concurrence that reverts are only one of a
number of materials that the commenter believes to be in-process. (COMM1043, COMM1048,
COMM1088) One of these commenters noted the conclusions of the Solid Waste Task Force that
identified flue dust, furnace brick, refinery anode slimes, and slag as being in-process, co-products, or
intermediate materials as opposed to waste materials. The commenter asserted that the terminology used
to describe these secondary materials is inconsequential, as long as they are part of the production
process. The commenter further believed that EPA should consider the findings of its own Solid Waste
Task Force and include these additional types of materials as in-process. (COMM1043) One commenter
concluded that expanding the concept of in-process would result in a more appropriate regulatory
approach than the current proposal. (COMM 1088)
Response: See response to COMM 1043 and COMM 1048 above. In the May 1997 proposal, the
Agency discussed the possibility that some materials that fall onto the ground could be classified as
materials undergoing immediate reuse. The Agency noted that reverts (matte and copper) can be spilled
in the process of being transferred from one part of the smelting process to another. Such reverts are
picked up as soon as they can be safely handled and are placed directly back into the smelting process.
The Agency has reviewed smelting processes in other metal sectors and finds that spillage from ladles is
common and that these materials are routinely picked up within a short time and placed back into the
process. Thus the Agency concludes that molten metal spilled onto smelter floors is not a solid waste if
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it is picked up as soon as it cools and is placed back into the smelting process. Other materials noted by
commenters are wastes since they must be stored prior to recycling.
Comment: One commenter argued that EPA has ignored the findings of the Solid Waste Task
Force, and further, neglected to recognize the limitations of its RCRA authority over land-based units. In
particular, the commenter suggested that despite extensive evidence in the record provided in the 1985
and 1990 Reports to Congress, the 1989 National Survey of Solid Wastes from Mineral Processing
Facilities and RCRA §3807 Waste Characterization Data Requirements, EPA rejected the position that
undiscarded metal- or mineral-bearing secondary materials are not wastes. The commenter argued that
EPA has made a broad unfounded assertion that mineral processing secondary materials can be viewed
as part of the disposal problem when stored in land-based units, and thus can be determined to be
discarded. The commenter stated that storage of materials in land-based units is part of normal
production processes, that the materials are used as expeditiously as possible, and thus fall outside the
scope of RCRA Subtitle C authority. The commenter noted the Solid Waste Task Force's conclusion
that some interim storage period on land for these materials is necessary and suggested that EPA
recognize that its proposed limitations clearly are beyond the scope of RCRA Subtitle C. (COMM1048)
Response: See response to COMM1043 and COMM1048 above. The Agency asserts that a
considerable amount of mineral processing secondary materials contain hazardous constituents that can
threaten human health and the environment (See U.S. EPA, Office of Solid Waste, Human Health and
Environmental Damages from Mining and Mineral Processing Wastes, 1995, and Damage Cases and
Environmental Releases, 1997). Land-based storage units have an inherent indicia of discarding due to
their inability to prevent releases of contained materials. RCRA section 1002(b)(7); AMC II. 907 F.2d at
1187; 53 FR at 521,525 (January 8, 1988). The many damage incidents involving storage of mineral
recovery wastes and secondary materials in piles and surface impoundments confirm this statement.
Furthermore, some of these incidents involve mineral processing secondary materials stored in land-
based units before eventual reclamation.
2.4.4 Definition of In-process
Comment: One commenter reiterated its previous comments on the January 25, 1996 proposal,
suggesting the urgent need for the Agency to promulgate a rule that describes, as accurately as possible,
the distinction between RCRA-regulated solid waste and RCRA-excluded in-process materials. The
commenter advised EPA to keep in mind that the distinction between solid waste and in-process
materials is jurisdictional. However, the commenter agreed that such determinations are necessarily site-
and waste-specific and can involve a complex variety of factors. The commenter noted that the efforts in
the proposal to describe this distinction are crude and inaccurate. The commenter stated that the lack of
comparative data to discern the distinction is a key weakness of the Agency's analyses. (COMM1094)
Response: Today's rulemaking finalizes the distinction between RCRA-regulated solid waste
and RCRA-excluded material by defining the limits of EPA's jurisdiction over secondary materials, and
specifying that secondary materials which are "immediately reused" are essentially viewed as in-process
materials and are therefore not subject to RCRA Subtitle C regulation. The Agency is defining
immediate reuse as the continuous recirculation of secondary materials back into recovery processes
without prior storage. Any mineral processing secondary material that does not meet the definition of
immediate reuse, or is not exempt from RCRA jurisdiction through the use of other provisions of the
statute, is subject to today's rule. However, mineral processing industries will be able to recycle their
secondary materials outside RCRA Subtitle C requirements, as long as the secondary materials are stored
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in non-RCRA tanks, containers, or buildings (or in limited cases, on approved pads), and meet all the
other conditions for the exclusion from the definition of solid waste.
Comment: Three commenters argued that EPA's speculative accumulation rule is sufficient to
define waste management. (COMM1016, COMM1029, COMM1094) One of these commenters noted
that it is not aware of any information to support the proposition that on-going and continuous
manufacturing using secondary materials can be considered discard if it takes more than two days to
complete or processing is occurring at more than one location. (COMM1016)
Response: See response to COMM1094 above. The Agency believes that the ruling in AMC II
(American Mining Congress v. EPA. 907 F.2d 1179, 1186 (D.C. Cir. 1990)) provides the Agency with
jurisdiction over land placement of secondary materials because materials placed on the land have the
propensity to leak (that is, hazardous constituents leak from the materials and contribute to the waste
management problem). The plain reading of the words "continuous" and "immediate" preclude storage.
Storage by its very nature means that processes are not continuous, rather they are generating materials
which must be held apart for some period of time prior to reentry into a plant. This storage, therefore,
breaks the continuous nature of production and reentry.
Comment: Given that the proposal is based on the time it takes for a secondary material to be
recycled, one commenter requested clarification from EPA on definitions of time of generation, the point
at which recycling starts, and the application of the same facility, and same or similar process concept, in
order to evaluate the proposal more adequately. (COMM1043)
Response: See response to COMM1094 above. The Agency has chosen not to adopt the
proposed 48 hour time limit to define immediate reuse. Therefore, issues concerning time of generation,
the point at which recycling starts, and the application of the same facility, and same or similar process
concept are no longer relevant.
Comment: One commenter believed that there is no significance placed by EPA on the criterion
of a material being in-process. The commenter stated that if a metals production company continues to
recover its products from a secondary material, it should be considered in-process, regardless of whether
the material could be used for another purpose. However, the commenter noted that the transfer of such
a material from continued metals extraction to some other use could trigger other recycling rules that
might be applicable. (COMM1043)
Response: See response to COMM1094 above.
Comment: One commenter questioned EPA's lack of definition or description of what
constitutes an in-process material. (COMM1043) The commenter noted that, for example, if flue dust is
denied status as an in-process material due to storage time, it is possible that EPA could deny in-process
status to reverts at any copper smelter if they are not fed into a furnace within some as yet undefined
time period. The commenter also noted that if such materials (flue dust) are not included as a category
of in-process material, and if prolonged storage were demonstrated to be a significant problem, then
limits on accumulation time are a more appropriate regulatory mechanism to address the issue than
through a blanket waste designation. (COMM 1043)
Response: See response to COMM 1094 above.
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2.4.5 Damages Due to Land Storage of Secondary Materials
Comment: Three commenters argued that EPA cannot demonstrate secondary materials are part
of the disposal problem, and that EPA's Damage Cases report does not provide sufficient evidence of
incidents where damages resulted from non land-based storage of such materials. The commenters
argued that there is no basis for EPA to apply those limits to mineral processing secondary materials that
are recycled without being stored on the land. (COMM1029, COMM1054, COMM1094) One of these
commenters stated that while it may be true in some cases that damages are a function of the length of
storage time on land, releases would also be a function of the type of material stored and the conditions
under which it is stored. (COMM1054)
Response: The Agency agrees mineral processing secondary materials that are not placed on
land may be recycled into mineral processing operations, as long as they are stored for no longer than
one year in tank, containers, or buildings, or in some cases, pads. Materials placed on land can be
recycled, however they will not be eligible for exclusion and the land-based units will fall under Subtitle
C. The Agency also agrees that damages can be a function of time, type of material, and conditions
under which the material is stored but adds that piles and impoudments release their contents by their
very nature. The Agency has presented evidence in Human Health and Environmental Damages from
Mining and Mineral Processing Wastes (EPA, 1995) and Damages and Environmental Releases from
Mines and Mineral Processing Sites (EPA, 1997) that land placement causes problems. The Agency
notes that any secondary materials that are placed on the land have a propensity to leak, and such
practices are therefore not allowed under today's rule without the units meeting the standards necessary
to protect human health and the environment..
Comment: One commenter suggested that EPA's use of the results of its Damage Case report to
support its proposal for exclusion of in-process materials is flawed. The commenter suggested that there
is little marketplace incentive for exercising reasonable care regarding wastes, absent command-control
regulatory programs like RCRA. This concept is the cornerstone underlying the distinction between
solid waste and in-process materials and damage cases can be useful in drawing this jurisdictional line.
However, damage cases are only useful when secondary material streams are compared to similar
material streams that are deemed to be virgin materials. (COMM1094)
Response: The Agency agrees that in-process materials that are not stored on land are not
affected by today's rule which applies only to mineral processing secondary materials. The Agency
disagrees with the commenter's statement regarding the usefulness of damage cases. The Agency clearly
indicated in the damage case document that data tended to fall into two general classes: (1) information
where clear environmental damages have occurred, and (2) where mineral processing materials have
been released into the environment. In some cases, a combination of feedstock, in-process materials,
secondary materials, and wastes contributed groundwater, surface water, or soil contamination. In other
cases, contamination occurred through episodic or continuing mismanagement of hazardous and other
solid wastes. Today's rule clearly defines immediate reuse as not including storage prior to reentry into
a process. All facilities must still legitimately recycle their materials to qualify for the conditional
exclusion. The comment that market forces can serve as an adequate safeguard to release is belied, at
least in part, by the many damage incidents involving production units themselves (such as heap leaching
operations and gypsum stacks). Although the final rule does not regulate production units, these
incidents still point up the fact the fact that just because a material is being used in a production process
is no guarantee of safe management. Consequently, when the Agency is considering whether secondary
materials stored in land based units (as opposed to placed in production units) can be viewed as
"discarded", the fact that they are going to be eventually recovered is no assurance that they will be
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managed safely, or, more pertinently, that piles and impoundments holding these materials will operate
differently than waste piles or impoundments in the industry-
Comment: One commenter argued that EPA has not shown that a two-day immediate reuse test
is necessary in order to protect human health and the environment. Further, the commenter asserted that
EPA's Damage Cases report does not provide a single instance of damages related to the production of
alumina from bauxite. The commenter pointed to information previously provided to EPA that indicates
no impact on groundwater under the surface impoundments that receive waste generated from bauxite
refining. (COMM1097)
Response: The Agency has decided not to adopt the 48 hour test for immediate reuse of
secondary materials. Immediate reuse is defined as continuous recirculation of secondary materials into
a process, without storage. While the Agency appreciates the commenter's assertions regarding waste in
the aluminum industry, secondary materials from all mineral processing industries will be subject to the
immediate reuse provisions of today's rule. While damages in the aluminum industry may not have
been highlighted, it was not the Agency's intention to document every instance of damages relating to
every mineral processing sector. The Agency notes that so long as mineral processing secondary
materials are stored in tanks, containers, buildings, or on approved pads, and are not speculatively
accumulated prior to legitimate recycling, storage of secondary materials is allowed.
Comment: In the case of flue dust, the commenter noted that EPA has concluded that it should
be considered a recycled waste because the material is purportedly stored for extended periods of time
and has contributed to environmental problems. The commenter disagreed with this assertion, noting
that the Damage Cases report does not provide any data regarding the length of time flue dust has been
stored nor any conclusive data suggesting environmental damages resulting from this storage. Further,
the commenter asserted that even if individual instances of damages exist, such individual cases are not
adequate to support the need for sweeping regulation. The outcome, the commenter stated, could be that
reverts would become subject to RCRA regulation should EPA discover a single case where this material
may have been stored for a prolonged period of time, and/or may have caused environmental damage.
(COMM 1043)
Response: The Agency appreciates the commenter's concerns. However, under the provisions
of today's rule, all secondary materials including flue dust must be immediately recycled as part of a
continuous process or stored in tanks, containers, or buildings (or on approved pads) to avoid being
considered a solid waste. Such a determination obviously is not dependent on what other companies may
be doing to manage the same material. Storage of secondary materials on the land may lead to possible
releases of hazardous waste to the environment. Today's rule seeks to reduce these risks. The Agency
noted in its May 1997 proposal that if reverts are returned to the smelting process, they are not
considered to be a hazardous waste. Today's rule adopts this position.
Comment: One commenter criticized as inaccurate, inappropriate, and unjustifiable, EPA's
assertion that environmental damage cases indicate that land-based storage of secondary materials is an
inherent demonstration of discard due to the units' inability to prevent releases of contain materials. The
commenter noted that the industry uses carefully designed land-based units, and in many cases, these
units can be subject to stringent state or federal controls (e.g., Clean Water Act, Arizona Aquifer
Protection Program) to ensure adequate protection. The commenter noted that such protections were in
evidence during the Agency's 1994 Arizona Smelter Site tours, but stated that EPA again failed to take
this information into account in developing this proposal. (COMM 1048)
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Response: The Agency agrees that storage of secondary materials will be permitted in tanks,
containers, buildings, or in some cases pads under today's rule. However, the Agency has noted in the
proposed rule records, and particularly the damage case reports, that the storage on the ground of
secondary mineral processing materials continues as a management practice, and has cause
environmental damage (or has the potential to do so). The vast majority of newly identified mineral
processing wastes are liquids, which are unsuitable for storage on the land. The record indicates that a
wide range of mineral processing secondary materials are released into the environment., particularly
from piles and impoundments, including those in states mentioned by the commenter. While each
release is not necessarily responsible for environmental damage, the Agency believes that the goal of
RCRA is to prevent releases which may prove harmful, not to remediate releases after-the-fact.
2.4.6 Only On-site Materials
Comment: One commenter noted that EPA should develop an interpretation of immediate reuse
that accounts for site-specific operations, including the need for off-site transfers of materials within the
mining and mineral processing industries. Specifically, integrated companies use off-site transfer to
other facilities under their ownership as a part of normal on-going primary production. The commenter
pointed out that EPA's own reference in the proposal (footnote 4 at 62 FR 2605 1) provides an excellent
example of inter-plant processing of materials in the copper and lead industry. The commenter claims
that this example demonstrates that materials are part of the on-going production process because of such
transfers. (COMM1034)
Response: In order to be considered immediately reused, the Agency believes materials must be
part of a continuous process within the facility. This precludes the possibility of shipping wastes
between plants. "Ongoing processes" can by definition only occur at one facility. These materials must
either be continuously recycled, or be stored in a tank, container, building (meeting very basic design and
operating criteria), or in certain cases, on approved pads to meet today's exclusion. Today's rule allows
a company to ship a mineral processing waste to another mineral processing facility to be legitimately
recycled and remain excluded. The waste would have to be shipped as a waste and the receiving
company would have to meet all the conditions of the exclusion from the definition of solid waste.
EPA does note, however, that when transfers between different companies are involved, the fact pattern
comes to resemble that of API. In that case, the court held that a material was discarded (or at least
could be permissibly be classified as discarded) notwithstanding that it was generated within the mineral
processing industry (steel production) and was recovered within the industry (at a metal recovery facility
and eventually by a zinc smelter).
Comment: Three commenters argued that the exclusion also should apply to certain materials
brought in from off-site. (COMM1041, COMM1048, COMM1088) Two commenters stated that the
court, in AMC I, recognized industry's practices, and their need for materials to be used in other phases
of on-going operations, not just operations at a single plant. (COMM1048, COMM1088) One
commenter stated that the phrase "in the same or similar process" should not be included as a test for
exclusion, arguing that if the material is being recovered at a metal production facility for its metal
content, whether it is recovered in the same process is irrelevant. For example, the commenter argued
that metal-bearing raw materials (e.g., F-006) brought from off-site for use as supplemental feedstocks
should be included as in-process materials. (COMM1041) Two commenters argued that the fact that
materials are taken from one plant to another does not preclude them from being part of a continuous,
on-going process once received at another operation, a situation that does occur, over time periods in
excess of two days. (COMM1048, COMM1088) One commenter argued that EPA has failed to
recognize that extraction of metals from virgin ore or raw materials typically requires the use of more
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than one site and by prohibiting the transfer of secondary materials, EPA is placing a burden on
industry's legitimate processing and beneficial recycling efforts.
Response: The Agency appreciates the commenters' concerns. Materials from offsite sources
do not meet the immediate reuse definition, and therefore are considered wastes if not legitimately
recycled and meeting other conditions of the exclusion. As noted in the preamble, and in the previous
response, this fact pattern starts to resemble that of API, and so is further along the waste continuum than
recovery operations occurring at a single site. Thus, EPA believes that its authority to classify secondary
materials transferred between companies engaged in different aspects of mineral processing, which
secondary materials are stored inland-based units, to be even more clearly classifiable as 'discarded' and
hence solid wastes. . While today's rule allows for transfers of secondary materials within the primary
mineral processing industry (see response to COMM1034 above), the Agency is not extending the
conditional exclusion to metal bearing wastes generated outside of the primary mineral processing
industry. See, e.g., Ilco. already classifying such materials as discarded.
Comment: One commenter noted that the off-site restriction is beyond EPA's jurisdiction and
such a proposal is contrary to RCRA goals. Therefore, the commenter suggested that the off-site
exclusion be expanded to include off-site secondary materials, as well as materials outside of the mineral
processing industry. (COMM1048)
Response: Today's rule is restricted to wastes generated by primary mineral processing. All
other wastes are beyond the scope of the rule.
Comment: One commenter agreed with EPA that off-site recycling cannot be classified as
immediate or continuous, and argued against extending the exclusion to off-site recycling. The
commenter stated that extending the exclusion to off-site recycling makes little sense, especially if land-
based storage is still allowed for these materials. The commenter asserted that the Agency has concluded
that land-based storage should be allowed only when there is a production-based need for such storage.
According to the commenter, transporting materials from off-site clearly demonstrates no production-
based need for land placement of the materials. (COMM1042)
Response: The Agency appreciates the commenter's opinion, and largely agrees with it. .
Today's rule prohibits land storage of mineral processing secondary materials (except on approved pads),
among other conditions, to qualify for the conditional exclusion to the definition of solid waste. The
Agency concludes that offsite shipment renders the waste as not being immediately reused.
Comment: One commenter suggested that the exclusion should apply only to materials entirely
managed on-site, noting that off-site management generally includes elements of waste management,
such as reclamation. The commenter added that the exclusion may be acceptable for characteristic by-
products, but indicated that the only exemption the commenter would support would be for off-site
reclamation at a facility under the operating control of the original facility (i.e., inter-plant transfers)
where conditions (e.g., storage and transportation) are protective of human health and the environment.
(COMM 1074)
Response: The Agency wishes to clarify the concept of offsite recycling. Today's rule clearly
allows the shipment of mineral processing wastes from one facility to another as long as other conditions
to the exclusion from the definition of solid waste are met.
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Comment: Two commenters argued that EPA should change its proposal and not restrict the
immediate reuse exclusion to on-site materials because land based storage occurring after transfer from
off-site cannot automatically be considered discard. (COMM1093, COMM1104) One commenter stated
that the determining factor should be whether the material is being reprocessed and that it is not being
discarded. (COMM1104) Two commenters argued that the length of storage, not the destination should
be a key factor in determining whether a material has been discarded. (COMM1093, COMM1104)
These commenters also stated that if EPA develops a reasonable time period for storage prior to
recycling, the Agency's concerns regarding intra-industry transfers would be adequately addressed.
(COMM1093, COMM1104)
Response: The Agency disagrees with the commenters. See responses to COMM 1034 and
COMM 1041 above. Off-site transportation, and associated storage of secondary materials precludes the
immediate reuse of these materials, as set forth in the rule. The Agency agrees with the commenter who
noted that materials that are reprocessed (if they are immediately recycled, or stored appropriately) will
not be subject to RCRA Subtitle C regulation. The Agency also agrees with the commenters who noted
that length of storage is a relevant factor in establishing the regulatory status of a secondary material;
such materials cannot be speculatively accumulated..
Comment: Two commenters suggested the Agency had not demonstrated a need to limit the
exemption to on-site materials simply because some materials are reused on-site and within two days.
These commenters believed that EPA must first evaluate the practices for each industry to determine
what qualifies for the immediate reuse exemption prior to establishing criteria for the exemption. One
commenter asserted that the information contained in the proposal does not provide sufficient
justification for establishing such criteria. (COMM1088) Another commenter noted that this limitation
is arbitrary, capricious, and contrary to law. (COMM 1090)
Response: Today's rule defines immediate reuse to on-site materials. The rule, however, allows
shipment and recycling of materials through the mineral processing sector as long as conditions of the
exclusion are met.
Comment: One commenter opposed the prohibition of off-site transfers, noting that a result of
such a prohibition could be that facilities simply redirect these materials to a landfill. The commenter
stated that if the current exemption for silica were removed, for example, then increased use of virgin
sand and more total waste material being generated would result because the waste material could not be
used as a substitute for a commercial flux. (COMM1019)
Response: Today's rule does not limit transfer of mineral processing wastes from one facility to
another. The rule defines immediate reuse, which precludes using the "immediate reuse" exclusion to
RCRA if materials are shipped offsite (see above responses to comments in this section). As set out in
the RIA, does not predict significant decreases in recycling due to this rule. It is readily feasible to store
secondary materials in units which are not land-based and to continue to recycle them, and the cost of
doing so generally is less than paying for treatment and disposal costs.
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2.4.7 Specific Materials that Would Qualify Under the Immediate
Reuse Exemption
Comment: One commenter stated that EPA's approach to conditional exclusion does not
distinguish between discarded materials (potential solid wastes under RCRA) and intermediates, co-
products, and other in-process materials (e.g., copper-bearing dusts), which are integral to production
processes and are never discarded. Therefore, the commenter asserted that these materials are not solid
wastes requiring an exclusion. (COMM1085)
Response: Today's rule defines discard as the placement of any mineral processing wastes on
the ground. The rule allows storage of mineral processing secondary material prior to their reentry into
recycling as long as storage is in non-RCRA tanks, containers, buildings, or on approved pads. Today's
rule regulates storage, not industrial processes. Finally, the Agency disagrees with the commenter's
assertion that the rule is unclear regarding in-process materials that have been defined as being
"immediately reused."
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3. Restriction on Using Non-Bevill Materials as Alternative
Feedstocks
The Agency has decided not to finalize this portion of the proposed rule. The following
categorical response applies to all comments summarized below that address issues concerning the use of
alternative feedstocks (Subsection A through H). In some cases, individual commenters raised issues
that the Agency believed required a specific response in addition to the categorical response. Where this
has occurred, the specific response is included and follows the comment directly. Comments on
Subsection I, relating to the mixture rule, also are addressed separately.
The Agency proposed that a narrow reading of the Bevill exclusion be implemented that would
have limited the Bevill exemption to wastes generated exclusively from the use of virgin raw materials
(i.e., ores and minerals). Under the proposed approach, only wastes from the extracted virgin ores used
as a feedstock to a beneficiation operation and only concentrates derived from such beneficiation and
then used as a feedstock to mineral processing would have been eligible for the Bevill exclusion. If any
alternative materials were used as feedstocks, under the proposed rule, the resulting waste would not
have been eligible for the Bevill exemption.
The Agency proposed this approach because it was concerned about the potential additional risk
that might be posed by the co-processing of non-virgin materials and wanted to ensure that Bevill waste
disposal units did not become unregulated dumping grounds for hazardous mineral processing wastes.
In some cases where secondary materials that are used as a feedstock are ultimately discarded with and
given the same protection as Bevill-exempt waste, it is difficult to determine whether the use of
alternative feedstocks is legitimate recycling or a method of disposal. The Agency seeks to reduce the
volume and risk associated with resulting Bevill wastes, and has found cases the use of non-virgin
materials as feedstocks can result in wastes with higher levels of contaminant concentrations than the
Bevill waste (See Characterization of Mineral Processing Wastes and Materials, EPA, 1997).
Based on comments received and additional study of the issue, the Agency has decided not to
promulgate this proposed narrower interpretation of the Bevill exclusion. Instead, the Agency will retain
the rule it established in 1989 (54 FR 33620, September 1, 1989), which requires that virgin raw
materials account for at least 50 percent of the feedstocks entering a beneficiation or mineral processing
operation in order for wastes from that operation to retain Bevill exempt status.
The Agency reached this conclusion for a variety of reasons. Upon review of available data on
the co-processing of virgin and non-virgin material and its evaluation of co-processing issues in the
1990 Report to Congress on Wastes from Mineral Processing (EPA Office of Solid Waste, July 31,
1990), the Agency found that co-processing had not significantly changed the hazardous characteristics
of the resulting wastes. As part of this review, the Agency noted that it recommended High Temperature
Metal treatment under the LDR program for a variety of metal-contaminated wastes. The Agency
believes that it would be inconsistent to direct metal-contaminated wastes to smelters under LDRs, while
at the same time disallowing the placement of metal-bearing secondary materials in those same smelters.
The Agency remains somewhat uncertain about the environmental impacts caused by the co-
processing of virgin and commingled feedstocks. While the Agency did review feedstocks in a limited
manner in its 1985 "Report to Congress on Extraction and Beneficiation Wastes" (EPA Office of Solid
Waste, December 31, 1985), the Agency in fact was not aware of the extent of the practice of co-
processing in the industry until it restudied mining and mineral waste management practices in 1989 and
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conducted a series of site visits to mines and mineral processing facilities in 1991 and 1992. The Agency
remains concerned about the potential environmental risks that may be posed by extraction,
beneficiation, and mineral processing wastes, but currently lacks sufficient data to determine if these
risks will increase due to the introduction of non-virgin feedstocks.
The Agency also was concerned about the potential impact of its proposal on recycling of
mineral processing secondary materials and on the industry more generally. Many industry commenters
suggested that the proposal would have serious adverse economic and operational impacts. Based on
these comments, the Agency conducted further assessments and determined that implementation of the
proposed prohibition on alternative feedstocks could reduce recycling in the gold, copper, and lead
sectors, and could cause potentially serious economic disruption to the industry more generally. For
example, both the gold and copper sectors routinely reintroduce mineral-bearing streams from their
processing activities into beneficiation plants to further recover metal values. Implementation of the
proposed option might have served to diminish these practices.
The Agency notes that a number of commenters questioned its jurisdiction to more narrowly
interpret the Bevill exclusion. The Agency disagrees with these commenters, but believes that it is not
appropriate for the Agency to implement a program that may reduce recycling when the Agency's
knowledge of the environmental benefits of such an approach are limited. The Agency has therefore
determined that, at present, co-processing of virgin and non-virgin feedstocks may continue without
changing the Bevill-exempt status of the resulting wastes as long as non-virgin materials constitute no
more than 50 percent of the total feedstock.
(Of course, for the non-virgin materials to be 'feedstock', they must be recycled legitimately. Addition
of a hazardous waste into a Bevill process unit where that waste is just being disposed would cause the
unit to become some type of subtitle C regulated unit, and could result in loss of Bevill status for
resulting wastes as well.)
3.1 General Comments on the Proposed Approach
Comment: One commenter expressed support for the alternative feedstocks restriction.
(COMM1028)
Comment: One commenter argued that the proposed alternative feedstocks restriction would
render the safeguards afforded by the Bevill Amendment completely hollow, and would shift huge
volumes of waste into the Subtitle C regulatory system without regard to the additional risks that co-
processing alternate feedstocks may present. (COMM1048)
Comment: Two commenters requested that EPA not proceed on its current schedule with the
proposed alternate feedstocks restriction because it is not under court order to be promulgated.
(COMM1041, COMM1089) One of these commenters added that the LDR treatment standards for
newly identified mineral processing wastes is the only portion of the rule covered by a "Megadeadlines"
case consent decree. The Agency therefore does not need to finalize this portion of the proposal before
April 1998. (COMM1041) The other commenter suggested that EPA delete the alternative feedstocks
proposal altogether and leave the existing 40 CFR §261.4(b)(7) language as written. (COMM1089)
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Response: The Agency firmly believes that it should address all relevant issues related to the
RCRA status of mineral processing wastes at one time to develop a uniform comprehensive rule that will
clarify the status of newly-identified wastes and encourage recycling.
Comment: One commenter objected to the Agency's assertion that it was justified in applying
the alternative feedstock proposal because it would make it easier to determine which wastes found at a
mine or mineral processing site qualify for the Bevill exemption. The commenter argued that the
proposed rule cannot be justified on the basis of administrative convenience, and referred the Agency to
Sierra Club v. EPA. 719 F.2d 436, 464 (D.C. Cir. 1983), cert, denied, 468 U.S. 1204 (1984).
(COMM1041)
Comment: One commenter stated that the alternate feedstocks restriction is in direct
contradiction to EPA's prior efforts in the January 1996 proposal to better understand the mining
industry. The commenter asserted that the current proposal is inconsistent with the Agency's previous
statements about avoiding interfering with normal on-going production processes and continued metals
recovery. (COMM1034)
Comment: Two commenters asserted that EPA's arguments that: 1) the Agency never looked
at alternative feedstocks as part of the original Bevill studies; 2) use of the feedstocks is becoming more
prevalent in today's mining industry; and 3) these practices have lead to widespread environmental harm
are not a basis for reinterpreting the scope of the Bevill Amendment, but rather considerations that the
Agency should have accounted for in its Congressionally-mandated Bevill studies. (COMM1054,
COMM1104)
Comment: Two commenters stated that EPA has misunderstood the intent of the Bevill
Amendment through its use of the terms "Bevill materials", Bevill units", and "Bevill feedstocks". The
commenters asserted that the Bevill Amendment exemption applies to wastes, not materials, units, or
feedstocks. (COMM1054, COMM1048) One of these commenters added that the Agency attempts to
make a distinction between some theoretical Bevill waste generated by using only virgin materials and
wastes generated from the partial use of non-virgin materials (what EPA calls non-Bevill feedstocks).
The commenter contended that this distinction is meaningless because the former waste ~ generated at
operations using only virgin materials — is very rare, if it exists or ever existed at all, in the real world.
(COMM1054)
Comment: Two commenters questioned the Agency's distinction between wastes generated by
only using virgin materials and wastes generated from the partial use of non-virgin materials (non-Bevill
feedstocks). (COMM1043, COMM1054) One commenter contended that no such distinction exists in the
real world because all mineral processing operations, even small ones, re-process some materials for
further metals recovery. (COMM1054) The other commenter stated that the Bevill Amendment dictates
that all extraction, beneficiation, and processing activities must be viewed in a holistic manner and not
artificially separated as in the proposed rulemaking. (COMM1043)
3.1.1 EPA's Authority to Regulate Alternative Feedstocks
Comment: Six commenters argued that EPA has no authority to regulate the use of alternative
feedstocks in the proposed rule. These commenters asserted that by attempting to regulate alternative
feedstocks, the Agency is inappropriately extending its authority to production processes. (COMM1034,
COMM1037, COMM1038, COMM1054, COMM1082, COMM1089) One commenter stated that the
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Agency has previously expressed its intent not to regulate production processes in the Agency's 1983
revisions to the definition of solid waste (48 FR 14472 and 14488) (COMM1038)
Another commenter quoted American Mining Congress v. EPA. "AMC I" (B.C. Cir 1987),
stating that "the RCRA statute reveals clear Congressional intent to extend EPA's authority only to
materials that are truly discarded, disposed of, thrown away, or abandoned." The commenter added that
the court held that EPA did not have the authority to regulate materials "passing in a continuous stream
or flow from one production process to another, because the materials had not become part of the waste
disposal problem." Furthermore, the commenter acknowledged that in American Mining Congress v.
EPA. "AMC II", (907 F.2d 79) (D.C. Cir. 1990), the court limited the holding of AMC I to "only
materials that are destined for immediate reuse in another phase of the industry's ongoing production
process" and stated that phosphoric acid water falls into that category. (COMM1037)
Comment: Fifteen commenters argued that the alternative feedstocks proposal violates the
Bevill Amendment. The commenters stated that the proposal is inconsistent with the long standing
legislative history of the Amendment, and that the proposal constitutes an impermissible reinterpretation
of the scope of the Bevill Amendment. (COMM1029, COMM1034, COMM1039, COMM1040,
COMM1041, COMM1043, COMM1048, COMM1054, COMM1081, COMM1088, COMM1089,
COMM1093, COMM1097, COMM1098, COMM1104)
Several commenters provided detailed information to support their arguments:
Comment: Two commenters stated that the Bevill Amendment does not limit the exemption to
solid wastes generated in operations that employ solely virgin ore and mineral materials. (COMM1043,
COMM1088) One of these commenters added that in the proposal, EPA introduces a regulatory
distinction between "ores and minerals" and the metallic constituents of mineral processing secondary
materials which does not exist in the real world. The commenter believed that if the Bevill Amendment
had encompassed this distinction, it would have provided only narrow relief from Subtitle C regulation.
(COMM1043)
Comment: Five commenters argued that the alternative feedstocks proposal is in conflict with
prior Agency determinations as to when non-Bevill feedstocks may be co-processed with virgin
materials. (COMM1029, COMM1040, COMM1088, COMM1093, COMM1104)
Two commenters stated that the proposal contradicts the original November 19, 1980
interpretation of the scope of the amendment, the reinterpretations that led to the 1989/1990 mineral
processing rule, and the 1985 and 1990 Reports to Congress on extraction, beneficiation, and exempt
processing wastes. (COMM1093, COMM1104) Another commenter asserted that the proposal is in
conflict with the Agency's 1986 Regulatory Determination. (COMM1040)
Five commenters stated that the proposal is in conflict with the Agency's September 1989
rulemaking that stipulated that as long as the quantity of scrap and secondary materials was less than 50
percent of the entire feedstock, the wastes from the Bevilled mineral processing operation would remain
Bevill wastes (also known as the 50 percent rule) (COMM1029, COMM1040, COMM1088,
COMM1093, COMM1104). Four commenters added that this determination was upheld in Solite Corp.
v. EPA. 952 F.2d 473, 490-91 (D.C. Cir. 1991), is supported by the legislative history of the Bevill
Amendment, and that the Agency's January 1996 proposal also was consistent with this position. The
commenters asserted that the Agency has no justification for departing from the 50 percent rule.
(COMM1029, COMM1088, COMM1093, COMM1104) One commenter stressed that since EPA has
not provided any data that demonstrates that co-processing small volumes of secondary materials leads
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to increased environmental risks, there is no environmental reason to preclude the co-processing of
virgin ores and secondary materials. As a result, the commenter urged the Agency to utilize the 50
percent rule that it adopted in 1989. The commenter further stated that it could even continue to co-
process its secondary materials even if the Agency were to choose a lower percentage than 50 percent.
(COMM1029)
One commenter argued that EPA has not explained why its prior interpretations stating that co-
processing wastes are within the scope of the Bevill Amendment are mistaken. Citing EDF II (852 F.2d
at 1328-29), the commenter stated that Congress intended to include all solid wastes from all extraction,
beneficiation, and high-volume, low-hazard special primary mineral processing wastes. The commenter
added that the high-volume, low-hazard criteria focus on the nature of the solid waste generated, not on
the inputs to the process generating it. Therefore, the commenter believed that there is no need to
distinguish co-processing wastes from other Bevill-exempt solid wastes. The commenter added that
EPA has not identified any legitimate intent of Congress that it has previously overlooked or any court
rulings that might now justify its position in the proposal. (COMM1088)
Comment: Eight commenters asserted that the Agency's "rigorously narrow" reading of the
Bevill Amendment in the proposed rule is an impermissible interpretation of the Amendment. The
commenters stated that Congress has always intended that the Bevill Amendment be read broadly,
reflecting the "real world" waste management practices of the mineral processing industry. The
commenters argued that the proposal does not reflect "real-world" mining and mineral processing
operations, and contend that EPA has no authority to reinterpret the Bevill Amendment as proposed in
the preamble to the rulemaking. (COMM1029, COMM1039, COMM1040, COMM1041, COMM1043,
COMM1048, COMM1088, COMM1097)
One commenter stated that EPA has long held a broad interpretation of the Bevill Amendment,
as evidenced in the statutorily-mandated 1985 and 1990 Reports to Congress. The commenter added that
the Reports to Congress have withstood judicial scrutiny in two court cases: Environmental Defense
Fund v. EPA. 852 F.2d 1309 (D.C. Cir. 1988) ("EDF I") and Environmental Defense Fund v. EPA. 852
F.2d 1316 (D.C. Cir. 1988) ("EDF II"). (COMM1048)
Five commenters stated that Representative BevilFs remarks given at the time that the Bevill
Amendment was adopted provide evidence that Congress intended a broad interpretation of the Bevill
Amendment ([The Bevill Amendment should] be read broadly, to incorporate the waste products
generated in the real world." 126 Cong. Rec. at 4957 [daily ed. Nov. 17, 1980, remarks of Rep. Bevill])
(COMM1039, COMM1041, COMM1043, COMM1054, COMM1088, COMM1097, COMM1104) Two
commenters cited EDF II's characterization of the Bevill Amendment as a "distinct, self-contained
amendment to the RCRA statute" which was adopted "with only a minor modification pertaining to
uranium overburden." The commenter asserted that since the Bevill Amendment was adopted with little
confusion or modification, the floor statements of the sponsors and supporters of the Amendment are the
important sources of legislative history. (COMM1054, COMM1104) Citing Chevron U.S.A. v. NRDC.
(467 U.S. 837), two commenters added that when the language of a statute is clear, EPA is not free to
ignore Congressional intent and rewrite the statute to meet policy goals. (COMM1041, COMM1088)
Two other commenters quoted Congressman Bevill's floor statements as further support for a broad
reading of the Bevill Amendment:
"To afford an adequate basis for regulatory decisions, it is most important that these
studies consider all wastes affected by the amendment.... The list of waste materials in
the amendment... [should] be read broadly, to incorporate the waste products generated
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in the real world. ... I wish to emphasize that this intention applies equally to all other
wastes mentioned in the amendment. For example, all solid wastes which genuinely and
legitimately result 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 waste are subject to my amendment." 126 Cong. Rec. E4957 (daily ed.
Nov. 17, 1980) [emphasis added]. (COMM1088, COMM1097)
Comment: Five commenters argued that co-processing has long been, and should be, covered
by the Bevill Amendment. (COMM1039, COMM1041, COMM1043, COMM1048, COMM1088)
One commenter stated that if co-processing was not covered by the Bevill Amendment, the
Bevill exclusion would not have any significance at all, because co-processing is necessary and standard
practice at integrated mining operations. The commenter added that the following waste products, which
are still generated, were covered by the Bevill Amendment when it was adopted:
• smelter slag from processing of flue dusts and concentrate;
• mill tailings from beneficiation of smelter slag;
• furnace brick and ore; and
• leached ore from leaching with new acid, raffinate, and secondary solutions from
mineral processing activities. (COMM1043)
Another commenter stated that Congress has directly spoken to the question of whether co-
processing is covered by the Bevill Amendment, as evidenced in Chevron U.S.A.. Inc. v. EPA. 467 U.S.
837, 842 (1984). (COMM1048)
Three commenters stated that co-processing of mineral processing secondary materials is
expressly dictated in the language of and covered by the Bevill Amendment at 42 U.S.C.
6921(b)(3)(A)(I). The commenters addedthat EPA itself has recognized that some type of co-
combustion [or co-processing] is expressly authorized. 56 FR 7134, 7197 (February 21, 1991), and that
Congressman Bevill stated that the Amendment allow[s] utilities and others who burn coal or other fossil
fuels mixed with other materials ~ such as municipal waste, also known as refuse derived fuel -- to avoid
being saddled with the unnecessary regulatory burdens [of Subtitle C] simply because they are being
innovative or seeking to improve our use of our resources) 126 Cong. Rec. HI 102 (daily ed. Feb. 20,
1980) (remarks of Rep. Bevill). The commenters added that the Bevill Amendment mandated a study of
Bevill wastes, including residues from co-processing, and although Congressman BevilFs statements
regarding the Amendment directly applied to fossil fuel wastes, Congressman Bevill intended that co-
processing of extraction, beneficiation, and mineral processing materials were to be included within the
scope of the study. 126 Cong. Rec. HI 102-3 (daily ed. Feb. 20, 1980). (COMM1039, COMM1041,
COMM1088)
Citing AMC I. 824 F.2d at 1181, one commenter further stated that some materials other than
ores and ore-concentrates must be able to be processed in mining industry production units without
affecting the Bevill status of the resulting residues:
[P]rimary metals production involves the extraction of fractions of a percentage of a metal from
a complex mineralogical matrix (i.e., the natural material in which minerals are imbedded). Extractive
metallurgy proceeds incrementally. Rome was not built in a day, and all metal cannot be extracted in
one fell swoop. In consequence, materials are reprocessed in order to remove as much of the pure metal
as possible from the natural ore.... What is more, valuable metal-bearing and mineral-bearing dusts are
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often released in processing a particular metal. The mining facility typically recaptures, recycles, and
reuses these dusts, frequently in production processes different from the one from which the dusts were
originally emitted. (COMM1039)
Two commenters asserted that even hazardous wastes currently can be processed in a production
unit without causing the residues to lose their Bevill Amendment exclusion. The commenters added that
EPA itself has stated that "[i]f there were doubt on this point... it is dispelled by the 1984 amendments,"
especially RCRA 3004(q), which states that" nothing in this subsection shall be construed to affect or
impair the provisions of [the Bevill Amendment]." 42 U.S.C. 6924(q). The commenters further stated
that EPA has acknowledged that "[t]his language would be meaningless unless it allowed some residues
from Bevill devices burning hazardous wastes... to remain within the scope of the Bevill Amendment."
(56 FR at 7197.) The commenters also directed the Agency to refer to the Brief of Respondent EPA in
Hazardous Waste Treatment Council v. EPA. No. 86-1143 (B.C. Cir.) at 48, and Horsehead Resource
Development Co. v. Browner. "Horsehead", 16 F.3.d 1246, 1260 (D.C. Cir. 1994). (COMM1041,
COMM1088) One of the commenters provided further detail on the Horsehead case. The commenter
stated that the court in Horsehead rejected arguments that the Bevill Amendment did not apply to co-
processing wastes, based on the plain language of the statute and on the fact that Congress was aware of
the existence of co-processing. The commenter cited: "[W]e cannot hold that the legislature clearly
intended automatically to remove the Bevill exemption for all Bevill wastes generated from co-
processing hazardous wastes." Horsehead. 16 F.3d 1259-60. (COMM1088)
Comment: Six commenters argued that EPA cannot change its previous interpretation of the
Bevill Amendment because the studies mandated by the Amendment were one-time in nature. The
commenters stated that the Bevill Amendment was intended to be a temporary Subtitle C exemption
followed by a one-time study requirement to determine which mineral processing wastes warrant Subtitle
C regulation. The commenters contend that EPA has no authority to regulate co-processing wastes
because EPA did not exclude co-processing wastes from the Bevill studies and expressly determined that
co-processing wastes did not warrant Subtitle C regulation in its Regulatory Determinations.
(COMM1039, COMM1041, COMM1054, COMM1088, COMM1093, COMM1104)
Three of these commenters pointed out that in Solite Corp. v. EPA, the court noted that "[t]he
statutory provision directing EPA to study Bevill wastes [prior to making a regulatory determination]
suggests by its terms that a one-time study is sufficient.... [In EDF II,] we clearly enough rejected the
theory that Congress intended the coverage of the Bevill exclusion to evolve with time." (952 F.2d at
473) (COMM1039, COMM1054, COMM1088)
Another commenter stated that RCRA Section 8002(p), which directs EPA to "conduct a detailed
and comprehensive study," clearly calls for a one-time study, which is further evidenced by RCRA
Section 3001:
[Bevill wastes shall] be subject only to regulation under other applicable provisions of
Federal or State law in lieu of this subtitle until at least six months after the date of
submission of the applicable study required to be conducted under subsection... (p) of
Section 8002 of this Act....
42 U.S.C. Section 6921(b)(3)(A). The commenter also quoted the following remarks of Congressmen
Bevill and Williams:
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• "The amendment directs that EPA complete these studies promptly." 126 Cong. Reg. at
3361 (February 20, 1980)(remarks of Rep. Bevill).
• "[W]hile the [Bevill] amendment will place a moratorium on regulation of these wastes
under RCRA, it cannot be said that it would allow unregulated use of a potentially
dangerous material. It will not exempt disposal of these materials from regulatory
programs under these other statutes." Id. at 3362.
• "Finally, let me direct the House's attention to the fact that after EPA concludes these
studies, it will be required to obtain public views on them and to make known whether,
as a result of this process, EPA believes any regulation of these materials is necessary."
Id.
• "[T]his amendment would merely suspend regulation of these wastes for a reasonable
period of time until more is known about them." 126 Cong. Reg. at 3364 (February 20,
1980) (remarks of Rep. Williams).
The commenter concluded that EPA itself stated that it had the authority to make a one-time
determination and that "Wastes not yet in existence and wastes not meeting the high-volume/low hazard
criteria during any of the past five years would ... not be eligible for Bevill exclusion status in the
future." 54 FR at 36592, 36595. (COMM1054)
Comment: Three commenters stated that the alternative feedstocks proposal would not be
entitled to judicial deference from reviewing courts because it constitutes an arbitrary and capricious
departure from established precedent or policy. (COMM1054, COMM1093, COMM1104) Two of these
commenters asserted that a long-standing interpretation adopted "near the time the statute was enacted"
is entitled to great weight by the reviewing court; and a more recent interpretation that is inconsistent
with prior pronouncements earns much less deference. American Federation of Labor v. Donovan. 757
F.2d 330, 345 (D.C. Cir. 1985). (COMM1054, COMM1104)
One commenter stated that in Chevron U.S.A. v. Natural Resources Defense Council. 467 U.S.
837 (1984) a two-part test for review of Agency action was established. First, the court looks at the
relevant statutory language and decides whether the Agency has acted consistently with the
unambiguously expressed intent of Congress. If Congress is silent or the statutory language is
ambiguous, the court then evaluates the Agency action to determine whether it is "permissible" under the
statute. The commenter contended that Chevron deference is not due for this proposal because the
alternative feedstocks proposal departs from a 17-year history where the Agency has consistently
interpreted the Bevill exclusion to apply to: (1) operations that process less than 50 percent of what EPA
now calls "alternative feedstocks;" (2) all extraction and beneficiation wastes regardless of volume; and
(3) all "uniquely associated" wastes. The commenter also cited other court cases to support the
following arguments:
• Where an Agency departs from an established precedent or policy without a reasoned
explanation, its action is arbitrary and capricious. ANR Pipeline Co. v. FERC. 71 F.3d
897 (D.C. Cir. 1995); Northern California Power Agency v. FERC. 37 F.3d 1517 (D.C.
Cir. 1994).
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Comment: Two commenters stated that EPA has not considered the RCRA Section 8002(p)
study factors, which it must do before reversing its prior determinations. (COMM1034, COMM1088)
One commenter added that the Agency must also conform to Section 3004(x). (COMM1034)
One commenter stated that by not considering the section 8002(p) study factors, EPA has not
adequately characterized the nature and management of solid wastes generated from the co-processing of
non-hazardous or hazardous: (1) non-ore or mineral virgin additives or feedstocks; (2) non-ore or
mineral secondary material additives or feedstocks; (3) beneficiation or mineral processing secondary
materials; (4) Bevill-exempt solid wastes; or (5) non-Bevill-exempt solid wastes. The commenter noted
that the section 8002(p) Bevill study factors require the Agency to consider:
1. The source and volumes of such materials generated per year;
2. Present disposal and utilization practices;
3. Potential danger, if any, to human health and the environment from the disposal and
reuse of such materials;
4. Documented cases in which danger to human health or the environment has been proved;
5. Alternatives to current disposal methods;
6.. The costs of such alternatives;
7. The impact of those alternatives on the use of phosphate rock and uranium ore, and other
natural resources; and
8. The current and potential utilization of such materials.
The commenter asserted that the docket for the rulemaking does not contain any evidence to
support the section 8002(p) study factors, or how the factors might apply to any particular co-processing
waste. The commenter continued by stating that the docket does not provide any data:
• Identifying the volumes of co-processing wastes generated;
• Suggesting how present disposal practices for co-processing wastes differ from Bevill-
exempt solid wastes generated without co-processing;
• Breaking down constituent concentration and management practices in order to tie that
data to co-processing wastes or identifying regulatory controls, the potential for exposure
to populations, and other factors that might bear on the potential for danger posed by co-
processing wastes;
• Breaking down release and damage cases in order to tie that data to co-processing wastes
or documenting any cases in which danger resulted from any additional hazard posed by
co-processing wastes;
• Identifying alternatives to current disposal methods for such wastes;
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• A consistently held position is entitled to more deference than one that contradicts earlier
interpretations. Energy West Mining Company v. Federal Mine Safety and Health
Review Comm'n. 40 F.3d 457, 460 (D.C. Cir. 1994). (COMM1104)
Comment: Three commenters stated that the alternative feedstocks proposal is in violation of
one of EPA's two principal goals: to reduce waste and conserve energy and natural resources (42 U.S.C.
Section 6902). The commenters asserted that the proposal is also inconsistent with the importance
placed on recycling in the 1984 HSWA Amendments:
"Section 1003(a) Objectives... (6) minimizing the generation of hazardous waste and the
land disposal of hazardous wastes by encouraging process substitution, materials
recovery, [and] properly conducted recycling and reuse, and treatment;" H.R. Rep. 198,
98th Cong., 2d Sess. 31, reprinted in 1984 U.S.C.C.A.N. 5576, 5590 (COMM1041,
COMM1097, COMM1098)
Two commenters argued that the proposal is in violation of the Pollution Prevention Act (PPA),
in which Congress further emphasized the importance of resource recycling and recovery. (COMM1034,
COMM1041) One commenter stated that Congress declared that recycling should be the second highest
component of the management hierarchy, with disposal to be used "only as a last resort." 42 U.S.C.
13101(b). (COMM1041) The other commenter stated that EPA has not followed the procedures of PPA
section 6604(b)(2) which requires EPA "to review regulations of the Agency prior and subsequent to
their proposal to determine their effect on source reduction." The term "source reduction" includes
"substitution of raw materials." [PPA section 6603(5)] (COMM1034)
Another commenter cited 42 U.S.C. Section 6901(c) and (d) as an example for the Agency's goal
to foster recycling and reuse of waste resources:
(c) MATERIALS - The Congress finds with respect to materials, that -
(1) millions of tons of recoverable material which could be used are needlessly
buried each year;
(2) methods are available to separate usable materials from solid waste; and
(3) the recovery and conservation of such materials can reduce the dependence of
the United States on foreign resources and reduce the deficit in its balance of
payments.
(d) ENERGY - The Congress finds with respect to energy, that -
(1) solid waste represents a potential source of solid fuel, oil, or gas that call be
converted into energy;
(2) the need exists to develop alternative energy sources for public and private
consumption in order to reduce our dependence on such sources as petroleum
products, natural gas, nuclear, and hydroelectric generation; and
(3) technology exists to produce usable energy from solid waste.
The commenter added that Congress directed EPA to study waste utilization and the
identification of methods to encourage efficient programs of reduction, reuse, and marketing of
recovered resources pursuant to 42 U.S.C. Section 6985. (COMM1097)
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• Assessing the costs of alternatives to co-processing;
• Evaluating the effects of the proposal on virgin resource usage; or
• Considering alternative uses for co-processing wastes that are current practices or
potential practices should the proposal be adopted. (COMM1088)
3.1.2 Definitions of Terms Used in the Proposal
Comment: One commenter asserted that the proposal narrows the scope of the Bevill exclusion,
and in doing so, essentially redefines "beneficiation," which was explicitly defined in the Agency's 1985
Report to Congress and September 1989 rulemaking. The commenter contended that now, "only
extracted virgin ores used as feedstock" and "only concentrates derived from beneficiation and then used
as feedstock" fall within the scope of the exclusion. The commenter also argued that the proposal will
have the effect of reducing the number of operations which qualify under the Bevill Amendment by
converting beneficiation units that co-process mineral processing secondary materials into processing
units. (COMM1040)
Response: Today's rule does note redefine the term "beneficiation" as noted in the September
1989 rulemaking. The proposed virgin feedstock option has not been adopted in today's rule.
Comment: One commenter requested clarification of the Agency's definition of beneficiation.
The commenter stated that the proposed rule would limit beneficiation to one of several designated
activities "in preparation for mineral processing." 62 FR 26071. The commenter felt that as written, it
appears that facilities that do not process materials could not be engaging in beneficiation. The
commenter stated that facilities that solely employ beneficiation and extraction processes are Bevill-
exempt, as made clear in the 1986 Regulatory Determination and the 1989 Final Rule. (COMM 1040)
Response: The terms extraction and beneficiation were defined initially in 1986 and reaffirmed
in 1989. Today's rule does not change these definitions (see 40 CFR part 261.4(b)(7)).
Comment: Four commenters disagreed with EPA's proposed definition of alternative
feedstocks. (COMM 103 8, COMM 1082, COMM 1089, COMM 1090) Two commenters stated that the
definition is far too broad and is ambiguous as to whether it applies to any materials used in beneficiation
or mineral processing operations, such as acids, raffinate, flux, water, and reagents. The commenters
requested that EPA clarify the definition of "alternative feedstocks" and whether or not the Bevill
exclusion would apply to processes which employ these alternative feedstocks. (COMM 1089,
COMM 1090) One of these commenters stated that this creates an enormous uncertainty for the
regulated community which must determine what types of materials can be processed or beneficiated.
Another commenter recommended that EPA specifically indicate that the term alternative feedstocks is
meant to encompass those materials which are alternatives to Bevill raw materials used in the production
process, rather than all materials used in the production process. (COMM 103 8) One commenter added
that EPA did not explain why the definition focuses on the Bevill eligibility of alternative feedstocks and
not the resulting beneficiation wastes. The commenter also stated that EPA describes in the preamble
(62 FR 26052) that Bevill wastes are not considered alternative feedstocks, but does not specify that
exception in the rule language. (COMM1089)
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Comment: Two commenters asserted that EPA has introduced a new phrase in the proposal
which requires that Bevill-eligible wastes "originate from the extracted ore or mineral." The
commenters stated that this changes the focus of the Bevill exclusion from the beneficiation process to
the "ore or mineral," which eliminates all non-mineral process materials that become wastes from the
Bevill exclusion, and effectively eliminates the "uniquely associated" criteria as well. The commenters
contend that EPA has overlooked the fact that there are numerous steps in the beneficiation process
which are far removed from the ore feedstock being placed on a leach stockpile, and this constitutes an
arbitrary and capricious revision to the Bevill Amendment. (COMM1085, COMM1090)
Comment: Three commenters stated that the proposed revisions to the existing regulatory
language in 40 CFR Section 261.7(b)(7) is confusing and appears to be missing key words. The
commenters stated that the following underlined language is confusing as written: "solid waste from the
processing of ores and minerals originate solely from a beneficiation activity and includes only the
following wastes as generated:..." (COMM1040, COMM1089, COMM1090) One commenter stated
that mineral processing is a distinct activity from beneficiation, and it appears that as written, EPA is
proposing to define beneficiation as processing. The commenter added that it appears that EPA proposes
to classify all beneficiation wastes as solid wastes unless the waste is one of the twenty listed processing
wastes. (COMM1040)
Comment: One commenter stated that EPA has substituted the term "solvent extraction/
electrowinning" for the term "solvent extraction, electrowinning" in the proposed definition of
beneficiation in the proposed rule. The commenter suggested that this may be an inadvertent typo. If the
change is intentional, however, EPA has introduced this change without proper notice for public
comment. The commenter was not aware of any operations that conduct combined solvent extraction
and electrowinning operations, and stated that EPA has made clear in guidance documents (EPA Effluent
Development Document and 1994 Outreach Document) that these are two distinct beneficiation
operations. (COMM 1040)
Response: The Agency recognizes that solvent extraction and electrowinning are two separate
processes and considers both to be beneficiation activities.
3.1.3 Situations Where Wastes Would Retain the Bevill Exemption
Note: The Agency has not adopted the alternative feedstock option in today's rule. Thus, the
following concerns raised by commenters are no longer valid.
Comment: One commenter noted that in the preamble to the proposal, the Agency stated that
"the use of a Bevill waste as an alternative feedstock does not change the Bevill status of a resulting
waste." However, the Agency did not include a comparable provision in the rule language. The
commenter urged EPA to clarify that the alternative feedstocks restriction does not apply to co-
processing of the 20 Bevill-exempt mineral processing wastes, and codify that provision in rule
language. (COMM 1097)
Comment: One commenter expressed its strong support for EPA's provision in the proposal
that the alternative feedstocks restriction would not apply to co-processing of the 20 Bevill-exempt
mineral processing wastes. The commenter .argued, however, that the proposal was ambiguous with
respect to the restriction's applicability to non-waste secondary materials from beneficiation and mineral
processing, to secondary materials from mineral extraction, and to Bevill-exempt CKD waste. The
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commenter requested that EPA clarify its intent with regard to these materials, and supported retaining
Bevill-exempt status for co-processing with any Bevill-exempt waste. (COMM1088)
Comment: Two commenters argued that any benefit from EPA's proposal to allow co-
processing Bevill-exempt mineral processing wastes with virgin feedstocks was illusory, because the
alternate feedstocks restriction effectively removed the need for a conditional exclusion. The
commenters argued that all benefits afforded to "immediately reused" or "in-process" materials would be
overshadowed when a facility chose to recycle those materials, causing the resultant wastes to lose their
Bevill-exempt status. (COMM1043, COMM1089) One of these commenters presented an example of
the consequences that would result from application of the alternative feedstocks proposal. The
commenter stated that because copper smelters must return mineral processing secondary materials to
their smelters due to the large amounts of copper remaining in these materials, the Bevill exclusion for
smelter slag, a Bevill-exempt mineral processing waste, would be lost. The commenter added that
furthermore, once the slag was returned to the concentrator, mill tailings would also lose their Bevill-
exempt status. (COMM1043)
Comment: Two commenters requested that EPA clarify that the alternative feedstocks
restriction does not apply to all materials which are considered "in process" or "immediately reused."
(COMM1043, COMM1090) One commenter specifically requested clarification that the reprocessing of
copper reverts would not affect the Bevill status of copper slag, or if processed through a concentrator or
leach facility, would not affect the Bevill status of mill tailings or spent leach ore. The commenter also
assumed that if flue dust were reprocessed in a manner constituting "immediate reuse," reverts still
would be viewed as in-process materials and the Bevill status of the slag, mill tailings, or spent leach ore
would not be jeopardized. (COMM1043)
Comment: Five commenters requested that EPA clarify that the alternative feedstocks
restriction does not apply to certain materials. (COMM1034 COMM1038, COMM1041, COMM1050,
COMM1097)
One commenter asked that the Agency clarify that wastes generated from co-processing any
materials derived from ores or minerals, ore concentrates or beneficiated materials would not lose their
Bevill-exempt status. Using drosses, speiss, matte, and baghouse and other dusts as examples, the
commenter stated that the constituents in these materials were the same as those present in virgin raw
materials, and their use reflects practices that both EPA and Congress were aware of when the Bevill
Amendment and subsequent Regulatory Determinations were adopted. Consequently, co-processing
these materials with virgin feedstocks should not affect the Bevill status of associated wastes.
(COMM1034)
Another commenter requested that EPA clarify that the alternative feedstocks restriction would
not apply to its integral production-related materials, namely the chemical reagents used in its copper and
molybdenum production operations and fluxes used at its Miami smelter. (COMM1041)
Two commenters requested that EPA confirm that the use or red or brown muds (or any part
thereof) as an alternative feedstock would not change the Bevill status of the resulting waste.
(COMM1050, COMM1097) One of these commenters stated that it understands that for its operations,
the alternative feedstocks provision would not apply to virgin materials other than bauxite (i.e., laterite)
which have recoverable alumina and may be processed at some future date even though not currently
processed. (COMM1050)
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One commenter urged EPA to clarify that phosphate mineral processing facilities utilizing
supplemental sulfuric acid sources in the production of phosphoric acid are not at risk of losing the
Bevill-exempt status of the resulting waste streams. This commenter noted that fertilizer facilities
captively produce sulfuric acid to precipitate calcium sulfate (phosphogypsum) and leave phosphoric
acid in solution. Some facilities cannot locally produce enough sulfuric acid for acidulation of the
phosphate rock. To satisfy process needs, the facilities purchase additional sulfuric acid produced by the
metallic ore processing industries. The commenter stressed that this acid is essentially the same as the
captive-produced sulfuric acid, does not require reclamation prior to use, and the Bevill waste generated
is indistinguishable from Bevill wastes generated using captive sulfuric acid. (COMM1038)
3.1.4 Alternatives to the Alternative Feedstocks Restriction
Note: The Agency appreciates the alternatives to the proposed alternative feedstocks restriction
that were provided by commenters. Because the Agency is not adopting the virgin feedstock options,
these alternative approaches need not be assessed for their individual strengths and weaknesses.
Comment: Two commenters suggested that in lieu of the alternative feedstocks restriction, EPA
could adopt a rule that would allow co-processing of listed and characteristic hazardous wastes as long as
the hazardous waste did not constitute over 50 percent of the feedstock and the resulting residues were
not "significantly affected". (COMM1029, COMM1081) One commenter stated that it would not be
adversely affected by a rule allowing an even smaller percentage than 50 percent (e.g., 25 percent).
(COMM1029)
Comment: One commenter suggested that EPA could limit the alternative feedstocks restriction
to co-processing of materials from other industries, or at least from off-site locations. The commenter
asserted that these are the only types of materials that could contain non-indigenous toxics, and argued
that by restricting off-site materials, any theoretical risks that mining facilities would become dumping
grounds for other industries' wastes containing toxics non-indigenous to the mining industry would be
avoided. (COMM1029)
Comment: One commenter recommended that the Agency allow co-processing of alternate
feedstocks if their contribution to the process was comparable to commonly used raw materials. In
addition, the materials should pass any "toxics-along-for-the-ride" test. The commenter suggested that
EPA continue to enforce existing regulations and guidance until these criteria were developed and
codified. (COMM1050)
Comment: One commenter stated that if EPA remains concerned about the "laundering" of
hazardous wastes through Bevill-exempt processes, the Agency should address those concerns through
contingent management exemptions from Subtitle C regulation. The commenter asserted that this will
avoid imposing unnecessary and excessive Subtitle C controls on solid wastes for which EPA has already
found Subtitle C inappropriate. (COMM 1088)
Comment: One commenter suggested that EPA consider extraction and beneficiation units
separately from mineral processing units in the alternative feedstocks proposal, because of the
differences in their operational function and the higher potential for sham recycling in extraction and
beneficiation processes. The commenter recommended that EPA render a generic determination that the
Bevill exemption should not apply to extraction and beneficiation wastes generated from processing non-
Bevill ores and minerals. The commenter stated that beneficiation operations serve to separate and
concentrate mineral values, while processing operations serve to change the chemical form of the
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material. The commenter noted that extraction and benefication processes typically involve quantities of
feedstock and waste many times greater than processing operations. The commenter argued that the
production-related need to perform extraction and beneficiation activities on non-Bevill feedstocks is
less compelling because the non-Bevill feedstocks typically contain much higher concentrations of
mineral values than virgin feedstock. The commenter added that the opportunities for dilution are much
greater in extraction and beneficiation processes, and the presence of unwanted metals or other toxic
contaminants is less likely to adversely affect the operation of the unit.
The commenter added that the Bevill exclusion also should not attach to Bevill mineral
processing land-based units where non-Bevill feedstocks (such as characteristic mineral processing
wastes or F006 wastes) are directly placed into the unit. The commenter asserted that these wastes
should not be covered under the exemption because these wastes would otherwise be subject to Subtitle
C controls, and are not generated in quantities where there is a production-related necessity for land-
based storage.
The commenter added that the most difficult situation arises when the non-Bevill feedstocks are
properly stored in non-land based units that meet applicable Subtitle C requirements, and then placed
into a smelter or other unit that generates the Bevill mineral processing waste. In this case, there are
greater opportunities for legitimate recycling, so the commenter recommended that EPA follow a site-
specific approach to determine the legitimacy of each recycling operation and its resulting Bevill status.
Given the problems in determining legitimate recycling claims due to a lack of objective criteria in EPA
rules, the commenter suggested that EPA codify the three legitimate recycling criteria proposed in
January 1996. The commenter proposed the following requirements in addition to the legitimate
recycling criteria:
• EPA should promulgate a regulation requiring Agency notification within six months of
all legitimate recycling claims for non-Bevill feedstocks in mineral processing Bevill
units. (The Regional Administrator should receive these notifications, since the rule will
be published as a HSWA requirement, making it effective before states are authorized to
administer the provision.) Through this notification, EPA will become aware of the full
range of potential reuse activities requiring review and analysis. Prior review and
approval should be required of all non-Bevill feedstocks for which a notification is not
received by the deadline in the rule. Given the limited number of facilities involved, the
notification requirement would not be unduly burdensome.
• EPA should publish a summary of the notifications received in the Federal Register
together with any preliminary analysis conducted by the Agency, seek public comment
on the claims, and then subsequently publish final legitimacy determinations. The
purpose of this activity is twofold: 1) it would provide an efficient means for EPA to
solicit public input on the propriety of the non-Bevill feedstock uses, and 2) it would
provide a systematic mechanism for EPA and the states to work through a series of
actual legitimate recycling determinations for a particular industry. In this manner, EPA
and the states could resolve remaining ambiguities regarding processing/beneficiation
distinctions and improve their knowledge of the mining sector. Further, the mechanism
should facilitate Agency efforts to develop and administer improved recycling
regulations for the broader RCRA universe.
• EPA should develop meaningful RCRA controls for at least some of the mineral
processing wastes improperly enjoying Bevill status. By developing such controls, EPA
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would substantially reduce the current incentive to maximize Bevill waste generation.
(COMM1042)
Response: The Agency shares the commenter's concerns about co-processing of mineral
processing secondary materials at beneficiation units. The Agency in today's rule allows secondary
material co-processing as long as legitimate recycling occurs and at least 50 percent of the feedstock is
directly from virgin sources. It should be pointed out, however, that beneficiation units have been
allowed to coprocess up to 50 percent of their feedstock from outside sources and retain their Bevill
status. The Agency is reevaluating the Bevill status of extraction and beneficiation wastes. No decision
has been made yet regarding whether further Agency actions are needed.
Comment: One commenter suggested that the Agency adopt conditions that would provide a
mechanism for co-processing alternative feedstocks. First, the commenter suggested that some materials
could be considered "uniquely associated with" raw materials. Second, the commenter suggested a
provision that would allow inter-facility movement of alternative feedstocks which are "pre-blended" at
the generating facility.
The commenter asserted that the Agency should not withhold the Bevill exclusion for "uniquely
associated" materials that are co-processed with raw materials. The commenter stated that it recovered
and reused unreacted coke and ore with entrained iron chloride, and that this material was indigenous to
the production of titanium tetrachloride. The commenter asserted that substantially all of this material's
chemical composition derives from direct contact with ores and those chemicals required to convert ore
to salable product. The commenter suggested that because it does not introduce secondary materials into
its processes from other sites or processes, the commenter's secondary materials should be considered to
be "uniquely associated with" the raw material and remain Bevill-exempt.
The commenter also stated that it envisions a need to move mineral processing secondary
materials (e.g., SuperSack eoke and ore) from one to another of its three identically-operating titanium
dioxide plants. The commenter stated that under the current proposal, these secondary materials would
be viewed as "alternate feedstocks" and would cause wastes from processes employing the secondary
materials to lose their Bevill-exempt status. As a result, the commenter suggested the following
scenario:
[T]he Super Sack material is pre-blended with virgin ores at the generating facility to
meet feedstock specification for the receiving facility. Such blending would be necessary
to address moisture content and other feedstock parameters. At the point that the
materials have been pre-blended and are ready to ship to the receiving plant for
introduction into their process, these materials could be viewed as raw materials instead
of "alternate feedstocks." (COMM1086)
3.1.5 Miscellaneous Issues
Comment: One commenter stressed that its co-processing operations are unique, and
consequently, EPA should not attempt to remove Bevill-exempt status of wastes produced from such co-
processing until the Agency has carefully studied the commenter's operations and made a reasoned and
individualized determination pursuant to the 8002(p) study criteria. The commenter added that the
current record did not provide any basis for, nor did EPA have any data suggesting that the Bevill-
exempt status of the commenter's wastestreams should be revoked. (COMM1088)
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Comment: One commenter noted that it had recently been granted a Resource Recovery
Certification from the Missouri Department of Natural Resources to recycle copper bearing F006 wastes.
The commenter believed that there were a different set of rules in place for this type of F006 recycling
and hoped that this information would help dispel the myth that smelting is the only method for recycling
F006 wastes. (COMM1007)
Response: Today's rule does not affect listed hazardous wastes.
Comment: One commenter agreed with the Agency that the addition of hazardous substances
from non-Bevill sources makes the risk posed by exempt mining wastes greater. The commenter was
particularly concerned with the "disposal" of EPA designated F006 electroplating sludges via copper
smelters. The commenter stated that devices used to process/recycle these materials outside of the
mineral processing industry must implement strict controls to obtain saleable products and delisted
HTMR residues (the residues must pass TCLP values that are an order of magnitude stricter than
characteristic hazardous waste TCLPs). The commenter argued that many Bevill wastes do not pass the
TCLP test for RCRA characteristic wastes, and noted the lack of containment in Subtitle D landfills. The
commenter felt that it was unfair to non-Bevill recyclers and a disincentive to their viability to allow
Bevill devices to become inadequately regulated dumping grounds for hazardous materials.
(COMM 1007)
Response: First, this comment raises issues presented in other rules, specifically the BIF rule,
which are not presented or reopened in the present rule. EPA has no intention of reopening those earlier
rules. If any response to this comment is deemed necessary, EPA notes that a) if F006 is not legitimately
recycled via copper smelting, then the BIF rule would apply to the smelter's emissions and all residues
would lose Bevill status; b) if F006 is recycled legitimately and solely for metal recovery (as provided in
266.100 (c)), then the smelting unit is exempt from subtitle C regulation and residues retain Bevill status
if they satisfy the significantly affected test in 266.112; c) the F 006 waste is subject to subtitle C
regulation until actual smelting occurs. These positions were largely established in the BIF rule, and
EPA is providing no further justification for them here.
Comment: One commenter requests clarification about whether small-volume waste streams
generated during precious metal mining operations would be considered to be alternative feedstocks
under the proposed rule. These waste streams include washdown waters, sump cleanouts, water
pollution control sludges, and air pollution control dusts, and miscellaneous sludges that are commonly
recycled in the milling process for their precious metals content. These residual materials are generated
directly from extraction and beneficiation activities and would be Bevill-exempt wastes if disposed. In
one portion of the proposal, EPA threatens to limit Bevill status to wastes that meet a volume threshold.
The commenter is concerned that its residual materials, stripped of their Bevill status, could be
cons idered alternative feedstocks. (COMM1104)
3.2 Applicability to Hazardous and Non-Hazardous Non-Bevill
Feedstocks
Comment: One commenter strongly supported the Agency's proposal to deny Bevill exclusion
to wastes that result from co-processing of alternative feedstocks. This commenter further suggested that
the Agency investigate the export of F006 wastes to Canada, where regulations are less stringent than in
the U.S. (COMM 1107)
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Response: While the Agency appreciates the commenter's support, the Agency in today's rule
is not adopting this option.
Comment: Five commenters disagreed with the Agency's proposal, arguing that a distinction
should be made between hazardous and non-hazardous wastes (COMM1043, COMM1048, COMM1088,
COMM1097, COMM1094). While these commenters did not support the proposed option generally,
they added that if the Agency were to place any limitations upon co-processing activities, these
restrictions should be limited to materials that are hazardous. The commenters argued that restrictions in
co-processing of non-hazardous materials would not be necessary because mixing with non-hazardous
feedstocks has not been shown to increase the risks posed by resulting wastes. One commenter went on
to support continued co-management of non-hazardous materials by explaining that, were they not
reused as feedstocks, the materials could be disposed of on land without federal regulation. The
commenter further argued that applying the restriction to non-hazardous materials would unfairly subject
previously exempt materials to Subtitle C regulations. That commenter also noted that every major
mining state currently regulates mining wastes regardless of their toxicity or Bevill status, and that such
regulations are sufficient to protect human health and the environment (COMM 1043). Another
commenter noted that its facility co-processes almost exclusively non-hazardous alternative feedstocks,
and called for additional evaluation by EPA of the hazards posed by these activities before a final rule is
promulgated (COMM1088). Another commenter suggested that EPA ensure that only those alternative
feedstocks that actually exhibit a toxicity characteristic at the time that they would otherwise enter the
process be restricted from co-processing. This strategy would entail preserving the Bevill exemption for
three specific categories of materials: 1) materials that have no hazardous characteristic; 2) materials
(such as caustics) that have no hazardous waste toxicity characteristic; and 3) materials that can have any
hazardous waste toxicity characteristic eliminated by being reclaimed prior to processing. The
commenter suggested that this approach would encourage recycling of the spent caustic solutions.
(COMM 1097).
Response: It should be noted that under current RCRA regulations, a facility generating a
Bevill-exempt waste may obtain up to 49 percent of its feedstock from non-virgin ores or minerals and
retain its exempt status. The potential regulation of non-hazardous alternative feedstocks was not a
principle concern of the Agency in its proposal. The Agency however, was concerned about hazardous
alternative feedstocks.
3.3 Comments on Risks, Damages, and the Incentive to Maximize
Waste Volume
3.3.1 Risks from Co-Processing Non-Bevill Materials
Comment: Seven commenters stated that EPA has not demonstrated that co-processing of non-
Bevill feedstocks increases the risks posed by exempt mining wastes. The commenters cited a lack of
data to back up EPA's claim of increased risks to human health and the environment (COMM 1034,
COMM 1041, COMM 1043, COMM 1048, COMM 1050, COMM 1081, COMM 1089). Four of these
commenters pointed to EPA's ambiguous language, quoting the phrases "potential additive risk" and
"may have contributed to the environmental problems," directly from the proposal as evidence' that the
Agency is not certain about actual increased risk (COMM 1041, COMM 1048, COMM 1081,
COMM 1089). One of these commenters further noted that EPA had provided no specific evidence to
support its general assertions (COMM 1089).
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Two commenters referred to Damage Cases and Environmental Releases, asserting that the
document does not establish actual increased risks from co-processing (COMM1043, COMM1048). One
of those two commenters reviewed eighty-three of the Damage Cases and found that only two of them
had any possible relationship to mineral processing secondary materials, and only one is identified as
including the co-processing of non-Bevill feedstocks (COMM1043). Another commenter made a similar
point in reference to EPA's document Characterization of Mineral Processing Wastes, stating that the
data in that document are irrelevant to an assessment of risks, and that EPA did not model or provided
any empirical evidence of direct risk to human health or the environment posed by co-processing
(COMM1034). One other commenter added that the document Risks Posed by Bevill Wastes does not
describe any unacceptable risks associated specifically with management of red mud or brown sand in
the bauxite refining industry (COMM1034).
Response: The Agency agrees that there was insufficient data to confirm that co-processing
increased risks from the resulting wastes. The Agency disagrees that the Characterization document is
not valid. The report clearly shows that mineral processing wastes are hazardous and that their co-
processing may cause changes to resultant wastes. Whether these changes result in an increase risk was
not clearly established.
Comment: Three commenters challenged EPA's position that co-processing can make the
resulting wastes more toxic. The commenters argued that rather than making resulting Bevill wastes
materially more toxic, recycling secondary materials actually reduces the total amounts of contaminants
in wastes. The commenters explained that intermediate products that are recycled are often more
concentrated in metals, but also are much lower in volume than the ores and concentrates from which
they derive. The total amount of contaminants that ends up in the wastes is therefore very small
(COMM1026, COMM1029, COMM1054). Two of the commenters addressed the specific processes of
the precious metals industry, asserting that their use of alternative feedstocks cannot reasonably be
viewed as increasing risks to human health or the environment (COMM1026, COMM1029). One of
these commenters discussed the absence of environmental risks associated with the co-processing of
secondary materials generated at an integrated facility and conveyed for purposes of metal recovery to an
on-site beneficiation unit (COMM1029).
Comment: Five commenters acknowledged that co-processing can add to health and
environmental risks in some cases, but objected to a blanket assumption by the Agency concerning the
risks posed by co-processing in general. These commenters disagreed with EPA's broad elimination of
the Bevill exclusion for co-processing wastes simply to prevent the individual incidents where co-
processing may increase risks (COMM1016, COMM1037, COMM1048, COMM1067, COMM1094).
One of these commenters added that co-processing can frequently render both feedstocks (Bevill and
non-Bevill) less toxic through incidental processes such as acid neutralization and the reduced mobility
of constituents in smelter slag (COMM1094). Another commenter suggested that the Agency's related
concerns about constituent-loading also are overstated, because the small amounts of alternative
feedstocks used cannot be expected to significantly increase the constituent concentrations in the
resulting wastes (COMM1048).
Response: Comment noted.
Comment: One commenter explained that the great variability in toxicity of wastes from
facility to facility should be reflected in the restriction of alternative feedstocks. The data that EPA
collected in 1985 and presented in its Report to Congress shows variability in concentrations of
hazardous constituents of over three orders of magnitude in samples of leach ore from different facilities.
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According to the commenter, it is unfair to deprive one facility of its Bevill exclusion due to the use of a
mineral processing secondary material as a feedstock, when another facility could have higher naturally
occurring constituent levels but retain its Bevill exclusion because no secondary materials were co-
processed. The commenter further stated that EPA has not shown that these wastes, that were once
exempt from Subtitle C of RCRA, have now changed enough to present increased risks to human health
and the environment. Without evidence that the wastes have changed since they were originally judged
exempt, the commenter found it inappropriate for EPA to impose additional regulations. (COMM1043)
Comment: One commenter asserted that EPA has exaggerated the risks posed by Bevill wastes,
and has failed to consider the impact of existing regulation by federal, state, and local programs in
reducing such risks. The commenter suggested that the Agency take the following steps to address its
concerns over these risks: 1) set forth a factual basis for the concerns; 2) identify which specific waste
streams and management practices are at issue; 3) provide a factual and quantifiable assessment of
potential risks posed by current operations involving those wastestreams and management practices; and
4) revive collaborative efforts to assess appropriate approaches to mine waste management
(COMM1034).
Response: The Agency disagrees with the commenter. The docket clearly shows that the
Agency has relevant concerns regarding the regulation of mineral processing wastes.
Comment: One commenter stated that contrary to the Agency's assertions in the proposed rule,
environmental risks are not increased, but rather are lessened, by the use of feedstocks derived from
F006 when they replace natural ore concentrates. The commenter stated that natural copper ore
concentrates contain every 40 CFR Section 261 Appendix VIII metal in varying concentrations, and
while F006-produced concentrates do contain higher levels of some Appendix VIII metals, F006-
produced concentrates contain much lower quantities of cadmium, lead, arsenic, and sulfur. The
commenter asserted that smelting units that purchase F006 concentrate limit the quantities of Appendix
VIII metals to levels that can be properly managed under existing regulations.
The commenter also stated that although the total quantity of domestically smelted copper
feedstock produced from F006 materials does not represent a high percentage of the total feedstocks used
for metal extraction, important quantities of metal are nevertheless recovered that would otherwise be
discarded in landfills. For example, the commenter annually supplies approximately 6,000 dry tons of
F006 produced concentrates, about one half of the total F006-produced materials smelted by Cyprus
Miami during 1996. In 1996, over 425 tons of copper were extracted from this feedstock and precious
metals having a value greater than $1,225,000 were also recovered. The commenter contended that if
these metals had not entered commerce, they would have been replaced by metals extracted from natural
ore concentrates and the ensuing damage to the environment that occurs from mining, beneficiation, and
transportation activities would have occurred. The commenter concluded that copper extracted from an
average ton of WRC F006 copper concentrate avoids the required mining of about 42 tons of natural ore,
eliminates the hundreds of tons of overburden that is likely to be required to be removed to reach the
natural ore body, and obviates the need for millions of gallons of fresh water that would be consumed in
preparing ore concentrates for smelting. (COMM1009)
Response: The comment is noted. Listed hazardous wastes are beyond the scope of today's
rule.
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3.3.2 Uncontrolled Management has Resulted in Damage
Comment: Two commenters argued that the damages cited by the Agency as justification for
the proposed rule were the result of past industry practices which have since been discontinued, or else
equipment failures or other upsets that would not be affected by the proposed regulation (COMM1034,
COMM1094). One of these commenters added that current practices are designed to protect human
health and the environment and are suitably regulated by federal, state, and local laws. The commenter
also alleged that EPA misrepresented the growth of new mining and mineral processing sites on the NPL.
The commenter stated that almost all mining and mineral processing sites on the NPL had been identified
prior to 1985, and that the number of sites has not grown significantly since that time (COMM1034).
Response: The Agency disagrees with the commenters. The Agency conducted two studies of
environmental damages and releases in 1996 and 1997. These reports clearly show that current practices
are causing environmental damages and releases. In addition, the Agency has presented data on NPL
sites to illustrate the nature and costs of remediating large sites contaminated with wastes that are similar
to those currently being generated at mineral processing sites.
Comment: Eleven commenters criticized EPA's evidence of damages caused by co-processing
of alternative feedstocks as presented in Damage Cases and Environmental Releases. The commenters
found no evidence within that document that the specific use of alternative feedstocks had caused any
environmental damages. They also noted that the Agency did not specify cases within the document to
support its position. The commenters pointed to the Agency's own language in the proposal, which
acknowledges that there are limits to the Agency's knowledge of environmental damages caused by
Bevill wastes. The commenters argued that, due to the lack of evidence, EPA cannot rely on its
allegation of environmental damages to justify the proposed rule (COMM1009, COMM1043,
COMM1054, COMM1089, COMM1104, COMM1090, COMM1088, COMM1048, COMM1034,
COMM1029, COMM1094).
One commenter added that failure to specify the data upon which it relies is a violation of the
Administrative Procedures Act, and also pointed out that most of the "damage" cases in the rulemaking
record did not result in any actual harm to the environment (COMM1104).
Another commenter suggested that, because of the absence of data in the Damage Cases
document, the data in the 1990 Report to Congress are better evidence of the effects of co-processing on
Bevill wastes. The commenter asserted that the Agency dismissed the conclusions of that 1990 Report in
order to make its case in the current proposal (COMM1054).
One commenter found errors concerning its facilities in the Damage Cases document. One of the
cases was listed twice, making the four alleged cases appear as five (COMM1089). Another commenter
stated that there is no evidence of damages due to co-processing in the gold production industry, or in the
mineral industry at large (COMM1029). Another commenter specifically noted that nothing in the
Damage Cases Report supports the assertion that the use of the F006 derived feedstocks may have
caused environmental damages (COMM1009).
Response: The Agency acknowledges that it does not have adequate data to confirm that
environmental damages are routinely caused by co-processing.
Comment: One commenter responded to each of the Agency's allegations of damages that
involved its facilities. The commenter evaluated each of the damage sites, concluding generally that:
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several of EPA's case descriptions are erroneous; most of the reported damages are the result of historic
mining practices that no longer exist; the incidents cited were adequately regulated under existing federal
and state laws; most of the cases presented no real threat or damage to human health or the environment;
and the incidents involved mostly spills associated with equipment malfunction, which would not be
affected by the proposed rule. The commenter then addressed each incident individually by facility,
presenting the following evaluations:
• Cherokee County, Kansas - None of the environmental impacts at this site resulted from
the use of alternative feedstocks in smelters or any other production units.
• Foote Mineral Company, Pennsylvania - None of the environmental impacts at the Foote
Mineral Frazer site resulted from the use of alternative feedstocks in any production
. operation.
• Miami Mine - Neither the facts nor EPA's record demonstrate that any of the cited
damages were related to the use of alternative feedstocks in smelters or any other
production units.
• Sierrita Mine and Mill, Arizona - None of the referenced environmental incidents
resulted from the use of alternative feedstocks in the mill or any other production unit at
this site.
• Copperstone Facility - None of the incidents at this facility resulted from the use of
alternative feedstocks in any production unit.
• Sleeper Mine, Humbolt, Nevada - None of the incidents at this facility resulted from the
use of alternative feedstocks in a production unit.
• Wind Mountain - The barren solution which EPA alleges was released from this facility
was not an alternative feedstock.
• Smeltertown, Colorado - EPA provides no information in the record of this rulemaking
that would indicate that the environmental contamination at this site was caused by the
use of alternative feedstocks.
• Twin Buttes Mine - The alleged incidents identified by EPA in the electrowinning tank
house at this site had nothing to do with the use of an alternative feedstock.
• Bagdad Mine - The alleged incidents cited by EPA did not result from the addition of an
alternative feedstock to the Bagdad mill or any other production unit.
New Johnsonville - The 1989 and 1990 exceedances of the NPDES limit for the New
Johnsonville wastewater alleged by EPA were not caused by the use of alternative
feedstocks in a production unit.
In each of these cases, the commenter determined that the incidents do not provide support for
EPA's proposal that addition of a non-Bevill feedstock to a production unit should disqualify the
resulting wastes from the Bevill exemption.
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Response: The Agency has revised its reports and has amended them to reflect factual errors.
3.3.3 Incentives to Maximize Waste Volume
Comment: Nine commenters took issue with EPA's statement that the Bevill amendment
creates an unfortunate incentive to maximize the volume of Bevill wastes generated as unsubstantiated
and untrue (COMM1034, COMM1041, COMM1043, COMM1048, COMM1104, COMM1089,
COMM1094, COMM1039, COMM1054). Five of these commenters added that EPA provided no
explicit evidence to support the existence of this alleged incentive (COMM1054, COMM1041,
COMM1043, COMM1054).
One commenter explained that it would be neither practical nor financially beneficial to
purposely maximize wastes, in part because its facilities are both expensive and highly sensitive to
material inputs (COMM1104). Two commenters added that reproccessing unnecessary materials for the
purpose of maximizing waste volumes would be harmful to the facilities because materials with
excessive impurities interfere with a facility's processing activities (COMM1034, COMM1043). Two
commenters asserted that all feedstocks used at its facility are processed only to maximize the mineral or
metal value obtained from the ore, not for any ulterior motive of waste maximization or to avoid waste
regulation (COMM1041, COMM1043). One commenter argued that valuable production components
would be wasted if facilities reprocessed materials for any reasons other than to obtain maximum mineral
values (COMM1034). Another commenter stated that EPA's rulemaking confuses the two separate
processes of recovering materials from secondary processes and managing wastes. The commenter
explained that once secondary materials qualify as legitimate feedstocks because of the amount of
recoverable materials they contain, they are no longer wastes, and they should not be considered as such.
With that in mind, the commenter asserted that there is no incentive to maximize actual wastes.
(COMM1043). Three other commenters pointed out that intentional waste maximization is already
prevented by stringent regulations prohibiting "sham" recycling (COMM1094, COMM1054,
COMM1034).
Two commenters stated that all incentives are actually to minimize the volumes of Bevill wastes
because of material handling costs rather than to maximize wastes. The commenters stated that the
Bevill amendment encourages facilities to reprocess materials instead of disposing of them, thereby
minimizing waste volumes. They also argued that since there is no volume criterion in the Bevill
exclusion (the distinctions of high- and low-volume wastes having been pre-determined), there is no
incentive in the amendment to maximize wastes. Both commenters asserted that EPA is unwilling to
follow Congressional intent by implementing the Bevill amendment as written. One of the commenters
added that reprocessing uses materials that would otherwise have to be disposed, reducing substantially
the amount of materials that actually is disposed (COMM1039). The other commenter noted that the
Hyrodmet process at its facility actually reduced the volume of one Bevill waste to zero (COMM1054).
One commenter asserted that EPA's stated concern over the incentive to maximize waste volume
is indicative of the Agency's larger concern. The commenter stated that EPA is opposed to the Bevill
Amendment and the incentives that it creates, and that the recent proposal is actually an attempt to
"interpret" the Amendment out of existence.
Response: The Agency remains concerned that once a waste becomes Bevill exempt, its status
may reduce the incentives a company has to reduce its volume or manage it in a more environmentally
acceptable fashion. The Agency, however, acknowledges that this concern is only one of the factors it
uses to develop a management approach for Bevill wastes.
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3.3.4 Bevill Wastes are Not Inadequately Regulated Dumping
Grounds
Comment: Four commenters found that EPA had mischaracterized the D.C. Circuit Court's
decision in Horsehead Resources Corp. v. Browner, where the Court held that "it simply makes no sense
to permit Bevill devices to become inadequately regulated dumping grounds for hazardous materials."
The commenters pointed out that the Court was referring only to the co-processing of hazardous
materials and that this could not justify EPA in extending the co-processing limitation to non-hazardous
wastes. In addition, the commenters mentioned that nowhere in that decision did the Court go so far as
to suggest the elimination of co-processing that involved alternative feedstocks for the recovery of
minerals. They argued that EPA cannot defend it's broad ban on co-processing based on the Court's
ruling in that case, and that the Agency has no data to show that Bevill wastes are "dumping grounds" for
other hazardous wastes (COMM1048, COMM1088, COMM1039, COMM1043). One of the
commenters added that the Court in that case determined that co-processing requires "adequate
regulation," and upheld the 50 percent rule and the "significantly affected" test that were imposed by
EPA at the time,. The commenter added that iron and steel production units cannot act as "dumping
grounds" for non-ferrous metals without reducing product quality and damaging production equipment
(COMM1039).
Response: The Agency disagrees with the commenter's position on Horsehead. The Agency
finds that the Court was quite clear that Bevill wastes should not be a dumping ground for hazardous
wastes. However, today's rule does not ban co-processing of alternative feedstocks and other materials
as long as 50 percent of the feedstock is from virgin ores and minerals.
Comment: One commenter explained that Bevill units are not dumping grounds for hazardous
wastes, and that the use of mineral processing secondary materials as alternative feedstocks is not
equivalent to hazardous waste disposal. The commenter asserted that the practice of recovering copper
at its facility is illustrative of recycling activities as primary metal production, not waste management.
At that facility, copper is extracted from the bleed solution after the final production step of electrolytic
refining. The commenter suggested that the legitimate recovery of valuable materials should be
evaluated by a legitimacy test and that any legitimate recycling activity cannot be characterized as
creating a "dumping ground."
3.3.5 Comments on Supporting Data and Background Documents
Comment: One commenter stated that EPA's background documents contain numerous factual
errors that are directly relevant to the conclusions that EPA or the public may draw from them. The
commenter intends to submit a separate document correcting some of those errors (COMM1034).
Response: Where commenters have provided specific input to correct alleged errors, the
Agency has reviewed the data and made corrections, where appropriate.
Comment: Four commenters referred generally to the background documents that EPA cites as
evidence to justify the alternative feedstocks proposal, stating that these documents do not support that
proposal. The commenters mentioned the following documents: Costs of Remediation at Mine Sites,
Characterization of Mineral Processing Wastes and Materials, Damage Cases and Environmental
Releases, Risks Posed by Bevill Mining Wastes, Mining and Mineral Processing Sites on the NPL, and
CERCLA Imminent Hazard-Mining and Mineral Processing Facilities. The commenters stated that these
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documents do not support the Agency's allegations of damages caused by co-processing, increased risks
to human health and the environment, incentives to maximize waste volumes, or wastes becoming more
toxic because of co-processing (COMM1034, COMM1041, COMM1043, COMM1048). One
commenter added that EPA has failed to present any specific evidence in any of the relevant documents
to support its contentions. The commenter noted that EPA's failure to cite such evidence is in violation
of the Administrative Procedures Act's requirement that EPA engage in reasoned decision making,
particularly because these conclusions are a major underpinning of EPA's rulemaking (COMM1041).
Response: As noted earlier, the Agency is not adopting the alternative feedstock option in
today's rule.
Comment: One commenter asserted that the damage cases presented in the background
document concerning coal gasification ash do not support the proposal as they do not involve the
addition of alternative feedstocks or process additives. The only case involving a coal gasification unit
was a facility illegally managing its waste. In this case, the State was active in enforcement (Great
Plains Coal Gasification Plant, December 1995). According to the commenter, EPA provides no
examples in which alternative feedstocks or process additives affect the toxicity of the resulting Bevill
exempt waste material and cites no proven benefits or reductions in hazardous materials support the
proposed rule. (COMM1108)
Comment: One commenter noted that only two of the many cases contained in the Damage
Cases background document involve co-processing of secondary materials with normal feedstock
materials. According to the commenter, the remainder of the cases are mostly cases concerning co-
disposal or spills of various process and/or waste streams that "really have nothing to do with secondary
materials being co-processed with the feedstocks to produce a mixture which is excluded from regulation
under the Bevill exclusion."
The commenter also provided the following information about the two secondary materials
cases, asserting that even these cases are not relevant for the Agency's argument:
(1) The Florida Solite Company case involving combustion of hazardous waste fuels in a
kiln, has already been addressed by the Agency and will be regulated under 40 CFR
266.112.
(2) The second case, ASARCO El Peso Plant, involved secondary materials processed at a
copper smelter for metal recovery. The commenter stated that no comparisons are
provided for the smelter wastes with and without the use of secondary materials. Thus,
the contamination at the site may have been essentially the same with or without the
recycle of these secondary materials. The commenter added that the only real problem
at the site was inadequate controls on the storage of secondary materials (COMM1108).
Response: While the Agency is not adopting the alternative feedstock option, it believes that the
damage cases referenced by the commenter provide a reasonable amount of data highlighting the
chemical compositions of mineral processing wastes and illustrating that they can leach toxic metals into
soils and groiindwater.
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3.4 Co-processing Has Changed Significantly Since the Bevill
Determinations
Comment: Many commenters disputed the Agency's claim that co-processing has changed
significantly since the Agency conducted Congressionally mandated studies. Two commenters knew of
no evidence that co-processing is becoming more prevalent (COMM1029, COMM1088), while another
pointed out EPA's docket contains no information supporting this claim. This commenter noted that its
facilities in fact have decreased this activity over time, and asserted that this is decreased activity is
representative of the industry as a whole (COMM1034). Another commenter noted that co-processing in
the precious metals industry is not changing in nature (COMM1104). One commenter noted that EPA
uses a single example, F006, to support its contention that co-processing is increasing. The commenter
noted that even if this assertion is correct, no inferences can be drawn for other industry sectors based on
one waste stream. The commenter argued that EPA must collect and compare current data to
information in the 1985 and 1990 Reports to Congress in order to prove co-processing activities are
increasing (COMM1088).
Several commenters pointed out that co-processing has been conducted in the industry for many
years, and that as a consequence the Agency cannot demonstrate that co-processing is a means for
circumventing regulations first established in 1986. Another commenter noted that the iron and steel
industry have co-processed materials for over 100 years (COMM1039). A comment from the copper
sector stated that copper production processes dating to 1956 had always involved secondary recycling
and mixing with virgin feedstock. This commenter noted that because the activity pre-dates RCRA, it
could not have been invented by industry to circumvent regulation, as the Agency has suggested
(COMM 1043). Another commenter pointed out that primary smelter have always had some degree of
secondary recycling as part of their operation (COMM1048). One commenter disagreed with EPA's
implication that co-processing is being used as a dumping ground, encouraging companies to maximize
waste volume (COMM1039). One commenter asserted that no metal refining processes in the mineral
processing industry operates without some form of recycle loop that EPA calls "alternate feedstocks."
The commenter contended that such materials are not "alternate feedstocks," as they are materials
already in process. The commenter agreed with EPA that there may be more secondary material
recycling occurring, but points out that this benefits the environment, contrary to EPA's contentions.
The commenter's Hydro met lead process generates less waste as a result of secondary material
recycling. The proposed rule would discourage such practices (COMM 1054).
Many commenters disagreed with the Agency's claim that it had not specifically studied the
practice of co-processing. These commenters stated that EPA has was aware of, and has previously
studied, the impacts of secondary material recycling (e.g., many comments refer to the 1985 and 1990
Reports to Congress) (COMM1009, COMM1019, COMM1029, COMM1034, COMM1039,
COMM1041, COMM1043, COMM1048, COMM1054, COMM1088, COMM1093, COMM1104).
Three commenters noted that EPA has been involved in extensive litigation with respect to co-processing
prior to the proposed rule, and was therefore clearly aware of the issue (COMM1039, COMM1041,
COMM1104). Several commenters noted that their company/organization had provided information to
EPA concerning their specific co-processing applications prior to the proposed rulemaking
(COMM1009, COMM1034, COMM1041, COMM1043, COMM1054).
Many commenters cited specific instances where EPA was made aware of secondary material
recycling, contrary to Agency assertions:
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EPA was aware of a report by Calspan Corporation detailing reuse of secondary materials in the
mineral processing industry that dates back to April, 1977 (COMM1041).
One of these commenters pointed out that EPA acknowledged industry use of 50 percent scrap
materials in Solite litigation, as well as in a PEDCO report dating to 1979 (COMM1104).
One commenter notes that as part of EPA's original definition of solid waste in 1980, through
negotiations involving a suit brought by Shell Oil, the mineral processing industry emphasized to the
Agency that secondary materials co-beneficiated with ores should not be deemed solid waste, under
RCRA Subtitle C (COMM1029). Another commenter asserts that as part of the same rulemaking, their
company submitted material outlining the widespread nature of material reuse (COMM1041).
Many commenters referred to EPA's 1985 Report to Congress. Two commenters stated that
although EPA did not specifically study risks posed by co-processing in its 1985 Report to Congress, the
industry sectors studied in the Report were all co-processing secondary materials at that time. Thus,
EPA was aware of these activities (COMM1029, COMM1034).
One commenter noted that EPA was aware of gold mining practices in the 1986 regulatory
determination (COMM1054).
One commenter stated that EPA gathered information about alternate feedstock use at their
facilities, when the Agency engaged in the BIF rulemaking in 1989 (COMM 1041).
Many commenters refer to EPA's 1990 Report to Congress.
One commenter asserted that EPA had acknowledged that secondary materials were being
recycled in the 1980-90 period, contrary to claims made by the Agency. The commenter's organization
provided such information to EPA for many other rulemakings. These recycled materials included
reverts, boiler dust and slag. Further, the commenter noted that EPA made several interpretations of the
Bevill exclusion from 1980 to 1991 using this information and never mentioned limiting Bevill to virgin
feedstock (COMM 1054). A trade association commenter pointed out that F006 was recycled by member
companies long before LDR Phase I, in 1988. Members realized the environmental and economic value
of this activity (COMM1009).
Response: The Agency had varying degrees of knowledge regarding co-processing practices
used by industry. The Agency acknowledges that it did not comprehensively assess these issues in
support of the September 1989 rulemaking and the 1990 RTC.
Comment: Commenters disagreed that current wastes differ in terms of risk posed from wastes
EPA studied to make its regulatory determination (COMM1019, COMM1034, COMM1039,
COMM1104). One of these commenters reported that EPA decided there was no risk posed by slag from
its plant (COMM1019). Another commenter asserted that EPA admitted in its Reports to Congress that
some alternative feedstocks pose little additional risk (COMM1039). Yet another commenter asserted
that EPA had studied its gold-related wastes, and found no hazards associated with them (COMM 1104).
Two commenters asserted that EPA provided no evidence that facilities that co-processed wastes
pose a risk greater than would be posed by facilities processing virgin materials (COMM1039,
COMM 1088). One commenter believed that the current record suggests co-processing should be
accorded Bevill status. One commenters stated that risks from co-disposal of mining waste are
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minimized by the "significantly affected" test (COMM1039). One commenter urged EPA not to restrict
co-processing in the case where the alternative feedstock does not exhibit a toxicity characteristic. The
commenter contended such a restriction would needlessly burden the mineral processing industry,
because it will not affect the volume, composition or toxicity of Bevill wastes (COMM1034). One
commenter asserted that even if EPA ultimately demonstrates that co-processing is potentially harmful,
the Agency should revisit the Bevill status of such waste only if: (1) the additional dangers are
significant; and (2) the additional dangers are qualitatively different from those the Agency considered
when making earlier regulatory determinations. Otherwise, the commenter argued EPA would be
creating competitive disadvantages between industrial sectors (COMM1088). One commenter noted
that the current record does not support EPA's position, and asked that EPA put in the public record any
new information it has concerning Bevill waste streams that shows they are more hazardous than when
the Agency prepared its 1990 Report to Congress. The commenter contended that EPA should require
feedstocks to contain a minimum of 51 percent Bevill feedstock, and not exhibit any new hazardous
characteristic after blending with an alternative feedstock (COMM1034).
Two commenters believed that co-disposal with non-hazardous waste is certainly not an
environmental hazard (COMM1039, COMM1094). One commenter noted that EPA admitted in its
Report to Congress that some alternative feedstocks may not pose risks. The commenter also noted that
EPA stated at 62 FR 26,053 that the use of a Bevill waste as an alternative feedstock does not change the
Bevill status of the resulting waste, and that the alternative feedstock has no impact on the toxicity of the
resulting waste (COMM1039).
Another commenter believed that the Bevill rule exempts all co-processing wastes until they are
mixed with listed or characteristic hazardous waste. According to the commenter, the mixture rule does
not address the risks of Bevill waste prior to such mixing. The commenter noted that the mixture rule
only applies to mixtures containing listed (and not characteristic) hazardous waste, per court remands in
1989 and 1992 (Solite). The commenter contended that EPA can only speculate about this waste
requiring Subtitle C regulation, and must consider section 8002(p) study factors (COMM1088). One
commenter pointed out that in the "Report to Congress Phase II," EPA concluded there was no health
risk posed by waste from smelters using secondary feedstocks (COMM1019).
Response: Todays rule does not adopt the virgin Bevill feedstock or significantly affected
options. Under todays rule co-processing may continue as long as legitimate recycling is taking place.
Comment: Several commenters specifically addressed recycling of F006. One commenter
disagreed with the proposed rule's implication that F006 recycling is not regulated, a situation the
Agency contends has led to increased hazardous material risk. The commenter noted that the activity
was covered by the BIF rule (COMM1043, COMM1089), as well as state air and water quality
regulations (COMM1043). This regulation ensures environmentally responsible activity (COMM1043,
COMM1089). Another commenter noted that the Agency provided no support for its contention that
copper smelters reprocess the majority of F006 waste. Even if these smelters did process F006, the
commenter contended that this would be an environmentally favorable process the Agency should
support (COMM1054). Further, two commenters stated that EPA never explains the environmental
problems caused by increased F006 co-processing/recycling (COMM1088, COMM1089). One
commenter remarked that if EPA felt copper wastes posed a small enough risk to receive a Bevill
exemption, the comparatively small volumes of waste in the precious metals industry should be accorded
similar status (COMM1104).
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Response: As noted earlier, today's rule does not affect any listed hazardous wastes. An earlier
response summarizes the current regulatory status of F 006 wastes being reclaimed by copper smelters..
Comment: One commenter asserted that in developing this proposal, EPA did not consider the
Pollution Prevention Act (PPA), and that PPA section 6604(b)(2) requires EPA to "review regulations of
the Agency prior and subsequent to their proposal to determine their effect on source reduction." (the
term "source reduction" includes "substitution of raw materials"). The commenter noted that there is no
information in the rulemaking record showing that EPA has conducted such a review.
The commenter stated that to determine the overall impact on waste minimization, source
reduction, pollution prevention, and risk to human health and the environment, EPA needs to conduct
further analyses.
Response: The Agency crafted its proposals to specifically increase the recycling of metals
from mineral processing waste streams. The goal of the PPA is to reduce wastes and encourage
recycling. The Agency disagrees that the proposals and today's rule does not accommodate the goals of
the PPA.
3.5 Applicability of the Proposal to the BIF Rule and Other Bevill
Industries
3.5.1 The Differences Between Mineral Processing Secondary
Materials and CKD Call for Different Regulatory Schemes
Comment: Two commenters opposed eliminating CKD from Bevill exclusion. The
commenters do not believe EPA intends to extend its proposal regarding co-processing to CKD, but are
concerned that the regulatory language is unclear. These commenters believe that EPA intends its
"virgin material" policy only to regulate mining waste, and not boiler wastes. This is due to the fact that
the EPA talks generically about Bevill wastes in the proposed rule, but uses only mining industry
examples to support its position.
However, the commenters stated that EPA's preamble language, specifically at 62 FR 26052,
seems to include all feedstocks in the rule. These commenters further state that if EPA's intent is to
regulate CKD, it would be exceeding its legal authority. These commenters state that while leeway is
granted in determining the regulatory status of mining waste, there is no qualifying language in the
statute for CKD. The commenters noted that the EPA established a regulatory management process for
CKD in April 1996, and that it would be "highly irregular" and "inappropriate" for EPA to address the
Bevill status of CKD under the proposed rule. The commenters therefore request that EPA clarify that
the proposal does not apply to CKD. One of the commenters noted that such regulation of CKD would
violate the waste minimization intent of RCRA (COMM1020).
The commenters noted that cement production is very different from mineral processing. With
the exception of carbon dioxide emitted as part of the calcination process, almost all raw material
processed in the kiln is incorporated in the "clinker" (a cement intermediate). This differs from mineral
processing, where a small volume of product is obtained from a large volume of ore, producing a "very
high waste to product ratio." The commenters stated that non-virgin materials are frequently used in
cement manufacturing. Materials such as low-grade iron ore, which would normally be a waste, are
incorporated, with the following benefits: reduced energy use from reduced quarrying and
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transportation, utilization of materials that would normally be wastes, and reduced need for virgin
material.
One commenter noted that these materials may also enhance process chemistry, or to supplement
absent local virgin supplies. Quarrying and preparation can make up 15-20 percent of cement production
costs (COMM1066).
According to the commenters, CKD is routinely recycled during cement production. EPA's rule
would likely preclude this environmentally-friendly activity. One commenter noted that'this practice
was routine in the 1970s and early 1980s, when Congress first adopted the Bevill amendment. The
commenter believes that Congress intended the exemption to apply to both virgin and non-virgin feed
(COMM1066).
Response: Today's rule does not affect the Bevill status of any other RCRA special waste; the
rule affects only the primary mineral processing wastes. The Agency already has established its position
on the regulation of CKD, stating its justification for such regulations and its intention to develop CKD
management standards under RCRA (see "Regulatory Determination on Cement Kiln Dust", 60 FR
7366, February 7, 1995). The commenters should direct their comments to the proper rulemaking.
3.5.2 The Proposed Rule's Effect on the Fossil Fuel Industry
Comment: Two commenters addressed the applicability of the proposal to the fossil fuel
industry. One commenter asserted that EPA should clarify that proposed modifications to the Bevill
exclusion do not affect the fuel combustion waste clause and the activities of utility boilers. This
commenter was concerned that the rhetoric contained in the preamble, while it does not apply to fossil
fuel combustion wastes, might give the impression that EPA was modifying the entire scope of Bevill in
the rulemaking, rather than addressing only mining and mineral processing wastes. The commenter
stated that EPA should clearly outline its intentions to modify the Bevill exclusion as it applies to mining
and mineral processing wastes only. The commenter further requested that the Agency affirm the utility
industries ability to combust MGP remediation materials with coal in its boilers. If the proposed rule
were to apply to the burning of MGP wastes, the commenter contended that the remediation strategy for
MGP sites developed by EPA and EEI would become impossible to implement. The commenter also
argued that EPA should not revisit the issue of fossil fuel Bevill exemptions in the future. The
commenter asserted that given EPA's limited resources, the Agency should state that it only intends to
re-examine the Bevill exclusion as it applies to mining wastes in the future, and not coal-combustion
wastes. The commenter noted that EPA previously determined that coal-combustion waste streams do
riot pose a threat to human health and the environment (COMM1035).
Another commenter recommended that the Agency recognize that tests for determining the
Bevill exclusion for different types of waste should be different. The commenter noted that the 50
percent non-hazardous and "significantly affected" test have been usefully adopted for wastes generated
by the combustion of fossil fuel. The commenter further notes that these tests that neither test can be
applied to mining wastes (COMM1016).
Response: Today's rule does not in any way affect the RCRA Bevill regulatory status of wastes
from the combustion of fossil fuels.
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3.5.3 Relationship Between the Proposed Rule and the BIF Rule
Comment: Four commenters believed that EPA provided insufficient rationale for applying
more stringent requirements to the co-processing of Bevill and mineral processing materials than to
materials co-processed in cement kilns (COMM1041, COMM1088, COMM1089, COMM1090).
One commenter argued that EPA was using its decision not to regulate smelting, melting, and
refining furnace units (SMRFs) under the BIF rule to justify its exclusion of the wastes these units
generate from Bevill status. The commenter argued that under the BIF statute, EPA does not have the
authority to treat these two waste types differently. The commenter also noted that EPA has stated the
SMRF exemption is temporary, and asked whether EPA intends to again modify its position on such
wastes in the future (COMM1041).
This commenter noted that EPA justifies its BIF rule exemption of cement kilns based on the
Agency's authority to apply RCRA corrective action authority to solid waste management units
(SWMUs) at these facilities. However, no other RCRA Subtitle C provisions apply to cement kiln dust
(CKD) produced at these units. The commenter asserted that EPA unfairly intends to fully regulate
characteristically hazardous mineral processing wastes under Subtitle C if the wastes are generated from
an alternative feedstock. The commenter notes that EPA failed to recognize other state and federal
programs with jurisdiction over mineral processing wastes (COMM1041).
Response: It should be noted that the Agency has already determined that CKD is a RCRA
Subtitle C waste (refer to 60 FR 7366).
Comment: Several commenters specifically recommended applying the same criteria for
mineral processing wastes resulting from co-processing as are currently applied to co-processing wastes
from BIFs. Four commenters noted that the BIF rule allows Bevill smelters to co-process materials
containing hazardous waste if they are at least 50 percent non-hazardous by weight. The commenters
stated that this inconsistency between the BIF rule and proposed rule should be addressed (COMM1034,
COMM1085, COMM1089, COMM1090). One of these commenters would support a 50 percent non-
hazardous content restriction for mineral processing alternative feedstocks, and did not understand why
EPA appears to have abandoned this criteria (COMM1089), while two commenters expressed opposition
to the "significantly affected" test (COMM1034, COMM1089). One commenter stated that under the
BIF rule, EPA determined that the co-processing of hazardous wastes as alternative feedstocks in
quantities less than 50 percent of the overall feedstock would not make the resulting wastes "high
hazard" wastes. The commenter argued that by eliminating co-processing of hazardous and even non-
hazardous feedstocks in the proposed rule, EPA is in conflict with the BIF rule. (COMM1089) Two
commenters stated that EPA previously recognized that regulation of wastes from smelters engaged in
co-processing of hazardous materials would lead to the generation of high volume/low hazard wastes,
that therefore the materials should not automatically be excluded from Bevill status. These commenters
encouraged EPA to reaffirm the BIF rule, and not adopt alternative feedstock restrictions (COMM1085,
COMM1090).
Response:EPA has explained in the preamble to the final rule why it decided not to adopt a
significantly affected test for feedstock co-processing situations in the mineral processing industry.
The most significant difference is that the BIF rule applies when hazardous wastes areintroduced into a
Bevill process, whereas the present rule applies when non-wastes are used as alternative feedstocks.
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Comment: One commenter argued that determinations with respect to CKD are irrelevant to the
issue of co-processing mineral processing alternative feedstocks. This commenter argued that the
proposed rule should not apply to non-hazardous alternative feedstocks, since using such materials does
not pose significant risk. The commenter further argued that EPA lacks evidence to prove the risks of
using hazardous alternative feedstocks, and points out that EPA previously determined that Subtitle C
regulation of such materials was unnecessary. (COMM1088).
Response: The Agency did not adopt the significantly affected test option. The Agency
acknowledges that the co-processing of Bevill feedstocks with alternative non-hazardous feedstock
appears not to be of unique concern, and that resulting environmental problems really would come from
the Bevill exemption itself, not the addition of alternative feedstock to the Bevill process..
3.6 Benefits of the Alternative Feedstocks Restriction
Comment: One commenter supported the Agency's narrow interpretation of the Bevill
exclusion. The commenter identified one benefit of the Agency approach as the elimination of
"surrogate disposal" masked as co-processing, and noted that this approach is consistent with waste
use/reuse concepts such as "Toxics Along for the Ride" (TAR). This commenter stated that the Bevill
exclusion should not be a pathway that is used to improperly dispose of hazardous wastes and added that
the exception to this approach would be for wastes that would qualify for a "use/reuse" or "effective
substitute" exclusion under 40 CFR 261.2 (COMM1074).
Response: Comment noted.
Comment: Two commenters addressed the Agency-identified benefits of a reduction in
hazardous substances found in Bevill wastes and a potential reduction of environmental risks. Both
commenters indicated that restricting co-processing of non-hazardous feedstocks will not significantly
reduce the hazardous content or potential risks to human health and the environment posed by the
resulting wastes. They also agreed that any benefits that may result from the proposed restriction would
be far outweighed by the accompanying costs (COMM1034, COMM1043). One commenter added that
the Agency's suggestion that remedial costs may be lowered because of the proposed restriction is purely
speculative and challenged EPA's suggestion that the reduction in hazardous waste levels brought about
by this restriction will translate to lower clean-up costs at mining and mineral processing sites. This
commenter asserted that EPA had presented no evidence of a direct relationship between the cost of
clean-up at mine sites and the use of legitimate non-Bevill feedstocks (COMM1043). The other
commenter suggested that EPA conduct further analysis to determine the full impact of this proposal on
waste minimization, source reduction, pollution prevention, and risk to human health and the
environment. The commenter added that EPA must conduct a review of the regulations before and after
their proposal to determine their effect on "source reduction" in order to comply with the Pollution
Prevention Act (COMM1034).
Response: The Agency acknowledges that the co-processing of Bevill feedstocks with
alternative non-hazardous feedstock appears not to be of unique concern, and that resulting
environmental problems really would come from the Bevill exemption itself, not the addition of
alternative feedstock to the Bevill process.
Comment: Three commenters questioned the significance of the simplified application of the
Bevill exclusion as a benefit to the new restriction (COMM1039, COMM1043, COMM1048). One
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commenter judged the simplification of the process to be counter-productive, considering the resultant
reduction in resource recycling and conservation (COMM1043). Another commenter pointed out that
the current regulations, although somewhat burdensome, are not so prohibitive as to justify the proposed
restriction, especially since EPA has failed to provide even one example where the existing rules have
created a problem. The commenter added that a claim of administrative inconvenience cannot justify a
rule that is contrary to law, and cited Sierra Club v. EPA. 468 U.S. 1204(1984) (COMM1039). The third
commenter interpreted EPA's argument for simplification as an indication that administrative
convenience, rather than productive policy-making to address actual, documented risks, was the agenda-
setting priority behind this restriction. The commenter found such convenience to be poor rationale for
the proposed rule (COMM1048).
Response: Todays rule does not alter the regulatory status of Bevill exempt wastes. Discussion
in the proposals seeking public comment on the application of the uniquely associated
benefciation/processing definitions were included to assure that the public fully understood how the
Agency has been applying these definitions. These definitions were establish by rule in 1989 and todays
rule does not alter them.
3.7 Disadvantages of the Alternative Feedstocks Restriction
Note: The Agency has provided in today's preamble the reasons -why it has not adopted the
alternative feedstock option. After careful review, the Agency could not identify significant reductions in
risk and the economic impact of imposing this option -would have had significant economic impact on the
mineral processing industry. For these reasons, the Agency did not adopt this approach. The Agency
assessed the following comments in determining not to adopt the option.
3.7.1 General Impact on the Mineral Processing Industry
Comment: Several commenters noted that EPA failed to consider the lost revenue resulting
from a company's decision not to recycle its mineral processing secondary materials in order to retain its
Bevill exclusion (COMM1043, COMM1085, COMM1090). Commenters also noted more generally that
EPA's analysis does not adequately address either the economic impacts from lost mineral values and
disposal or the potential economic and social consequences of the potential destruction of the domestic
mining and mineral processing industry (COMM 1089, COMM 1090).
One commenter stated that the potentially substantial economic and environmental cost of not
recycling Superfund hazardous wastes at mineral processing facilities is ignored in the discussion of
impacts of the Proposed Rule. Under the Proposed Rule, this option would disappear to the detriment of
the Superfund program and other federal and state remedial programs. The only other option to costly
disposal would be for higher levels of contaminants to be left in place. The commenter added that the
proposed alternative feedstock restriction would have a similar effect in other non-mineral producing
industries because they no longer would be able to recycle their mineral-bearing materials in primary
mineral processing or beneficiation facilities. As a result, more wastes would be generated and disposal
costs would increase (COMM 1089). Another commenter argued that the Proposed Rule would not only
force the land disposal of large quantities of mineral-bearing materials at great economic cost, but it
would force the mining industry either to increase excavation activities in the United States to make up
for the lost feedstocks or to concentrate on foreign sources of these minerals. The commenter suggested
that the potential impact on leaching operations could be significant enough to force an end to leaching
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operations in Arizona. The result would be catastrophic to the economy of Arizona and to the small
communities that depend heavily on these mining operations (COMM1090).
One commenter believes that the proposal, if finalized, would discourage environmentally sound
resource recovery and impose enormous costs on the industry, both in terms of lost revenues and
required expenditures for third-party waste treatment and disposal. The commenter urged EPA either to
exempt on-site generated secondary materials from the reach of the co-processing proposal, or at least
allow a certain percentage of beneficiation feedstock at integrated facilities to consist of on-site
generated materials. The commenter also noted that the Agency failed to consider compliance costs for
the gold sector. Without the opportunity to beneficiate secondary materials, the commenter would lose
millions of dollars in revenue and would have to: (1) reconfigure its production operations; and (2) have
the secondary materials treated and disposed of off-site. The commenter added that the Agency failed to
quantify the environmental benefits of the proposal to restrict co-processing (COMM1029).
Finally, one commenter noted that the costs of discontinuing the use of alternative feedstocks
may actually be much higher than the costs of managing Bevill wastes as hazardous wastes, and that,
more importantly, neither alternative may be viable. The commenter believes that if the Agency is
concerned about Bevill wastes or other mining or mineral processing issues, it should address those
issues directly by reviving the efforts it has made in the past (e.g., 1988, 1990, 1992) to develop
approaches to mine waste management. The commenter added that in the meantime, if the Agency still
believes that it needs to address the issue of what constitutes legitimate recycling, it should consider
elements of its January 1996 proposal (COMM1034).
Response: The Agency did assess the economic impact of this option and due to the anticipated
severe effects on industry, did not adopt it.
Comment: Several commenters quantified the potential impact of the alternative feedstock
proposal and generally agreed that the negative impacts identified by EPA are real and significant. One
commenter stated that the economic impact of the alternative feedstock restriction on New Mexico
copper mining and processing operations alone is estimated at $250 million annually. This amount
includes $200 million in annual lost revenues from the inability to recover copper values from reverts,
dusts, bricks, and other copper-bearing materials generated on site, and an additional $50 million or more
in annual costs to dispose of these materials. This impact on mineral processing operations alone far
exceeds EPA's estimated impact of $10 million annually. The economic impact in New Mexico would
create a severe blow to the state economy and to the small towns which are vitally dependent on the
mining and mineral processing industries (COMM1085).
Another commenter stated that the economic impact of the alternative feedstock restriction on
Arizona-based mineral processing operations is estimated at $400 million annually. This impact results
from the fact the that mineral-bearing materials such as flue dusts, bricks, converter slag, cobbles, acid
plant blowdown, and other recyclable materials would no longer be recycled in mineral processor
beneficiation operations. This impact, estimated at $300 million, would be supplemented by additional
land disposal costs estimated at $120 million or more annually. Additional revenues would be lost from
an inability to recycle metals generated from refinery operations (estimated at $20 million), with disposal
costs estimated at an additional $3 million annually. The commenter concluded that the Proposed Rule
would thus cause severe economic and environmental impacts, especially in small communities in
Arizona (COMM1090).
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Using conservative values, one commenter estimated that the alternative feedstock restriction
would eliminate its ability to recycle approximately 120,000 tons per year of 33 percent to 45 percent
copper-bearing smelter dusts and sludges. This could result in lost revenues to the firm of approximately
$200 million per year, as well as increased disposal costs (at $450 per ton) of an additional $70 million
annually. In addition, lost revenues from the restriction on recycling mineral-bearing materials from the
company's refining operations could be approximately $20 million per year and disposal costs could
reach $2 million per year. This adds up to conservatively estimated potential costs for one company
alone of more than $300 million per year, more than five times EPA's estimate of the economic impact
of the Proposed Rule on the entire mining and mineral processing industry (COMM1089).
Another commenter stated that the alternative feedstocks rule would result in very significant
adverse consequences for the domestic primary lead and copper production industry and potentially for
the economy of the United States. The commenter estimated that costs for its copper and lead processing
operations alone would likely range from $43 million to $320 million. The low end of this range is
equivalent to EPA's estimates in the RIA that the total industry costs would be $45 million. The
commenter asserts that even at the low end of the estimates provided in EPA's analysis, many of its
plants would not be able to absorb the anticipated costs (COMM 1034).
One other commenter stated that the economic impact of the loss of metal values in its flue dust,
brick, refinery bleed, and other secondary materials currently subject to continued metal recovery, is
estimated to be at least $52 million. Since a large part of the production costs already have been incurred
in generating these secondary materials, the loss of their contained copper and by-product molybdenum
and precious metals would further increase unit production costs (COMM 1043).
Response: The Agency appreciates the economic impact concerns raised by the commenters
and used the data as a basis for not adopting this option.
3.7.2 Consequences for Legitimate Recycling
Comment: Numerous commenters argued that the potential loss of Bevill status would result in
increased disposal of secondary materials and decreased recycling, an environmentally
counterproductive result that conflicts with the goals of waste minimization, resource conservation,
materials recovery, and increased recycling (COMM1029, COMM1034, COMM1037, COMM1039,
COMM1041, COMM1043, COMM1048, COMM1050, COMM1052, COMM1054, COMM1086,
COMM1088, COMM1089, COMM1090, COMM1098, COMM1108, COMM1109). To make up for
metal values lost, one commenter noted that more ore would have to be mined, thereby generating more
mining waste; land disposal costs would increase; and environmental costs would be incurred because of
the increase in land disposal activities (COMM 1048).
Two commenters stated the threat of losing Bevill status would have a chilling effect on industry
production practices, including the industry's recycling and recovery activities. These commenters
added that the industry's use of secondary materials to produce metals maximizes the value of the
secondary materials and reduces the volume of wastes and levels of metals in wastes. These commenters
believe that non-Bevill wastes which are legitimately used in the recycling process should be allowed
without loss of the Bevill exclusion (COMM 1048, COMM 1089). One commenter suggested that the
public, EPA, and industry would be better served by the promulgation of guidance that promotes
recovery and recycling rather than establishing a rule that effectively acts to establish a total ban on
recovery (COMM1083). Another commenter added that if the alternative feedstocks rule is adopted,
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recycling would stop and any further discussions of what constitutes a solid waste would be moot. This
commenter concluded that the proposal would have far-reaching implications beyond the mineral
processing industry to the systems that are now being used to recycle valuable metal-bearing materials
generated throughout the country (COMM1054).
Three commenters noted that the only apparent beneficiaries of the Proposed Rule are those
companies in the waste treatment industry that would benefit substantially if secondary materials are
disposed and not recycled (COMM1089, COMM1090, COMM1085). One commenter added that this
reallocation of income to the waste treatment industry is not a valid reason for proposing or adopting the
Proposed Rule (COMM1089).
Response: The Agency agrees that the alternative feedstock option may well have reduced
recycling if it had been implemented. Today's rule does not adopt this approach.
Comment: One commenter suggested that the Bevill-exempt status of a Bevill secondary
material managed in a land-based storage or processing impoundment should not be affected where
legitimate recycling of a non-Bevill material is accomplished by combining it with the Bevill material
when there is no detectable impact on the Bevill waste stream. The result would be a reduction in useful
recycling with no improvement in environmental management (COMM1037).
Comment: The commenter was concerned that EPA's proposal would have a detrimental effect
on re-mining of previously generated mineral processing wastes disposed of under the Bevill exemption.
EPA has previously indicated its support of the environmental benefits of re-mining (61 FR 2353,
1/25/96). The commenter believed that companies should be allowed to evaluate previously generated
mineral processing wastes for their mineral value, blend them with raw ores to meet appropriate
feedstock specifications, and allow such materials to enter a process as raw materials or as an "alternate
feedstock" without triggering the loss of the special waste status of materials exiting the process. The
commenter added that the status of the material exiting the process as a special waste should not be
affected by the introduction of re-mined materials as feedstock, regardless of whether the re-mined
materials were originally Bevill wastes or non-Bevill wastes. The commenter stated that a key factor in
the successful use of re-mined ores is that the Agency allow some flexibility in its previously held
opinion that these materials "satisfy the same conditions that a newly-generated secondary material from
mineral processing would satisfy". Where these re-mined secondary materials are able to be inserted
back into the process directly, or are blended with raw ores to meet feedstock specifications, these ores
should be viewed as raw materials and not alternative feedstocks (COMM1086).
Response: The Agency did not adopt the alternative feedstock option partly because it could
have conflicted with the Agency's efforts to encourage remining.
Comment: A number of commenters discussed the implications of the alternative feedstocks
proposal on processing operations in their specific industries. One commenter noted that the proposed
rule would severely limit not only the recycling of valuable mineral-bearing materials, but the continuing
processing of in-process materials, as well. Not only would secondary materials generated in the copper
smelting, refining, solvent extraction, and electrowinning processes not be recycled, but in-process and
intermediate materials with high copper values (e.g., reverts, dusts, and matte) also would not be
processed if they are defined as alternative feedstocks (COMM1085).
Another commenter stated that mineral-bearing dusts contain high copper values (between 30
percent and 45 percent) which the industry views as highly valuable. These materials do not require a
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conditional exclusion from RCRA because, like copper reverts, they are never discarded. However,
under the proposed rule, a facility would be penalized if it subsequently recycles those materials because
of the loss of the Bevill exclusion. The commenter believes that EPA's limit on the off-site reuse of
valuable recyclable materials is arbitrary and capricious and contrary to law (COMM1090). Another
commenter added that refinery slags are routinely recycled at gold processing operations for the precious
metal values they contain (COMM1082). Both commenters stated that the proposed rule would destroy
these processes and limit the recycling of valuable materials, and that EPA has made its proposal without
any evidence of environmental benefits of the proposed rule (COMM1082, COMM1090).
One commenter stated that all mining and mineral processing industry production furnaces
necessarily receive non-mineral materials such as fuel, reducing agents, or fluxing agents. These inputs
may be virgin materials, secondary materials, or a combination of the two. If EPA were to eliminate the
Bevill exclusion for units receiving these materials, the statutory exclusion would be rendered
completely meaningless. The commenter added that in the iron and steel industry, secondary materials
generated within the industry have been recycled back to the main production furnaces, through sinter
plants or similar operations, for nearly 100 years. The furnaces that receive these recycled materials may
be at the same site or a different site as the units in which the secondary materials were generated. These
materials generally represent several percent of the materials processed in the production units. Primary
iron and steel production furnaces also process substantial amounts of scrap metal generated both inside
and outside of the industry. These materials generally account for 15 to 25 percent of the metal-bearing
feedstocks processed in primary production units. The commenter concludes that EPA's proposal would
strongly discourage facilities from continuing their beneficial recycling practices that recover valuable
resources from materials that otherwise would be disposed (COMM1039).
One commenter stated that if the alternate feedstock proposal is finalized, no primary smelter
would be likely to smelt shredded circuit boards because the smelter would lose the Bevill exemption it
currently receives for its slag, slag tailings, and calcium sulfate wastewater treatment plant sludge. The
commenter stated that smelters provide an economic means to recover metals from metal-bearing
material of many kinds, of which circuit boards are only one example. By processing metal bearing
materials along with concentrates from ore, significant economies of scale are achieved and the fuel
value of sulfur in the concentrates can be used. The commenter also noted that waste treatment cannot
destroy metals (in contrast to organic contaminants), it can only render the waste less likely to leach
metals. When feasible, therefore, metal recovery from waste is preferable to treatment (COMM1054).
Response: The comments are noted. This data was used in assessing the strengths and
weaknesses of the proposed options.
Comment: Several commenters suggested that the proposed rule would needlessly limit
recycling. One commenter noted that EPA appears to have ignored the fact that mining and mineral
processing is a highly complicated process that involves large quantities of materials. Inevitably, these
processes create large quantities of secondary materials, as well as a number of intermediate materials
that remain in process. The commenter asserted that the mineral-producing industry has become adept at
recycling these secondary materials and at processing intermediate materials to create high-value
products (COMM1090). Another commenter questioned why the Agency has proposed an option which
may "needlessly restrict legitimate recycling" and may not "result in improved environmental
management" (COMM1088).
Another commenter stated that if EPA wants to narrow the Bevill amendment to ensure that it is
not circumvented by sham recycling, then it should likewise ensure that the Bevill amendment not
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frustrate legitimate recycling operations. The commenter suggested that instead of issuing a rule that
strongly discourages the co-processing of feedstocks that generate wastes that pose few, if any,
environmental risks, EPA should work with stakeholders to craft as narrow an exclusion as possible that
achieves the Bevill amendment's goals (COMM1067). An additional commenter supported EPA's
recognition that some, if not most or all, alternate feedstocks pose no additive risk to the environment.
Moreover, this commenter added that the Damage Cases Report submitted by EPA fails to demonstrate
any instances where co-processing may have had an incremental impact on the environment
(COMM1043).
One commenter indicated that EPA has abandoned any intention of facilitating recycling of
metals by mining and mineral processing companies. The commenter noted that recycling is driven by
economics and has long been common operating practice in the mining industry. The commenter argued
that it makes no sense for EPA to throw up barriers to these recycling practices. Citing EPA's dual
mission under RCRA to: (1) control management of hazardous wastes; and (2) to facilitate recycling and
resource recovery, the commenter stated that the proposed rule makes no attempt to achieve a balance
between these important statutory objectives (COMM1104).
Response: The Agency acknowledges that the alternative feedstock option may have reduced
recycling. The Agency has not adopted this option.
Comment: Commenters stated that the Proposed Rule would discourage the recycling of F006
and result in more landfilling and incineration of F006 wastes. These copper sludge wastes commonly
are shipped to copper mines where the high levels of copper contained in the sludge (usually 15 to 25
percent) are co-processed with virgin copper ore. The F006, which contains lime, silica, iron,
magnesium, and aluminum, also is added in small percentages to smelting operations to facilitate fluxing
operations (COMM1067, COMM1009).
One commenter stated that the threat of losing Bevill status and suddenly having to meet
burdensome, costly, and unnecessary regulation would have a chilling effect on F006 recycling
(COMM 1067). The commenter asserted that F006, when processed along with virgin ores and minerals,
does not pose any additional environmental risk. The commenter also noted that the proposed rule would
impose significant costs on manufacturers of printed wiring boards, and many facilities may lose their
only viable means of recycling F006. The commenter added that the proposed rule also would fly in the
face of EPA's "Waste Management Hierarchy" which states that recycling is a more preferable waste
management option than landfilling and incineration, since the new option would discourage metals and
recycling and encourage its disposal (COMM 1067).
Another commenter stated the Proposed Rule eliminates the usefulness of the long-standing
variance procedures, allowed under federal and certain state regulations, that provide regulatory relief for
metal concentrates derived from F006 (COMM1009).
Response: As noted earlier, this rule does not affect the regulatory status of listed hazardous
wastes.
3.7.3 Impact on the Environment
Comment: Several commenters noted that the proposal would not improve protection of human
health and the environment, and perhaps even would be counterproductive or result in increased risks to
human health and the environment (COMM 1026, COMM 1029, COMM 1048, COMM 1099). One
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commenter noted that secondary materials that are not processed for metals recovery potentially would
create an unnecessary hazardous waste stream. This commenter believes that EPA has no data
demonstrating that the commenter's current practices in this area present any risk to human health or the
environment (COMM1026).
Two commenters concurred that secondary materials likely would be sent off-site for treatment
and disposal by commercial facilities and not result in any improvement to human health and the
environment (COMM 1029, COMM 1099). One commenter added that shipment of these materials also
would pose an .increased risk for traffic accidents and spills. Moreover, the secondary materials, which
still contain some metallic impurities, likely would be land disposed at facilities that are closer to
communities and their drinking water wells than the mining, beheficiation, and smelting facilities that
generated them. In most cases, these facilities are located in areas that are far from residences, traffic,
and drinking water wells (COMM 1029).
One commenter indicated that its U.S. operations would be significantly and adversely affected
by EPA's proposed rule. In particular, the proposed elimination of the Bevill exclusion in cases where a
non-Bevill feedstock is used in a Bevill unit would force the company to end its current practices
designed to optimize metals recovery, and instead require disposal of valuable secondary materials
(COMM 1026).
Comment: Two commenters addressed the potentially negative impact of the rulemaking on
management of Superfund cleanup wastes and the effect on other federal programs. One commenter
asserted that under the proposal, soils containing mineral values that are excavated during reclamation
activities would have to be managed as hazardous wastes. The commenter noted that, ironically, EPA
has approached it and other mining companies to accept contaminated soils from the Cleveland Mills
Superfund site for recycling, and adds that EPA has recycled materials from other Superfund sites (e.g.,
Summitville wastewater treatment plant cleanup, San Diego Harbor cleanup) at mining and mineral
processing facilities. EPA chose to recycle those materials because recycling is a cost-effective and
environmentally sound cleanup option. Under the Proposed Rule, however, this option would disappear
to the detriment of the Superfund program and other federal and state programs (COMM 1089). Another
commenter concurred, adding that the proposal would put an end to discussions the mining industry has
had with representatives of the Clinton Administration over the past few years about the possibility of
CERCLA amendments designed to encourage remining. The commenter suggested that EPA's Office
of Solid Waste seek input from other offices within the Agency and other agencies, including the
Department of the Interior, whose priorities appear to be at odds with those of OSW (COMM 1041).
Response: This rule does not in any way affect Superfund clean-ups or the management of
contaminated soils.
3.7.4 Economic Value and Production Necessity of Alternative
Feedstocks
Comment: One commenter expressed concern about the impact of the proposal on the
production of phosphoric acid. The commenter noted that some companies currently add domestic
sewage treatment plant sludge to the production process for phosphoric acid, a key component in the
production of fertilizers. The sludge is non-hazardous, contains nutrient values, and could otherwise be
sold as sewage sludge for land application as organic fertilizers. The commenter was concerned that
under the Agency's co-processing proposal, these production facilities would lose the Bevill-exempt
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status of their phosphoric acid process wastes and would be unable to continue use of this sewage sludge
and would have to ship the sludge offsite for disposal. The commenter believes that this result is absurd,
does not encourage recycling and recovery of usable values, and is inconsistent with EPA's own waste
management hierarchy (COMM1038).
Response: The Agency is not adopting the alternative feedstock option. Therefore, the
commenter need not be concerned. Although today's rule does change the mixture rule, adding a non-
hazardous waste to a Bevill-exempt waste does not necessarily change the status of the Bevill-exempt
waste.
Comment: A common theme of many comments was that the primary mining and mineral
processing industry is economically dependent on the use of secondary materials in order to maximize
yields from ores, and that these practices are a legitimate part of the production process (COMM1026,
COMM1029, COMM1038, COMM1040, COMM1043). Many commenters discussed the economic
necessity to recover as much mineral value as possible through processing of secondary materials. As
one commenter pointed out, even the most advanced technologies cannot recover all the product metal(s)
completely, and the generation of valuable "in process" secondary materials is an inevitable fact of
extractive metallurgy (COMM1043). One commenter stated that by not allowing the use of these
materials, the proposed rule would have a punitive aspect that would prevent valuable processing and
ensure land disposal of otherwise usable materials (COMM1048).
Although primary smelters and refineries typically use feedstocks or concentrates from primary
ores or minerals, they are capable of using, and traditionally have used, secondary intra-industry or extra-
industry materials as supplements for primary feedstocks. One commenter reminded EPA that in 1994,
after a tour of primary smelters, the Agency concluded that "all economically recoverable in-process
materials are directly reused, returning either to a beneficiation or mineral processing unit receiving
primary virgin materials" and "the reprocessing of residuals derived from mineral processing operations
is an inherent part of the industry's operations" (COMM1048).
One commenter stated that the reuse of secondary materials allows the company to recover, at
almost no extra cost, precious metal values that are brought through the entire production process and
still remain in these materials. Under the Proposed Rule, this commenter would be forced to end its
current practices designed to optimize metals recovery and begin disposing of valuable secondary
materials or sending them off-site for recovery (COMM1026). Another commenter concluded that the
Proposed Rule would severely limit not only the recycling of secondary materials generated in the
copper smelting, refining, solvent extraction and electrowinning processes, but in-process and
intermediate materials with high mineral values as well (such as reverts, dusts, and matte) because they
would be defined as alternative feedstocks (COMM1085).
One precious metals producer stated that it generates secondary materials at an integrated facility
and conveys them to an on-site beneficiation unit. In these situations, the volume of the secondary
material is minute compared to the volume of ores and minerals being beneficiated. The commenter
beneficiates the secondary materials for gold recovery not to avoid RCRA Subtitle C regulation, but
rather because recovery of the gold they contain results in millions of dollars in revenues. If EPA's co-
processing proposal is finalized, the commenter would be forced to choose between two unsatisfactory
alternatives: (1) seek to preserve the Bevill status of its tailings and stop sending secondary materials to
its mills; or (2) risk losing the Bevill status of such wastes and continue recovering the gold content of
the secondary materials. Alternative 1 would require reconfiguration of its production process and
require disposal of secondary materials at off-site third party facilities. Alternative 2 would require the
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commenter to take the risk that on a given day, a particular batch of its tailings might possess a RCRA
hazardous characteristic and transform its tailings impoundments into regulated Subtitle C regulations
(COMM1029).
Another commenter noted that converter slag generated during the smelting process often is
poured back into the furnace for further processing and should not be considered an alternative feedstock
(COMM1090). Another commenter asserted that recovery of copper contained in flue dust and furnace
brick is an economic necessity and that with the loss of a Bevill exclusion, the land placement of slag
would again become a regulatory issue (COMM 1043). The same holds true for wastewater sludges,
solids, and other secondary materials from the beneficiation/processing of lead and zinc. This
commenter also stated that taken to its logical conclusion, the alternative feedstock prohibition would
potentially jeopardize the Bevill Amendment exclusion at all operations that conduct beneficiation
operations (COMM 1048). Other commenters pointed out that reagents and other process aids are added
to feedstocks as an integral part of normal process operations. One commenter stated that the entire
process of mining, transporting, handling, and processing bauxite inherently allows the ore to come in
contact with other materials. For example, dust suppressants may be used to control dust, and in
situations where bauxite has been stored in open stockpiles, it often is necessary to dust the bauxite with
lime to reduce the moisture contact prior to processing. The commenter added that the Bayer process
itself inherently involves the addition of materials such as caustics to the operation to allow the digestion
of bauxite ore to occur (COMM 1097).
Response: The Agency carefully reviewed these concerns and determined that the proposed
option would adversely affect recycling.
Comment: One commenter further stated that eliminating the use of feedstocks will have
important economic effects on the many small businesses that provide these materials. The commenter
noted that many of these small businesses are currently acting in an economically and environmentally
responsible manner by recycling their metal-bearing materials off-site. (COMM 1041)
Response: The Agency appreciates the commenter's concern. Under today's rule, mineral
processing secondary materials may be added to the feedstocks of a mining or mineral process that
generates a Bevill-exempt waste without changing the exempt status of the resulting Bevill waste as long
as virgin ores and minerals account for at least 50 percent of the raw feedstock and as long as legitimate
recycling is taking place.
Comment: Several commenters noted that the recovery of metals commonly takes place across
multiple facilities because many mineral processors are unable to recover all minerals in orebodies they
mine. For this reason, a facility that recovers certain metals will rely on other companies to complete the
mineral recovery process. These facilities recover metals from materials sent to them from other mining
and mineral processing operations, as well as from household waste streams, including lead batteries and
scrap steel from personal vehicles. Commenters are concerned that the proposal would directly and
adversely affect normal production activities that use these feedstocks (COMM1054, COMM1048). One
commenter stated that recovering metals from listed or characteristic hazardous wastes from outside the
minerals industry can be a significant side business for mining and mineral processing facilities, and it is
one the commenter intends to pursue within the boundaries of applicable regulations (COMM 1043).
Response: Today's rule does note affect the shipment of mineral processing wastes for further
recycling at other mineral processing or beneficiation sites.
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Comment: One commenter expressed concern that the potential impact of the proposed rule on
leaching operations could be devastating. The commenter argued that if EPA maintains that raffinate is
not a Devilled material, but instead is a "feedstock" under the proposed rule, then leaching operations
may become too costly to continue as a result of having to use virgin acid and dispose of collected
raffinate. The potential economic consequences are staggering if it results in the leach pile being
considered a RCRA hazardous waste facility (COMM1089).
Response: Dump and heap leaching activities are beneficiation activities as defined in the
Agency's 1989 rulemaking. This rule does not affect their Bevill status. If companies seek to recycle
mineral processing secondary materials at dump and heap leaches, the recovery must be legitimate if the
dump leach unit is not to be regulated under subtitle C, and if Bevill status of resulting wastes is to
remain unaffected..
Comment: The commenter was concerned that recycling of materials EPA may consider to be
alternative feedstocks is closely integrated with extraction, beneficiation, and processing. In many cases,
these activities are responsible for over half of the final product produced within Kennecott/Utah Copper
Corporation (KUCC) operation. This means that over one-half of the copper content from virgin ore
would end up in a waste product if the "secondary" materials were not recycled in the system to retrieve
the copper not collected in the initial concentrate processing. Loss of these valuable minerals obviously
would affect the company's ability to operate in a cost-effective manner. The commenter also notes that
in some cases, recycling materials is integral to the operational functions of the smelting process, as in
the case of furnaces (COMM1054).
Response: The agency is not adopting the alternative feedstock option in todays rule.
Comment: One commenter noted that coal gasification technology requires the addition of a
fluxant for processes to work efficiently. The loss of the Bevill exclusion would cause severe impacts
for the gasification market and result in the use of less environmentally attractive technologies for coal
utilization, such as conventional coal combustion (COMM1108).
Response: Today's rule identifies certain coal gasification wastes as "newly-identified." The
commenter should carefully determine the regulatory status of all its wastes prior to recycling to ensure
that such management does not alter their regulatory status.
3.7.5 Comments on Specific Facilities
Comment: The commenter, a producer of titanium dioxide at three facilities in the U.S., was
concerned that a strict interpretation of EPA's proposal would result in the loss of the current Bevill-
exempt status for wastes exiting the process for treatment and disposal because of entrained iron chloride
in the coke and ore. The material would thus be considered an alternate feedstock when reintroduced
into the process. The issue is a result of the commenter's effort at one facility to capture unreacted raw
materials from a process gas stream by diverting a portion of the materials to a container (Super Sack)
designed to allow liquids to drain prior to reintroduction into the process. The extra recovery step has
improved product yield and reduced the amount of Bevill-exempt waste generated, but loss of the
exclusion would potentially result in the discontinuation of the reuse of the Super Sack secondary
materials as a feedstock.
The commenter also stated that its use of recovered, unreacted coke and ore with entrained iron
chloride is indigenous to the production of titanium tetrachloride. The commenter argued that
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substantially all of the secondary material reintroduced back into the process derives from direct contact
with ore and those chemicals required to convert the ore to one or more salable products. The
commenter concluded that the Agency's alternate feedstock proposal would result in unnecessary
constraints on in-process recycling for both current and future practices (COMM1086).
Response: The Agency has determined that the production of titanium tetrachloride generates
mineral processing wastes. The Agency is not adopting the alternative feedstock option .
Comment: One commenter calculated that its lost revenue for not recovering the copper
contained in the brick, flue dust, and refinery bleed at its San Manuel facility would be in excess of $52
million. The disposal of this material as hazardous waste would cost an additional $4 million to $95
million. The commenter wishes for EPA to account for this huge economic impact in its Regulatory
Impact Analysis (COMM1043).
Response: Comment noted.
Comment: The commenter stated that the proposed exclusion of alternative feedstocks from
Bevill status would adversely affect six recycled secondary material streams generated at its Delta mill.
All of these materials are recycled to extract beryllium, recover acid values, and reuse waste liquids.
These activities reduce the need for additional groundwater (available only from deep aquifers at the
commenter's mill) and virgin acid, and reduce the amount of waste acid that must be treated and
disposed. Faced with the choice of incurring additional costs by ceasing to recycle or incurring
additional costs by losing the Bevill exclusion, the company indicated that it might choose the latter
alternative and be forced to suffer serious financial impacts. The company added that it also would incur
these costs if EPA were to adopt a high-volume test for the Bevill exclusion (COMM 1052).
Response: Comment noted.
Comment: The commenter noted that production at its Herculaneum smelter has been moving
in the direction of another smelter in the U.S. that accepts a wide variety of feedstocks and co-processes
a substantial amount of secondary lead minerals. The commenter stated that EPA's proposal would
simply drive Herculaneum to retrench to a dedicated primary plant (almost unique in the world now)
instead of moving naturally toward an integrated plant as its mining district ages, a goal that logically
should be shared by EPA and the environmental community (COMM1019).
Response: Comment noted.
Comment: This commenter reported on its precious metals refining operation and the impact
the Agency's proposal would have on it. The commenter operates a primary refining facility for
precious metals and also re-refines the ore on site to produce fine gold and silver. Because this type of
facility is unique, it also generates certain secondary materials that are unique for use in subsequent
beneficiation activities. Unrecovered constituents in the secondary materials are returned to the cyanide
circuit at a rate of less than 1 gallon per minute (g.p.m.), compared with an average total flow of 1,850
g.p.m. through the cyanide circuit. The commenter believes that given such a large dilution, it is
inconceivable that the levels of unrecovered constituents in these solutions could have any measurable
impact on the overall quality of the Bevill-exempt tailings ultimately generated.
The commenter also reuses a material that may or may not be uniquely associated with
beneficiation in place of a commercial chemical product in the cyanide process, which illustrates the use
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of a secondary material as a substitute reagent (COMM1026). Both of these activities would be
adversely affected by the proposed rule to eliminate the Bevill exclusion if a non-Bevill feedstock is used
(COMM1026).
Response: Comment noted.
Comment: This commenter argued that its process would not pose any risks to human health or
the environment. The commenter operates a Totally Enclosed Treatment Facility (TETF) that neutralizes
acid plant blowdown (APB) with mill tailings and co-disposes the mixture in a tailings impoundment.
As this material exits the pipe to the impoundment, it is below TCLP thresholds for toxicity and also
meets the UTS that would be applied as a result of the proposed rule. The commenter stated that in this
case, where the effectiveness of the treatment assures protection of health and the environment, there is
no logical rationale to support loss of the Bevill exclusion for the tailings. Further, the commenter
argued that if mixing of APB with tailings from the San Manuel concentrator results in a mixed waste
that meets UTS, then introduction of the APB into the mill itself as an alternate feedstock cannot
materially increase the risk posed by the tailings (COMM1043).
Response: If the treatment approach does meet the regulatory definition of a TETF, then the
wastes exiting from the unit are non-hazardous. Non-hazardous wastes may be co-disposed with tailings.
Comment: The commenter operates the Geismar facility, the world's largest producer of high
quality anhydrous and aqueous grades of hydrogen fluoride (FIF). In the production process at Geismar,
calcium fluoride is reacted with sulfuric acid to produce the product HF and the byproduct
fluorogypsum. There are two sources of the raw material calcium fluoride: one is the mineral fluorspar,
and the other (and smaller) source is synthetically produced calcium fluoride (synspar). The
synthetically produced material is mixed with natural fluorspar at a ratio of less than 1:50 for production
and is expected to yield a cost savings of about $500,000 in 1998.
The commenter stated that if EPA adopts a rule prohibiting the co-processing of materials that
are not solely derived from virgin ores and minerals, the synspar would have to be land-disposed rather
than recycled in a way to produce zero net waste. The commenter indicated that this practice would be
not only wasteful, but also costly and harmful to the environment (COMM1092).
Response: Comment noted.
Comment: The feedstock of the commenter's Mercur Mine consists entirely of historic tailing.
These tailings include various mineral processing wastes that were commingled with mill tailing
produced early in the century when historic mining operations occurred at the site. It is possible that this
feedstock would be considered an alternative feedstock under EPA's proposal. In this case, the mine,
which currently is in a phase-down mode and expects to close by June 1, 1998, would not be able to
process the tailing without loss of Bevill-exempt status, and 82,000 ounces of gold could not be
recovered. Moreover, the historic tailing would be left in place where it would serve as a potential
source of surface and groundwater contamination. Currently, the tailing is being processed and managed
in a secure tailing impoundment that is subject to a state groundwater discharge permit.
The commenter also stated that the Mercur Mine returns refinery slag and other small volume
secondary materials rich in precious metals (e.g., air pollution control and sump sludges) to the milling
circuit for precious metals recovery. The commenter suggested that EPA abandon is alternative
feedstocks proposal because any unwanted metals in these materials are indigenous to the ore and the
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volume of these materials is minuscule compared to tailings. The commenter believes that recycling
them simply could not have a significant negative impact on metal concentrations in the tailing.
The Mercur Mine also has processed soil from another site that is contaminated with silver. The
soil did not exhibit any hazardous wastes characteristics and the mine recovered significant silver values
from the soil. The commenter states that although these recycling opportunities have occurred only
rarely, they present a good opportunity to recover valuable precious metals in an environmentally
responsible manner and avoid the unnecessary use of landfill capacity in Utah (COMM1099).
Response: Comment noted. Today's rule would allow reprocessing of historically disposed
mineral processing wastes without subjecting them to RCRA Subtitle C requirements.
Comment: The commenter stated that the proposed alternative feedstock restriction ignores the
operational needs of copper smelters. For example, operation of the Hidalgo smelter requires that non-
concentrate materials, such as scrap copper or reverts, be fed into the converters in order to cool them
While this also is done for operational purposes and to recover the copper values, these materials would
be considered alternative feedstocks under the Proposed Rule and could not be used without eliminating
the Bevill exemption for the operation's waste.
Response: Comment noted.
Comment: The commenter suggested that its Hydrometallurgical Plant provides the best
example of how operating companies have integrated technological advances with EPA regulatory and
policy decisions intended to further recycling. The commenter argued that the Agency's proposal would
have prevented development of this plant. The Hydromet Plant combines acid plant blowdown, refinery
bleed solutions, and electrostatic precipitator (ESP) dusts in a series of chemical reactions to produce a
metal concentrate, a sulfide cake, and non-hazardous tailings. The valued metals are returned to the
smelter for recovery.
Prior to construction of the modernized plant, large volumes of ESP dust were collected and
shipped to a permitted facility for disposal. With the new process, impurities such as bismuth, that
would have otherwise compromised the quality of the copper product, can be removed while extracting
the maximum economic benefit in resource recovery from valuable metals contained in the dust. The
commenter was concerned that a metal concentrate from the plant, a copper sulfide precipitate, could be
considered an alternative feedstock, thereby jeopardizing the Bevill exemption for any wastes (e.g.,
molten copper slag) from the smelter.
The commenter also argued that EPA's proposal serves as a disincentive to mineral processors
who try to continually improve recovery rates through recycling and reducing the volume and toxicity of
waste generated in the process. The commenter noted that other innovative recycling technologies are
being developed and used within the industry and suggested that EPA encourage these efforts rather than
penalize them by placing the Bevill exemption at risk (COMM1054).
Response: The Agency reviewed operations of the facility. Today's rule should not adversely
affect the operation of this facility.
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3.8 Comments on the "Commercial Substitutes" Exemption for
Water or Acid Recycling
Comment: Three commenters supported the Agency's position on the exemption of water, acid,
and other commercial product substitutes from the proposed restriction on alternative feedstocks
(COMM1041, COMM1037, COMM1074). Two of the commenters stressed the importance of
recirculated water and acids in their operations, and pointed out that these materials are not being
"reclaimed," nor do they change the quality or quantity of the resultant Bevill waste stream
(COMM1041, COMM1037). One of these two commenters described the changes that resulted when a
non-Bevill waste was eliminated from a Bevill secondary material stream at its facility. According to the
commenter, that change resulted in more waste generation, less recycling, more rapid depletion of
natural resources, and no change in the quantity or quality of the Bevill-exempt waste stream or the risk
posed by that waste stream (COMM1037). The third commenter supported the use/reuse or effective
substitute exclusion pursuant to 40 CFR (COMM1074).
Response: The Agency in today's rule allows the legitimate recycling to recover water, cyanide,
acid, metal, and other values. The rule seeks to maximize recovery of these values as long as legitimate
recycling occurs and storage off the land (except for approved pads) is accomplished.
Comment: Eight commenters agreed with the proposal to exempt water and acid, and suggested
other materials that should fall under the exemption for commercial product substitutes. According to
these commenters, such materials are not acting as substitutes for ores or minerals, and so should not be
taken into account in determining whether the Bevill exclusion applies to the resultant wastes. Four
commenters suggested that cyanide be included in the exemption, and added that, although cyanide
sometimes serves a dual function as a substitute for a commercial product and as a substitute feedstock,
it should still qualify for the exemption to any co-processing restriction (COMM1104, COMM1029,
COMM1054, COMM1093). Another commenter named reverts, reject roasts, speiss, matte, and
baghouse and other dusts as substitutes for commercial products (COMM1034). Another commenter
objected to the absence of caustics from the list of exempted materials (COMM1097). One other
commenter suggested that lead be included because of its use as a commercial substitute in precious
metals production (COMM1026). One commenter made the same point in reference to the copper bleed
solution that is used as a substitute reagent at its facility (COMM1043).
Response: Comment noted.
Comment: Ten commenters requested that EPA clarify the commercial substitute exemption to
recognize that these substitutes may, at times, serve the dual purpose of feedstock and reagent (i.e., to
recover mineral values and for reuse) without forfeiting their exemption. These commenters pointed out
that any reclaiming of materials from the use of commercial substitutes is an incidental benefit, and
should not be punished by application of the alternate feedstocks restriction (COMM1048, COMM1088,
COMM1089, COMM1090, COMM1093, COMM1104, COMM1038, COMM1043, COMM1029,
COMM1054). Five of these commenters added that, as EPA acknowledges, circulating water and acids
are being reused, not reclaimed (COMM1054, COMM1088, COMM1038, COMM1093, COMM1104).
Two commenters mentioned that reclamation is inevitable, and that such recycling should be encouraged
because it reduces the need for facilities to produce, transport, and dispose of acids, and to develop
alternative water supplies (COMM1038, COMM1085).
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One of the commenters suggested criteria by which to define "legitimate recycling" for the
purpose of expanding this exclusion. These criteria are: (1) a metal content comparable to or above the
normal range of the virgin ores or feedstocks mined or used by the mineral processing industry; (2)
presence of minerals or metals recoverable by the technology being employed at that facility; or (3) use
as an effective substitute for a commercial product or other feedstock (COMM1089).
One of the commenters also suggested that the regulatory language is confusing. Where the
proposal states that "solid wastes from the processing of ores and minerals originate solely from a
beneficiation activity and includes only the following wastes as generated...," the language suggests that
mineral processing wastes originate from beneficiation activities. The commenter argued that mineral
processing wastes originate from the processing of beneficiated materials only (COMM1038).
Response: Today's rule does not adversely affect current commercial substitute exemptions in
RCRA. Mineral processing facilities may generate wastes that are eligible for the conditional exclusion
from the definition of solid waste or use other RCRA exemptions. The Agency is retaining its qualitative
criteria for use in assessing legitimacy of reclamation activities.
Comment: Four commenters pointed out that water, acid, and other commercial substitutes
could in no way be considered alternate feedstocks, because they are not feedstocks at all, even if they
contain recoverable materials. Rather, these materials are effective substitutes for commercial products
and facilities should not be punished for recovering those mineral values. Three of these commenters
responded to EPA's request for comment on whether water and acid could ever be considered solid
wastes. These commenters answered that EPA should not consider water and acid to be solid wastes,
even when they are reclaimed by a Bevil} unit, because that label would severely constrain or eliminate
such recycling efforts (COMM1089, COMM1085, COMM1090). One commenter urged EPA to exclude
the use and reuse of acidic materials from the co-processing proposal. The commenter concurred with
EPA's recognition that the proposal "may needlessly restrict legitimate recycling and cause industry to
forgo economical recovery of minerals" (COMM1038).
Response: Comment noted.
Comment: Four commenters asserted that the need for a commercial substitute exception is
indicative of the overbreadth and ambiguity of the entire co-processing proposal. These commenters
agreed with the Agency that the restriction should not apply to acid or water, but they added that the
same logic could apply to all alternative materials that serve as additives or feedstocks, extending the
exception to all legitimately recyclable materials.
Response: Comment noted.
Comment: One commenter criticized the lack of regulation of acid-handling at mining sites.
The commenter mentioned several hazardous characteristics of acid mine drainage: 1) the oxidation of
sulfide material creates acid which is harmful to aquatic life; 2) the acidity enhances the toxicity of heavy
metals; and 3) it is insidious and long-lasting. The commenter concluded that acid mine can thus plague
the public with environmental and human health risks — as well as cleanup cost — in perpetuity. The
commenter added that it is particularly important for a RCRA Subtitle C mining program to address the
issue of acid mine drainage because current federal and state regulations are inadequate.
Response: While the Agency shares the commenter's concerns about acid mine drainage, its
management it outside the scope of this rule.
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3.9 Non-Bevilled Material Added Directly to a Bevill Disposal Unit
Comment: The commenter states that hardrock metallic mining operations are subject only to
RCRA Subtitle D regulation, which does not require the industry to handle its hazardous wastes in an
environmentally favorable manner. The commenter asserts that the Bevill Amendment has allowed
miners to mix hazardous and Bevill wastes, avoiding RCRA regulation. The commenter claims that
hardrock mining produces more than twice as much solid waste as "all U.S. cities and industries
combined," and that because the industry is increasingly able to leach less concentrated metal deposits,
larger amounts of waste will result in the future. The commenter feels environmental laws must be
strengthened. (COMM1049)
Response: Today's rulemaking reinstates the current Bevill mixture rule. If a characteristic
waste is mixed with a Bevill-exempt waste and disposed, the resulting mixture is a Subtitle C hazardous
waste, unless the characteristic of the hazardous waste is removed, in which case mixing constitutes
treatment and the unit in which it occurs will be regulated as a subtitle C storage and treatment unit. . If
a waste listed solely for exhibiting a characteristic is mixed with a Bevill-exempt waste, the resultant
mixture is a Subtitle C hazardous waste, unless the characteristic that the hazardous waste was listed for
is removed, in which case the mining unit again is regulated as storage and treatment unit. The comment
also describes a type of mixing supporting the reasonableness of using the TCLP as a means of
identifying mineral processing wastes as hazardous.
Comment: Four commenters expressed opposition to the revised Bevill mixture rule proposed
by the Agency in its 1/25/96 rule (COMM1075, COMM1088, COMM1094, COMM1097). One
commenter urged EPA to reinstate the original mixture rule promulgated September 1, 1989
(COMM1094). Two commenters asserted that EPA should not promulgate a Bevill mixture rule, and
should address the issue in the HWIR process waste rule (COMM1075, COMM1088). The commenter
also asserted that EPA should not be concerned with nonhazardous virgin, secondary, or waste
feedstocks, because these materials could be disposed of without RCRA Subtitle C regulation, and no
incentive exists to promote co-processing of these materials (COMM1088).
One of these commenters also noted that due to the Solite and Mobil cases which remanded the
previous mixture rule, amending the current mixture rule would regulate many mixtures containing
characteristically hazardous wastes which had not previously been regulated under Subtitle C. The
commenter argues that any such adoption is premature. EPA is required by Environmental Technology
Council v. Browner to issue the HWIR process waste rule, and should not prejudge the resulting
regulations by finalizing the proposed rule. The commenter argued that it would be unproductive to
change the mixture rule, except for mixtures with hazardous wastes that were listed solely on the basis of
a characteristic if the mixture does not exhibit the same or any characteristic of hazard. Because this is a
limited set of wastes, EPA should not revise the mixture rule (COMM1088):
Additionally, the commenter asserted that EPA should not extend 40 CFR §261.3(a)(2)(iii) to
wastes that do not exhibit a hazardous characteristic. The Agency should see what contribution the
hazardous waste and the Bevill exempt waste have to the mixture. Again, because these concerns are
being addressed in HWIR, the Agency should not address them in the proposed rule. Similarly, the
commenter claimed EPA should not attempt to extend the Bevill mixture rule of 40 CFR §261.3(a)(2)(I)
to mixtures that exhibit only characteristics exhibited by the unmixed Bevill-exempt solid waste and that
are not the same characteristic as that of the unmixed characteristically hazardous waste. The
commenter claimed that any attempts to modify the mixture rule will result in needless litigation
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(COMM1088). Another commenter expressed opposition to revisions to 40 CFR §261.3(a)(2)(iii),
which currently allows some mixtures of listed hazardous waste (no longer exhibiting the characteristic
for which they were listed) to be exempt from the definition of solid waste. This commenter was
concerned that large volumes of waste such as K044 would require RCRA Subtitle C disposal, although
they pose little risk to the environment. In fact, the commenter asserted that the waste would be less
effectively treated at its facilities under the proposed rule, because the waste would be directed to a
smaller and less effective pre-treatment system. The commenter noted that this change in the mixture
rule is inconsistent with EPA's goals of removing large-volume waste streams from RCRA Subtitle C
regulation. The commenter requested that EPA make available its rationale for its mixture rule decision
(COMM1075).
Response: The Agency has considered the commenters' concerns, and is not withdrawing the
1989 Bevill mixture rule. Todays rule reinstates the Bevill mixture rule. The Agency considers today's
rulemaking to be an appropriate vehicle for addressing the Bevill mixture rule remand, because today's
rule establishing a conditional exclusion from the definition of solid waste for mineral processing
secondary materials addresses issues that the original Bevill mixture rule attempted to address.
Specifically, when the Bevill mixture rule was originally promulgated, the Agency needed to address
both co-disposal and co-processing scenarios. In today's rulemaking, however, the Agency has directly
addressed the issue of co-processing and the need to allow legitimate recycling of hazardous mineral
processing wastes through the use of the conditional exclusion. Since one of the purposes of the Bevill
mixture rule has been addressed, the principal need for the original Bevill mixture rule is no longer
relevant. In any case, EPA is free to make the reasonable policy choice that Bevill wastes should not be
used as a means of immunizing subtitle C hazardous wastes from regulation, the immunization coming
from the simple expedient of mixing.
While the Agency recognizes that today's rule may subject additional wastes to Subtitle C
regulation, the Agency does not agree with commenters that todays reinstatement of the Bevill mixture
rule are unnecessary. When it proposed withdrawing the Bevill mixture rule, the Agency was concerned
about the potential risks to human health and the environment that might result from the increased
amounts of hazardous constituents present in mixtures of hazardous wastes and Bevill-exempt wastes.
The Agency based its proposal on the policy that Bevill wastes not be allowed to serve as an unregulated
dumping ground for hazardous wastes, (see Horsehead Resource Development Co. v. Browner, 16 F3d
at 1258). As it indicated in the preamble to its January 1996 proposal, the Agency is taking this position
so that Bevill-exempt wastes are not used to circumvent Congressionally mandated controls for
otherwise regulated hazardous wastes.
The Agency disagrees with commenters who suggest that the Agency has no basis for applying
today's rule. This rule is supported by information submitted by the Agency to the docket for public
review. Environmental releases of Bevill-exempt wastes are well documented (see Human Health and
Environmental Damages form Mining and Mineral Processing Wastes, EPA Office of Solid Waste,
1995, and Damage Cases and Environmental Releases, EPA Office of Solid Waste, 1997). In a number
of cases reported in these documents, use of unlined Bevill disposal units resulted in migration of
contaminated liquids that affected down-gradient groundwater and surface waters.
The Agency notes that there was an inconsistency between the preamble of its January 1996
proposal and its proposed regulatory language. The proposed language would have altered the Agency's
broad mixture rule, rather than simply change the Bevill mixture rule. The Agency has changed the rule
language in 40 CFR §261.3(a)(2)(iii). This change should clarify any confusion caused by the
inadvertent error in proposed language.
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Comment: One commenter pointed out that EPA proposed rule language is ambiguous when it
states that any waste mixtures exhibiting a hazardous characteristic will be considered hazardous. This
conflicts with statements made in the January 25, 1996 proposal at 61 Fed Reg. 2352, which stated that
some characteristic waste mixtures will not be considered hazardous; and a mixture will not be
considered hazardous if it exhibits the characteristic of the Bevill waste alone. (COMM1088)
Response: The Agency acknowledges that the rule language for 40 CFR §261.3(a)(2)(I) did not
track with the preamble. Under the proposed rule language, a mixture of a Bevill waste and
characteristic hazardous waste would be a hazardous waste whenever it exhibited a hazardous waste
characteristic, even where that characteristic was imparted to it solely by the Bevill waste. As shown by
the preamble, this was clearly not the Agency's intent, which was to preserve the Bevill exclusion for
mixtures that are hazardous solely because of the Bevill component of the mixture. The Agency has
corrected the rule language in today's rule..
Comment: Two commenters asserted that EPA had not demonstrated a need to revise the
mixture rule, and suggested that any revisions to the rule must be supported by further study.
One of these commenter suggested that the EPA has failed to demonstrate in any document the
dangers of the mixtures outlined in the mixture rule. The commenter noted that EPA must develop an
adequate rulemaking record before pursuing changes of current regulations. If EPA wishes to regulate
these mixtures, the commenter asserts that EPA should carefully ascertain their nature. The commenter
believed that EPA cannot assume mixing small amounts of characteristic waste with a Bevill waste poses
an additional hazard. Such activities should not be considered treatment, and the resulting mixture may
not be hazardous. EPA has not applied any criteria to determine if such mixtures will be hazardous
(COMM1088).
Two commenters asserted that Congress intended that the Bevill exclusion apply to mineral
processing waste mixtures (COMM1088, COMM1097). One of these commenters contended that EPA
must fully study historically-occurring mixtures before they can be subject to Subtitle C. The
commenter further believed that new management practices involving mixing should be accorded Bevill
status, since the Solite case mandated that the scope of the Bevill exclusion should not vary over time.
EPA must therefore make a regulatory re-determination of Bevill status before amending the mixture
rule. The commenter argued that EPA must study each section 8002(p) study factor prior to making a
determination concerning the mixture rule and deciding what mixtures should be regulated under Subtitle
C(COMM1088).
This commenter believed that EPA must demonstrate that mixtures of Bevill waste and
characteristic or hazardous waste "pos[e] a substantial present or future hazard... when improperly
treated, stored, transported, disposed of, or otherwise managed." footnote 129, United States Code
6903(5). The commenter argued that EPA must justify its position to regulate such mixtures under
Subtitle C, when it took the opposite position with respect to Bevill-exempt electric utility wastes, and
other hazardous wastes (COMM1088).
Response: See response to COMM1075, 1088, 1094, and 1097 above. The Agency presented
data in the Characterization of Mining and Mineral Processing Wastes documenting that these wastes
often are hazardous. Hazardous wastes pose an unacceptable threat to human health and the environment
if not properly managed from cradle to grave (RCRA section 1002 (b) (5), (6), and (7)). The purpose of
today's rule regarding Bevill mixtures is to ensure that any hazardous wastes, including those from from
mineral processing, are properly managed cradle to grave in accord with rules already promulgated as
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being necessary to protect human health and the environment.. Avoiding these controls by the expedient
of mixing with Bevill wastes, is not protective management. Not only are all the design and operating
controls of subtitle C avoided, but the prohibition on land disposal and pretreatment standards « "the
core of RCRA's hazardous waste management scheme" (Chemical Waste Management F. 2d at 22) ~ are
avoided as well. The Agency disagrees that Solite requires a new regulatory determination. The Agency
has the authority to properly address the remand without conducting a new study under RCRA 8002(p).
In any case, EPA is not making a new regulatory determination, but rather determining the regulatory
status of hazardous wastes which are mixed with Bevill wastes. This is not a Bevill determination. See
Horsehead. 16 F.3d at 1257. The Agency also notes that this is another industry comment documenting
that mixing of mineral processing and Bevill wastes occurs. As discussed in the preamble to today's
rule, this supports use of the TCLP as a means of identifying whether mineral processing wastes are
hazardous.
Comment: Another commenter outlined five points that argue against the proposed revision of
the mixture rule:
(1) The Agency is under no judicial obligation to modify the rule.
(2) The proposed rule is vastly more complicated than the "elegant" existing rule, which
allows regulation if the mixture exhibits the characteristic of the non-exempt waste.
(3) Phosphorous producers have not produced Bevill mixtures which result in
environmental damage, and have not increased waste output as a result of the Bevill
amendment.
(4) The Bevill mixture rule has not created an incentive for the phosphorous industry to
maximize Bevill waste generation, as asserted by the Agency.
(5) The existing Bevill mixture rule addresses the Agency's concerns about waste mixtures
becoming increasingly toxic. (COMM1094)
Response: The Agency disagrees with the commenter for the following reasons:
(1) While the Agency is under no obligation to revise the rule, the conditional exclusion
being promulgated today creates conditions that make some aspects of the original
mixture rule no longer necessary. Specifically, when the Bevill mixture rule was
originally promulgated, the Agency needed to address both co-disposal and co-
processing scenarios. In today's rulemaking, however, the Agency has directly
addressed the need to allow legitimate recycling of hazardous mineral processing wastes
through the use of the conditional exemption. Because one of the purposes of the Bevill
mixture rule has been addressed, the principal need for the original mixture rule is no
longer relevant. What remains is a need to prevent subtitle C hazardous wastes from
being managed without being subject to controls necessary to prevent human health and
the environment, the avoidance occurring by simply mixing with Bevill wastes;
(2) The Agency believes that today's mixture rule is a restatement of the original Bevill
mixture rule, contrary to the commenter's assertions. Any other approach fails to
answer the fundamental question of how can subtitle C hazardous wastes escape
regulation by mixing with an exempt waste.
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(3) While the Agency may not have evidence of damages or increased waste generation
from every mineral processing sector, it believes that the evidence that is has collected
for the industry as a whole (and cited in the response to COMM1075 et. al. above) amply
justifies establishing today's rule. This evidence is summarized in Damages and
Environmental Releases From Mines and Mineral Processing Sites (EPA, 1997) and
Human Health and Environmental Damages from Mining and Mineral Processing
Wastes (EPA, 1995). Disposal of wastes which are hazardous in unregulated Bevill
units can and has led to damage.
(4) The Agency is anxious to prevent Bevill disposal units from becoming unregulated
dumping grounds for hazardous mineral processing wastes. As it stated in its January
1996 proposal, the Agency is taking this position so that Bevill-exempt wastes are not
used as a means to avoid the Congressionally prescribed controls for otherwise regulated
wastes. The Agency has been presented with no evidence that would justify granting
regulatory relief to mineral processing facilities seeking to dispose of a Subtitle C
hazardous waste by mixing it with a Bevill-exempt waste, thus avoiding regulation..
Comment: Finally, one commenter noted that EPA has in the past noted the benefits of the
mixture rule with respect to the production of alumina and bauxite refining. The aluminum industry
processes have historically been designed with waste/feed mixing. This has benefited the industry and
the environment. Changing the mixture rule would make these processes inefficient, and undermine the
environmentally sensitive steps industry has taken under the Clean Water Act, and other regulations.
The same commenter notes that waste mixtures are allowed in the oil and gas industry, and in coal
combustion (COMM1097).
Response: The Agency believes other provisions of today's rulemaking will address the
commenter's concerns. The conditional exemption being promulgated today will continue to allow co-
processing of secondary materials to recover metals and other values. To the extent that the mixing of
Bevill and non-Bevill materials referred to by the commenter meets the conditions of the exemption,
such mixing can continue. Today's mixture rule applies only to the co-disposal of wastes.
It should be noted that the Agency views each RCRA special waste as unique, with its own
specific characteristics. For each special waste the Agency has developed regulatory approaches that
vary to address these differences. The Agency is not bound in any way to regulate all special wastes in
exactly the same way. To do so would not lead to environmentally sound management of wastes and
could adversely affect industry.
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4. High-risk Mining Wastes Excluded by the Bevill
Amendment
Note: The Agency appreciates the comments it received on whether a reevaluation of the Bevill
status of exempt Bevill mining and mineral processing wastes is warranted. The Agency is currently
reviewing all the comments and will summarize them for public review as soon as practicable.
It should be noted that the request for comment on the May 1997 Federal Register did not
include any presentation of proposed approaches to manage Bevill exempt wastes. Today's rule does not
change the Bevill exempt status of wastes noted in 40 CFR 261.4(b)(7).
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5. Comments on Supporting Materials Not Addressed
Above (Background Documents)
NOTE: The Agency has summarized and responded to comments on each of the technical background
documents as appendices to those reports. The following comments and responses were general in
nature and the Agency has also responded to them in this report.
5.1 Non-RCRA Tanks, Containers, and Buildings
Comment: Three commenters addressed the Agency's technical background document, "Non-
RCRA Tanks, Containers, and Buildings" (COMM1039, COMM1048, COMM1088). One commenter
stated that the document should be revised, perhaps by revisiting the Task Force Report, Appendix E, in
order better to address the issues and concerns of both the regulated community and the Agency
(COMM1048). How the document would be applied concerned another commenter, who recommended
that the document be used only as a flexible reference guide to determine if units are suitable for use at
particular sites. Furthermore, this guide should be applied in a flexible manner by the Agency in
determining appropriate unit design, considering also regional variability and environmental factors
(COMM1039).
Another commenter said "withdraw the document," arguing that the document's attempt to
generalize for the industry does no segment of it justice, and "serves no useful function." The
commenter instead would support the development of voluntary guidelines in concert with industry to
supplement those suggested in the Subtitle D focus group, which do meet the needs of both the Agency
and industry (COMM1088).
Response: The Agency believes the commenters may have misinterpreted the purpose of its
1997 technical background document, "Non-RCRA Tanks, Containers, and Buildings." This document
was prepared to provides examples of acceptable containment units for the storage of mineral processing
secondary materials and to act as a reference document for regulators and facility operators. It is not
intended to be used as a binding rule. Furthermore, rule language has been revised to remove references
to industry standards, thereby removing any possible inference that the document should be read as
binding.
5.2 Damage Cases and Environmental Releases
A number of commenters on EPA's May 12, 1997 proposal refuted the degree of contamination
caused by the land storage of mineral processing secondary materials as described in the documents
contained in the nilemaking docket. Despite the contentions by the commenters, the Agency continues to
believe that land-based storage and management practices of mineral processing secondary materials
and wastes creates or exacerbates soil, surface water, and groundwater contamination. Furthermore,
EPA notes the even greater number of damage incidents involving Bevill exempt wastes that were
released from piles and impoundments. These wastes have many similarities to mineral processing
wastes, since all originate from the broad mineral recovery industry sector and result from processing
the same ores. When these wastes are placed in piles or impoundments, in many cases, damage has
resulted. As the Agency noted in the preamble, this is because piles and impoundments, being land-
based units, have inherent potential to release the hazardous materials placed in them (whether these
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materials are wastes or secondary materials, and whether they come from mineral processing or
mining/beneficiation).
After careful reevaluation of the nature of the damages and environmental releases described in the
documents, the Agency finds that the storage on the ground of mineral processing secondary materials
continues as a management practice and has caused environmental damage or has the potential to cause
such damage. The reports entitled "Damage Cases and Environmental Releases from Mines and
Mineral Processing Sites " (1997), and "Human Health and Environmental Damages from Mining and
Mineral Processing Wastes " (1995), indicate that a wide range of mineral processing wastes and
secondary materials are released to the environment, and although such releases do not necessarily
mean that environmental damage has occurred, the Agency believes it must ensure that the risk of
potential damage is minimized. RCRA, after all, is a preventive statute. Based on the information
contained in these reports, along with other supporting documents contained in the rulemaking docket,
EPA has determined that a no land placement storage condition (except for approved pads) for mineral
processing secondary materials is appropriate and will prevent these secondary materials from
becoming part of the waste management problem.
5.2.1 Damages are Not a Result of Beneficiation or Mineral
Processing Operations
Comment: One commenter asserted that the EPA does not cite specific cases in the damages
background document because the cases do not support the proposed rules. (COMM1089)
Response: The Agency disagrees and believes the damage cases provide ample evidence of the
damage which can result from the land placement of mining and mineral processing materials. Please
refer to the response at the beginning of this chapter for further clarification of the Agency's position, as
well as to the preamble, and preferatory notes in the 1995 and 1997 damage incident compendia. .
Comment: Phelps Dodge Morenci, Inc.: Contaminated Storm Water Seeps to Groundwater and
Surface Water. (COMM1089)
The commenter stated that EPA admits that this damage case does not involve secondary
materials, processing or beneficiation of alternative feedstocks or the discharge of Bevill wastes. If the
stockpile was a solid waste, it would be exempt from RCRA under the Bevill Amendment as an
extraction waste. EPA states that the dam is effectively preventing storm water from discharging off-
site. Finally, EPA does not provide any evidence that the stockpile causes any environmental damage.
EPA omits the fact that the groundwater monitoring is not hydrogeologically downgradient of the dam.
EPA also omits the fact that samples were taken directly below the foot of the dam and met AWQS
standards. EPA "it is not possible to attribute the observed groundwater quality [in the groundwater
monitoring well] directly to the Gold Gulch impoundment." The commenter stated that any exceedence
of AWQS in the area is probably from naturally occurring sources, not from any Phelps Dodge stockpile.
The commenter suggested that this damage case is therefore irrelevant to the proposal in that it does not
prove any evidence of damages resulting from the sources the proposal attempts to regulate.
The commenter also pointed out that in the background document EPA acknowledges that
already existing Arizona state regulations through its new Aquifer Protection Permit program are
satisfactory to regulate these wastes, so that the proposed rule is unnecessary. (COMM1089)
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Response: The Agency revised the damage case summary to note that groundwater monitoring
locations are not hydrogeologically downgradient of the dam; indicate that samples taken at the foot of
the dam did not exceed AWQS standards; and describe the contention that AWQS exceedences in the
vicinity of the dam may be a result of naturally occurring sources. In the damage case summary, the
Agency characterizes the stockpile as a development rock stockpile containing low-grade development
rock that was closed prior to 1986. The Agency believes that the document helps to illustrate the human
health and environmental damages caused by management of wastes from mining (i.e., extraction and
beneficiation) and mineral processing, particularly damages caused by placement of mining and mineral
processing secondary materials in land-based units.
The Agency disagrees with the commenter that it acknowledges that existing state regulations
are satisfactory to regulate these wastes, and therefore the proposed rule is unnecessary. In the section of
the damage case entitled "Regulatory Action/Response", the Agency describes the program but makes no
determination as to its adequacy to regulate wastes from mining and mineral processing. In any case, the
fact that remedial authorities exist does not mean that EPA should stand back and not prevent
remediations from being necessary. The Agency notes that Kennecott Corporation, in its own comments,
notes that remediation at its site will cost in excess of $150 million. Even the possibility of such a large
liability did not result in initial safe management. Mineral processing wastes stored on the land are
among those substances responsible for the damage. The Agency believes that the national standards
included in today's rule are necessary to protect human health and the environment and prevent
uncontrolled releases from land-based storage units from occurring.
Comment: Phelps Dodge Morenci, Inc.: Contaminated Groundwater Beneath an Unlined
impoundment is Discovered. The commenter contends this damage case did not involve the storage or
use of "secondary materials," the processing or beneficiation of "alternative feedstocks" or the discharge
of Bevill mixtures. If the stockpile is a solid waste, it would be exempt from RCRA under the Bevill
Amendment as an extraction waste. (COMM1089)
Response: The Agency has revised the document, which indicates that damage arose from
runoff from an abandoned leach pile, which is a mining/beneficiation waste. Although this incident (and
many of the other collected incidents) do not involve mineral processing wastes or secondary materials,
there nevertheless are parallels one can draw between piles and impoundments releasing beneficiation
wastes and the possibilities that piles and impoundments can release mineral processing wastes and
secondary materials.. First, contaminants found in mineral processing secondary materials are similar to
those found in mining and mineral processing wastes. Further, as a result of processing, these
contaminants are often present in a more concentrated form in mineral processing wastes than in
extraction and beneficiation wastes. Thus, if damages occur from mining or mineral processing waste
releases, it is reasonable to assume that similar or more extensive damages might result from a release of
more-concentrated mineral processing secondary materials. Second, the Agency believes that damages
from releases of mineral processing wastes also provide evidence of damages that may result from
releases of secondary materials when those materials are stored in land-based units. Contaminants found
in these wastes are likely to be similar to those found in secondary materials ~ they are metals
originating from the same ores. Thus, damages from mineral processing waste releases provide a proxy
for releases of secondary materials.
Comment: The commenter stated that EPA's discussion of this case in the background
document contains several errors: (COMM1089)
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• "First, the samples referred to by EPA were collected from a groundwater monitoring
well below the dam, but this well is not a 'point-of-compliance' monitor well. No 'point
of compliance" has been established under the APP program."
• "Second, the data show exceedances of AWQSs for only three parameters, not the seven
parameters stated in the Damages Document. There are no AWQSs for four of the listed
parameters: iron, pH, sulfates, or TDS. The data also show that only one RCRA TCLP
substance, cadmium, was present in the samples above the applicable AWQS, and that
the concentration of cadmium was well below the TCLP threshold. More importantly,
there is a strong likelihood that the concentrations in the groundwater in the area are
from naturally occurring sources, not from the stockpile at all. This is not an unusual
event in that mining sites are located in highly mineralized areas."
• "Finally, the Damages Document incorrectly infers that the localized groundwater
conditions (which EPA alleges are related to the inactive stockpile) threaten groundwater
wells used by the Town of Clifton. However, these wells are not as close to the dam as
EPA suggests. Rather, the wells are located approximately one mile downstream from
the confluence of Rocky Gulch and the San Francisco River (not at the confluence of the
Gulch and the River as stated in the Damages Document), and the confluence is located
almost three miles downgradient from the dam. Thus, there is little likelihood that any
'threat' to groundwater in the Town of Clifton wells exists." (COMM1089)
Response: The Agency revised the damage case summary to reflect that the well (RG-1)
referred to is not a "point-of-compliance" well but rather a groundwater quality monitoring well. The
Agency further noted that there are two additional monitoring wells (RG-2 and RG-3) located in this area
that data are not available in the state files. The Agency also revised the case summary to note that the
groundwater sample exceeded the MCLs for beryllium, cadmium, and fluoride, and the MCLGs for iron,
pH, sulfates, and TDS. The table listing the parameters contained in the case summary does not
specifically state that the exceedences are of Arizona Water Quality Standards (AWQS). The document
table provides the levels of contaminants found in the well, and the applicable standard for each. The
standards for iron, pH, sulfates, and TDS are National Secondary Drinking Water standards, which are
unenforceable federal guidelines recommended for adoption as enforceable by the states. The Agency
revised the case summary to reflect the exact location of the drinking water wells in relation to the Rocky
Gulch Dam and the threat to the Town of Clifton. This information was not contained in the files
obtained during the state visits as indicated in the case summary. The Agency does not infer that
localized groundwater conditions threaten the Town of Clifton's groundwater wells. The case only
describes the location of the wells relative to the impoundment, not the contaminated groundwater
plume. Further, the Agency clearly states that no contamination of these groundwater wells has been
documented.
Comment: Phelps Dodge New Cornelia Branch Facility: Soil Contamination Results From
Improper Disposal of Scrap Metals.
The commehter stated that this damage case is completely irrelevant to the proposed rule in that
it did not involve the land-based storage of "secondary materials," the processing or beneficiation of
"alternative feedstocks," or the discharge of Bevill mixture wastes or currently Devilled wastes. This
case involved the unauthorized burning of insulated copper wire by an independent contractor. Although
Phelps Dodge was not responsible, the commenter stated that Phelps Dodge did dispose of the burned
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materials in accordance with requirements of the Arizona Department of Environmental Quality.
(COMM1089)
Response: EPA agrees that this incident, although it caused damage, is not directly relevant to
the rulemaking, since it involved mismanagement of a secondary material from outside the mineral
processing sector (scrap and scrap insulated wire).
Comment: Phelps Dodge Chino Branch: Multiple Tailings Spills.
The tailing releases discussed in this damage case occurred because of pipeline ruptures and the
raffinate leached from a lined impoundment. The commenter therefore argued that these incidents did
not involve the land-based storage of secondary materials, the use of alternative feedstocks, or the
mixture of Bevill and non-Bevill wastes. If the "spent" electrolyte was actually a spent material or solid
waste, it would be a Bevill-exempt beneficiation waste. However, the spent electrolyte is not a waste,
but a part of the leaching circuit. The commenter concluded that these four damage cases in the
background document are insufficient to support the Proposed Rule. (COMM1089)
Response: See the earlier response noting how damage incidents from beneficiation operations
can be relevant to potential for harm involving mineral processing secondary materials. In this instance,
the copper raffinate — a secondary, spent material, was managed in an impoundment before reuse and
leaked, causing damage. EPA believes that this illustrates the potential for harm which can occur when
impoundments store hazardous secondary materials, even if they are being held for reuse in the process..
Comment: One commenter contended that the solution spills at Round Mountain Gold (see the
Damage Case Report at page 176) did not involve secondary materials, alternative feedstocks, or Bevill
wastes. All of these spills were remediated quickly and completely, and were reported in compliance
with the Nevada Spill reporting requirement. Because these spills did not involve secondary materials,
alternative feedstocks, nor Bevill wastes, the commenter argued they cannot possibly support the
proposal. (COMM1102)
Response: EPA believes the incident involved a release of spent cyanide from a land-based unit.
Although this waste comes from a Bevill process, parallels with mineral processing can be drawn, as
explained earlier.
Comment: The commenter cited the following specific errors with regards to the Round
Mountain spills in the background document: (COMM1102)
• "The first spill of dilute cyanide solution occurred on February 18, 1992, not March 18,
1992."
• "The second spill occurred at Manhattan mine (a smaller Echo Bay facility) not at Round
Mountain. Also "the heap leach pad was 'dozed' to shape to final reclamation contours,
not to 'reshape the leach lines.'"
• "The third spill occurred in a contained chemical loading area with a synthetic lining
material to contain chemical spills. Any affected soil was placed on a leach pad."
Response: The damage case summary has been revised to reflect the additional information and
clarifications provided by the commenter.
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Comment: One commenter noted that only two of the many cases contained in the Damage
Cases background document involve co-processing of secondary materials with normal feedstock
materials. According to the commenter, the remainder of the cases are mostly cases concerning co-
disposal or spills of various process and/or waste streams that "really have nothing to do with secondary
materials being co-processed with the feedstocks to produce a mixture which is excluded from regulation
under the Bevill exclusion." (COMM1108)
Response: The Agency believes that the damage case document helps to illustrate the human
health and environmental damages caused by management of wastes from mining (i.e., extraction and
beneficiation) and mineral processing, particularly damages caused by placement of mining and mineral
processing secondary materials in land-based units. The manner in which these materials are or are not
mixed with other mineral processing materials does not generally reduce the damage they pose to human
health and the environment. The Agency continues to believe that the cases included in the document
support the Agency's position. While the Agency agrees that some of the cases do not involve mineral
processing secondary materials, the Agency believes that the cases provide additional evidence of the
potential hazards associated with these materials. First, contaminants found in mineral processing
secondary materials are similar to those found in mining and mineral processing wastes. Further, as a
result of processing, these contaminants are often present in a more concentrated form in mineral
processing wastes than in extraction and beneficiation wastes. Thus, if damages occur from mining or
mineral processing waste releases, it is reasonable to assume that similar or more extensive damages
might result from a release of mineral processing secondary materials. Second, the Agency believes that
damages from releases of mineral processing wastes also provide evidence of damages that may result
from releases of secondary materials when those materials are stored in land-based units. Contaminants
found in these wastes are likely to be similar to those found in secondary materials. Thus, damages from
mineral processing waste releases provide a proxy for releases of secondary materials. Please refer to the
response at the beginning of this chapter for further clarification of the Agency's position.
EPA does note, however, that it is not going forward with either proposal regarding secondary
materials used as alternative feedstocks in Bevill units, which appears to be this commenter's particular
concern.
Comment: The commenter also provided the following information about the two secondary
materials cases, asserting that these cases are not relevant for the Agency's argument: (COMM1108)
(1) "The Florida Solite Company case has already been addressed by the Agency and will be
regulated under 40 CFR 266.112."
(2) "The second case, ASARCO El Paso, involved secondary materials processed at a
copper smelter for metal recovery. There is no evidence that the smelter waste produced
would have had different constituent concentrations if all processing had involved virgin
materials. The only real problem at the site was inadequate controls on the storage of
secondary materials."
Response: Because no inaccuracies addressing the damage case summaries were reported by
the commenter, no changes have been made to the incident summaries. Please refer to the response at
the beginning of this chapter for further clarification of the Agency's position.
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Comment: One commenter provided additional facts about the site and argued that EPA
mischaracterized the four releases from IMCI's Jerritt Canyon operation in the background document.
(COMM1079)
• "The four releases were reported to the Nevada Department of Environmental Protection
(NDEP) due to the quantity of the release, not because it exceeded some reportable"
quantity like EPA's requirements for hazardous substances. Also, the amount of
constituent reported as "released" did not take into account the amount of solution that
was retrieved. In this case, nearly all was retrieved and the potential damage to the
environment was limited."
Response: The damage summary has been revised to reflect the additional information and
clarifications provided by the commenter.
Comment: The commenter believed that it is a misnomer to call the solution spill a "release to
the environment." IMCI's mill is situated on impermeable concrete with secondary containment
surrounded by low permeability compacted material with secondary containment facilities.
"Solution is contained by the systems constructed and maintained by IMCI." (COMM1079)
Response: The damage summary has been revised to reflect the additional information and
clarifications provided by the commenter.
Comment: The commenter concluded that the four alleged releases did not result in
environmental damage from land storage of mineral processing secondary materials, from improper
disposal of materials, from processing of alternative feedstocks, nor from remediation wastes. Also, the
releases did not result in "widespread and serious" environmental damage from improper disposal as
alleged by the Agency. Thus this damage case is irrelevant to the support of the proposal.
(COMM1079)
Response: The Agency continues to believe that the storage on the ground of mineral
processing secondary materials continues as a management practice and has caused environmental
damage or has the potential to cause such damage. The Agency believes that the damage case document
helps to illustrate the human health and environmental damages caused by management of wastes from
mining (i.e., extraction and beneficiation) and mineral processing, particularly damages caused by
placement of mining and mineral processing secondary materials in land-based units. Please refer to the
response at the beginning of this chapter for further clarification of the Agency's position.
Comment: One commenter argued that the cases in EPA's Damage Cases background
document are either "irrelevant to or provide no evidence to support the Proposed Rule." The cases do
not demonstrate the improper management of secondary materials or the use of alternative feedstocks.
(COMM1085)
4,
Response: See response immediately above.
Comment: One commenter asserted that the Damage Cases background document confirms that
mining would be better regulated by state laws (i.e., New Mexico Discharge Plan) and federal laws (i.e.,
Clean Water Act) than by the proposed rule. Information provided in the case studies demonstrated that
the cases were resolved under state or another federal law. Thus, there is no proof of a regulatory "gap"
which the proposed rule is allegedly filling. (COMM1085)
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Response: The Agency disagrees. The regulation of mineral processing wastes is a direct
responsibility of EPA as mandated by the Land Disposal Restriction program, as well as the general
responsibility set out in section 3004 to adopt preventive rules which are necessary to protect human
health and the environment. The fact that States were able to adequately remediate releases in some
cases does not substitute for rules which prevent uncontrolled releases in the first instance..
5.2.2 Damages Resulted from Historic Practices that are No Longer
Used
Comment: One commenter stated that many of the practices or incidents cited at Kennecott
Utah Copper Corporation (KUCC) facilities were historic in nature and occurred prior to 1990. Because
the methodology for the Damage Cases background document was to include only those processes
occurring since 1990, many of the KUCC cases should be excluded in the document. The commenter
cited two examples of such historic practices: (COMM1054)
(1) "KUCC terminated the practice of long-term land storage of flue dust prior to
September 1991 when this flue dust became regulated as a newly identified mineral
processing waste."
Response: the Agency notes that the salutary effect of regulation is discontinuance of
land-based units for hazardous wastes, and that (as here) alternatives to land based units were
available and practical.. EPA expects similar salutary effects from the non land-placement
conditional exclusion in the present rule.
(2) "The use of the refinery electrolyte purification (EP) pond was also ceased in 1974. The
sludges from the pond were removed in 1972 and 1982. Modern day operations recycle
the electrolyte bleed solution. The KUCC facility continues to cooperate with the Utah
Department of Environmental Quality's permitting requirements."
Response: The Agency believes that most damage cases reflect current practices and
may adversely affect human health or the environment. However, historic damage incidents still
illustrate the potential for harm caused by placement of mineral recovery industry hazardous wastes and
secondary materials in piles and impoundments. The Agency continues to believe that mineral
processing secondary materials have the potential to cause human health and environmental damages if
they are not properly managed. After careful reevaluation of the nature of the damages and
environmental releases described in the supporting documents, the Agency finds that the storage on the
ground of secondary mineral processing materials continues as a management practice and has caused
environmental damage or has the potential to cause such damage. Please refer to the response at the
beginning of this chapter for further clarification of the Agency's position.
5.2.3 EPA Technical Information is Incorrect
Comment: The commenter suggested specific corrections to alleged errors in the damage cases
document for the case entitled: Bartow Phosphate Complex: "Groundwater Contaminated at CF
Complex." (COMM1038)
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"At the CF facility referenced on pages 85-87 of the Environmental Release Background
Document, CF and FDEP entered into a consent order in July 1991 (amended in November 1995) in
which CF agreed to cap the northern section of the phosphogypsum stack, install a run-off management
system, install an east-west trench cut-off ditch to isolate the northern section of the stack from the
remainder, and institute corrective action measures to mitigate potential groundwater impacts. Remedial
measures implemented as part of this consent order have been very successful in mitigating further
impacts to groundwater in the consent order area. The reclaimed, isolated portion of the stack has
dewatered to steady-state, near background conditions, and now sheds clean rainwater to Skinned
Sapling Creek. Also as part of this incident, CF paid $44,800 to FDEP's Pollution Recovery Fund."
The commenter argued that the EPA's description of the groundwater quality in and around the
complex's phosphogypsum stack contains several errors and omissions:
"In the first paragraph of the section entitled 'Regulatory Action/Response,' EPA discusses the
FDEP denial of a CF request for an extension of its zone of discharge pursuant to the state's
phosphogypsum regulations. However, as mentioned in the third paragraph of EPA's summary under
this section, CF has since demonstrated (July 1996) that Skinned Sapling Creek has not been affected by
the phosphogypsum stack.
"In the second paragraph of that same section, EPA describes FDEP's approval of a revision to
the consent order between FDEP and CF permitting alternatives to a slurry wall at the phosphogypsum
Stack to contain migration. These alternatives included capping the northern section of the stack,
implementing a run-off management system, and creating an east-west trench cut-off ditch to isolate the
northern section of the stack. CF completed these activities in April 1996 and, therefore, EPA's
summary should reflect the completion of these measures."
"Finally, in the third paragraph of that section, EPA should indicate that CF proposed a
groundwater remediation plan to FDEP in early 1997 that would protect Skinned Sapling Creek from any
degradation due to the stack as a result of changed hydrologic conditions. Although such degradation of
Skinned Sapling Creek has not occurred, and is not expected to occur, CF has been proactive in
addressing this issue. FDEP is supportive of the proposal and is evaluating it for approval.
While the imposition of RCRA Subtitle C requirements might have prevented the incident, the
commenter argued that current Florida requirements would also have prevented the release had they been
in effect at the time the stacks were constructed.
Response: The damage summary has been revised to reflect the additional information and
clarifications provided by the commenter. It should be noted that the imposition of RCRA Subtitle C
requirements might have prevented this incident.
Comment: The commenter suggested specific corrections to alleged errors in the damage cases
document for the case entitled: IMC Fertilizer, Inc.: "Gypsum Stack Contaminates Surface Water,
Groundwater and Soil." (COMM1038)
"IMC-Agrico was required to enter into a consent order with FDEP concerning P-21
phosphogypsum area contamination described on pages 98-100 of the Environmental Release
Background Document. Under this consent order, IMC-Agrico implemented corrective actions,
including closure of the P-21 phosphogypsum stack. The associated cooling pond has already been
remediated and closed. Closure of the phosphogypsum stack will be shortly undertaken and will cost
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several million dollars. In addition to these activities, IMC-Agrico, in cooperation with the Florida
Game and Freshwater Fish Commission, initiated a project to improve the fishery's function of a Class 2
reservoir and to provide barrier-free fishing access for physically challenged individuals at a local park."
"The first paragraph under the section entitled 'Regulatory Action/Response' discusses a consent
order entered into between FDEP and IMC-Agrico in March 1993. The summary for this facility should
have indicated that IMC-Agrico completed all corrective action remediation on the cooling pond
associated with the phosphogypsum stack in the late 1980's. Moreover, this unit was last utilized in
1962 and can hardly be cited as relevant to current operations. As with CF's facility in Bartow, Florida,
current Florida requirements would also have prevented the incident had they been in effect at the time
that the stack was constructed."
Response: The damage summary has been revised to reflect the additional information and
clarifications provided by the commenter.
Comment: The commenter suggested specific corrections to alleged errors in the damage cases
document for the case entitled: New Wales Chemical Complex: "Sinkhole Forms Beneath
Phosphogypsum Stack." (COMM1038)
"FDEP has also been active in addressing the sinkhole at IMC-Agrico's phosphogypsum stack in
Mulberry, Florida (Environmental Release Background Document, pp. 105-108). FDEP conditionally
approved IMC-Agrico's plan of action to repair the sinkhole on October 26, 1994. This plan, which
IMC-Agrico implemented, cost over $7 million. As part of addressing the sinkhole, IMC-Agrico
voluntarily agreed to close the entire stack, although it could continue under the rule to accept
phosphogypsum until 2001. The cost of closure of this stack is estimated at $10 million."
The commenter argued that there are several errors and omissions in EPA's summary focusing
on the formation of the sinkhole. "In the section of the report entitled 'Type of Impact/Media Affected,'
EPA discusses the zone of capture associated with the stack. According to EPA, this zone of capture will
prevent 'off-site migration of contaminants that had affected the surficial and intermediate aquifers due
to activities at the complex.' This statement is incorrect. The potential for off-site migration of
contaminants was due to the sinkhole at the site and not due to the activities, in general, at the complex."
"In addition, there are four errors in the second paragraph under the heading 'Regulatory
Action/Response.' First, the phrase 'by filling the bulk of in the second sentence of the second
paragraph should be changed to 'by filling the voids in.' The structural and hydraulic integrity of the
confining unit was affected by the voids in the erosion cavity, and not by the 'bulk' of the erosion cavity.
Second, approximately 4,000 cubic yards of grout were used to fill the voids in the erosion cavity, not
7,200 cubic yards, as stated in the fourth sentence of the second paragraph. Third, the FDEP has allowed
limited phosphogypsum disposal for final contouring in preparation for closure. Finally, the estimated
cost of repair work at the sinkhole, was $7 million, not $6 million as stated in the fifth sentence of the
second paragraph. EPA should also note that the estimated cost of closure for the phosphogypsum stack
is $10 million. Whether Subtitle C requirements would have prevented the sinkhole is only significant if
the result was contamination with Subtitle C constituents. In this case, the contaminants - sodium,
sulfate, total dissolved solids, orthophosphates - are not Subtitle C constituents."
Response: The damage summary has been revised to reflect the additional information and
clarifications provided by the commenter.
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Comment: The commenter suggested specific corrections to alleged errors in the damage cases
document for the case entitled: Potash Corporation of Saskatchewan: "Hazardous Waste Releases
Result in Soil Contamination." (COMM1038)
The commenter contended that the discussion of the results of a hazardous waste inspection at
the Occidental Chemical Corporation's (now PCS Phosphates-White Springs Occidental Chemicals,
Inc.) Swift Creek and Suwannee River facilities in White Springs, Florida (Pages 112-113 of the
Environmental Release Background Document) contained several important errors.
"EPA glosses over the fact that there was no finding of noncompliance. In the third paragraph
under the section entitled 'Waste and Material Management Practices,' EPA discusses the hazardous
waste compliance.inspection conducted at the White Springs facilities and states that this inspection was
conducted in May 1996. (The actual date for this inspection was May 1993.) EPA states that "five waste
management violations were noted" during the May 1993 inspection. In actuality, EPA only suspected
potential violations. Following discussions with the inspectors and receipt of their inspection report,
Occidental Chemical Corporation ('OxyChem') had the materials in question tested by an outside
laboratory. None of the materials tested hazardous. OxyChem forwarded this analytical information to
EPA and FDEP and both agencies agreed with OxyChem's conclusion that the material was not
hazardous. EPA should revise this section of the report to accurately convey that OxyChem did not
violate either EPA's or FDEP's hazardous waste regulations."
"In the section of the report entitled 'Regulatory Action/Response,' EPA discusses a FDEP
warning letter issued on August 11, 1993 in response to the May 1993 inspection. The last sentence of
this paragraph concludes with the statement that '[t]he facility's response to the Warning Letter was
deemed acceptable by the Department.' In actuality, FDEP determined that there were no violations at
either facility and that no further action was required. There can be no Subtitle C implications where
there has been no violation."
Response: The damage summary has been revised to reflect the additional information and
clarifications provided by the commenter.
Comment: The commenter suggested specific corrections to alleged errors in the damage cases
document for the case entitled: Potash Corporation of Saskatchewan: "Mining Effluent Degrades
Nearby Stream." (COMM1038)
"Occidental Chemical Corporation ('OxyChem', now PCS Phosphates-White Springs Occidental
Chemicals, Inc.) has been interfacing with FDEP on issues relating to the seven-day chronic toxicity test
results at the Swift Creek facility (Environmental Release Background Document, pp. 114-115). FDEP
has approved the facility's request to conduct additional sampling and the facility has forwarded all
analytical results to FDEP."
"In the section of the report entitled 'Regulatory Action/Response,' EPA discusses pH testing
conducted during October 1994 by FDEP. This section appears to suggest that the pH of the mining
effluent was 4.1. During the period of this testing, the Suwannee River was at flood stage and the sample
site was inundated by river water. Thus, the pH reading of 4.1 was the naturally occurring pH of the
Suwannee River, not the OxyChem effluent. (Due to natural organic acids, Florida surface waters
commonly exhibit a pH in the range of 4)."
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"The section of the report entitled 'Regulatory Action/Response' also gives the mistaken
impression that OxyChem has not been forthcoming in providing FDEP copies of test results and other
information. For example, in the last sentence of the paragraph under this section, EPA states '[fjurther
information, such as the TIE (toxicity identification evaluation) results, has been requested by FDEP
from the facility, however, this information was not included in the files reviewed.' To the contrary,
OxyChem has provided all required and voluntary testing results to the FDEP's Northeast District Office.
There has been voluminous and ongoing correspondence between OxyChem and FDEP's Northeast
District regarding the chronic toxicity test results at the facility that the summary does not reference.
EPA should review all information relating to this issue before generating a factually inaccurate report.
In any event, there is no issue of contamination by Subtitle C constituents."
Response: The damage summary has been revised to reflect the additional information and
clarifications provided by the commenter.
Comment: The commenter suggested specific corrections to alleged errors in the damage cases
document for the case entitled: Riverview Chemical Complex: "Acidic Discharge Kills Fish and
Crabs." (COMM1038)
"In response to the fish and crab kill at the Cargill facility in Riverview, Florida, (Environmental
Release Background Document, pp. 118-119) FDEP and Cargill entered into a consent order on
December 20, 1995. As part of the consent order, Cargill donated an in-kind settlement of $37,500 to the
Museum of Science and Industry in Tampa to support a wetlands trail educational program."
The commenter suggested corrections for the discussion of the discharge of untreated wastewater
from manway access pipes which are connected to the phosphogypsum stack underground seepage
collection system:
"In describing the phosphogypsum stack, EPA fails to mention that the phosphogypsum stack is
lined. TFI suggests that EPA revise the last sentence in the second paragraph of the section entitled
'Waste and Material Management Practices' to accurately describe the stack and pipes by stating, 'The
access pipes are connected to an underground seepage collection system from a lined gypsum stack
which conveys process water seepage to a lined cooling pond."
"Also, TFI urges EPA to correct the information contained in the 'Notes/Supporting
Information' column of Table 1 (Page 9) of the document relating to this incident. In this column of the
Table, EPA attributes the process wastewater release to an operator error. However, as stated in
Condition 10 of the consent order entered into between Cargill and FDEP on December 20, 1995, the
incident could not have been avoided as it was the result of a third party's action. A vandal entered
Cargill's property and unbolted the manway access covers resulting in the discharge. Thus, it is
inappropriate for EPA to attribute the discharge to operator error. It should also be noted that this
incident is not attributable to inadequate design or construction of Bevill waste management facilities,
but to vandalism."
"It is unclear to TFI how the imposition of RCRA Subtitle C requirements on Cargill's
phosphogypsum stack would have prevented the discharge. A one-time discharge of untreated process
wastewater, a Clean Water Act issue, could not have been prevented or minimized by the imposition of
Subtitle C requirements on Cargill's lined phosphogypsum stack."
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Response: The damage summary has been revised to reflect the additional information and
clarifications provided by the commenter. The Agency believes that the damages document helps to
illustrate the human health and environmental damages caused by management of wastes from mining
(i.e., extraction and beneficiation) and mineral processing, particularly damages caused by placement of
mining and mineral processing secondary materials in land-based units. The Agency believes that the
cases provide additional evidence of the potential hazards associated with these materials.
Comment: One commenter suggested corrections to alleged errors in the description of the
Bartow Phosphate Complex in EPA's Damage Cases background document. (COMM1037)
"Types of Impact/Media Affected" Section, page 85
• The commenter stated that in the first paragraph of the section the current fluoride MCL
for Florida needs to be 4 mg/1 and 2 mg/1 for primary and secondary drinking water
standards, respectively.
• "The second paragraph of the same section needs to include the fact that the distance of
the wells from the stack system is irrelevant to the zone of discharge. Also, the
commenter noted that these wells are located adjacent to an early portion of the process
water cooling system, which has since been eliminated."
"Regulatory Action Response" Section
• "The first paragraph contains a description that does not reflect that the FDEP denied the
request for an extended zone of discharge principally due to the state's concern that the
groundwater impacts in the assessment area could be affecting an adjacent surface water
body (Skinned Sapling Creek). The commenter also reiterated that CF has since
demonstrated that Skinned Sapling Creek has not been affected."
• The commenter argued that the second paragraph of this section does not correctly
reflect the fact that the alternative remedial measures referred to were approved by
FDEP and successfully implemented by CF.
• The commenter requested that the third paragraph also be updated by adding that CF
proposed a groundwater remediation plan to FDEP in early 1997 that would protect
Skinned Sapling Creek from potential future degradation should hydrologic conditions
change such that groundwater seepage begins to adversely affect the Creek and noted
that FDEP is supportive of the proposal and is evaluating it for approval.
Response: The damage summary has been revised to reflect the additional information and
clarifications provided by the commenter.
Comment: One commenter discussed two different corrections to ICI damage cases in EPA's
Damage Cases background document: (COMM1002)
(1) "The description entitled "ICI Specialists Phosphorous plant: 'Sodium Hydrosulfide
Spill Causes Second Fish Kill'" should be deleted because this release did not involve
mining, mineral beneficiation or mineral processing facilities, processing wastes,
products, feedstocks, or reagents."
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(2) "The ICI Specialists (should be changed to ICI Specialties) Phosphorous plant is not an
elemental phosphorous plant. The current facility manufactures organic chemicals. The
sodium hydrosulfide spill that is described in the background document is related to
organic chemical production and not to any current or historic phosphorous production."
Response: The damage summary has been revised to reflect the additional information and
clarifications provided by the commenter. The spill referred to by the commenter was not deleted
because it illustrates the use of chemicals at mineral processing facilities. While the Agency agrees that
some of the cases do not involve mineral processing secondary materials, the Agency believes that the
cases provide additional evidence of the potential hazards associated with these materials. Please refer to
the response at the beginning of this chapter for further clarification of the Agency's position.
Comment: One commenter asserted that the EPA oversimplified the damages at KUCC
facilities in the Damage Cases background document. The commenter argued that this
oversimplification misconstrued the true facts. The commenter highlighted several points requiring
clarification: (COMM1054)
(1) "The source and timing of groundwater contamination at KUCC's North End have not
been determined:"
"Contrary to the background document discussion, there is no conclusive evidence about
the source of contamination until a remedial investigation is undertaken. A final
workplan for such an investigation was dated June 16, 1997. Therefore, the
contaminants identified by EPA (flue dust, acid plant blowdown, process water) are not
yet known to be the cause of groundwater contamination."
(2) "EPA cannot infer broad claims from one specific case:"
The commenter argued that EPA makes general statements about the value of "product-
like materials and land placement hazards associated with these materials" based on one
specific case ~ Louisiana-Pacific v. ASARCO. Contrary to EPA's assertions, the
commenter contended that the recycling of "product-like" or "secondary" materials is
integral to the facilities such as KUCC. The commenter also pointed out that despite
EPA's assertions that land storage of copper slag is irrelevant, the rulemaking will
completely eliminate the Bevill Amendment exemption for copper slag.
(3) "EPA makes incorrect and unsupported statements about environmental problems from
copper concentrate:"
The commenter disputed EPA's allegations about the disposal of copper concentrate in a
surface impoundment at the Kennecott smelter. The commenter stated that copper
concentrate was never disposed of in such a manner because it is a valuable commodity.
There were historical spills, but these were consistently cleaned up. The commenter
argued that there has never been any evidence that there was any damage or injury to the
environment. The commenter also requested that EPA be more precise about its
allegations, so that the commenter may respond in more detail.
(4) "EPA needs to specifically identify its references:"
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The commenter requested, once again, that EPA be more precise about its references in
the Damage Cases Report. The Agency cited various references to the Site Background
Document, but the commenter cannot respond completely without more information.
Specifically, the commenter pointed out that the Site Background document contains
many facilities within the vicinity of the Bingham Canyon Area or the Oquirrh Mountain
region. Many of these facilities' operations ceased long before 1990. Without
references to specific facilities, the commenter cannot respond to EPA's allegations.
(5) "EPA should not regulate a process it does not fully understand:"
The commenter objected to EPA's statement in the background document that, "It is not
known why some flue dusts and spilled metal concentrates are fully recycled at some
facilities but not at others." The commenter goes on to describe the numerous factors
that affect whether or not these substances are recycled at any particular facility. "These
factors include: the chemistry of the ore body, including the level of impurities; the type
of facilities and process technology used; the chemical components of the flue dust; as
well as the economics of recycling a particular material." The commenter encourages
EPA to "develop a better understanding of the primary metals processing industry and
technology before it attempts to draft rules to regulate practices of which it admits to
having little understanding."
Response: The Agency has reviewed this section and concludes that its characterization of
events at the site are correct. The Agency believes that the damage case document helps to illustrate the
human health and environmental damages caused by management of wastes from mining (i.e., extraction
and beneficiation) and mineral processing, particularly damages caused by placement of mining and
mineral processing secondary materials in land-based units. Please refer to the response at the beginning
of this chapter for further clarification of the Agency's position.
NOTE: The Agency received numerous comments seeking clarification of the Bevill status of mineral
processing slags. Bevill exempt mineral processing wastes are listed at 40 CFR 261.4(b)(7). Any
mineral processing waste not listed there is not an exempt.
5.3 Characterization of Mineral Processing Wastes and Materials
Comment: One commenter stated that the conclusions of the "Characterization of Mineral
Processing Wastes and Materials" report are invalid because they are not based on the data presented in
the report itself. Instead, the report bases its conclusions on the nature of the risk discussed in the
Damage Cases report and other background documents. The commenter, based on a review of the
Damage Case document, stated that the document contained no credible evidence of a relevant degree of
risk of the land storage and reuse of secondary materials. (COMM1043)
Response: The Agency disagrees with the commenter that its conclusions were based solely on
information contained in the Damage Case report. As described in Chapter 4 of the characterization
document, the Agency has reviewed and analyzed waste generation rate data and contaminant
concentration data, along with information on damages resulting from the storage and disposal of these
wastes, in making its determination that land-based storage of mineral processing secondary materials is
not essential to the mineral processing industry. Please refer to the response at the beginning of this
chapter for further clarification of the Agency's position.
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Comment: One commenter approved of EPA's argument in the Characterization Report that all
Brush Wellman wastes are Bevill-excluded beneficiation wastes. However, the commenter is concerned
by the statements in Exhibit A.2-1 of Appendix A of the Regulatory Impact Analysis and requests further
clarification that spent barren filtrate should also be treated as a beneficiation waste. (COMM1051, 1052)
Response: The Agency appreciates the commenter's agreement with the data contained in the
characterization report. The Agency also notes that spent barren filtrate wastes were mistakenly deleted
from the risk analysis initially. The Agency originally decided to remove this waste based on
information received from a commenter. Upon further review, however, the Agency now believes that it
was correct in its original determination that spent barren filtrate is not a beneficiation waste and is a
mineral processing waste. It is important to note that in evaluating these wastes, EPA was not attempting
to redefine the line where a waste is considered part of the beneficiation process. Rather, the Agency
was attempting to clarify its position as to exactly where that line is drawn.
5.4 Cost of Remediation at Mine Sites
Note: Comments and responses will be addressed in a comment/response section to this report.
5.5 Risk Posed by Bevill Mining Wastes
Note: Comments and responses to this report will be included as an appendix to this report.
Comment: According to one commenter, the background document entitled "Risk Posed by
Bevill Mining Wastes" does not take into account the most current information available. The
commenter cited a specific case in which EPA greatly exaggerated the scale of a damage settlement by
referring to outdated information (natural resource damages case filed by State of Utah against KUCC).
EPA could have updated its information by obtaining a copy of the consent decree from any of the
involved parties. However, by using this outdated information, the damages seem much greater than
they actually were. (COMM1054)
Response: EPA appreciates the commenter's statement. While the Agency agrees that
additional information on this case could provide clarification on specific costs of remediation, the
Agency does not believe that this clarification would significantly affect its conclusion that current
mining waste practices pose a broad range of environmental risk.
Comment: The commenter stated that the damages contained in this background document
included not just those for compensating injury, but also those for historic lost-use and non-use values.
The information about the cause of these damages was not new and should not have been used to justify
a complete change in regulation of these wastes without any consideration of current regulations.
(COMM 1054)
Response: The Agency clearly notes in the preamble to today's rule that information presented
in the report includes occurrences that reflect past practices. However, the Agency still believes that the
types of damages and losses identified in the report continue to occur and that risk of additional damage
still exists. Based on the information contained in this report and others, the Agency has determined that
a no land placement storage condition (except for approved pads) for mineral processing secondary
materials is appropriate.
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5.6 Application of Phase IV Land Disposal Restrictions to Newly
Identified Mineral Processing Wastes - Regulatory Impact
Analysis (RIA)
Comments received on this topic are addressed in the RIA comment and response document.
5.7 Availability of Natural Resource Damage Assessment Modeling
No comments from the public were received on this report.
5.8 CERCLA Imminent Hazard-Mining and Mineral Processing
Facilities
Note: Comments and responses to this report will be included as an appendix to this report.
Comment: One commenter asserted that the background documents entitled, "CERCLA
Imminent Hazard-Mining and Mineral Processing Facilities" and "Risks Posed by Bevill Mining
Wastes" contain several errors and misleading information in its description of sites.
The commenter suggested that because the statements in the Risks background document contain
factual errors and flawed logic, the credibility of EPA's claims should be questioned. The commenter
also argued that the Risks background document is faulty because it relies on data that indicates that "at
least some of the problems are attributable to modern practices." The commenter further argued that it is
unacceptable to base rules on mere indications rather than reliable facts.
The commenter noted that the statements in the CERCLA background document contain factual
errors, and suggested that EPA's claims based on these statements should therefore be questioned.
According to the commenter, failure to consider currently available information has also created flaws in
the CERCLA background document. Using outdated information and ignoring up-to-date data results in
an incomplete analysis of damages from mineral processing wastes.
The commenter cited specific cases from the CERCLA background document in which the
alleged damage was due to historic practices. In the Bingham Creek Channel case, the contamination
from mill tailings were originally placed in the channel before 1940. The Bingham Reservoir, originally
opened in 1965, was taken out of service in 1991. Pursuant to state groundwater permit requirements,
the contaminants and sludges were removed.
The commenter stated that in both the Risks and CERCLA background documents EPA
supported its selection of damage cases by pointing to the fact that the cases either were listed on the
National Priorities List (NPL) or were subject to CERCLA actions. The Agency suggested that
CERCLA 106 actions are issued only where negotiations have failed and where there is serious
environmental damage or serious threat of damage. However, the broad requirement to qualify for
CERCLA action include cases which pose an "imminent and substantial endangerment." This category
is extremely broad and includes cases which do not result in actual harm to the environment. The
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commenter noted that "imminent endangerment" is defined as existing "factors giving rise to it are
present, even though harm may not be realized for years." The commenter added that "substantial
endangerment" exists "if there is reasonable cause for concern that someone or something may be
exposed to risk of harm by release or threatened release of hazardous substance if remedial action is not
taken." The determination of imminent and substantial endangerment is typically not subject to
challenge until long after the response action is completed because it is not subject to immediate judicial
review. Thus by basing these documents on such qualifications, many cases should not actually be
considered damage cases. (COMM1054)
Response: The Agency disagrees with the commenter's statement that these cases can not be
considered damage cases. The CERCLA 106 actions noted were taken to address "imminent and
substantial endangerment." The commenter is incorrect that CERCLA 106 actions are taken when there
is no actual harm. CERCLA 106 action is taken when there are actual or potential threats.
5.9 Feasibility Analysis: A Comparison of Phosphogypsum and
Uranium Mill Tailings Waste Unit Design
Note: Comments and responses are found in an appendix to this report.
5.10 Mining and Mineral Processing Sites Listed on the Super-fund's
NPL
Note: Comments and responses are also found as an appendix to this report.
Comment: One commenter stated that significant information from other reports and
documents are not reflected in either the Site Background Document or the Damage Cases background
document. For example, the Site background document does not take into account the historical site
assessments completed by Kennecort as a result of the memorandum of understanding between KUCC
and EPA. Disregarding the valuable information that such assessments provide results in incomplete
background documents which should not be the basis of the proposed rule. (COMM1054)
Response: The Agency appreciates the commenter's statement. While the Agency agrees that
additional information on this case could provide additional clarification, the Agency does not believe
that this clarification would significantly affect its conclusion that current mining waste practices pose a
broad range of environmental risk and the potential for additional damage. EPA would refer the
commenter to its response at the beginning of Section B.I for further clarification on the Agency's
position.
5.11 Nevada Gold Cyanide Mill Tailings Regulation
Note: Comments and responses are found as an appendix to this report.
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5.12 Population Studies of Mines and Mineral Processing Sites
Note: Comments and responses are found as an appendix to this report.
Comment: "EPA's Population Studies of Mines and Mineral Processing Sites demonstrates
misinterpretation of data and the presentation of erroneous data. Remarkably, the findings of the
Population Study is [sic] taken from a portion of the Risks Document, including the citation to the
Population Study itself, which indicates that the Risks Document was written before the findings of this
study." (COMM1051)
Response: The Population Studies document was prepared at the same time as the "Risks Posed
by Bevill Wastes" (EPA, 1997), hence the Population Studies document is included as a reference in the
Risk Document. The Population Studies document inadvertently includes a reference to itself. The
Agency plans to revise the text of the Population Document to remove the reference.
Comment: "EPA's population estimates for the three Brush Wellman facilities in the
Population Study are incorrect. For Delta, the Population Study states that 4,228 persons are within 5 .
miles of both the Delta mill and mine in the Topaz Mountains. [Since these are the same 4,228 persons,
they are obviously double counted in the total population computed by the study. Other such double
counting may exist.] The Brush Wellman mill is located in Millard County, Utah. The nearest town is
Lynndyl, about 5 miles away, which has a population of about 120 residents. The next nearest town is
Delta, about 11 miles away, which has a population of less than 3,000 persons. The attached maps show
the proximity of the mill and mine to these towns. The attached photo shows the remote location of the
mine in the western desert of Utah. There are clearly no persons living within 5 miles of this facility.
Persons working for Brush Wellman are also personally familiar with some of the other mining location
cited in this repost, and they believe the population statistics cited around the following operation are
also inaccurate: Cortez Gold Mine, Nevada-there are not 1,233 persons within 5 miles; Mesquite Gold
Mine, California-there are not 400 persons within 5 miles; Independence Mine, Nevada-there are not
10,394 persons withing 5 miles." (COMM1051)
Response: The data regarding the two Delta facilities (the Mine in the Topaz Mountains and the
Mill in near Lynndyl) were revised as reported by the commenter. The commenter did not provide new
population data for the Cortez Gold Mine, Mesquite Gold Mine, or the Independence mine, therefore the
Agency has not revised population data for those facilities.
Comment: "The Population Study overstates the number of persons within one or five miles of
a Bevill eligible hazardous wastes, because it includes some facilities which have no such wastes. For
example, Brush Wellman's Elmore, Ohio facility is included in this study. There are no wastes at this
facility that are not managed as hazardous wastes, because of the Bevill exclusion. Two Elmore wastes
referenced in the Regulatory Impact Analysis, filtration discard and chip treatment wastewater, are not,
in fact, hazardous wastes. Therefore, withdrawal of any Bevill exclusion from these wastes would not
provide additional regulation or protection. This is particularly true because the Elmore facility is a
RCRA TSD facility undergoing corrective action, which evaluates all solid waste management units at
Elmore." (COMM1051)
Response: The Agency believes that the Brush Wellman Elmore facility is in the universe of
facilities potentially affected by the Agency's January 1996 proposed rule. Therefore, the Agency has
retained the facility in the population study database.
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Comment: "The Population Study states that 1,023 persons live within one mile and 10,376
persons live within 5 miles of the Elmore facility. Brush Wellman believes that these estimates overstate
the population. Using the most recent USGS topographical maps, Brush Wellman drew 1 and 5-mile
circles from the perimeter of the plant. Counting the number of residences within these circles and using
the average number of residents per household of 2.64 for Ottawa County based on the 1990 census, an
estimated 346 (131 x 2.64) live within 1 mile and 8,997 (3,408 x 2.64) persons live within 5 miles. The
pervasive errors in the population data for the Brush facilities indicate that EPA has overstated the
populations in the Population Study by over-counting, double counting, and including facilities where no
Bevill-exempt hazardous wastes are generated." (COMM1051)
Response: The data regarding the Elmore facility have been revised to reflect the additional
information and clarifications provided by the commenter.
Comment: "With respect to mining operations, EPA states that" EPA's new information
indicates that there are significant populations within close proximity to hard rock mines." S0049 at 2.
The record, however, fails to support this conclusion. EPA's "new information" is summarized and
analyzed in a one and one-half page report at the beginning of S0049. What EPA has apparently done in
its analysis is develop a list of 306 "operating mines" and 124 "operating" mineral processing sites,
which are clearly not the entire universe of operating facilities. [FN 11: The basis for the development of
these lists is unclear. For unknown reasons, EPA has not included many active mining and mineral
processing operations in the list and has improperly included other facilities on its list.] It then totals the
populations that live within 1 mile or 5 miles of any of these 306 and 121 facilities, and uses that number
to allege that EPA "correctly found that mining and mineral processing facilities can affect large
populations." In this fashion, EPA can best engage in scare tactics, and present the highest possible
number of people and children living near mines." (COMM1048)
Response: As stated in the document, the 306 operating mines and 121 mineral processing sites
represent a subset of the universe selected to represent the largest sectors and those most likely to be
affected by the rule. Because the total number of facilities is much larger (e.g., there are 1,000 hard rock
mines), the population numbers should be viewed as conservative (low end) estimates, and the actual
total population located near mines larger than stated.
Comment: "Simply totaling the numbers of all people living near all mines that EPA chose to
include in its database, however, is meaningless. BHP Copper has completed a more appropriate
analysis of EPA's data. See BHP Copper Comments, Appendix H. This data shows that no one lives
within 1 mile of over 80 percent of the mines in EPA's database. With regard to copper mines in
particular, 84 percent have no one living within one mile. Thus, EPA's data, when properly and more
completely analyzed, demonstrate that mines are generally located, as EPA recognized in 1985, in
sparsely populated areas. Mineral processing facilities may be located in areas of higher population
density. Still, the BHP Copper comments demonstrate that no one lives within a one-mile radius of more
than half of the mineral processing facilities. Moreover, nearly no one lives within a 5 mile radius of
20% of such facilities. This data proves that mineral processing facilities are also located in most cases
in areas of sparse population." (COMM1048)
Response: The Agency notes the remarks submitted by the commenter. The Agency has edited
the Population Studies document to better describe the data.
Comment: "Finally, NMA comments that even if mines and or mineral processing facilities in
some limited number of areas are located in closer proximity to more heavily populated areas, EPA has
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provided no proof that such proximity equates to or correlates with, risks posed to such populations by
these facilities." (COMM1048)
Response: The Agency notes the remarks submitted by the commenter. The Agency has edited
the Population Studies document to better describe the data.
Comment: "...BMP notes the incongruous situation with respect to the Copper Range
processing site, where Table 15 of the Population Study indicates that 699 families live within 1 mile of
this site while Table 16 indicates that only 464 families live within 5 miles of the site." (COMM1043)
Response: The data in Table 15 were revised to include the correct numerical values for the
Copper Range facility.
Comment: "BHP further notes that in addition to its San Manuel facility being listed as a
molybdenum producer in Table 1 of the Study, Table 14 of the Study includes both "San Manuel" as a
molybdenum processor and "Magma (BHP)" as a copper processor. BHP assumes that EPA refers to its
single copper production complex in San Manuel, Arizona, and while that site produces molybdenum
concentrate as a byproduct, it does not process the concentrate." (COMM1043)
Response: Based on the information submitted by the commenter, the data were revised to
remove any mention of an independent "San Manuel" facility. All of the "San Manuel" data are
incorporated into the Magma (BHP) values. The Magma site is labeled as a copper-producing site; any
mention of a molybdenum product has been removed.
Comment: "BHP further notes that Table 14 also identifies Phelps Dodge's Morenci facility as
a molybdenum processor, but to BHP's knowledge, that site neither recovers nor processes
molybdenum." (COMM1043)
Response: The data were edited to report the Phelps Dodge Morenci facility as a copper-
producing site.
Comment: "In its Background Document on Risks Posed by Bevill Wastes (at pp. 10-11), EPA
indicates that re-examination of the Bevill regulatory exclusion may be warranted in light of new data on
population density that was not available when it completed its 1985 Report to Congress. EPA claims
that, in 1985 and 1986, it believed that "mining occurred in sparsely populated areas," whereas it now
has new data showing "significant populations within close proximity to hardrock mines and mineral
processing sites." Id- Specifically, based on a review of 1990 Census data relating to populations living
in proximity to 306 hardrock mines (average of 746 persons per mine), with slightly more than half of
such persons being less than 19 or greater than 65 years of age. ID. at 11. [FN92: See also U.S. EPA,
Population Studies of Mines and Mineral Processing Sites 2 (Jan. 1997). Based on the Population
Studies data, the population figures cited in the Risks Posed by Bevill Document are, in actuality,
incorrect. In fact, EPA studied 309 mines, not 306. Moreover, 227,159, not 228,145 persons live within
on mile of these 309 sites, producing an average of 735, not 746 persons per mine. Likewise, 3,467,348,
not 3,465,876 persons live within five miles of one of the 309 sites, producing an average of 11,331, not
11,326 persons per mine.] EPA also concludes that 3,465,876 persons live within 5 miles of the 306
mines (an average of 11,326 persons per mine). Id.
Contrary to EPA's assertions, this data does not call into question any of the conclusions of its
1986 regulatory determination. First, EPA concluded in 1986 that mining operations "are predominantly
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located in sparsely populated areas," 51 FR At 24,497 (emphasis added), [FN93: Accord 1985 Report to
Congress, supra note 37, at ES-16.] not that all mines were located in sparsely populated areas. EPA's
1997 Population Studies Background Document confirms the continued validity of that conclusion.
EPA's data show that, of the 309 mines there studied, 249 (or over 80%) have no population ~ and thus
no children, elderly, or anyone else -- within a one mile radius.[FN94: See Population Studies, supra note
92, Table 2.] And 124 of the mines (40%) have no population within a five mile radius.[FN95: see id-
Table 3] Thus, EPA's 1997 Populations Studies Background Document confirms the conclusion of the
1985 Report to Congress (at p. 6-3) that mining operations "are generally located in areas of low
populations density. They are often, although not always, located several kilometers from population
centers and the sources of public water supplies ([and therefore have a] reduced human exposure
impact)" (emphasis added).
The results are even more remarkable if one focuses only on the 144 gold mining operations
listed in the Populations Studies Background Document. EPA's data show that, of the 144 gold mines
studied, 126 (or 88%) have no population within a one-mile radius. And 84 of the gold miners (nearly
60%) have no population within a five-mile radius. Moreover, according to EPA's data, the average
populations around gold mining operations are 399 (within one mile) and 427 (within five miles).[FN96:
See id- Tables 2 & 3.] These figures are very close to those contained in EPA's 1986 regulatory
determination. See 51 Fed. Reg at 24,000 (noting average population of 200 persons and 3000 persons
within, respectively, one and five miles of mines). Moreover, as we note below, EPA's population
figures showing residents in proximity to one Santa Fe Pacific Gold mine are incorrect. If other of
EPA's data are similarly suspect, then the average population figures near gold mines is significantly
lower." (COMM1029)
Response: The Agency notes the remarks submitted by the commenter. The Agency has edited
the Population Studies document to more correctly reflect the data.
Comment: "All Newmont Gold and Santa Fe Pacific Gold mining operations are located in
sparsely populated areas. EPA's own data shows no populations within one mile of any Newmont Gold
or Santa Fe Pacific Gold mine, and with one exception, no population within five miles of any such
facilities.[FN97:See id-] The one exception, moreover, is incorrect. Thus, EPA claims that Santa Fe
Pacific Gold's Mesquite mine has a population of 400 persons within a five mile radius.[FN98: See id-
Table 3.] However, there are no persons who reside within five miles of the Mesquite mine. If 1990
Census data shows the contrary, then that data is outdated." (COMM1029)
Response: The data regarding the Mesquite mine have been revised according to the
information provided by the commenter.
Comment: "Finally, EPA has not attempted to evaluate whether any of the sparse populations
that may reside within five miles of mines are actually at risk from those mines. For instance, the
Agency has not sought to quantify the number of persons who reside downgradient of mines and who use
groundwater as a drinking water source. Nor has the Agency sought to tabulate the number of persons
who live within one or five miles of facilities with a relatively shallow groundwater table or with a heavy
annual precipitation, thereby making contamination to groundwater more likely. As the Agency
correctly concluded in 1986, "adverse effects to the public and the environment from the disposal of
mining waste [are] not likely at sites well-removed from population centers, drinking water supplies,
surface water, or other receptors." 51 FR at 24,499." (COMM1029)
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Response: The Agency notes the remarks submitted by the commenter. The Agency has edited
the Population Studies document to more correctly reflect the data.
5.13 Preliminary Identification of Approaches Used in Evaluating
Natural Resources
This document was finalized under a previous Agency action in 1990.
5.14 Technical Feasibility of Lining Tailings Ponds
Comment: One commenter expressed its concerns that design of phosphogypsum ponds must
be specific to phosphogypsum. Applying the design specifications for uranium would be defying the
EPA's statements in the Tailings Pond background document which states, "each situation requires its
own design process." Instead of the "one size fits all approach," states should be encouraged to use a
flexible approach to take into account site-specific conditions. (COMM1038)
Response: This report is factually correct. In today's rule, the Agency has not proposed any
design standards for exempt mining wastes.
5.15 Comments on the Uranium Section of the Identification
Document
Comment: A number of commenters contended that the Agency has no regulatory authority
over uranium recovery operations, in particular in-situ uranium mining, nor does the Agency have
regulatory authority over uranium mill tailings.
Response: The Agency acknowledges that the Nuclear Regulatory commission has primary
regulatory authority over facilities generating "by-product wastes" as defined by the Atomic Energy Act.
The Agency does have RCRA jurisdiction over any hazardous wastes which are defined as mixed wastes
under RCRA, as well has authority over any discharges into waters of the United States under the Clean
Water Act. The Agency and the NRC may not agree that all wastes generated at in-situ uranium mining
are NRC by-product wastes. The Agency does also acknowledge that the regulation of uranium mill
tailings is the responsibility of the Department of Energy under the UMTRCA. The Agency however
cooperatively developed regulations affecting groundwater compliance with the DOE.
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6. Mineral Processing Regulatory Impact Analysis
Note: Responses to comments on the Regulatory Impact Analysis are found in a separate
comment and response document prepared solely to address RIA issues.
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7. Comments on Issues Raised in the January 1996
Proposal
7.1 Distinction Among Sludges, Byproducts, and Spent Materials
Comment: One commenter incorporated by reference its previous comments on the January
1996 proposal. (COMM1043)
Response: Comment noted.
Comment: Two commenters objected to the listing of chromium as a "newly identified"
mineral processing waste. The commenters stated that chromium was delisted as a hazardous waste by
the Federal Court because of a lack of toxicological data and that the proposed classification circumvents
the Court's decision by requiring even more stringent controls than were required when chromium was a
listed substance. (COMM1012, COMM1069)
Response: The commenter's concerns are no longer relevant. In today's rule, the Agency is
revoking the five remanded waste listings, two of which are emission control dust and sludge from
ferrochromium-silicon production (K090) and emission control dust or sludge from ferrochromium
production (K.091). The Agency has found that several of these wastes are still generated and, in some
cases, land disposed, but there is a lack of information demonstrating unique threats to human health or
the environment that would justify a listing at this time. The Agency did not receive any information
indicating that revocation would cause threats to human health or the environment because the wastes
count be adequately regulated under RCRA Subtitle C. Of course, if these wastes should exhibit a
characteristic of hazardous waste, they would be hazardous for that reason.
Comment: One commenter explained that its comments to the January 1996 proposal were
favorable because the guidelines for "newly identified " mineral processing wastes allowed easier
recycling and included those wastes in essentially the same category as TC metal wastes for disposal
purposes, subjecting chromium to treatment below a TCLP of 5.0 mg/1. The commenter had also
approved of the removal of chromium from the list of hazardous substances in that proposal.
(COMM1055)
Response: The Agency appreciates the commenter's support. In today's rule, the Agency is
revoking the five remanded waste listings, two of which are emission control dust and sludge from
ferrochromium-silicon production (K090) and emission control dust or sludge from ferrochromium
production (K091). If these wastes exhibit a characteristic of a hazardous waste, they will be subject to
hazardous waste regulations, including the hazardous waste mixture rule. Today's rule removes the
hazardous waste listing fqr K090 and K091; it does not exempt them from RCRA Subtitle C.
Comment: One commenter reiterated its earlier comment asserting that the retort cooling water
used at its facility is a byproduct, not a spent material. The cooling water can pick up minerals as it cools
the mineral-bearing gasses, and is then recycled for recovery of those minerals. The retort cooling water
is thus more valuable than virgin cooling water. (COMM1029)
Response: In today's rule, the Agency is eliminating regulatory distinctions among sludges, by-
products, and spent materials generated by the primary mineral processing industry when these
secondary materials are reclaimed within the industry sector. Consequently, the commenter's concern
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about which type of secondary material it is no longer relevant. Retort cooling water is a mineral
processing waste stream. If the commenter meets the requirements of the conditional exclusion
promulgated today, it may return retort cooling water to its process without additional restrictions.
7.2 Bevill Issues
Comment: One commenter urged EPA not to adopt the proposed changes to the Bevill mixture
rule. The commenter found these changes to be unwarranted and without legal authority.
(COMM1097)
Response: As explained in the preamble to today's final rule, the Agency is re-adopting the
Bevill mixture rule originally promulgated in 1989.
Comment: One commenter challenged the finding in the Newly Identified Wastes background
document that the start of mineral processing for phosphorous is at input to the electric arc furnace. The
commenter asserts that the start is earlier, when the green briquettes are fed into the calciner, and that
calcining wastes should therefore be subject to RCRA. The commenter gave several arguments for its
definition of the starting point: the calcining process exceeds the melting point of phosphorous,
volatilizing the metal; the ore is changed significantly and chemically; and calcining wastes are medium
volume/high toxicity wastes that should not be exempt under the Bevill amendment. (COMM1107)
Response: The Agency determined that for the production of elemental phosphorus, the
beneficiation/processing line occurs between agglomeration and electric arc furnace reduction because
the agglomerated phosphate rock undergoes a significant thermal reaction inside the electric arc furnace
to yield gaseous phosphorus. Calcining is recognized as a beneficiation activity in the production of
phosphorous. It is one of the final activities performed prior to the chemical change of phosphate ore
into the elemental phosphorus\us product.1 Because EPA has determined that all operations.following
the initial "processing" step (in this case, the introduction of proportioned ore into the electric furnace) in
the production sequence also are considered processing operations, irrespective of whether they involve
only techniques otherwise defined as beneficiation, all solid wastes arising from any such operation(s)
after the initial mineral processing operation are considered mineral processing wastes, rather than
beneficiation wastes. EPA presents below the mineral processing waste streams generated downstream
of the beneficiation/processing line, along with associated information on waste generation rates,
characteristics, and management practices for each of these waste streams. However, it should be noted
that if a particular calcining process drives off more than water and carbon dioxide, it is not a
beneficiation activity (See 40 CFR 261.4(b)(7)).
Comment: One commenter brought up the issue of the line between beneficiation and mineral
processing in relation to rare earths mining. The commenter expressed concern that the proposed
rulemakings of January 1996 and May 1997 would shift that line, removing the Bevill exemption for rare
earths mining wastes. The commenter wrote that EPA clearly and correctly identified its facility's
operations as beneficiation in the September 1989 Final Rule, and that in accordance with Solite Corp. v.
EPA D.C. Cir., 1991), such identifications are not subject to redetermination by the Agency. The
commenter pointed out that the 1989 determination was supported by several background documents,
including the 1985 Report to Congress, the Administrator's 1986 Regulatory Determination, and the
FMC Corporation. Op. Cit. January 25, 1996.
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Preamble and the Technical Background Document, and that determination was recognized by the
Bureau of Mines. The commenter found these background document to be thorough, detailed, and
accurate.
In particular, the 1989 Technical Background Document's description of processes at the
commenter's facilities was deemed essentially correct by the commenter According to that document,
the commenter's process consists of crushing, grinding, and floating bastnasite ore, and occasionally
using very dilute acid to leach out some impurities. The leached and unleached bastnasite concentrates
are then either sold or sent to the low temperature roaster and mixed with a 10% acid solution. This
beneficiation process continues with thickening, filtering, and drying, and other materials may be
removed to further concentrate the cerium product.
The commenter described the state of California's "Bevill Amendment," which states that mining
wastes not subject to regulation as federal hazardous wastes are not subject to state hazardous waste
regulations either. This law exempted the commenter from RCRA regulations. According to the
commenter, the state of California sent a confidential request to EPA for assistance in reevaluating the
Bevill status of its wastes. The commenter made several points about the corresponding evaluation that
EPA made in the documents "Briefing for Matthew Strauss" and an EPA OSW letter dated April 7, 1992:
• The Agency's assertion that "strong" acid was used is misleading. The commenter
dilutes hydrochloric acid in its facility to approximately 10%. In 1992, the Bureau of
Mines judged that the facility's use of hydrochloric acid did not constitute acid digestion.
• The broad definition of beneficiation that the Agency put forward in the 1989 Final Rule
was designed to include chemical reactions that may even manufacture chemicals, so the
fact that new compounds are created should not change the Bevill status of rare earths
mining wastes.
• EPA's assertion that the reaction in the commenter's process is faster and more vigorous
than leaching is wrong. The process is less vigorous than classic gold and copper
leaching, which are recognized as beneficiation.
• The Agency's point that roasting converts Cerium+3 to Cerium*4 does not distinguish the
commenter's process from beneficiation activities involving gold, zinc, bromide, and
iodine brine.
• The Agency's argument that the solid lanthanide materials are dissolved into "a liquid
product" does not distinguish the process from recognized beneficiation activities such
as electrowinning, crystalization, precipitation, or the cyanidation of gold.
• The commenter's second leaching step meets the 1994 Outreach document's definition of
leaching, a beneficiation activity, because: 1) certain lanthanides are selectively
dissolved from the ore; 2) cerium is unaffected by the leaching; and 3) the resulting
cerium still contains impurities and is substantially unchanged.
• The Agency's assertion that a small volume of waste is formed in the process is wrong.
No waste is formed in the roasting/leaching step, which indicates that the step is
beneficiation.
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• The EPA's statement that the product and "waste" are physically and chemically
dissimilar is not inconsistent with their documentation on leaching.
• The commenter's roasting/leaching step does not result in a saleable product or
intermediate. After roasting/leaching there are further beneficiation steps.
The commenter argued that Agency documents written after the 1989 Final Rule are entitled to
no weight because the Agency cannot informally change determinations made in a Final Rule. The
commenter cited General Electric v. EPA, stating that a change of an agency position in the middle of an
enforcement proceeding is entitled to no deference. In addition, the commenter continued, errors in
those documents make the Agency's conclusions erroneous, and therefore arbitrary and capricious.
The commenter made the following points in reference to the 1995 Mineral Processing
Description: 1) the flow diagram does not accurately represent any of the commenter's facilities; 2) the
flow diagram and the description omit the roasting step; 3) the flow diagram and description
mischaracterize the commenter's activities as "digestion; and 4) the flow diagram and description include
an "alkali digestion step" which the commenter's facility does not use.
The commenter argued that EPA's January 1996 and May 1997 proposals stray from legitimate
legislative history and reflect a fundamental misunderstanding of the nature of rare earths mining. The
commenter challenged EPA's claim in the 1996 proposal that document did not reopen the line between
beneficiation and mineral processing, and emphasized that the Agency's notice of this change in that line
has not been adequately made available for public comment. According to the commenter, EPA's
departure from the 1989 Final Rule is arbitrary and capricious, and the Agency does not have jurisdiction
to reclassify beneficiation wastes without violating the Administrative Procedures Act. (COMM1040)
Response: The commenter submitted essentially the same comments to the 1996 proposal. See
response in Section 5 of the comment and response document for the January 1996 proposal. Agency
disagrees with the commenter's statement that the Agency has reclassified certain waste streams. In
1991, the State of California requested Agency assistance in applying the newly promulgated
beneficiation/processing criteria to the wastes generated at the Mountain Pass facility. Consequently, the
Agency reviewed detailed facility information, and concluded that the facility was engaged in mineral
processing rather than beneficiation operations, as expressed in a May 1991 letter. This review of
facility specific information did not reclassify the status of operations at the Mountain Pass facility,
because such a determination had not been made previously. After the Agency issued its first letter to
California, the commenter requested that the Agency reevaluate its processes. The Agency did so and
reference to the "Briefing for Matthew Strauss" and an EPA OSW letter dated April 7, 1992 reflect that
reevaluation. In a letter to the commenter dated April 7, 1992 the Agency again stated that Molycorp's
Mountain pas facility did generate mineral processing wastes.
The Agency has concluded that two very distinct operations are occurring in the stage of operations that
Molycorp refers to as the second "leach" step. During that step, the lanthanide oxide is being digested by
hydrochloric acid, and concurrently, the cerium oxide is being leached by hydrochloric acid. At 54 FR
36618019 the Agency defined mineral processing as an operation that: produces materials that are
physically and chemically dissimilar to their feedstocks (acid digestion is specifically referred to as an
example of this); generates low volume wastes; or uses a roasting/leaching sequence to produce a final or
intermediate product that does not undergo further beneficiation or processing steps. During this leach
step, the feedstock is reacted with acid to form lanthanide chlorides. This step also produces lead and
iron chloride wastes which are subsequently reacted with ammonia and sodium hydrogen sulfide,
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respectively, to form solid iron hydroxide and lead sulfide wastes. In our technical judgement, both the
product and wastes from this step are physically and chemically dissimilar to the ore. It should also be
pointed out that this step also produces a cerium oxide concentrate which is the product of a
roasting/leaching sequence. Since this sequence is producing an intermediate product, this step is the
beginning of mineral processing. The Agency has issued two letters on this facility in 1991 and 1992.
These letters reflect the Agency's current thinking regarding the Bevill status of various waste streams at
the Mountain Pass facility. The Agency believes that wastes generated after mineral processing begins
are mineral processing wastes (see 54 FR 36619).
7.3 Use of TCLP
Note: The Agency received a wide range of comments on the TCLP issue and those comments and
Agency responses are found as an appendix to the TCLP technical background document. Most
comments were received by the Agency responding to the January 1996 proposal. The following
comments were received responding to the May 1997 proposal.
Comment: One commenter asserted that the Toxicity Characteristic should not be applied to
mineral processing wastes. The commenter suggested that EPA has not fully considered new
developments in finalizing its plan to apply the TCLP instead of the SPLP to mineral processing wastes.
The first of these new developments is the decision of the U.S. Court of Appeals for the District of
Columbia Circuit in Dithiocarbamate Task Force v. EPA. According to the commenter, this case would
require the Agency to consider a full range of factors when identifying a hazardous waste, whereas EPA
has considered only the factor of mismanagement scenarios. The commenter further stated that EPA has
failed to thoroughly consider the one factor that it did consider, mismanagement scenarios. The
commenter found that the Agency exaggerated its evaluations by identifying certain mismanagement
scenarios as plausible simply because they could not be definitively ruled out. The commenter argued
that EPA had also misapplied the Court's suggestion to infer shared characteristics in a group of related
materials when the Agency assumed that all mineral processing wastes may be managed in the same
manner. In addition, the commenter mentioned that EPA has only presented minimal evidence to show
that co-disposal has ever really taken place. The second new development that the commenter brought
up was the final military munitions rule. The commenter interpreted that rule that to suggest that the
SPLP (which is more accurate for mineral processing wastes) should be used except in individual cases
where mineral processing wastes are co-disposed in municipal solid waste landfills. (COMM1048)
Response: The Agency disagrees with the commenter. First, the Agency believes that it has
fulfilled the court's mandate in Edison Electric Institute v. EPA (2F.3d 438 (D.C. Cir. 1993)) by
demonstrating that it is "plausible" that mineral processing wastes could be co-disposed with municipal
solid waste (MSW). While the Agency agrees that most mineral processing wastes are managed on-site
as industry contends, the Agency also found in some cases that these wastes had been placed in
dumpsters, or similar containers, and shipped off-site for disposal. Furthermore, the Agency has limited
evidence of actual disposal of mineral processing wastes with MSW. Such wastes may have been
disposed in. MSW landfills in various States throughout the United States, representing all geographic
and climactic regions. The Agency also found several cases where manufactured gas plant wastes were
disposed in MSW landfills. (See "Applicability of the Toxicity Characteristic Leaching Procedure to
Mineral Processing Waste," EPA Office of Solid Waste 1995)
Second, the Agency does not believe that the SPLP would be a more appropriate test for
determining whether mineral processing wastes are hazardous by toxicity characteristics. The Agency
received little data comparing leach tests or actual leachate concentrations for mineral processing wastes.
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Based on this data, the Agency cannot conclude that the SPLP would more accurately characterize
leachate from mining and mineral processing wastes under actual field conditions. In the absence of
such information, EPA believes that the use of the TCLP is a reasonable approach because disposal of
mineral processing wastes in municipal landfills is a plausible mismangement scenario.
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8. Proposed Criteria For Defining/Clarifying Bevill Waste
Status
8.1. Issues Addressing "Uniquely Associated" Criteria
8.1.1 Many Wastes Currently under the Exclusion are Not Uniquely
Associated with Mining
Comment: One commenter stated that many wastes are not uniquely associated with the mining
industry, even if they come into contact with Bevill wastes. In construing the scope of a similar RCRA
exclusion for oil and gas exploration and production wastes, EPA determined spent solvents were not
uniquely associated with oil field operations, and therefore, did not qualify for the exclusion. Spent
solvents used in the mining industry are no different in this regard. (COMM1042)
Response: EPA has considered spent solvents and other non-indigenous wastes to be outside the
scope of the Bevill Exclusion from the outset (see 45 FR 76619, November 19, 1980). In the context of
the Phase 4 LDR Rule, the Agency has concluded that a strict application of the "contact" principle,
while appealing because of its simplicity, would not provide the best means of determining whether a
waste is uniquely associated with mining or mineral processing and has the potential to be over-inclusive
of wastes that are properly viewed as "uniquely associated." EPA is, therefore, not adopting that
criterion to determine if a waste is uniquely associated.
8.1.2 EPA Cannot Limit Bevill Wastes By "Uniquely Associated"
Alternative Criteria
Comment: The proposals are arbitrary, capricious, undeserving of judicial deference, and
contrary to EPA's prior statements. (COMM1104, COMM1089, COMM1048)
Response: EPA disagrees. In today's rule, the Agency is not establishing new conditions for
uniquely associated wastes. Instead, the Agency is more fully articulating longstanding principles that it
has used for many years. No single criterion may be used in isolation to make a uniquely associated
determination ~ multiple criteria must be used. Non-uniquely associated wastes are not, and have never
been, limited to the obvious and easily understood cases of wastes generated outside of primary mineral
production. The purpose of EPA's criteria is simply to remove some of the obvious confusion regarding
application of these long-standing principles. Based on public comments, the Agency is retaining the
qualitative approach to determine if a waste is uniquely associated with primary mineral production.
8.1.3 "Uniquely Associated" Definition Must be Consistent with the
Legislative Purposes of the Bevill Amendment
Comment: Seven industry commenters insisted that the criteria for determining whether a waste
is uniquely associated must be consistent with the legislative purposes of the Bevill amendment.
(COMM1088, COMM1048, COMM1090, COMM1104, COMM1089, COMM1041, COMM1054).
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The commenters urged EPA to adopt a practical, real world approach that is consistent with its
longstanding interpretation of the "uniquely associated" principle. (COMM1104, COMM1054)
One commenter argued that Congress intended the scope of the Bevill Amendment to be interpreted
broadly, noting that the uniquely associated principle likewise, as it has been historically, should be
interpreted broadly. EPA's attempts to recharacterize the uniquely associated principle, and thereby
narrow its scope, are contrary to law. (COMM1048)
"EPA's apparent attempt to revise the waste streams covered by the Bevill Amendment is contrary to
Congressional directive. New language of the revision limits Bevill to only those wastes which originate
from the extracted ore or beneficiated mineral. This limitation overlooks steps in the beneficiation
process which are far removed from the original ore." (COMM1089)
Response: EPA disagrees. As stated above, in today's rule, the Agency is not establishing new
conditions for uniquely associated wastes. Instead, the Agency is more fully articulating long-standing
principles that it has used for many years. Based on public comment, the Agency is retaining the
qualitative approach to determine whether a waste is uniquely associated.
8.1.4 The Administrative Record Supports a Broad Interpretation of
Uniquely Associated
Comment: EPA has maintained the same interpretation of the "uniquely associated" principle
since 1980, and has reaffirmed the same position on numerous occasions since. In the current
rulemaking, EPA suggests an alternative formulation of the "uniquely associated" principle, but provides
no reasonable basis for the changes in the long-standing interpretation. Since there is no justification,
any attempt by EPA to recharacterize the "uniquely associated" principle is contrary to law and arbitrary
and capricious. (COMM1048)
Response: In the May 1997 proposed rule, EPA identified several alternative approaches for
determining whether a waste is uniquely associated. In general, commenters were opposed to any of
these alternatives. As stated above, however, in today's rule, the Agency is not establishing new
conditions for uniquely associated wastes. Instead, the Agency is more fully articulating long-standing
principles that it has used for many years. Based on public comment, the Agency is retaining the
qualitative approach to determine if a waste is uniquely associated.
Comment: Several commenters agreed that EPA should amend its guidelines to provide that a
waste is "uniquely associated" with Bevill processes and thereby exempt if (1) it is generated from
mineral extraction, beneficiation, or processing operations, (2) it does not constitute a listed waste and
(3) it is not a characteristic hazardous waste before coming into contact with Bevill material. These
guidelines provide clarity to the regulated community and they recognize that in some circumstances
maintenance wastes are appropriately classified as Bevill exempt. (COMM1088)
Response: EPA disagrees with the commenter. The Bevill Exclusion is limited to
extraction/beneficiation wastes and 20 mineral processing wastes. Under Section 3001 (b)(3)(A)(ii) of
RCRA, the Bevill exclusion is available for "solid waste from the extraction, beneficiation, and
processing of ores and minerals." It should be noted that all wastes generated after the commencement
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of mineral processing are mineral processing wastes. As a result of the Agency's 1989 rule (54 FR
2322), all mineral processing wastes, except for the 20 special wastes noted in 40 CFR 261.4(b)(7), are
subject to RCRA Subtitle C requirements, if they exhibit a hazardous characteristic of are listed
hazardous wastes, and are destined for land disposal.
8.1.5 Mixture of Hazardous Waste and Bevill Waste Occurs in an
Attempt to Avoid Regulation
Comment: Several commenters were concerned with the issue of mixing hazardous waste with
Bevill exempt waste to avoid regulations, (COMM1076) especially in hardrock mining. (COMM1003,
COMM1046, COMM1049, COMM1058, COMM1059, COMM1062, COMM1063, COMM1064)
Response: EPA first addressed mixing of hazardous wastes with Bevill wastes in 1989 (54 FR
36622-23). That rule provided that mixtures of Bevill wastes and listed wastes would be considered a
hazardous waste unless and until the mixture was delisted. A mixture of Bevill waste and non-excluded
characteristic hazardous waste, however, would be considered hazardous if it exhibited a characteristic of
the non-excluded wastes, but not if it exhibited a characteristic imparted to it by the Bevill waste. The
Bevill mixture rule was remanded to the Agency in Solite Corp v. EPA , 952 F. 2d 472, 493-94 (D.C.
Cir. 1991). The Agency is reinstating the 1989 Bevill mixture rule. Under today's final rule, if hazardous
waste is disposed of with a Bevill waste, the resulting mixture is either: a) a hazardous waste (if a listed
waste is involved); b) a hazardous waste if the mixture exhibits a characteristic of hazardous wastes
previously evident in the non-exempt waste; or c) a non-hazardous solid waste if it is not listed and
exhibits no characteristics of the hazardous waste. In addition, the mixing of the wastes may require a
Subtitle C permit for treatment, storage or disposal. The Agency is adopting this approach because it
believes that the Bevill Amendment should not be used to allow Bevill wastes to shield/immunize non-
Bevill hazardous wastes from regulatory controls that would otherwise apply to those wastes.
8.1.6 Beneficiation Has Been Weil Defined by EPA
Comment: One commenter outlined the history of the beneficiation definition in order to
confirm that EPA has well delineated mineral processing versus beneficiation. The commenter
(COMM1040) made the following points:
• In the companion case to EDF I, the D.C. Circuit Court of Appeals held that EPA's definition of
processing wastes was arbitrary and capricious and ordered EPA to develop a new definition of
processing wastes which was consistent with Congressional intent, i.e., that processing wastes
meet the high volume, low hazard requirements.
• In order to establish the parameters of the definition of "processing" in the 1989 Rule and
subsequent Report to Congress, EPA established the definition of "beneficiation." The definition
. EPA adopted in the 1989 Rule is the definition EPA used in the 1985 Report to Congress on
extraction and beneficiation: This definition was, in turn, based upon a definition provided in the
Effluent Guidelines Development Document (for the Clean Water Act). EPA believes that this
definition is consistent with standard industry practice and use of the term.
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• In the preamble to the 1989 Final Rule, EPA deliberately broadened the definition it had
proposed in the April 1989 notice in order to narrow the universe of mining processing wastes
subject to Subtitle C. In the preamble to the 1989 Rule, EPA acknowledged that the distinction
between beneficiation and processing had been vigorously debated; however, EPA determined
that the 1989 Rule presented the best definition: EPA acknowledges that the decision to use this
beneficiation definition is a significant departure from the position taken in the October and
April NPRMS, particularly with respect to the use of heat and acid.
• After analysis of public comments, further review of technical information regarding mineral
beneficiation and processing techniques, and reexamination of the 1985 Report to Congress and
1986 Regulatory Determination, the Agency has concluded that this definition will render the
most accurate, practical, and reasonable delineation between beneficiation and processing.
Response: The Agency is not altering the definition of beneficiation or mineral processing in
today's rule. Similarly, the Agency is not establishing new conditions for uniquely associated wastes.
Instead, the Agency is more fully articulating for the uniquely associated concept, long-standing
principles that it has used for many years.
Comment: One commenter indicated that the legislative history of the Bevill amendment
prevented EPA from reinterpreting the terms "extraction" and "beneficiation" by regulatory
interpretation. (COMM1048)
Response: As stated above, the Agency is not redefining beneficiation and extraction in today's
rule, but is simply articulating long-standing principles that it has used for many years.
8.2. Contact Principle as a "Reinterpretation" Criterion
Comment: Several industry commenters felt that the plainest version of the "contact" principle
(i.e., materials that come in "contact" with ores or minerals during regular extraction, beneficiation, or
processing would be Bevill-exempt) is a step in the right direction, would be sufficient grounds for a
determination that a waste is covered under the Bevill exclusion, and would be a sufficient, but not a
necessary, condition for meeting the "uniquely associated" test. (COMM1104, COMM1043,
COMM1085, COMM1090, COMM1086)
Response: Upon consideration of public comments, the Agency has concluded that a strict
application of the "contact" principle, while appealing because of its simplicity, would not provide the
best means of determining whether a waste is uniquely associated with mining or mineral processing and
has the potential to be over-inclusive. EPA is, therefore, not adopting that criterion to determine if a
waste is uniquely associated.
Comment: Several related comments were provided in support of the general comment above.
• One of the commenters pointed out that the "principle" is conceptually awkward and overly
broad as described by EPA. EPA claims the contact approach would exempt any waste that
"comes into contact with a Bevill waste, feedstock, or product during normal process
operations." This approach could exempt even solvents and degreasers that have never been
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considered exempt if during their normal use they come into contact with any Bevill waste,
feedstock, or product. (COMM1104)
• Another commenter stated that the only reasonable criteria to determine what wastes are from
extraction and beneficiation activities is to include any wastes that must be generated in order for
the activities to be conducted. Using this principle, questions such as "does contact occur?",
"was the material hazardous prior to and/or after use?", or "is this waste or a similar waste
produced by other industries?" become moot. The commenter stated that this approach is simply
common sense, and accurately reflects the real world application of the Bevill exclusion intended
by Congress when it mandated that wastes from this industry required study and a formal
determination prior to their regulation under Subtitle C of RCRA. (COMM1043)
• Commenters pointed out that this is only one of several sufficient criteria; wastes that are truly
unique to extraction and beneficiation, and generated by no other activity, such as mill tailings,
must also be continued under Bevill coverage. EPA needs to clarify that those materials which
are Bevill wastes, feedstocks, or products (the "contact" materials themselves) also are "uniquely
associated" materials, and those materials which are necessary to the Bevill process, for example
lead anodes, also are "uniquely associated," even if they do not obtain their hazardous
characteristics from contact with the Bevill material. (COMM 1043, COMM1085, COMM1090)
Response: As stated above, the Agency has concluded that a strict application of the "contact"
principle would not provide the best means of determining whether a waste is uniquely associated with
mining or mineral processing and has the potential to be over-inclusive. The Agency is retaining the pre-
existing qualitative approach to determine if a waste is uniquely associated, which reflects the
longstanding principle, based on the clear language in Section 3001 or RCRA, that uniquely associated
wastes must result from mining and mineral processes themselves. The Agency, however, believes that
lead anodes are not uniquely associated wastes. While lead anodes are used in the mineral recovery
process (e.g., electrowinning process) and thus could be viewed as uniquely associated based on this
consideration in isolation, the mineral recovery process imparts virtually no characteristics to these
materials. Lead anodes are virtually identical both before and after being used in the process. The
Agency, therefore, concludes that lead anodes are not uniquely associated with mining and mineral
processing.
8.3. Alternative Contact Principle: Considering Pre-Contact Hazard
Content
Comment: Several industry commenters strongly opposed the variation to the contact principle
where small volume wastes exhibiting a hazardous characteristic both before and after contact would not
be eligible for the exemption. (COMM1043, COMM1104, COMM1090, COMM1048, COMM1085,
COMM 1086).
Response: Based on public comments, the Agency is not adopting the modified contact principle
that excludes wastes that only exhibit the same hazardous characteristics both before and after contact
with the Bevill waste, feedstock, or product.
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8.3.2 EPA Incorrectly Characterizes the Examples Used To
Demonstrate Its "Contact" Concept
Comment: Several commenters indicated that EPA's characterization of the examples used to
describe "contact" is seriously flawed. As the preamble notes, contact with mining materials including
feedstocks, products, and wastes (and to which the commenters would add intermediates and other "in
process" materials, as well) results in a material being subject to the exclusion. These materials have not
come in contact with Bevill wastes, but with "in process" materials. Regardless of EPA's assertion to the
contrary, all these wastes are unavoidably generated by exempt production processes or through contact
with "in process" materials. They are all necessary components of extraction and beneficiation, and the
commenter expressed they are unarguably uniquely associated with these activities. None derive their
chemical qualities through contact with Bevill exempt wastes. (COMM1043)
Response: EPA disagrees with the comment that the characterization of examples used to
describe the contact principle was flawed. Based, however, on public comments, the Agency has
concluded that a strict application of the "contact" principle, while appealing because of its simplicity,
would not provide the best means of determining whether a waste is uniquely associated with mining or
mineral processing and has the potential to be over-inclusive. EPA is, therefore, not adopting that
criterion to determine if a waste is uniquely associated.
8.4. EPA is "Bound" to use High Volume, Low Hazard to Define
Bevill Wastes
Comment: One commenter stated that EPA is bound by the recent line of cases holding that the
Bevill exclusion is limited to high volume, low hazard wastes, e.g., Horsehead Resource Development
Company v. Browner. Insofar as the wastes in question do not satisfy both criteria, the Bevill exclusion
is not applicable and EPA lacks authority to interpret the statute in a contrary fashion, particularly if the
waste was not studied by the Agency as part of the extraction and beneficiation waste Report to
Congress. (COMM1042)
Response: The Agency is not adopting the high volume threshold criterion to determine whether
a waste is uniquely associated. The Agency assessed the impact of applying a high volume criterion in
making uniquely associated determinations and found that such an application would make virtually all
such wastes non-uniquely associated and subject to Subtitle C controls, regardless of the extent to which
the waste was, in fact, associated with mining and mineral processing. The Agency believes that a cert?
degree of flexibility is needed for making uniquely associated determinations due to the complex and
varied mineral operation and site-specific factors that must be considered in making these decisions.
Comment: The high volume threshold should not be used as the sole criterion for detenr
Bevill eligibility because it would allow many wastes to escape environmental controls. Instead
should look to whether a waste stream poses a serious hazard to the environment and humans:
-------
Comment: Several reasons are provided by commenters for this opposition.
• This approach ignores the over-riding concept that wastes generated as the inevitable result of
extraction and beneficiation activities are clearly from these exempt activities and must therefore
be covered under the Bevill exclusion. (COMM1043)
• The Bevill Amendment applies to solid wastes "from" extraction, beneficiation, and processing.
We are unable to identify any solid wastes that are hazardous before they come into contact with
a Bevill waste that would be or should become Bevill-exempt. The principle is unworkable.
(COMM1104)
• Materials which are necessary to the Bevill process, for example lead anodes, also are "uniquely
associated," even if they do not obtain their hazardous characteristics from contact with the
Bevill material. (COMM1043, COMM1085, COMM1090)
• The commenter also responded to the EPA's variation on an approach to the contact principle
that would consider small volume wastes that exhibit a hazardous characteristic both before and
after contact with a Bevill waste, feedstock, or product as being "non-uniquely associated" and
found this approach to be too cumbersome to implement and prefers the "uniquely associated"
principle. (COMM1086)
Response: As stated above, the Agency is not adopting the modified contact principle. The
Agency is retaining the existing qualitative approach to determine whether a waste is uniquely
associated, which reflects the longstanding principle, based on the clear language in Section 3001 or
RCRA, that uniquely associated wastes must result only from extraction, beneficiation, and mineral
processing activities.
8.3.1 EPA Must Revise its "Identification and Description" Document
Prior to Any Action on Criteria
Comment: EPA noted that the "contact principle" would change some of the interpretations in
its "Identification and Description of Mineral Processing Sectors and Waste Streams" technical
background document. The commenter agreed and stated that regardless of the final approach selected
for determining what materials remain under the Bevill exclusion, EPA must revise this document to
correct its numerous technical mistakes and urged EPA to incorporate the changes identified in BHP's
comments on the January 1996 proposal. (COMM1043)
Response: EPA agrees that the contact principle would change some of the interpretations in the
"Identification and Description of Mineral Processing Sectors and Waste Streams" technical background
document. However, based on public comment, the Agency is retaining the qualitative approach to
determine if a waste is uniquely associated. The Agency disagrees that the Identification document had
numerous technical errors. When commenters pointed out minor technical issues, the report was
amended to incorporate those issues. The Identification document is being released as non-regulatory
guidance.
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Application of the high volume threshold to determine Bevill eligibility could thwart needed controls on
disposal and treatment of wastes at many of these high waste generating mines. (COMM1046)
Response: The Agency is not adopting the high volume threshold criterion to determine whether
a waste is uniquely associated. The Agency assessed the impact of applying a high volume criterion in
making uniquely associated determinations and found that such an application would make virtually all
such wastes non-uniquely associated and subject to Subtitle C controls, regardless of the extent to which
the waste was, in fact, associated with mining and mineral processing. The Agency believes that a certain
degree of flexibility is needed for making uniquely associated determinations due to the complex and
varied mineral operation and site-specific factors that must be considered in making these decisions.
8.4.1 Uniquely Associated Principle Has Never Incorporated a "High
Volume" Or "Lack Of Inherent Hazard" Criterion
Comment: Several industry commenters argued that the Agency must explain why, after 17
years of holding to the position that all extraction and beneficiation wastes were properly excluded (and
having this position upheld in EDFI by the D.C. Circuit Court of Appeals), it now seeks to withdraw
Bevill coverage from these wastes for the first time. The commenters argue that given the long standing
nature of the current application of the Bevill exclusion, EPA must justify the need for the imposition of
a volume criterion on a demonstrated risk presented by the current management of "small volume"
extraction and beneficiation wastes. The commenters believe that such a demonstration is not possible
because these materials are managed soundly from the standpoint of environmental and resource
conservation. The inevitable outcome of EPA's proposed imposition of a volume criterion (if there is any
outcome at all), would be the creation and disposal of more waste and the resulting use of available
landfill capacity, and the subsequent consumption of more non-renewable resources, including metals,
reagents and in the arid southwest, valuable water. (COMM1043, COMM1048, COMM1104,
COMM1054)
Response: Based on EPA's impact assessment and public comment, the Agency is not adopting
the high volume threshold criterion to determine whether a waste is uniquely associated. The Agency is
retaining the qualitative approach to determine if a waste is uniquely associated, which reflects the
longstanding principle (among others) that uniquely associated wastes must be "indigenous" to mineral
processes.
Comment: The commenter pointed out that in the original Bevill Amendment language, the key
in EPA's mind was whether or not a waste was "indigenous" to mining or beneficiation without mention
of a volume or "inherent hazard" criterion. Over the years, the Agency has attempted to flesh out, on a
case-by-case basis, this concept of "indigenous." The commenter notes that EPA has never, however,
asserted or implied that volume or hazard criteria are relevant to the uniquely associated concept. While
the commenter did not wholly agree with this explanation of the uniquely-associated principle, the fact
remains that the Agency, as recently as December 1995, confirmed its longstanding and
contemporaneous view that the Bevill Amendment's uniquely-associated concept has nothing to do with
the volume or the "inherent hazardousness" of an extraction or beneficiation waste. And, as EPA is well
aware, an agency should not depart from a longstanding and contemporaneous construction of a statute
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absent a very compelling reason. See, e.g.. Bankamerica Corp. v. United States. 462 U.S. 122, 130
(1983). (COMM1029)
Response: The Agency agrees that the fundamental issue in the "uniquely associated" inquiry
is whether a waste is "from" extraction, beneficiation, of mineral processing and that volume is not an
appropriate surrogate. The Agency believes, however, that the extent to which the chemical
characteristics of the waste are attributable to the extraction, beneficiation, or mineral processing
processes themselves is a reasonable indicator of whether a waste is "from" one of these processes.
8.4.2 Fora Variety of Legal, Statutory, and Policy Reasons a High
Volume Criterion Cannot be Used
Comment: Several commenters indicated that such a change in the scope of the Bevill
exclusion is contrary to the RCRA statute and all subsequent legal actions on this issue. (COMM1043,
COMM1054, COMM1104, COMM1048)
Commenters stated that the use of the criterion constitutes an improper attempt to revise the Bevill
Amendment exclusion that is contrary to law and arbitrary and capricious. (COMM1090, COMM1048)
Neither the Report to Congress nor the Regulatory Determination make any distinction between high
volume and low volume waste. (COMM1029)
The use of a large volume criterion as a surrogate for maintaining the Bevill exclusion for all wastes
from extraction and beneficiation is highly inappropriate, because high volume is not the only
determinant for coverage under the Bevill exclusion. (COMM1043)
Response: EPA has the authority to determine what qualifies as a uniquely associated waste, and
for that reason, sought comments on a number of alternatives. However, EPA has decided not to adopt a
high volume approach to the uniquely associated principle.
8.4.3 Eliminating Low Volume Waste from the Exclusion is Counter-
productive
Comment: The Agency's proposed establishment of a high volume threshold for extraction and
beneficiation wastes will not result in any environmental benefits, but will create more hazardous wastes.
The "low volume" wastes that the Agency is apparently concerned with are not being disposed in
municipal or even industrial landfills and are thereby not escaping regulation and posing risks to health
and the environment. Rather, they are being managed responsibly, primarily as alternate feedstocks and
reagents, and are part of the minerals industry's ongoing efforts toward resource conservation and
production efficiency. (COMM1043)
Response: Today's rule encourages the reintroduction of mineral processing secondary
material into the Bevill units (up to 50% of feedstock) if they are being legitimately recycled to reclaim
metal, acid, water, cyanide, or other values. However, the Agency remains concerned about the potential
for Bevill units to be used for unregulated dumping of hazardous wastes. If hazardous wastes are added
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for the purpose of disposal or treatment, then the entire mixture may become subject to RCRA subtitle C
regulations.
Comment: One commenter stated that the assumption that the exclusion of non-Bevill or non-
uniquely associated wastes from Bevill material streams encourages recycling and waste minimization is
flawed. In some cases the cost to install tanks, pumps, and piping to separately collect and recycle a
small stream is significantly higher than the cost to treat and dispose of the material. In order to
overcome these disincentives to recycling, the commenter recommended the addition of an exclusion for
large and small volume streams of secondary materials generated on the same site as a primary mineral
processing facility, from which minerals, acids, or water values are recovered by addition to a recycled
Bevill stream, provided that the Bevill material stream is not significantly affected by the addition of the
non-Bevill or non-uniquely associated material. (COMM1037)
Response: The Agency agrees that the adoption of the high volume criterion might inadvertently
cause disincentives to recycling. Today's rule encourages recycling by allowing mineral processing
secondary materials to be reintroduced as long as there are legitimate recycling activities (i.e., recovery
of metals, acid, cyanide, water, or other values). Therefore, based on EPA's impact assessment and
public comment, the Agency is not adopting the high volume threshold criterion to determine whether a
waste is uniquely associated. The Agency is retaining the existing qualitative approach to determine
whether a waste is uniquely associated.
Comment: Several commenters claimed that the introduction of these limits would preclude the
recycling of many beneficiation materials. (COMM1029, COMM1104, COMM1043, COMM1048,
COMM1054, COMM1097)
Response: See response above.
Comment: Another commenter believed that facilities that have reduced wastes through
process improvements should not be penalized and should remain eligible for the exemption. Continued
use of the thresholds creates a disincentive for waste minimization. The reduced levels of Bevill waste
should continue to be managed in the same facilities as all previous Bevill wastes. (COMM1086)
Response: EPA agrees that the adoption of the high volume threshold criteria might
inadvertently penalize facilities that have reduced waste volume. Therefore, based on EPA's impact
assessment and public comment, the Agency is not adopting the high volume threshold criterion to
determine whether a waste is uniquely associated. The Agency is retaining the qualitative approach to
determine if a waste is uniquely associated.
Comment: Several aluminum companies did not believe that this large volume criterion should
be applied to the recovery of secondary material and urged EPA to refrain from pursuing this change.
(COMM1097)
Response: Based on EPA's impact assessments and public comment, the Agency is not
adopting the high volume threshold criterion to determine whether a waste is uniquely associated. The
Agency is retaining the qualitative approach to determine if a waste is uniquely associated. The Agency
is encouraging recycling by allowing mineral processing secondary materials to be reintroduced as long
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as there are legitimate recycling activities (i.e., recovery of metals, acid, cyanide, water, or other values).
Moreover, storage prior to recovery will not be subject to RCRA controls provided that it occurs in tanks,
containers, or buildings, or on approved pads.
Comment: The potential loss of the Bevill Amendment threatens the future operations of new
facilities or the expansion of existing facilities. (COMM1089)
Response: As stated above, the Agency assessed the impact of applying a high volume criteria
in making uniquely associated determination and found that such an application would make virtually all
such wastes non-uniquely associated and subject to Subtitle C controls, regardless of the extent to which
the waste was, in fact, associated with mining and mineral processing. Based on this assessment and
public comment, the Agency is not adopting the high volume threshold criterion to determine whether a
waste is uniquely associated. The Agency is retaining the qualitative approach to determining if a waste
is uniquely associated.
8.4.4 Comments Addressing Implementation of a Volume Criterion
The 45,000 tons/year Criterion for Mineral Processing May not be Appropriate
Comment: EPA is attempting to diverge from its long-standing interpretation of the "uniquely
associated" principle by using a high volume criterion for Bevill classification. The proposed rule would
neglect many materials that under the present interpretation would be considered Bevill-exempt. This
attempt to redefine what constitutes a "uniquely associated" material is an improper attempt to revise the
Bevill Amendment exclusion, and thus is arbitrary and capricious. (COMM1089)
Response: In today's rule, the Agency is not establishing new conditions for uniquely associated
wastes. Instead, the Agency is more fully articulating long-standing principles that it has used for many
years. Based on EPA's impact assessment and public comment, the Agency is not adopting the high
volume threshold criterion to determine whether a waste is uniquely associated. The Agency is instead
retaining the qualitative approach to determine if a waste is uniquely associated.
Comment: One commenter noted that, even under the Horsehead decision, adopting EPA's
interpretation of the case (i.e., the large volume criterion applies to beneficiation wastes) does not mean
that the 45,000 tons/yr. criterion for processing waste is an appropriate measure of "high volume." As
acknowledged by the Agency, there is no statutory directive or legislative guidance on how to construe
this term. Although EPA has considerable discretion in developing and applying the "high volume"
criterion, that discretion should be exercised in a manner that carries out the express provisions of the
statute. (COMM1044)
Response: The Agency based this high volume threshold option on the fact that Congress and
the courts have established that only large volume special wastes should be eligible for the Bevill
exclusion. However, based on EPA's impact assessment and public comment, the Agency is not
adopting the high volume threshold criterion to determine whether a waste is uniquely associated. The
Agency is retaining the qualitative approach in determining if a waste is uniquely associated. .
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Comment: One commenter stated that EPA cannot limit the scope of the Bevill Amendment by
developing a "high volume/low hazard" criterion to determine eligibility. Any such application would
be contrary to the Bevill Amendment, its legislative history, and RCRA section 3004(x). (COMM1048)
Response: See response above.
The 45,000 ton/year Criterion Should be Applied to the Combined Stream from a Facility
Comment: Some individual waste streams may not meet the 45,000 tons per year high volume
criteria, but it is the combined stream that is the waste generated by the extraction process and should be
eligible for the Bevill exclusion. (COMM 1005)
Response: Based on EPA's impact assessment and public comment, EPA is not adopting the
high volume threshold criterion to determine if a waste is uniquely associated in today's rule. Similarly,
the Agency is not changing its interpretation of the Bevill exclusion.
High Volume/ Low Hazard Residues Were Clearly Intended to be in the Exclusion
Comment: One commenter concluded that, at the least, those high volume/low hazard residues
clearly covered by the Bevill Amendment include those extraction and beneficiation wastes, specifically
tailing and slag, which will be adversely impacted by the alternative feedstock restriction. Clearly,
Congress intended in enacting the Bevill Amendment to include tailing and slag within the exclusion
from Subtitle C regulation. (COMM 1090)
Response: EPA's position with respect to the Bevill status of these particular mineral industry
wastes was clearly stated in the 1989 and 1990 final rules. Today's final rule makes no modifications to
these prior Agency decisions.
Use a Per-industry Criteria Rather Than Per-facility
Comment: One commenter representing the lime producers reminded EPA that the Association
has a history of objecting to the current per-facility volume criteria used in the mineral processing
rulemakings. Rather the commenter expressed that the industry-wide generation rate as a co-criteria
should have been maintained. (COMM 1044)
Response: Based on EPA's impact assessment and public comment, EPA is not adopting the
high volume threshold criterion to determine if a waste is uniquely associated in today's rule.
The Low Volume Criterion Should Not Be on a Weight Basis
Comment: One commenter representing the lime producers, referring to earlier correspondence
to EPA, stated the Agency should recognize that the term "high volume," refers to the space a waste
occupies, not its weight. For example, lime kiln dust has a much lower bulk density than many other
forms of mining waste, it has a density of approximately 50 lb/ft2, while iron-making blast furnace slag
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has a density of approximately 150 lb/ft2. Thus, to make a fair comparison of volume between the two
wastes, one would have to triple the lime kiln numbers previously mentioned. Put in another context, if
there are 4 million tons per year of lime kiln dust in the United States, there are 160 million ft2 of this
waste! (4 million tons x 2000 = 8 billion Ibs. divided by, 50 lb/ft2 = 160 million ft2). Our kilns are
literally producing mountains of this dust, and it is certainly "high volume" by any definition.
(COMM1044)
Response: See response above.
The Horsehead and Solite Court Cases are Misused to Support EPA's Position on
Incorporating a High Volume Criterion
Comment: Two commenters (COMM1054, COMM1104) argued that EPA's interpretation of
language in the Horsehead and Solite case findings is used incorrectly to justify incorporating a high
volume criterion. The Horsehead court held that EPA's "significantly affected" test for Boilers and
Industrial Furnace (BIF) wastes was a permissible reading of Agency authority under RCRA, and
included language which supported EPA's decision to impose, in effect, a low-hazard criterion on BIF
wastes. The court did not hold, contrary to EPA's reading, that all Bevill wastes must be high-volume;
indeed, EPA did not impose a high-volume threshold on BIF wastes at all. Another court stated that "in
EDFII [that the] EPA was required to limit Bevill wastes excluded from Subtitle C to those wastes that
are high volume/low hazard. In Solite the court held that EPA had discretion to define the "high volume"
and "low hazard" criteria so long as its definitions were permissible interpretations of the Bevill
Amendment."
The commenters' reading of the Horsehead is further supported by reading EDF II in context with EDF
I. The D.C. Court of Appeals required EPA to come up with volume and toxicity criteria for mineral
processing wastes in EDF II, and it upheld EPA's decision to exclude all extraction and beneficiation
wastes in EDF 1, without regard to specific volume and toxicity criteria. Extraction and beneficiation
wastes were not at issue in Horsehead, and that case does not give EPA a mandate or authority to change
its interpretation of the Bevill Amendment with respect to these wastes.
Response: Based on EPA's impact assessment and public comments, the Agency is not adopting
the high volume threshold criterion to determine whether a waste is uniquely associated. The Agency is
retaining the qualitative approach in determining if a waste is uniquely associated.
Comment: One commenter indicated that, although EPA cites Horsehead to justify a high-
volume criterion, the Agency in that case actually was imposing a toxicity criterion. The wastes
addressed in that opinion are not subject to any volume criteria as none were at issue in the case. These
facts undermine EPA's reliance on Horsehead. The court's holding was limited to issues in the Boilers
and Industrial Furnaces rule; it did not concern the mining waste portion of the Bevill Amendment. That
makes most of the quoted language dicta. (COMM1054)
Response: See response above.
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8.5. Waste-Specific Comments Addressing Appropriateness of the
Various Criteria
Industry commenters in general nominated which wastes should continue to fall under the Bevill
amendment exclusion. Following are the specific waste streams at issue:
8.5.1 Titanium Dioxide Wastes: Waste Acids and Solids from the Chloride-
ilmenite Process
Comment: The waste from titanium dioxide's normal manufacturing process should be
classified as Bevill waste. In titanium dioxide's normal manufacturing process operations feedstock
materials come into contact with other chemicals required to convert the ore into a stable product. This
contact, resulting from normal manufacturing, should allow these materials to become uniquely
associated Bevill waste when ultimately discarded. The waste acids and solids from the chloride-ilmenite
process may not be discarded immediately, they may be cogenerated and disposed or cogenerated and
subsequently treated through liquid solid separation. The resulting solids may be returned to the process
as a feedstock or disposed. Regardless of the end result, the waste should be classified as Bevill exempt
waste. Taking this approach eliminates complicated RCRA issues, such as point of generation, and
simplifies compliance for both treatment and recycle steps. (COMM1086)
Response: After careful review of all available information regarding titanium dioxide wastes
from the chloride-ilmenite process, EPA finds no basis for modifying any of its existing positions with
respect to the Bevill status of titanium dioxide production wastes. These waste acids are mineral
processing wastes. A full discussion of the Agency's position may be found in the Titanium
Tetrachloride technical background document.
8.5.2 Fluorogypsum and Wastewater from Hydrofluoric Acid
Production
Comment: An industry commenter indicated that EPA has not provided any new information to
support changes in it's determination that HF fluorogypsum and HF process wastewater should be
excluded from RCRA Subtitle C regulations. Any reversal of this position would be arbitrary and
capricious and otherwise contrary to law, and would have a very significant deleterious impact on Allied
Signal's HF business without any discernible environmental benefits. (COMM1092)
Response: EPA is not changing the Bevill status of HF fluorogypsum and HF process
wastewater.
8.5.3 Maintenance and Cleaning Wastes
Comment: Waste that is generated from the maintenance and cleaning of equipment that
comes into contact with Bevill feedstock and that exhibits only hazardous characteristics of that
feedstock, should itself be classified as Bevill-exempt waste. For maintenance and cleaning equipment,
these guidelines are more appropriate than the arbitrary "high volume" standard. Under the high
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volume standard waste such as these may be disqualified if they do not meet the volume criteria. The
determinative factor should be whether the waste originates from Bevill operations. (COMM1088)
Response: EPA is not changing its longstanding view that wastes generated from the
maintenance and cleaning of equipment are not Bevill exempt wastes. EPA retains it's longstanding
principle, based on the clear language of Section 3001 of RCRA, that uniquely associated wastes must
result from mining and mineral production processes themselves. The uniquely associated concept
should exempt wastes that are "indigenous" to these processes.
8.5.4 Lead Anodes
Comment: Lead anodes do not come in contact with wastes. Rather, these materials, which are
part of the equipment required for electrowinning, are immersed in electrolyte, the copper rich solution
from which the final product material, copper cathode, is produced. (COMM1043)
Response: The Agency retains its determination that lead anodes are not uniquely associated
with mining and mineral processing operations, and therefore, do not fall under the Bevill exemption.
While lead anodes are used in the mineral recovery process and thus could be viewed as uniquely
associated based on this consideration in isolation, the mineral recovery process imparts virtually no
characteristics to these materials. In this respect, the agency believes that lead anodes are best viewed as
non-uniquely associated.
Comment: Industry commenters indicated that EPA asserts that lead anodes from copper
production operations "may be viewed as not being uniquely associated with mineral processing,
beneficiation and extraction." To the contrary, however, these materials are from Bevill operations and
are covered by the Bevill Amendment and EPA's long-standing definition of the uniquely associated
principle. EPA stated that the "contact" principle would deem lead anodes from copper electrowinning
uniquely associated. (COMM1048)
Response: See response above.
8.5.5 Spent Kerosene used in Copper Solvent Extraction Operations
Comment: Spent kerosene does not exist; BHP assumes that EPA refers to the kerosene that is
separated from crud by filtration or centrifuging, and reused in solvent extraction. Kerosene is the
carrier in which the solvent extraction collector is dispersed. Solvent extraction solution is contacted
with pregnant leach solution (an intermediate or "in process" solution) and with strong acid (the
intermediate that becomes the electrolyte in electrowinning). Neither of these materials are wastes.
(COMM1043)
Response: Based on all available information and pubic comments stating that slimes/muds,
crud, and spent kerosene generated from copper solvent extraction and electrowinning, the Agency finds
that they are uniquely associated wastes.
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Comment: Industry commenters indicated that EPA asserts that spent kerosene solvent from
copper production operations "may be viewed as not being uniquely associated with mineral processing,
beneficiation, and extraction." To the contrary, these materials are from Bevill operations and are
covered by the Bevill Amendment and EPA's long-standing definition of the uniquely associated
principle. EPA stated that the "contact" principle would deem spent kerosene solvent from copper
solvent extraction uniquely associated, consistent with EPA's "past determinations". (COMM1048)
Response: The Agency has reevaluated the regulatory status of slimes/muds, crud, and spent
kerosene generated from copper solvent extraction and electrowinning and finds that they are uniquely
associated. These wastes are generated from extraction and beneficiation. Regulations found at 40 CFR
261.4 state that wastes from solvent extraction and electrowinning are extraction/beneficiation wastes are
not subject to regulation under Subtitle C.
Comment: One commenter specifically referred to the lack of data presented to them by the
EPA to make determinations as to whether spent kerosene solvent from copper solvent extractions are
inherently hazardous. (COMM1048)
Response: EPA has reviewed all available information to make its determinations regarding
spent kerosene solvent from copper solvent extraction. As stated above, the Agency has determined that
slimes/muds, crud, and spent kerosene generated from copper solvent extraction and electrowinning are
uniquely associated wastes.
8.5.6 Crud from Electrowinning
Comment: Crud consists of fine leach ore suspended in the kerosene-based solvent extraction
solution. (COMM 1043)
Response: EPA acknowledges this information.
8.5.7 Fire Assay Wastes (Crucibles and Cupels)
Comment: Crucibles and cupels are used in the laboratory fire assay procedure to evaluate rock
samples and determine if they constitute ore or waste rock. However, it is not contact with the "in
process" ore that can make these materials hazardous, but the reagent (litharge, or lead oxide) that is an
intrinsic part of the analytical procedure and a necessary part of mineral extraction. (COMM1043)
Response: EPA has reassessed the status of cupels and crucibles and believes that they remain
non-uniquely associated wastes. Cupels and crucibles are also used in other industries (e.g., jewelry
companies test the precious metal contents of metal using cupels). These wastes are from an ancillary
operation, laboratory analysis, and are not generated due to the direct recovery of gold, and, therefore, do
not meet the Agency's uniquely associated criteria. In addition, EPA is not adopting the contact criterion
to determine whether a waste in uniquely associated. The Agency is retaining the qualitative approach to
determining if a waste is uniquely associated.
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Comment: A commenter stated that any determinations from EPA that crucibles and cupels
from gold heap leach operations are not uniquely associated materials, are unlawful, as well as totally
unrealistic. These materials are used in, and these wastes result from, Bevill operations in the gold sector
and are properly covered by the Bevill exclusion and EPA's long standing interpretation of the uniquely
associated principle. (COMM1048)
Response: EPA disagrees. Based on all available information regarding crucibles and cupels
from gold heap leach operations, EPA reassessed the status of cupels and crucibles and determined that
they remain non-uniquely associated wastes. As stated above, cupels and crucibles are also used in other
industries (e.g., jewelry companies test the precious metal contents of metal using cupels). These wastes
are from an ancillary operation, laboratory analysis, and are not generated due to the direct recovery of
gold, and, therefore, do not meet the Agency's uniquely associated criteria.
Comment: One commenter pointed out that in the gold industry, EPA identified fire assay
wastes as a low volume material that would be eliminated from Bevill coverage. To BHP's knowledge,
no fire assay wastes are disposed of in municipal or industrial waste landfills. Some facilities dispose of
them as hazardous waste, some send them for lead recycling, while others add them to their cyanidation
circuits to utilize the demonstrated property of lead to enhance gold recovery and limit the consumption
of cyanide. These management techniques do not pose any risk to human health or the environment, and
no purpose would be served by setting a high volume threshold for the Bevill exclusion. Moreover, EPA
can certainly not justify the need to set a volume criterion for extraction and beneficiation wastes based
on concerns with fire assay wastes while maintaining its current position that these materials are not
uniquely associated with extraction and beneficiation, and therefore not currently exempt from Subtitle
C.(COMM1043)
Response: Based on EPA's impact assessment and public comment, the Agency is not adopting
the high volume threshold criterion to determine whether a waste is uniquely associated in today's rule.
EPA is retaining the existing qualitative approach to determine if a waste is uniquely associated.
Comment: A commenter indicated that EPA has determined that fire assay cupels produced at
gold mines and other mines producing precious metals as co-products from the assaying of bore hole
samples, are extraction activities covered by the Bevill amendment and therefore, are exempt. EPA has
in the past attempted to classify these wastes as non-Bevill with no basis for its determination that these
cupels are not covered by the Bevill amendment and EPA's uniquely associated principle. This effort on
behalf of the EPA was ill-founded, as the cupels are covered by a statutory provision that cannot be
altered by regulatory fiat, and in addition, the information EPA used as an explanation for this decision
was clearly deficient. (COMM1048)
Response: EPA disagrees. See responses above.
8.5.8 Acid Wash Solution (Carbon Wash)
Comment: In most cases, acid wash solution is used to remove unwanted constituents such as
base metals from carbon that is loaded with product gold. (COMM1043)
Response: EPA acknowledges this information.
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Comment: A commenter stated that the contact approach would mandate treating the acid
washing waste from gold leaching operations as "uniquely associated." Acid washing wastes are Bevill
wastes because they are generated directly from a beneficiation operation. To the extent EPA attempts to
depart from its longstanding "uniquely associated" principle, it must offer a reasoned basis for doing so.
As PMP wrote in 1996: Both carbon regeneration wastes - carbon fines and acid washing wastes -are
conceptually no different from a barren solution of cyanide, which EPA recognizes as a beneficiation
waste. Any approach adopted by EPA must be internally consistent. (COMM1104)
Response: Based on public comment, EPA is not adopting the contact criterion to determine
whether a waste is uniquely associated in today's rule. The Agency is instead retaining the existing
qualitative approach. In addition, based on comments stating that acid wash solutions are generated
solely from processes used to concentrate gold values from cyanide leach solutions, the Agency
reassessed its earlier interpretation and determined that acid wash solutions from gold heap leaching are
uniquely associated wastes.
Comment: EPA's concern with carbon wash solution as a justification for limiting the Bevill
exclusion is misplaced. In every case that BHP is aware of, this solution is co-managed with large
volumes of mill tailings or "in process" leach solutions and cannot possibly be viewed as materially
increasing the risks posed by the gold production activities themselves, especially considering that any
acidity is neutralized by the mixing and that any metals present in the carbon wash solution originated in
the ore itself. (COMM1043)
Response: Based on comments stating that acid wash solutions are generated solely from
processes used to concentrate gold values from cyanide leach solutions, the Agency reassessed its earlier
interpretation and determined that acid wash solutions from gold heap leaching are uniquely associated
wastes. The Agency came to this conclusion in light of the non-ancillary nature of the process
generating these wastes, the extent to which the wastes originate and derive from this mineral recovery
process, and the fact that the process imparts some chemical characteristics to the waste.
8.5.9 Loaded Carbon
Comment: Loaded carbon is an intermediate product of gold leaching, not a Bevill excluded
waste. (COMM1043)
Response: Spent carbon is an extraction/beneficiation waste.
8.5.10 Raffinate
Comment: Because of the ambiguity of the Proposed Rule and EPA's inconsistent statements
regarding raffinate and other beneficiation materials, the potential impact of the Proposed Rule on
leaching operations could be even worse. EPA previously identified raffinate as being not "uniquely
associated" with beneficiation operations, and it has never retracted that conclusion in writing. If EPA
maintains that position and raffinate is considered an "alternative feedstock" under the Proposed Rule,
the impact will be enormous. If raffinate can no longer be reused during leaching operations, leaching
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operations most likely will cease because the costs of using virgin acid in the process and disposing of
the collected raffmate will be prohibitive. (COMM1085)
Response: In today's final rule, EPA has decided to not impose alternative feedstock
requirements.
8.5.11 Lime Kiln Dust
Comment: Lime kiln dust or "LKD" — a by-product of lime manufacturing ~ is used in
applications serving the environment, including stabilization of metals in wastes and waste
neutralization. LKD is currently classified by EPA as a "beneficiation waste," and should continue to be
exempt from EPA's hazardous waste regulations because it is a "low hazard," "high volume" waste. The
commenter noted, that if EPA were to use the high volume criterion of 45,000 tons per year that
currently applies only to mineral processing wastes the exclusion would be eliminated not only for the
enumerated mining wastes/activities EPA identified as causing environmental and natural resource
damage, but also for LKD. Lime producers would face tremendous costs as a result of its new
classification as a solid waste. (COMM1044)
Response: In today's rule, EPA is not changing its determination that lime kiln dust is a
beneficiation waste and covered under the Bevill exemption. In addition, based on EPA's impact
assessment and public comment, the Agency is not adopting the high volume threshold criterion to
determine whether a waste is uniquely associated. EPA is retaining the qualitative approach to determine
if a waste is uniquely associated.
8.5.12 Phosphogypsum
Comment: Several commenters stated that EPA should promote the beneficial use of
phosphogypsum, for example in road building. The commenters expressed concern about the effective
ban on use of phosphogypsum under Section 112 of the Clean Air Act. The commenters supported
lifting this ban. (COMM1038, COMM1031, COMM1037) One of the commenters suggested EPA
should devote its resources to approving safe uses of phosphogypsum, rather than revisiting the Bevill
determination. (COMM1038) Another commenter expressed concern that revisiting the Bevill
Amendment would result in more restrictive regulation of phosphogypsum use. (COMM1031)
Response: In today's final rule, the Agency is not making any changes to the existing Bevill
status of phosphogypsum.
8.5.13 Soda Ash
Comment: The commenter stated that the soda ash waste streams which have been excluded
from hazardous waste regulation can be and are appropriately handled as non-hazardous. These wastes
are generally high volume, low risk wastes that do not pose a significant threat to human health and the
environment. The commenter supports the current EPA approved Bevill exclusion from the definition of
hazardous waste. (COMM 1084)
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Response: In today's rule, EPA is retaining the qualitative approach to determine if a waste is
uniquely associated, as well as its definition of beneficiation. Accordingly, uniquely associated soda ash
production wastes continue to be Bevill-exempt.
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