\	UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Vm/^L	WASHINGTON, D C 20460
9234 .0-4
PR O' X
AUG 19 1966
O r t i C i O *•"
S Oi J r> V\ A ?. T l AND [AHHGCNCV R E- SP C
MEMORANDUM
SUBJECT: Consideration of RCRA Requirements 1n Performing
CERCLA Responses at Mining Waste Sites	.
FROM:	Henry L. Longest II, Director 'l/lUX
Office of Emergency and Remedial Response ^L\ 0
TO:	Waste Management Division Directors	'
Regions I - X
As you know, on July 3, 1986, the Agency Issued a final
determination on whether mining waste would be regulated under
Subtitle C of RCRA (copy attached). This determination was
based on a report to Congress mandated by RCRA Section 3001(b)
(3)(C) and subsequent public comments. The determination 1s
that mining wastes will not be regulated under Subtitle C at
this time. This conclusion is based on the belief that several
aspects of EPA's current hazardous waste management standards
1f applied universally to mining sites, are likely to be environ-
mentally unnecessary, technically Infeasible, or economically
Impracti cal.
However, given the concern about actual and potential mining
waste problems, the Agency intends to develop a program for
regulating mining waste under Subtitle D. The current Subtitle D
program establishes criteria principally aimed at municipal and
Industrial solid waste which focus on standards related to surface
water discharges, groundwater contamination and endangered species.
Modifications to this program will focus on Identifying environ-
mental problems, setting priorities for applying controls at
sites with a high potential for risk, and employing a risk manage-
ment approach 1n the development of appropriate standards to
protect human health and the environment, as necessary, Including
closure options, tailored controls, pretreatment of wastes prior
to disposal, and cleanup options. Revisions to Subtitle D criteria
are expected to be proposed 1n mid-1988; however, EPA has reserved
the option to reexamine a modified Subtitle C in the future 1f
this approach is unworkable or insufficient.

-------
-2-
In the Interim, Superfund w111 continue to address mining
waste problems through the RI/FS and ROD/EDD processes taking
Into account current Subtitle D requirements as well as options
for addressing risks not addressed by Subtitle D requirements.
To address such remaining risks, you may wish to consider the
technical requirements of Subtitle C regulations during the
Initial review of remedial alternatives. If these requirements
seem to be technically 1nfeas1ble, they may be rejected early 1n
the screening process. If Subtitle C approaches appear to satisfy
the criteria found 1n Section 300.68 (g), Initial Screening of
Alternatives, of the NCP, they should be considered in the detailed
analysis. Other remedial alternatives should be evaluated in a
risk management analysis. In some cases, a combination of Subtitle
C and risk analysis approaches may be used to address a discrete
phase of response. All data generated during remedial planning,
Including the basis for selection of specific remedies, should
be forwarded to my office as 1t becomes available so that the
Information can be transmitted to OSW to assist that office 1n
its development of standards for mining wastes.
Attachment
cc: Harcia Williams, OSW
Gene Lucero, OWPE
Dan Berry, OGC

-------
Environmental Protection Agency
40 CFR Part 261
Regulatory Determination For Wastes From the Extraction and Beneficiation of
Ores and Minerals
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[FRL 3033-7]
Regulatory Determination for Wastes from the Extraction and Beneficiation of
Ores and Minerals
AGENCY: Environmental Protection Agency.
ACTION: Regulatory determination.
SUMMARY: This is the regulatory determination for solid waste from the
extraction and beneficiation of ores and minerals required by section
3001(b)(3)(C) of the Resource Conservation and Recovery Act (RCRA). This
section of RCRA requires the Administrator to determine whether to promulgate
regulations under Subtitle C of the Act for these wastes or determine that
such regulations are unwarranted; the Administrator must make this
determination no later than six months after completing a Report to Congress
on these wastes and after public hearings and the opportunity to comment on
the report. After completing these activities and reviewing the information
available, the Agency has determined that regulation of the wastes studied in
the Report to Congress, i.e., wastes from the extraction and beneficiation of
ores and minerals, under Subtitle C is not warranted at this time.
ADDRESS: The address for the Headquarters docket is: United States
Environmental Protection Agency, EPA RCRA docket (Sub-basement), 401 M
street, SW., Washington DC, 20460, (202) 475-9327. For further details on what
the EPA RCRA docket contains, see Section VII. of this preamble, titled "EPA
RCRA Docket" under "SUPPLEMENTARY INFORMATION.".
FOR FURTHER INFORMATION CONTACT: RCRA/Superfund Hotline at
(800) 424-9346 or (202) 382-3000 or Dan Derkics at (202) 382-2791.
1

-------
SUPPLEMENTARY INFORMATION:
Preamble Outline
I.	Summary of Decision
II.	Background
III.	Legal Authority
IV.	Report to Congress
V.	Application of Subtitle C to Mining Waste
VI.	Application of Subtitle D to Mining Waste
VII.	EPA RCRA Docket
Supplementary Information
I. Summary
Based on the Report to Congress, comments on the report, and other available
information, EPA has determined that regulation of mining waste under Subtitle
C of the Resource Conservation and Recovery Act (RCRA) is not warranted at
this time.
This conclusion is based on EPA's belief that several aspects of EPA's current
hazardous waste management standards are likely to be environmentally
unnecessary, technically infcasible, or economically impractical when applied
to mining waste. While under existing law EPA would have some flexiblity to
modify its standards for hazardous waste management as applied to these
wastes, there are substantial questions about whether the flexibility inherent
in the statute coupled with the Agency's current data on these wastes provide
a sufficient basis for EPA to develop a mining waste program under Subtitle C
that addresses the risks presented by mining waste while remaining sensitive
to the unique practical demands of mining operations. Given these
uncertainties, EPA does not intend to impose Subtitle C controls on mining
waste at this time.
The Agency, however, is concerned about certain actual and potential mining
waste problems, and therefore plans to develop a program for mining waste
under Subtitle D of RCRA. The long-term effectiveness of this program depends
on available State resources for designing and implementing a program tailored
to the needs of each State, and on EPA's ability to oversee and enforce the
program. As noted below in section VI, EPA will be working with the States to
determine the specific nature of their current mining waste activities and
2

-------
their future plans to administer such programs. The Administration will work
with Congress to develop expanded Subtitle D authority (i.e., Federal
oversight and enforcement) to support an effective State-implemented program
for mining waste. EPA has already made preliminary contacts with Congress and
intends to hold detailed discussions on the specifics of the Subtitle D
program in the coming year. In the interim, EPA will use RCRA section 7003 and
CERCLA sections 104 and 106 to protect against substantial threats and
imminent hazards. If EPA is unable to develop an effective mining waste
program under Subtitle D, the Agency may find it necessary to use Subtitle C
authority in the future.
II. Background
Section 8002(f) of the Resource Conservation and Recovery Act of 1976 directed
EPA to conduct:
A detailed and comprehensive study on the adverse effects of solid wastes from
active and abandoned surface and underground mines on the environment,
including, but not limited to, the effects of such wastes on humans, water,
air, health, welfare, and natural resources, and on the adequacy of means and
measures currently employed by the mining industry, Government agencies, and
others to dispose of and utilize such solid wastes to prevent or substantially
mitigate such adverse effects.
The study was to include an analysis of:
1.	The Sources and volume of discarded material generated per year from
mining;
2.	Present disposal practices;
3.	Potential danger to human health and the environment from surface runoff of
leachate and air pollution by dust;
4.	Alternatives to current disposal methods;
5.	The cost of those alternatives in terms of the impact on mine product
costs; and
6.	Potential for use of discarded material as a secondary source of the mine
product.
On May 19, 1980, EPA promulgated regulations under Subtitle C of RCRA which
covered, among other things, "solid waste from the extraction, beneficiation,
and processing of ores and minerals," i.e., mining waste. On October 21,
1980, just before these Subtitle C regulations became effective, Congress
enacted the Solid Waste Disposal Act of 1980 (Pub. L. 96-482) which added
3

-------
section 3001(b)(3)(A)(ii) to RCRA. This section prohibits EPA from regulating
"solid waste from the extraction, beneficiation, and processing of ores and
minerals, including phosphate rock and overburden from the mining of uranium
ore" as hazardous waste under Subtitle C of RCRA until at least six months
after the Agency completes and submits to Congress the studies required by
section 8002(f), and by section 8002(p) (which was also added to RCRA by the
1980 amendments).
Section 8002(p) required EPA to perform a comprehensive study on the disposal
and utilization of the waste excluded from regulation, i.e., solid waste from
the extraction, beneficiation, and processing of ores and minerals, including
phosphate rock and overburden from the mining of uranium ore. This new study,
to be conducted in conjunction with the section 8002(f) study, mandated an
analysis of:
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 these 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 1980 amendments also added section 3001(b)(3)(C), which requires the
Administrator to make a "regulatory determination" regarding (he waste
excluded from Subtitle C regulation. Specifically within six months after
submitting the Report to Congress, and after holding public hearings and
taking public comment on the report, the Administrator must "determine to
promulgate regulations" under Subtitle C of RCRA for mining waste or
"determine that such regulations are unwarranted."
EPA was required to complete the study and submit it to Congress by October
16, 1983. In 1984, the Concerned Citizens of Adamstown and the Environmental
Defense Fund sued EPA for failing to complete the section 8002 studies and the
regulatory determination by the statutory deadlines. The District Court for
the District of Columbia ordered EPA to complete the studies by December 31,
1985, and to publish the regulatory determination by June 30, 1986.
4

-------
EPA submitted its Report to Congress on mining waste on December 31, 1985. A
notice announcing the availabilityof the report, and the dates and locations
of public hearings, was published January 8, 1986 (51 FR 777). EPA held public
hearings on the report in Tucson, Arizona on March 6, 1986; Washington, DC on
March 11, 1986; and Denver, Colorado on March 13, 1986. The comment period
on the report closed March 31, 1986. This notice constitutes the Agency's
regulatory determination for the wastes covered by the Report to Congress,
i.e., wastes from the extraction and beneficiation of ores and minerals.
On October 2, 1986, EPA proposed to narrow the scope of the mining waste
exclusion in RCRA section 3001 (b)(3)(A)(ii), as it applies to processing
wastes (50 FR 40292). Under this proposal, wastes that would no longer be
covered by the mining waste exclusion would be subject to Subtitle C if they
are hazardous. These "reinterpreted" wastes where not studied in the mining waste
Report to Congress and therefore, arc not covered by this regulatory
determination.
III. Legal Authority
EPA has concluded that its decision whether to regulate mining waste under
Subtitle C should be based not just on whether mining waste is hazardous (as
currently defined by EPA regulations) but also should consider the other
factors that section 8002 required EPA to study. The basis of this conclusion
is the language of section 3001(b)(3)(A) which states that the regulatory
determination must be "based on information developed or accumulated pursuant
to [the section 8002 studies], public hearings, and comment. . . ." Clearly,
Congress envisioned that the determination would be based on all the factors
enumerated in sections 8002 (f) and (p). Congress already knew that some
mining waste was hazardous, since the RCRA Subtitle C regulations which were
promulgated on May 19, 1980 were to apply to hazardous (both characteristic
and listed) mining waste. Congress apparently believed, however, that EPA
should obtain and consider additional information, not just data on which
types of mining waste are hazardous, before imposing Subtitle C regulation on
these wastes. Accordingly, this regulatory determination is based on
consideration of the factors listed in sections 8002 (f) and (p).
In reviewing the factors to be studied which are listed in sections 8002 (f)
and (p), and the legislative history of these and other mining waste
provisions, EPA has concluded that Congress believed that certain factors are
particularly important to consider in making the Subtitle C regulatory
determination. First, Congress instructed EPA to study the potential dangers
to human health and the environment from mining waste, indicating that the
decision to regulate under Subtitle C must be based on a finding of such a
danger. Second, section 8002(p) required EPA to review the actions of other
Federal and State agencies which deal with mining waste "with a view toward
avoiding duplication of effort." From this provision, EPA concludes that
Congress believed Subtitle C regulation might not be necessary if other
5

-------
Federal or State programs control any risks associated with mining waste.
Third, Congress expected EPA to analyze fully the disposal practices of the
mining industry which, when read in conjunction with the legislative history
of this provision, indicates concern about the feasibility of Subtitle C
controls for mining waste. Finally, Congress instructed EPA to look at the
costs of various alternative methods for mining waste management, as well as
the impact of those alternatives on the use of natural resources. Therefore,
EPA must consider both the cost and impact of any Subtitle C regulations in
deciding whether they are warranted. Clearly, Congress believed that it was
important to maintain a viable mining industry. Therefore, any Subtitle C
regulations which would cause widespread closures in the industry would be
unwarranted.
IV. Report to Congress
EPA's Report to Congress provides information on sources and volumes of waste,
disposal and utilization practices, potential danger to human health and the
environment from mining practices, and evidence of damages. EPA received more
than 60 written comments on the report and heard testimony at the hearings
from more than 30 individuals. A complete summary of all the comments
presented at the hearings and submitted in writing is available (ICF, 1986a
see VII No. 6); (see "EPA RCRA Docket"). This section summarizes the
information contained in the Report to Congress, public comments received on
the report, and EPA's response to the comments.
A. Summary of Report to Congress
1.	Structure and Location of Mines
EPA focused on segments producing and concentrating metallic ores, phosphate
rock, and asbestos, totalling fewer than 500 active sites during 1985. These
sites, which are predominantly located in sparsely populated areas west of the
Mississippi River, vary widely in terms of size, product value, and volumes of
material handled. Several segments are concentrated primarily in one state:
The iron segment is mainly concentrated in Minnesota, lead in Missouri, copper
in Arizona, asbestos in California, and phosphate in Florida.
2.	Waste Quantities
The Report to Congress estimated that 1.3 and 2 billion metric tons per year
of nonfuel mining waste were generated in 1982 and 1980, respectively. The
accumulated waste volume since 1910 from nonfuel mining is estimated to be
approximately 50 billion metric tons. The large volume of annual and
accumulated nonfuel mining waste results from the high waste-to-product ratios
associated with mining. The fact that most of the material handled in mining
is waste and not marketable product distinguishes mining from many other
process industries where waste materials make up a relatively small portion of
the materials used to produce a final product. Consequently, some of the
6

-------
larger mining operations handle more material and generate more waste than
many entire industries.
3.	Waste Management Practices
The report indicated that site selection for mines, as well as associated
beneficiation and waste disposal facilities, is the single most important
factor affecting environmental quality in the mining industry. Most mine waste
is disposed of in piles, and most tailings in impoundments. Mine water is
often recycled through the mill and used for other purposes onsite. Off-site
utilization of mine waste and mill tailings is limited (i.e., 2 to 4 percent
of all mining waste generated). Some waste management measures (e.g., source
separation, treatment of acids or cyanides, and waste stabilization) now used
at some facilities within a narrow segment of the mining industry could be
more widely used. Other measures applied to hazardous waste in nonmining
industries may not be appropriate. For example, soil cover from surrounding
terrain may create additional reclamation problems in arid regions.
4.	Potential Hazard Characteristics
Of the 1.3 billion metric tons of nonfuel mining waste generated by extraction
and beneficiation in 1985, about 61 million metric tons (5 percent) exhibit
the characteristics of corrosivity and/or EP (Extraction Procedure) toxicity,
as defined by 40 CFR 261.22 and 261.24, respectively. Another 23 million
metric tons (2 percent) are contaminated with cyanide (greater than 10 mg/1).
Further, there are 182 million metric tons (14 percent) of copper leach dump
material and 95 million metric tons (7 percent) of copper mill tailings with
the potential for release of acidic and toxic liquid, i.e., acid formation.
There are 443 million metric tons (34 percent) of waste from the phosphate and
uranium segments with radioactivity content greater than 5 picocuries per
gram; a total of 93 million metric tons (7 percent) has radioactivity content
greater than 20 picocuries per gram. Finally, asbestos mines generated about 5
million metric tons (less than 1 percent) of waste with a chrysotile content
greater than 5 percent.
5.	Evidence of Damages
To determine what damage might be caused by mining waste, EPA conducted
ground-water monitoring and examined documented damage cases. During
short-term monitoring studies at eight sites, EPA detected seepage from
tailings impoundments, a copper leach dump, and a uranium mine water pond. The
EP toxic metals of concern, however, did not appear to have migrated during
the 6- to 9-month monitoring period. Other ground-water monitoring studies,
however, detected sulfates, cyanides, and other contaminants from mine runoff,
tailings pond seepage, and leaching operations. The actual human health and
environmental threat posed by any of these releases is largely dependent upon
site-specific factors, including a site's proximity to human populations or
7

-------
sensitive ecosystems. Sites well removed from population centers, drinking
water supplies, and surface waters are not likely to pose high risks.
Incidents of damage (e.g., contamination of drinking water aquifers,
degradation of aquatic ecosystems, fish kills, and related degradation of
environmental quality) have also been documented in the phosphate, gold,
silver, copper, lead, and uranium segments. As of September 1985, there were
39 extraction, beneficiation, and processing sites included or proposed for
inclusion on the National Priorities List under CERCLA (Superfund), including
five gold/siver, three copper, three asbestos, and two lead/zinc mines. The
asbestos Superfund sites differ from other sites in that these wastes pose a
hazard via airborne exposure.
6. Potential Costs of Regulation
The Report to Congress presented for five metal mining segments, total
annualized costs ranging from $7 million per year (for a scenario that
emphasizes primarily basic maintenance and monitoring for wastes that are
hazardous under the current RCRA criteria) to over $800 million per year (for
an unlikely scenario that approximates a full RCRA Subtitle C regulatory
approach, emphasizing cap and liner containment for all wastes considered
hazardous under the current criteria, plus cyanide and acid formation wastes).
About 60 percent of the total projected annualized cost at active facilities
can be attributed to the management of waste accumulated from past production.
Those segments with no hazardous waste (e.g., iron) would incur no costs.
Within a segment, incremental costs would vary greatly from facility to
facility, depending on current requirements of state laws, ore grade,
geography, past waste accumulation, percentage of waste which is hazardous,
and other factors.
B. Comments Received on the Report to Congress and EPA's Response
1. Potential Hazard Characteristics
EPA received several comments addressing the magnitude of the wastes generated
by the mining industry, and the amount that is hazardous. Many agreed with the
report's conclusion that there are substantial volumes of waste, but
questioned EPA's estimates of the amount of "hazardous" waste.
Many commenters noted that they believed the EP (Extraction Procedure) test is
inappropriate for mining waste because the municipal landfill mismangement
scenario on which the test is based is not relevant to mining waste. They
further noted that the corrosivity characteristic is not appropriate because
it does not address the buffering capacity of the environment at certain
mining sites. Finally, several commenters noted that leaching operations are
processes, rather than wastes and are thus outside the purview of RCRA.
8

-------
The Agency agrees that dump and heap leach piles are not wastes; rather they
are raw materials used in the production process. Similarly, the leach liquor
that is captured and processed to recover metal values is a product, and not a
waste. Only the leach liquor which escapes from the production process and
abandoned heap and dump leach piles are wastes. Since the report identified 50
million metric tons of heap and dump leach materials as RCRA corrosive wastes,
EPA has accordingly reduced its estimate of mining waste volumes which meet
the current definition of hazardous waste. The Agency currently estimates that
out of the 61 million metric tons per year of mining waste identified as
hazardous in the Report to Congress, only 11 million metric tons of mining
waste generated annually are hazardous because they exhibit EP toxicity, and
an unknown amount of escaped leach liquor is corrosive. EPA has also concluded
that potential problems from substantial quantities of mining waste which have
other properties, i.e., radioactivity, asbestos, cyanide, or acid generation
potential will not be identified by the current RCRA characteristics. EPA
therefore, believes that entirely different criteria may more appropriately
identify the mining wastes most likely to be of concern.
2. Evidence of Damages
EPA received many comments on whether the Report to Congress demonstrates
that mining waste pose a threat to human health and the environment. Many
commenters alleged that the report does not demonstrate conclusively that such
wastes do pose a threat. They claimed that EPA did not adequately consider the
site-specific nature of mining waste management problems. They pointed out
that the environmental settings of sites vary widely, as do management
practices, and that all these factors influence risk. Also, several commenters
noted that the report fails to distinguish between the threat from past
practices and the threat, if any, from current practices. Based on these
observations, many of these commenters urged EPA to postpone regulations
pending additional analysis. However, other commenters noted that they
believed there is sufficient evidence that mining waste poses a threat to
human health and the environment and asked for immediate regulatory action,
noting that the time for study was over.
The Agency agrees that adverse effects to the public and the environment from
the disposal of mining waste is not likely at sites well-removed from
population centers, drinking water supplies, surface water, or other
receptors. However, for other sites, analyses of contaminant plumes released
by leaching operations and releases of other contaminants (e.g., acids,
metals, dusts, radioactivity) demonstrate adverse effects. Moreover, the
Agency recognizes, as evidenced by the mining waste sites on the National
Priorities List, the potential for problems from mining sites. It is apparent
that some of the problems at Superfund or other abandoned sites are
attributable to waste disposal practices not currently used by the mining
industry. However, it is not clear from the analysis of damage cases and
Superfund sites, whether current waste management practices can prevent damage
from seepage or sudden releases. EPA is concerned that a large exposure
9

-------
potential exists at some sites generating mining waste, particularly the sites
that are close to population centers or in locations conducive to high
exposure and risk to human health and the environment.
3. Potential Costs of Regulation
EPA received a large number of comments pertaining to the cost of complying
with regulations for mining waste, and the effects these compliance costs
would have on the mining industry. Many commenters claimed that regulating the
mining industry would impose costs much greater than those EPA estimated in
its Report to Congress. They also noted that the mining industry was
depressed, and that for many mines, increased compliance costs would be
greater than the profits, leading to forced closures.
Many commenters also pointed out that there are current Federal and State
regulations which already apply to mining, which impose costs. They noted that
EPA needs to review the existing Federal and State regulatory structure before
adding to it, thereby imposing additional costs. Others did not agree,
commenting that existing Federal and State regulations are inadequate, and
that additional EPA regulation is necessary.
EPA is sensitive to the potential costs to the industry associated with mining
waste regulations under Subtitle C. The Agency is also cognizant that many EPA
programs already affect the mining industry such as the Clean Water Act which,
among other things, control surface water discharge via national Pollutant
Discharge Elimination system (NPDES) permits. Other Federal agencies,
including the Bureau of Land Management, the Forest Service, and the National
Park Service, also exercise oversight and impose regulatory controls (CRA,
1986b sec VII no. 3). The Federal waste disposal requirements generally call
for practices that will prevent unnecessary and undue degradation. Federal
reclamation guidelines are somewhat more detailed, requiring approval of a
land management operating plan and an environmental assessment. Also these
agencies generally require compliance with all applicable state and local laws
and ordinances.
A number of states have their own statutes and implementing regulations for
mining waste. Some states have comprehensive and well-integrated programs;
other States have newer, partially developed programs (CRA, 1986c see VII no.
4). Although there is great variation in programs, many states have siting and
permitting requirements, and require financial assurance, ground-water and
surface water protection, and closure standards. EPA agrees that any
requirements necessary to protect human health and the environment should
consider the existing Federal and State mining waste programs with a view
toward avoiding duplication of effort.
10

-------
C. Mining Waste Conclusions
Based on the available information and public comments, the Agency draws the
following conclusions about mining wastes. (BAI, 1986 see VII No. 1)
Source and Volume
-	The waste volume generated by mining and beneficiation is considerably
larger than the volume of waste generated by other industries currently
subject to hazardous waste controls. The mining industry alone generates over
one billion metric tons of waste per year compared to 260 million metric tons
generated annually by all other hazardous waste industries. The average mining
waste facility manages about three million metric tons of waste annually while
the typical facility subject to Subtitle C controls manages about 50 thousand
metric tons of waste per year.
-	In general, mining waste disposal facilities are considerably larger than
industrial hazardous waste disposal facilities; most of the largest industrial
hazardous waste land disposal facilities are (tens of acres) in size, while
typical mining waste disposal facilities are (hundreds of acres) in size.
Agency studies indicate that mining waste tailings impoundments average about
500 acres; the largest is over 5000 acres. Mining waste piles average 126
acres; the largest exceeds 500 acres. Hazardous waste impoundments, however,
average only about 6 acres and hazardous waste landfills average only about 10
acres. Consequently, EPA believes that many traditional hazardous waste
controls may be technically infeasible or economically impractical to
implement at mining waste sites because of their size.
Waste Management Practices
-	EPA estimates indicate that most hazardous waste generators (about 70
percent) ship all of their waste off-site, however, no mines ship all of their
waste off-site. In addition, nearly all mining waste is land disposed, while
less than half of all industrial hazardous waste is land disposed.
Evidence of Damage
-	In general, environmental conditions and exposure potential associated with
mining waste are different than those associated with industrial hazardous
waste streams. Agency studies suggest that mining waste streams generally have
lower exposure and risk potential for several reasons.
-	First, mining waste management facilities are generally in drier climates
than hazardous waste management facilities, thereby reducing the leaching
potential. Over 80 percent of the mining sites are located west of the
Mississippi River, which generally has drier climates, whereas industrial
hazardous waste landfills are more evenly distributed nationally. In addition,
the Agency estimates that more than sixty percent of all mines have annual net
11

-------
recharge between 0-2 inches, and only ten percent have net recharge greater
than ten inches. However, about 80 percent of the hazardous waste land
disposal facilities have net recharge greater than five inches, and over
one-third exceed 15 inches.
-	Second, EPA studies indicate that hazardous waste land disposal facilities
are closer to ground water than mining waste sites. Over 70 percent of
hazardous waste sites have a depth to ground water of 30 feet or less, while
about 70 percent of mining sites have ground water depths greater than 30
feet.
-	Third, Subtitle C facilities tend to be located in more densely populated
areas. EPA estimates that mining waste sites have average populations of less
than 200 within one mile of the site, while hazardous waste sites average over
2,000 people at the same distance. Within five miles of the mining waste
sites, the average population is almost 3,000, while hazardous waste sites
average nearly 60,000 people.
-	Fourth, Agency studies suggest that, compared to mining waste sites,
hazardous waste sites tend to be located closer to drinking water receptors
and serve larger populations. Almost 70 percent of the hazardous waste sites
are located within five miles of a drinking water receptor serving an average
population of over 18,000 and as many as 400,000 people. Almost half as many
mining sites are located within this same distance, and they serve
considerably smaller populations (averaging 3,000 but ranging as high as
20,000.)
-	Although the Agency believes that the human exposure and risk potential
appears to be lower for mining waste sites than for industrial hazardous waste
sites, many mines are located in sensitive environmental settings. EPA
estimates that about 50 percent of the mines are located in areas that have
resident populations of threatened or endangered species or species of other
special concern, (often the case for industrial sites). In addition, mining
sites are typically located in relatively remote and otherwise undisturbed
natural environments.
Cost and Economic Impacts
-	EPA believes that many traditional waste management controls designed
principally for industrial hazardous waste management facilities may be
economically impractical to implement at mining sites and could impose
substantial costs to the industry resulting in potential mine closures. Full
Subtitle C controls for mining sites could impose as much as $850 million per
year in compliance costs. Such costs could be greater than profits resulting
in mine closures.
12

-------
- Many Federal and State agencies already have regulatory programs for
managing mining waste. New hazardous waste controls for mining waste could be
difficult to integrate with existing Federal and State programs.
V. Application of Subtitle C to Mining Waste
EPA believes that it needs maximum flexibility to develop an appropriate
program for mining waste which addresses the technical feasibility, the
environmental necessity, and the economic practicality of mining waste
controls. The program should consist of a tailored risk-based approach which
addresses the diversity and unique characteristics of mining waste problems.
The current Subtitle C program is designed principally for controlling
problems created by industrial wastes. Based on information available, the
Agency believes that many controls required under the current Subtitle C
program, if applied universally to mining sites, would be either unnecessary
to protect human health and the environment, technically infeasible, or
economically impractical to implement. For instance, certain Subtitle C
requirements such as single and double liner system requirements which provide
liquid management, and closure and capping standards to minimize infiltration,
may be technically infeasible or economically impractical to implement for
mining wastes because of the quantity and nature of waste involved. In
addition, for many mining sites located in remote areas, such controls may be
necessary to protect human health and the environment. For example, liquid
releases to the ground water can be minimized and controlled using cutoff
walls or interceptor wells (i.e., controlled release) as well as through liner
systems, and alternate capping requirements designed to address site-specific
concerns such as direct human contact or wind erosion, are likely to be
feasible and practical, thus providing better long-term protection of human
health and the environment.
Section 3004(x) of RCRA does provide flexibility for regulating mining waste.
This section gives EPA the authority to modify certain Subtitle C requirements
for mining waste which were imposed by the Hazardous and Solid Waste
Amendments of 1984 (HSWA) which relate to liquids in landfills, prohibitions
on land disposal, minimum technological requirements, continuing releases at
permitted facilities, and retrofitting interim status surface impoundments
with liners. In modifying these requirements, EPA may consider site-specific
characteristics as well as the practical difficulties associated with
implementing such requirements. In addition, EPA has general authority under
RCRA section 3004(a) to modify remaining Subtitle C requirements, such as
administrative standards, financial requirements, and closure and capping
requirements, if a waste poses different risks or the existing standards are
technically infeasible. However, in modifying such requirements, section
3004(a) does not provide EPA the same degree of flexibility to consider the
economic impact of regulation that is found in section 3004(x).
13

-------
As described earlier in this notice, EPA believes that the decision whether to
regulate mining waste under Subtitle C must consider the factors listed in
RCRA sections 8002 (f) and (p), including the risks associated with mining
waste, the cost of such regulation, and the effect regulation might have on
the use of natural resources. EPA has concluded that in order to meet that
objective, it would want to develop a program that has maximum flexibility to
develop an effective control strategy for individual facilities based on
site-specific conditions. The existing Subtitle C regulatory program would
probably have to be changed substantially for mining waste to provide that
type of flexibility.
Given these general conclusions about what would be needed to make the
Subtitle C system appropriate for mining waste, there are substantial
uncertainties about whether that program is the right mechanism to address
mining waste. First, it is unclear whether the legal authorities under which
EPA would be acting (i.e., sections 3004(a) and 3004(x)) give EPA sufficient
flexibility to craft a program for "hazardous" mining waste given the
statutory and regulatory approach established for other hazardous wastes.
Second, and closely related, there are substantial questions about whether the
Agency's current data on mining waste management provide a basis for
substantial modifications to the existing Subtitle C regulatory program. With
the mining waste study and the supplementary information collection efforts
associated with today's notice, EPA has greatly expanded its understanding of
mining waste management practices. At the same time, additional data
collection and analysis would probably be necessary to support specific
modifications of multiple provisions in the existing hazardous waste
regulations before those regulations would provide the type of flexibility we
currently believe might be necessary. These uncertainties have led us to the
conclusion that Subtitle C does not provide an appropriate template for a
mining waste management program.
VI. Application of Subtitle D to Mining Waste
Solid waste that is not hazardous waste is subject to regulation under
Subtitle D. Therefore, mining waste, which is included in the RCRA definition
of solid waste, is currently covered by Subtitle D. EPA believes that it can
design and implement a program specific to mining waste under Subtitle D that
addresses the risks associated with such waste. The current Subtitle D program
establishes criteria which are, for the most part, environmental performance
standards that are used by States to identify unacceptable solid waste
disposal practices or facilities. (See 40 CFR Part 257.) These criteria
include, among other things, standards related to surface water discharges,
ground-water contamination, and endangered species. Because the program's
criteria are aimed principally at municipal and industrial solid waste, EPA
believes they do not now fully address mining waste concerns. In addition,
many of these criteria, such as control of disease vectors and bird hazards,
are not appropriate for mining waste.
14

-------
The Agency is currently revising these criteria for facilities that may
receive hazardous household waste and small quantity generator hazardous
waste; these revisions will not apply to mining waste which are generally not
codisposed with such wastes. However, the Agency intends to further augment
the Subtitle D program by developing appropriate standards and taking other
actions appropriate for mining waste problems. EPA will focus on identifying
environmental problems and setting priorities for applying controls at mining
sites with such potential problems as high acid-generation potential,
radioactivity, asbestos and cyanide wastes. EPA will also develop a
risk-management framework to develop appropriate standards as necessary to
protect human health and the environment. EPA will consider requirements such
as: (1) A range of closure options to accommodate variable problems such as
infiltration to ground water and exposure from fugitive dust; (2) options to
define tailored controls, including those established by the Clean Water Act,
to address problems from runoff to surface water; (3) options for liquid
management controls such as pretreatment of wastes prior to disposal,
controlled release, or liner systems; (4) ground-water monitoring options that
accommodate site-specific variability; and (5) a range of clean-up options.
In developing such a program, EPA will use its RCRA Section 3007 authority to
collect additional information on the nature of mining waste, mining waste
management practices, and mining waste exposure potential. EPA believes this
authority does not limit information collection to "hazardous" waste
identified under Subtitle C but also authorizes the collection of information
on any solid waste that the Agency reasonably believes may pose a hazard when
improperly managed. (EPA may also use this authority in preparing enforcement
actions.) Initially, EPA will use this information to develop a program under
Subtitle D. The information, however, may indicate the need to reconsider
Subtitle C for certain mining wastes.
In specifying the appropriate standards, EPA also will further analyze
existing Federal and State authorities and programs and determine future plans
for administering their mining waste programs. Additionally, EPA will perform
analyses of costs, impacts, and benefits and will comply fully with Executive
Orders 12291 and 12498, the Regulatory Flexibility Act, and the Paperwork
Reduction Act.
EPA is concerned that the lack of Federal oversight and enforcement authority
over mining waste controls under Subtitle D of RCRA and inadequate State
resources to develop and implement mining waste programs may jeopardize the
effectiveness of the program. The Administration therefore will work with
Congress to develop the necessary authority. In the interim, EPA will use
section 7003 of RCRA and sections 104 and 106 of CERCLA to seek relief in
those cases where wastes from mining sites pose substantial threats or
imminent hazards to human health and the environment. Mining waste problems
can also be addressed under RCRA Section 7002 which authorizes citizen
lawsuits for violations of Subtitle D requirements in 40 CFR Part 257.
15

-------
As EPA develops this program for regulating human health and environmental
risks associated with mining waste, the Agency may find that the Subtitle D
approach is unworkable, perhaps because there is insufficient authority to
implement an effective program (i.e., the Agency does not obtain oversight and
enforcement authority under Subtitle D), or that States lack adequate
resources to develop and implement the program. In such an event, EPA may find
it necessary to reexamine use of Subtitle C authority with modified mining
waste standards in the future.
EPA has already made preliminary contacts with Congress to discuss the best
approach for an effective mining waste program. The Agency intends to
immediately begin collecting additional technical, economic, and other
relevant information needed for program development, and to complete its data
analysis by late 1987. EPA hopes to propose revisions to the Subtitle D
criteria that are specific to mining waste by mid-1988.
VII. EPA RCRA Docket
The EPA RCRA docket is located at:
United States Environmental Protection Agency,
EPA RCRA Docket (Sub-basement),
401 M Street, SW.,
Washington, DC 20460.
The docket is open from 9:30 to 3:30 Monday through Friday, except for Federal
holidays. The public must make an appointment to review docket materials. Call
Mia Zmud at (202) 475-9327 or Kate Blow at (202) 382-4675 for appointments.
Copies of the following documents are available for viewing only in the EPA
docket room:
1.	Buc & Associates Inc., 1986. Location of Mines and Factors Affecting
Exposure.
2.	Charles River Associates, 1986a. Estimated Costs to the U.S. Uranium and
Phosphate Mining Industry for Management of Radioactive Solid Wastes.
3.	Charles River Associates, 1986b. Federal Non-EPA Regulations Addressing
Mining Waste Practices.
4.	Charles River Associates, 1986c. State Regulations of the U.S. Mining
Industry.
5.	Frontier Technical Associates, 1986a. Groundwater Monitoring Data on Ore
Mining and Milling Solid Waste Disposal.
6.	ICF, 1986a. Summary of Comments on the Report to Congress.
16

-------
7.	ICF, 1986b. Overview of Superfund Mine Sites.
8.	Meridian 1986. Statistical Analysis of Mining Waste Data.
9.	Versar, 1986a. Quantities of Cyanide-bearing and Acid-Generating Wastes.
10.	Versar, 1986b. Technical Studies Supporting the Mining Waste Regulatory
Determination.
The public may copy a maximum of 50 pages of material from any one regulatory
docket at no cost. Additional copies cost $.20/page.
Dated: June 30, 1986.
Lee M. Thomas,
Administrator.
[FR Doc. 86-15168 Filed 7-2-86; 8:45 am]
BILLING CODE 6560-50-M
17

-------