24 ELR 10657 -- The Scope of the Bevill Exclusion for Mining Wastes

24 ELR 10657 | Environmental Law Reporter | copyright © 1994 | All rights reserved

The Scope of the Bevill Exclusion for Mining Wastes

Van E. Housman

Editors' Summary: In 1980, Congress adopted the Bevill Amendment, which amends RCRA to exempt temporarily from Subtitle C regulation solid waste from ore and mineral extraction, beneficiation, and processing. The Amendment directed EPA either to promulgate Subtitle C regulations for the waste or determine that the exemption should continue. This Article examines EPA's regulatory response to this directive and the major court cases that have addressed that response. It examines CERCLA liability for mining waste releases and EPA's regulation of hazardous waste mixtures containing Bevill waste. This Article concludes that EPA's scheme is essentially effective in determining which mining wastes merit Subtitle C regulation, and it proposes a checklist that regulators can use to determine whether waste is exempt from Subtitle C under that scheme.

Van E. Housman is a Chemical Engineer in the Mining Waste Section at the U.S. Environmental Protection Agency (EPA). The views expressed in this Article are solely those of the author and do not necessarily reflect the views of EPA.

[24 ELR 10657]

In 1980, Congress amended the Resource Conservation and Recovery Act1 to create a temporary exclusion from RCRA Subtitle C regulation for "solid waste from the extraction, beneficiation, and processing of ores and minerals."2 This amendment (the Bevill Amendment3 or Mining Waste Exclusion) directed the U.S. Environmental Protection Agency (EPA) to either promulgate Subtitle C regulations for such waste or find that such regulations are unwarranted and that the exclusion should continue.4 In response, EPA promulgated a complex set of rules defining the boundaries of the Bevill Amendment's exclusion.

This Article examines these rules and the major court cases that have addressed them. It focuses on the mining industry's current efforts to seek protection from EPA's regulations by mixing certain categories of mining wastes before disposal and on industry's challenge to Superfund's strict liability for the damages caused by mining waste. It concludes that the rules are essentially effective in differentiating between mining wastes that warrant Subtitle C regulation and those that do not. It suggests, however, that regulators should adopt a better approach for determining eligibility for the Bevill exclusion and that EPA should revisit the regulation of certain hazardous mining wastes that do not warrant the exclusion.

HISTORY OF THE BEVILL AMENDMENT

RCRA establishes a framework for the regulation of hazardous wastes under Subtitle C5 and nonhazardous waste under Subtitle D.6 When Congress amended RCRA in October 1980, it excluded from Subtitle C regulation "solid waste from the extraction, beneficiation, and processing of ores and minerals" pending completion of a study and a report to Congress required by § 8002(f) and (p).7 It also required EPA to either promulgate regulations under Subtitle C or find that such regulations are unwarranted and that the exclusion should continue.8

EPA modified its hazardous waste regulations to reflect this exclusion and issued a preliminary, and quite broad, interpretation of the exclusion's scope.9 In particular, it interpreted the exclusion as covering "solid waste from the exploration, mining, milling, smelting and refining of ores and minerals."10

In 1985, the U.S. District Court for the District of Columbia awarded summary judgment to the Environmental Defense Fund and two public interest groups that had sued EPA for failing to submit the required report to Congress and make the regulatory determination by the statutory deadline.11 The court imposed two schedules: One for completing the § 8002 studies of extraction and beneficiation wastes and submitting to Congress the report addressing these wastes,12 and one for proposing and promulgating a reinterpretation for mineral-processing wastes.13 In so doing, the court, in effect, split the wastes that might be eligible for exclusion from regulation into two groups: (1) mineral [24 ELR 10658] extraction and beneficiation wastes and (2) mineral-processing wastes.

In December 1985, EPA submitted a report to Congress on mining wastes.14 In that report, EPA found that some mining wastes exhibit hazardous characteristics, that the range of risk from mining waste is broad, and that waste-management practices have caused environmental damage.15

In July 1986, EPA published a regulatory determination based on information gathered in the 1985 report and on comments from interested parties.16 In its determination, EPA concluded that RCRA Subtitle C regulation of extraction and beneficiation wastes was unwarranted because mining wastes tend to be disposed of in arid climates, facilities and wastes are located in sparsely populated areas where human contact is minimal, and waste volumes are high.17 It also determined that it should develop a risk-based state-run mining waste program under RCRA Subtitle D.18 It concluded that a comprehensive mining program may require federal oversight and enforcement authority.19 The Environmental Defense Fund challenged this determination in Environmental Defense Fund v. U.S. Environmental Protection Agency (EDF I).20 But the D.C. Circuit upheld EPA's decision "… not to regulate extraction and beneficiation of mining wastes under [RCRA] Subtitle C."21

In keeping with its court-ordered directive to reinterpret the Mining Waste Exclusion for mineral-processing wastes,22 EPA proposed to narrow the scope of the exclusion for mineral-processing wastes to include only a few specific waste streams.23 It did not, however, specify the criteria that it used to identify these wastes or to distinguish them from other wastes that were not identified as eligible for the exclusion. In response to this proposal, many companies and industry organizations "nominated" wastes that they believed were eligible for the regulatory exemption. Faced with a court-ordered deadline and an inability at that time to articulate criteria that could be used to distinguish exempt from nonexempt wastes, EPA withdrew its proposal.24

In July 1988, the U.S. Court of Appeals for the D.C. Circuit held that EPA's withdrawal of its 1985 proposal was arbitrary and capricious, and it ordered EPA to reinterpret the scope of the exclusion for mineral-processing wastes.25 In that case, Environmental Defense Fund v. U.S. Environmental Protection Agency (EDF II), the court held that EPA's decision to leave six smelting wastes unregulated under Subtitle C was an overbroad interpretation of the Bevill Amendment and was contrary to previous court orders.26 In particular, the court ordered EPA to restrict the scope of the exclusion as it applied to mineral-processing wastes to include only "large volume, low hazard" wastes.27

In a series of rulemaking notices, EPA then proceeded to establish the boundaries of the Mining Waste Exclusion for mineral-processing wastes, to articulate the criteria used to define "mineral processing," and to evaluate whether individual wastes are large volume and low hazard and, thus, eligible for the Bevill Amendment exclusion.28 This process was completed with the publication of final rules in September 198929 and January 1990.30 These rules defined which mineral-processing wastes met the high-volume, low-hazard criteria. The vast majority of mineral-processing wastes did not meet both criteria.

EPA then prepared and submitted a detailed, comprehensive report to Congress addressing 20 special mineral-processing wastes that met the high-volume, low-hazard criteria.31 In addition to explicit consideration of the eight study factors listed in RCRA § 8002(p),32 EPA included in the report a proposed regulatory status for each of the 20 special wastes. Thus, the report served both as an information source and as a tentative indication of EPA's final determination.

Because of information gaps and the complexity of some of the issues raised in the report, EPA did not complete the regulatory determination within the six-month statutory deadline. As a result, the Environmental Defense Fund filed a new RCRA citizen suit, which was settled by consent decree.33 The consent decree required EPA to issue the regulatory determination no later than May 20, 1991.

EPA published its final regulatory determination in compliance with this deadline.34 The final rule permanently retains the Bevill exemption for 20 mineral-processing wastes. EPA determined that regulation under RCRA Subtitle C was inappropriate for these wastes because of the extremely high costs to the industry and the technical infeasibility of managing them under the prescriptive requirements of Subtitle C.35

As a result of these rules, all mineral-processing wastes that did not meet the high-volume, low-hazard criteria would be subject to Subtitle C control if they are listed or exhibit one or more of the hazardous waste characteristics.36 For purposes of the mineral-processing rules only, EPA set the solids high-volume criterion at 45,000 metric tons per [24 ELR 10659] year per waste stream per facility.37 It set the liquids high-volume criterion at one million metric tons per year per waste stream per facility,38 and it relaxed the standard for measuring hazardousness by using Test Method 1312, a less aggressive leaching procedure than the Toxicity Characteristic Leaching Procedure (TCLP).39

Wastes from the extraction and beneficiation of ores and minerals remain exempt from Subtitle C requirements, irrespective of their individual generation rates or chemical characteristics. Wastes from the processing of ores and minerals, however, are not exempt from Subtitle C unless they are one of the 20 specific wastes generated by 12 industrial sectors enumerated at 40 C.F.R. § 261.4(b)(7).

LOOKING FOR BRIGHT-LINE DISTINCTIONS

The Bevill Amendment exempts from Subtitle C regulation "solid waste from the extraction, beneficiation, and processing of ores and minerals." EPA has interpreted the terms "extraction," "beneficiation," and "mineral processing" as describing the sequence of events needed to produce a saleable mineral. The idea is that the concentration of the mineral commodity increases because impurities are removed as the operations progress from extraction through beneficiation to mineral processing. It is also believed that the initial stages of mining, i.e., extraction and beneficiation, produce relatively earthen-like large-volume and low-hazard wastes. The latter stages of mining involving mineral processing often require chemical and heat intensive operations that drastically change the nature of the mineral and produce relatively low-volume, high-hazard wastes. For purposes of regulatory classification, EPA drew a bright line between beneficiation and mineral processing.40 Wastes falling on the beneficiation side of the line retain the exemption, while wastes on the mineral-processing side, except for 20 "special wastes," fall within Subtitle C jurisdiction.

EPA left little room for doubt which mineral-processing wastes qualified for the exemption; these 20 special mineral-processing wastes were explicitly identified in the 1990 Mineral Processing Report to Congress.41 In this report, EPA identified the characteristics of the 20 mineral-processing wastes, the processes generating them, the locations of the facilities by name, and waste disposal practices for each.42 However, EPA did not use the same level of detail for beneficiation wastes. The criteria used to distinguish a beneficiation waste from other solid wastes are inherently broad and ambiguous.

The ambiguity of the term "beneficiation" stems from the fact that instead of identifying the waste by name EPA codified a list of beneficiation activities, which include "crushing, grinding, washing, dissolution, crystallization, filtration, sorting, sizing, drying, sintering, pelletizing, briquetting, calcining, roasting in preparation for leaching, gravity concentration, magnetic separation, electrostatic separation, flotation, ion exchange, solvent extraction, electrowinning, precipitation, amalgamation, and heap, dump, vat, tank, and in situ leaching."43 However, it is difficult to identify specific waste streams for many of the beneficiation "activities." For example, "crushing," "grinding," and "drying" are operations that do not generate any appreciable wastes, while "flotation," which is also on the beneficiation list, does generate a paradigmatically large-volume, low-hazard beneficiation waste called tailings.44 In addition, many beneficiation terms are used to describe activities common to a wide range of nonexempt industries45 and to describe mineral-processing operations that occur at the same location as the beneficiation operations.

How should a regulator go about classifying a waste as a beneficiation waste or distinguish between beneficiation and mineral processing? The high-volume, low-hazard criteria can be a trap for the unwary. The high-volume, low-hazard "special waste" concept was promising when EPA first proposed it in 1978.46 EPA struggled through its rulemakings to refine the concept until the EDF II court found that Congress intended to exempt "… only those wastes from processing ores or minerals that meet the 'special waste' criteria, that is, 'high volume, low hazard' wastes."47 The EDF II court explained congressional intent for mineral-processing waste but it did not explicitly address beneficiation wastes. It is not a far stretch of logic to conclude that beneficiation waste should also be "special waste" in terms of the high-volume, low-hazard criteria set forth in the mineral-processing rules. EPA refers to beneficiation wastes as "high in volume and earthen in character."48 Unfortunately, the high-volume, low-hazard criteria existed only briefly and only to satisfy the court's order to study a subset of mineral-processing wastes.49 It is important to note that EPA has not codified volume or hazard criteria for beneficiation wastes.

Therefore, beneficiation waste may include small-volume, high-hazard wastes. This is not surprising because some of the 20 special mineral-processing waste are not low hazard. In fact some of them, notably phosphoric acid process wastewater, are very hazardous and have caused significant environmental damages.50 EPA exempted these wastes due to the unmanageability and cost of Subtitle C controls, not because of the lack of evidence of environmental damage.51

There are approximately 1,200 active mines in the United [24 ELR 10660] States that generate beneficiation wastes.52 A portion of these also generates either exempt or nonexempt mineral-processing wastes. Beneficiation and mineral-processing operations are often closely linked, sometimes with only a vessel or a pipe separating the two. In order to apply Subtitle C regulations at a mine site, a regulator often has the burden of proving that the waste is not a beneficiation waste. One of the only ways to prove that a waste is not derived from the broad list of beneficiation activities in 40 C.F.R. § 261.4(b)(7) is to prove that the waste comes from mineral processing. This is a high standard to meet, especially because the regulator must rely on a matrix of preamble language found in the September 1, 1989 rule.53 Therefore, a regulator at a mine site finding a low-volume waste that would otherwise be hazardous under Subtitle C criteria is faced with the perplexing task of proving that the waste is not from a beneficiation activity.

Consequently, the question of whether an operation and the wastes that it generates are categorized as "beneficiation" or "mineral processing" is of critical importance in establishing what regulatory requirements may apply. To date, these questions have been resolved by state agencies, EPA regional offices, and EPA headquarters on a case-by-case basis. Many states have incorporated or referenced 40 C.F.R. § 261.4(b)(7) into state statutes and regulations and pursue enforcement actions under state law. Because a variety of regulators are independently interpreting the Bevill rules, the potential for inconsistent interpretations is significant.

A Systematic Approach for Determining the Scope of the Bevill Exclusion

Regulators and the regulated community have a difficult task in distinguishing between exempt and nonexempt wastes at mines and mineral-processing sites. The following systematic approach may be helpful and provide some consistency in making this distinction:54

1. Determine whether the material is considered a solid waste under RCRA.

2. Determine whether the facility is using a primary ore or mineral to produce a final or intermediate product and also whether 50 percent of the feedstocks are from secondary sources.

3. Establish whether the material and the operation that generates it are uniquely associated with mineral production.

4. Determine where in the sequence of operations beneficiation ends and mineral processing begins.

5. If the material is a mineral-processing waste, determine whether it is one of the 20 special wastes from mineral processing.

This analytical sequence will result in one of three outcomes: (i) the material is not a solid waste and therefore not subject to RCRA; (ii) the material is a solid waste but is exempt from RCRA Subtitle C because of the Mining Waste Exclusion; or (iii) the material is a solid waste that is not exempt from RCRA Subtitle C and is subject to regulation as a hazardous waste if it is listed as a hazardous waste or it exhibits any of the characteristics of hazardous waste.

Definition of Solid Waste

If the material is not a solid waste, the question of whether the exclusion applies is moot, because RCRA requirements will not apply to that material. EPA's regulations defining solid waste provide that materials are solid wastes, and subject to RCRA, if they are discarded or are managed as wastes, e.g., placed on the ground.55 Materials recycled in metal recovery operations or byproducts being reclaimed are not solid wastes.56 However, EPA states57 that it has the authority to regulate certain types of hazardous-waste recycling in light of the D.C. Circuit's decision in American Mining Congress v. U.S. Environmental Protection Agency.58 The question of whether a mineral substance is a solid waste is not easily resolved, and one should refer to EPA's solid waste interpretive letters.

Primary Ore or Mineral

The next question is whether primary mineral production is taking place. The exclusion does not apply to secondary production of mineral commodities; wastes from scrap recycling, metals recovery from flue dust, and similar activities have always been subject to Subtitle C regulation if these wastes exhibit hazardous characteristics or are listed hazardous wastes.59

Primary mineral production operations are defined as those using at least 50 percent ores, minerals, or beneficiated ores or minerals as the feedstock providing the mineral value. In addition, the exclusion does not extend to downstream chemical manufacturing, fabrication, or other activities that use a saleable commodity as the primary raw material, even if these activities occur at the same facility.60

Uniquely Associated Wastes

EPA has used the "uniquely associated" concept consistently as a factor in determining which wastes remain under the Bevill Amendment.61 Only wastes that are uniquely [24 ELR 10661] associated with primary mineral production operations are eligible for special waste status.62 Non-uniquely associated wastes are typically generated as a result of maintaining mining machinery or as a result of other facility activities. Many of these wastes are identical to wastes generated by nonmining or nonmineral processing industries and would be subject to Subtitle C requirements if they exhibit a hazardous characteristic or are listed as hazardous under Subtitle C.

Reports from the National Institute for Occupational Safety and Health (NIOSH) indicate that various chemicals are used in beneficiation operations.63 Some of these chemicals include solvents, reagents, surfactants, corrosion inhibitors, emulsifiers, acids, and bases. The mining industry and regulators often question whether wastes from the management of these chemicals constitute beneficiation operations regardless of their volumes or waste characteristics. EPA has very little information concerning the types of wastes generated from these chemicals or their disposal practices, e.g., "off-spec." products. Other nonuniquely associated wastes may include used oil, polychlorinated biphenyls, discarded commercial chemicals, cleaning solvents, filters, washings from filters, tank bottoms from the on-site storage of commercial chemicals, vessel cleanouts, empty drums, laboratory wastes, and general refuse and debris.

Spill residues of certain chemical products are solid wastes that are not uniquely associated with mining and are subject to Subtitle C requirements.64 These spills often require appropriate reporting action by the facility operator. If the spilled substance has a "Reportable Quantity" limit and that limit is exceeded, then the facility operator must report the incident to the appropriate regulatory authority.65 EPA established this requirement pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act66 (CERCLA), and it is not affected by the Bevill mining exclusion.

Revisiting the Fine Line Between Beneficiation and Mineral Processing

[] The Sequence Criteria. EPA has placed particular importance on the sequence of beneficiation and mineral processing. It has established sequence criteria where beneficiation is first performed on the ore or mineral and then, at a specific point in the operation, mineral processing begins.67 It is critical to determine at what point mineral processing first occurs because all operations following that initial processing operation will be considered processing. Any waste generated downstream from the initial mineral-processing step loses the exemption unless it is on the list of the special 20.68

[] The Basic Distinction Between Beneficiation and Mineral Processing. Beneficiation operations typically serve to separate and concentrate the mineral values from waste material, remove impurities, or prepare the ore for further refinement. Beneficiation activities generally do not change the mineral values themselves other than by reducing (e.g., crushing or grinding), or enlarging (e.g., pelletizing or briquetting) particle size to facilitate processing. Where heat or chemicals, such as acid, are applied in a beneficiation operation, it is generally to drive off impurities (e.g., water), dissolve mineral values in a solution as a means of separation (leaching), or retrieve dissolved values from a solution (e.g., crystallization or solvent extraction). A chemical change in the mineral value does not typically occur in beneficiation.

Processing operations, in contrast, generally follow beneficiation and serve to change the concentrated mineral into a more useful chemical form. This is often done by using heat or chemical reactions to change the chemical composition of the mineral. In contrast to beneficiation operations, processing activities often destroy the physical structure of the incoming ore or mineral feedstock such that the materials leaving the operation do not closely resemble those that entered the operation. Typically, beneficiation wastes are earthen in character, whereas mineral-processing wastes are derived from melting and chemical changes.

The Question of Active Management of Previously Disposed Wastes

EPA considers physical movement of historical accumulations of wastes that are not covered under the Bevill exclusion to be "active management."69 If such wastes have been listed or exhibit a characteristic of hazardous waste, then such active management may trigger Subtitle C requirements.70 EPA would view waste that is moved as "newly generated" waste. In addition, if an operator places nonexempt hazardous wastes into a unit containing Bevill wastes after the effective date (no later than July 1, 1992) of the rule reinterpreting the scope of the exclusion, then the entire unit may become subject to Subtitle C regulation.71

There is an inherent problem with EPA's active-management rules. If a "grandfathered" (Bevill-exempt) waste is leaching and causing an environmental problem, the mine operator runs the risk of generating a "new" nonexempt hazardous waste. The operator will be subject to costly Subtitle C treatment and disposal requirements if the operator moves, treats, or otherwise actively manages the [24 ELR 10662] waste itself or the resulting leachate or contaminated soil. The operator's other option is to leave it alone and run the risk of toxic tort, nuisance, or increased Superfund liability. The active management rules thus discourage a mine operator from reporting and remediating ongoing environmental releases from historic mineral-processing wastes.

The Toxicity Characteristic Remand

If a material is solid waste, is not covered by the Bevill exclusion, and exhibits any of the characteristics of hazardous waste (toxicity, ignitability, corrosivity, and reactivity), it is subject to Subtitle C requirements.72 In Edison Electric Institute v. U.S. Environmental Protection Agency73 (Edison), the D.C. Circuit remanded to EPA the toxicity characteristic (TC) test method for determining the hazardousness of mineral-processing wastes. (Ignitability, corrosivity, and reactivity were not affected.) The court reasoned that EPA had failed to show a rational relationship between the TC test and the mismanagement scenario for mineral-processing wastes.74 In its remand, the court did not require that the Agency demonstrate that mineral-processing wastes are typically or commonly disposed of in municipal solid waste landfills (MSWLs), but that the Agency at least provide some factual support that its mismanagement scenario is plausible.75

In Edison, the petitioners argued that mineral-processing wastes are not likely to be disposed of in MSWLs; that mineral-processing wastes are not subject to the same organic acidic environment that is present at an MSWL (the basis for the TC test); and that mineral-processing wastes are not subject to particle-size reduction, are not subject to wet/dry cycles, and are not located in densely populated areas.76 In essence, they argued that mineral-processing wastes are different from hazardous wastes that are disposed of in MSWLs and therefore should be treated differently.

A common misconception propagated by the Edison petitioners is that most mines and mineral-processing facilities are located in the sparsely populated arid West. While it is true that Nevada has the most active mines of any state (about 200), approximately one-fifth of the 1,200 active mine sites in the United States are located east of the Mississippi river. Mines are located in almost every state. More than one-half of the 1,200 mines are located in wet climates, and only about one-half are located in sparsely populated areas.77 South Carolina produces more gold than both Colorado and Wyoming; Minnesota has the nation's largest iron mines; Michigan has major copper mines; and Missouri has the nation's largest lead mines.78 Florida, which has very high rainfall, generates more mine waste, primarily from phosphate mines, than any other state.79 Also, over 400 mineral-processing sites, e.g., smelters, are located fairly evenly throughout the United States. Several new major hard-rock metal mining projects are located in high rainfall areas such as Alaska, Montana, Oregon, and Washington.80

The Rules Applicable to Bevill Mixtures

Under EPA's mixture rule, a Bevill-exempt waste may lose the protection of the Bevill exclusion if it is mixed with a characteristic or listed hazardous waste.81 The mixture of a characteristic hazardous waste and a Bevill mining waste is a hazardous waste if the resulting mixture exhibits one or more of the same characteristics as the hazardous waste component. However, the resultant mixture is exempt if it exhibits only the hazardous characteristics shown by the Bevill waste alone.82 Under EPA's rules, the act of mixing a hazardous waste with a Bevill-exempt waste or other solid waste may also require a Subtitle C permit if treatment of the hazardous waste occurs because of the mixing.83

In Shell Oil CO. v. U.S. Environmental Protection Agency,84 the D.C. Circuit vacated EPA's Subtitle C mixture rules, finding that EPA had failed to follow proper Administrative Procedure Act (APA) notice-and-comment procedures in issuing the rules.85 Because of the Shell Oil remand, in Solite Corp. v. U.S. Environmental Protection Agency,86 the D.C. Circuit remanded the Bevill mixture rules.87

At the suggestion of the D.C. Circuit in Shell Oil, EPA promulgated interim mixture and derived-from rules.88 The D.C. Circuit is currently considering a challenge to these rules by Mobil Oil Corporation.89 The Bevill issue in that case is whether EPA reasonably concluded that where a hazardous waste is mixed with an exempt Bevill mining waste, the hazardous component of the resultant mixture should remain subject to Subtitle C regulation.

The petitioners in Mobil argue that the resulting mixture of a Bevill waste and a nonexempt hazardous waste is a [24 ELR 10663] "larger volume" Bevill waste that is no more hazardous than the original Bevill waste.90 EPA argues that there is no indication that Congress intended to exclude such mixtures.91 If the petitioners in Mobil prevail on the Bevill mixture issue, then drawing the distinction between beneficiation and mineral processing would be unnecessary; a facility could intentionally mix 99 percent hazardous waste with 1 percent characteristic Bevill waste and avoid Subtitle C regulations.92

As a result of these challenges, the status of past civil and criminal enforcement actions taken to enforce these mixture rules is unclear. In United States v. Goodner Brothers Aircraft Inc.,93 the court overturned a criminal violation of the mixture rules.94 And in In re Hardin County,95 the Environmental Appeals Board ruled that EPA's hazardous waste mixture rule was void from its 1980 effective date, casting further doubt on the validity of the mixture rules.

The Superfund Safety Net

Because of the intrinsic hazard of many mining wastes, EPA relies primarily on the existing authorities of CERCLA to require removal and remediation at sites where mining wastes pose a hazard to human health or the environment. Without this Superfund safety net, persons suffering environmental damages from mine sites would have to rely on common-law remedies such as trespass, nuisance, and negligence.

The U.S. District Court for the Eastern District of California dealt this safety net a near fatal blow in United States v. Iron Mountain Mines, Inc.96 In Iron Mountain, the mining industry argued that the Bevill Amendment excluded mining wastes from CERCLA liability.97 The court held that "[t]he plain meaning of [CERCLA] § 101(14) suggests that only wastes not excluded by the Bevill Amendment or by some other exclusion may be regulated by CERCLA."98 The court further held that "even if mining wastes are covered by CERCLA, certain wastes are excluded from coverage by reference to the Bevill Amendment in § 101(14)(C)."99 The court specifically rejected the D.C. Circuit's position in Eagle-Picher Industries, Inc. v. U.S. Environmental Protection Agency100 that an excluded mining waste may be subject to CERCLA liability if its components otherwise qualify as a hazardous substance due to its toxicity or other characteristics.

In Louisiana-Pacific Corp. v. ASARCO, Inc.,101 an unrelated case addressing the same issue, the U.S. Court of Appeals for the Ninth Circuit implicitly overruled Iron Mountain with respect to CERCLA coverage of Bevill-exempt mining waste. The Ninth Circuit held that the Bevill exclusion only provides limited protection from CERCLA liability and that hazardous constituents released from mining wastes can be regulated under CERCLA.102 In its interpretation of the statute with respect to the Bevill waste at issue (copper slag), the court found that "[i]t is clear from the plain language and structure of [CERCLA § 101] that the specific exception for slag in subsection (C) applies only to that subsection and that slag is regulated by CERCLA to the extent that it falls under any other subsection of [§ 101(14)]."103

The practical effect of Louisiana-Pacific is that most mining activities are subject to Superfund liability, regardless of management practices or even whether the material is a waste or a product.104 In a very interesting play on the definition of solid waste, the Ninth Circuit held in Louisiana-Pacific that a mining material such as slag can simultaneously be a product for purposes of common-law product liability and a hazardous substance for purposes of CERCLA liability.105 As a result of Louisiana-Pacific, mine owners and operators are subject to Superfund liability just like most other industries.

Thus, the Superfund safety net for mining wastes remains intact. But Superfund is not the only safety net available for addressing mining waste. When Iron Mountain held that mining wastes were exempt from CERCLA, EPA issued an imminent hazard order to address the wastes under RCRA § 7003.106 However, these imminent hazard orders are rare, especially in the case of mining wastes.

Recommendations

The difficulties in interpreting the Bevill rules are a function of the complexities and variations of mining and mineral-processing operations, the fact that these operations use large amounts of chemical reagents (much more than was previously thought), and the difficulties in developing a "one size fits all" regulatory approach under tight court-ordered deadlines. In many respects, EPA's rulemaking function is a gap-filling extension of congressional intent. If Congress had the time and technical resources, it would write the rules itself instead of delegating that power to EPA. One of the criteria that a court may use when reviewing EPA's rules is whether Congress itself would have written rules the same way given the intent of the statute.107 But the U.S. Supreme Court's decision in Chevron U.S.A., Inc. [24 ELR 10664] v. Natural Resources Defense Council108 has given EPA wide latitude and great deference in interpreting congressional intent. In EDF II, the D.C. Circuit clearly interpreted congressional intent as limiting the exemption to only high-volume, low-hazard mineral processing wastes.109 EPA's rules have not been exceptionally consistent in adhering to this high-volume, low-hazard concept. For example, EPA granted phosphoric acid processing wastewater the exclusion despite its hazardousness. Low-volume, high-hazard beneficiation wastes also enjoy the exemption.

All too often EPA is put in a position of making a definitive interpretation that classifies a particular waste stream. Imperfect terminology and definitions give rise to difficulties in interpreting Bevill rules in real-world applications. In Solite, the D.C. Circuit expressed its lack of sympathy for EPA when it stated:

The regulatory world is replete with imperfect distinctions; the Agency's task is to apply them rationally in light of their imperfections. The Agency's choice between two less than perfect alternatives cannot be accepted by the court uncritically, merely because the Agency acknowledges that each category is indeed an imperfect fit for the activity in question. Rather, EPA must articulate a reasonable justification for its choice on the basis of some policy ground or other.110

The problem is that EPA's policy decisions must be reasonable and fall within the bounds of statutory intent as interpreted by the court.

The sequence criteria, i.e., all operations after the point at which mineral processing begins are considered mineral processing, is one area in which the Bevill rules need to be more flexible. A strict interpretation can be unforgiving and yield illogical results, especially in light of the fact that many mineral operations are highly integrated.111 A strict interpretation discourages recycling of valuable mineral commodities because of the risk of losing the exemption. EPA should not be concerned with the potential for "sham recycling," because many of these industry practices are based on economic recovery of metals and existed long before EPA's Bevill rules.112 Also, EPA should not be overly concerned with the issue of "toxics along for the ride," given the commercial product specifications of most metal commodities.113

EPA's policy that active management triggers Subtitle C regulation discourages cleanup or remediation of historically generated wastes that have lost the Bevill exemption. A waste left undisturbed is "grandfathered" under the Bevill rules, while a waste actively managed is considered "newly generated" and will likely lose the exemption. The problem is that there are situations where active management (such as moving or capping a waste pile) would provide a net environmental benefit. It is little wonder that mine operators are reluctant to actively manage a historic nonexempt mining waste and thereby increase their environmental liability and costs. EPA needs to examine the active-management issue to see whether there is room for more flexibility.

As to whether mineral-processing wastes are disposed of in MSWLs, it seems likely that EPA will be able to gather enough information to satisfy the Edison court remand. However, there may be some very legitimate reasons for EPA to consider alternate testing methods such as test method 1312 used in EPA's mineral-processing report to Congress. Lead is commonly found in mineral ores and is highly soluble in the more aggressive TC test. Most non-exempt mineral-processing waste generated from metal smelters would be characteristically hazardous for lead under the TC test. Most of these wastes are typically disposed of in unlined surface impoundments near the point of generation or in nearby tailings ponds. In most cases, application of Subtitle C controls to these waste-management units would be unmanageable and unwarranted.

Conclusion

Because of changing mining and mineral-processing technology, EPA will continue to face challenging Bevill-exclusion interpretations. There are several operating mining technologies that did not exist at the time of EPA's reports to Congress or the Bevill rulemakings. For example, Newmont Gold Corporation, the nation's largest gold producer, is producing gold using bio-leaching bacteria instead of cyanide.114 Should waste bacterial sludges be classified as exempt Bevill mining wastes? How should EPA go about making such an interpretation based on its existing rules? How should EPA interpret congressional intent for such an unanticipated type of waste?

The answers to these questions will be found in case-by-case applications and creative construction of the Bevill rules using congressional intent as a compass but relying on common sense in developing the map. To some extent, the Bevill rules themselves leave enough gaps so that they require a second prong Chevron-like interpretation.115 EPA should be able to rely on the existing Bevill rules to provide a determination that conforms to statutory intent. However, the process of providing far-reaching and controversial interpretations needs to be more open and interactive with the public and interested parties than past interpretations have been.

1. 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA §§ 1001-11012.

2. Id. § 6921(b)(3)(A)(ii), ELR STAT. RCRA § 3001(b)(3)(A)(ii).

3. Rep. Thomas Bevill (D-Ala.) introduced this amendment in the 1980 reauthorization of RCRA.

4. 42 U.S.C. §§ 6921(b)(3)(C), 6982(p), ELR STAT. RCRA §§ 3001(b)(3)(C), 8002(p).

5. Id. §§ 6921-6939e, ELR STAT. RCRA §§ 3001-3023.

6. Id. §§ 6941-6956, ELR STAT. RCRA §§ 4001-4010.

7. Id. § 6921(b)(3)(A)(ii), ELR STAT. RCRA § 3001(b)(3)(A)(ii).

8. Id. § 6921(b)(3)(C), ELR STAT. RCRA § 3001(b)(3)(C).

9. 45 Fed. Reg. 76618, 76619 (Nov. 19, 1980).

10. Id.

11. Concerned Citizens of Adamstown v. U.S. Environmental Protection Agency, No. 84-3041, slip op. (D.D.C. Aug. 21, 1985).

12. Id.

13. Id.

14. OFFICE OF SOLID WASTE, EPA, REPORT TO CONGRESS, WASTES FROM THE EXTRACTION AND BENEFICIATION OF METALLIC ORES, PHOSPHATE ROCK, ASBESTOS, OVERBURDEN FROM URANIUM MINING AND OIL SHALE, EPA No. 530-SW-85-033, NTIS No. PB-88-162631 (1985) [hereinafter 1985 EPA REPORT].

15. Id. § 6 (Conclusions and Recommendations).

16. 51 Fed. Reg. 24496 (July 3, 1986).

17. Id. at 24499.

18. Id. at 24501.

19. Id.

20. 852 F.2d 1309, 18 ELR 21178 (D.C. Cir. 1988).

21. Id.

22. Concerned Citizens of Adamstown v. U.S. Environmental Protection Agency, No. 84-3041, slip op. (D.D.C. Aug. 21, 1985).

23. 50 Fed. Reg. 40292 (Oct. 2, 1985).

24. 51 Fed. Reg. 36233 (Oct. 9, 1986).

25. Environmental Defense Fund v. U.S. Environmental Protection Agency, 852 F.2d 1316, 18 ELR 21169 (D.C. Cir. 1988), cert. denied, 109 S. Ct. 1120 (1989).

26. Id.

27. Id. at 1331, 18 ELR at 21177.

28. 53 Fed. Reg. 41288 (Oct. 20, 1988); 54 Fed. Reg. 15316 (Apr. 17, 1989).

29. See 54 Fed. Reg. 36592 (Sept. 1, 1989) (establishing the final criteria for mineral-processing wastes and reducing the number of Bevill-exempt mineral-processing wastes to 20).

30. 55 Fed. Reg. 2322 (Jan. 23, 1990).

31. OFFICE OF SOLID WASTE, EPA, REPORT TO CONGRESS ON SPECIAL WASTES FROM MINERAL PROCESSING (1990) [hereinafter 1990 EPA REPORT].

32. 42 U.S.C. § 6982(p), ELR STAT. RCRA § 8002(p).

33. Environmental Defense Fund v. U.S. Environmental Protection Agency, No. 91-0429 (D.D.C. complaint filed Mar. 4, 1991).

34. 56 Fed. Reg. 27300 (June 13, 1991).

35. Id.

36. See 40 C.F.R. §§ 261.20, .30 (1993).

37. 54 Fed. Reg. 36592, 36594 (Sept. 1, 1989).

38. Id.

39. Id.

40. Extraction is a term simply describing the removal of a mineral rock or material from the ground. For purposes of regulatory classification, this term has been functionally merged with beneficiation. The terms "extraction" and "beneficiation" are used together in the codification of the exclusion in 40 C.F.R. § 261.4(b)(7), while the term "beneficiation" is commonly used alone in discussions in 54 Fed. Reg. 36592 (Sept. 1, 1989).

41. 1990 EPA REPORT, supra note 31.

42. 1990 EPA REPORT, supra note 31.

43. 40 C.F.R. § 261.4(b)(7) (1993).

44. 1985 EPA REPORT, supra note 14.

45. For example, the Kirk-Othmer Encyclopedia of Chemical Technology (3d ed.) lists over 300 nonmining chemical and industrial processes that use the term solvent extraction, which is one of the beneficiation activities on EPA's list. Search of WESTLAW, Science & Technology library, KIRKOTHMER database (Aug. 11, 1994).

46. 43 Fed. Reg. 58946, 58992 (Dec. 18, 1978).

47. 852 F.2d at 1329, 18 ELR at 21176.

48. 54 Fed. Reg. 36592, 36619 (Sept. 1, 1989).

49. Id. at 36615.

50. 1990 EPA REPORT, supra note 31, ch. 12.

51. 56 Fed. Reg. 27300, 27315-16 (June 13, 1991).

52. RANDOL INT'L LTD., RANDOL MINING DIRECTORY 1993-1994, U.S. MINES AND MINING COMPANIES (1992) [hereinafter RANDOL MINING DIRECTORY 1993-1994].

53. The most appropriate EPA discussion on the difference between beneficiation and mineral processing is found at 54 Fed. Reg. 36592, 36618-19 (Sept. 1, 1989).

54. For a discussion of this approach and a detailed summary of the Bevill regulatory history, see OFFICE OF SOLID WASTE, EPA, THE SCOPE OF THE FEDERAL MINING AND MINERAL PROCESSING WASTE EXCLUSION (Apr. 1994) (draft) (on file with author).

55. See generally 40 C.F.R. §§ 261.1, .2 (1993).

56. 54 Fed. Reg. 36592, 36615 (Sept. 1, 1989).

57. Id.

58. American Mining Congress v. U.S. Environmental Protection Agency, 824 F.2d 1177, 17 ELR 21064 (D.C. Cir. 1987).

59. 54 Fed. Reg. 15316, 15324-25 (Apr. 17, 1989).

60. 54 Fed. Reg. 36592, 36619-20 (Sept. 1, 1989).

61. The Agency has written:

[W]ith respect to the mining and mineral processing wastes … this exclusion does not apply to solid wastes, such as spent solvents, pesticide wastes, and discarded commercial chemical products, that are not uniquely associated with these mining and allied processing operations.

45 Fed. Reg. 76618, 76619 (Nov. 19, 1980).

62. In connection with its September 1989 rulemaking, EPA wrote:

[T]he Agency finds no compelling reason to provide exemptions for particular small volume wastes that may be associated with mineral processing operations, such as cleaning wastes. Many other industrial operations also generate such wastes, and EPA does not believe that the fact that current management involving mixing justifies continued regulatory exclusion for wastes that are not uniquely associated with mineral processing (and therefore are not defined as mineral processing wastes) and would not, in any event meet the high volume criterion.

54 Fed. Reg. 36592, 36616 (Sept. 1, 1989).

63. OFFICE OF SOLID WASTE, EPA, TECHNICAL RESOURCE DOCUMENT, EXTRACTION AND BENEFICIATION OF ORES AND MINERALS, EPA No. 530-R-94-013, NTIS No. PB-94-170-305, vol. 2 (Gold), 1-39 (July 1994) (on file with author).

64. 40 C.F.R. § 261.33 (1993).

65. Reportable quantity substances, limits, and requirements are found at 40 C.F.R. § 302 (1993).

66. 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405.

67. 54 Fed. Reg. 36592, 36616 (Sept. 1, 1989).

68. For the specific list of 20 mineral processing wastes, see 40 C.F.R. § 261.4(b)(7) (1993).

69. 54 Fed. Reg. 36592 (Sept. 1, 1989).

70. Id.

71. Id.

72. Solid waste is also subject to Subtitle C requirements if it is "listed." See 40 C.F.R. §§ 261.20, 261.30 (1993).

73. 2 F.3d 438, 23 ELR 21173 (D.C. Cir. 1993).

74. The court wrote:

[T]he TC rule must at least bear some rational relationship to mineral wastes in order for the Agency to justify its application to those wastes. Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29, 43, 103 S. Ct. 2856, 2866, 77 L. Ed. 2d 443 (1983). We hold that EPA has failed to demonstrate any such relationship on the record, and we therefore remand to the Agency for further proceedings consistent with this opinion.

Id. at 443, 23 ELR at 21176.

75. It should be noted that land disposal restrictions would be unenforceable unless EPA has a basis for determining the hazardousness of these wastes. 54 Fed. Reg. 36592, 36624-25 (Sept. 1, 1989).

76. 2 F.3d at 443-44, 23 ELR at 21175-77.

77. RANDOL MINING DIRECTORY 1993-1994, supra note 52. This 1,200 figure does not include the 14,000 sand, gravel, clay, and stone mines in the United States.

78. Id.

79. WESTERN GOVERNORS' ASSOCIATION REPORT ON MINE WASTE GENERATION (1991).

80. RANDOL INT'L LTD., RANDOL MINING DIRECTORY 1993-1994, supra note 52.

81. 40 C.F.R. § 261.3(a)(2)(i) (1993).

82. 54 Fed. Reg. 36592, 36622, 36641 (Sept. 1, 1989).

83. See 40 C.F.R. § 260.10 (1993) (definition of treatment).

84. 950 F.2d 741, 22 ELR 20305 (D.C. Cir. 1991).

85. Id. at 752, 22 ELR at 20310.

86. 952 F.2d 473, 22 ELR 20377 (D.C. Cir. 1991).

87. Id. at 494, 22 ELR at 20387-88. In promulgating the mixture rule, EPA assumed the validity of 40 C.F.R. § 261.3(a)(2)(iv) (1992).

88. 57 Fed. Reg. 7628 (Feb. 18, 1992).

89. Mobil Oil Corp. v. U.S. Environmental Protection Agency, Nos. 92-1211 et al. (D.C. Cir. petitioners and intervenors' brief filed Oct. 12, 1993).

90. Brief of Petitioners and Intervenors at 55, Mobil Oil Corp., Nos. 92-1211 et al. (D.C. Cir. petitioners and intervenors' brief filed Oct. 12, 1993).

91. Brief of Respondents at 52, Mobil Oil Corp., Nos. 92-1211 et al. (D.C. Cir. respondents' brief filed Dec. 7, 1993).

92. Id.

93. 966 F.2d 380, 22 ELR 21201 (8th Cir. 1992).

94. Id.

95. No. RCRA-V-W-89-R-29, 1994 WL 157572 (E.D Pa. Apr. 12, 1994).

96. 812 F. Supp. 1528, 23 ELR 20651 (E.D. Cal. 1992), reaff'd, reconsideration granted, summary judgment denied, 812 F. Supp. 1554, 23 ELR 20661 (E.D. Cal. 1993).

97. Id.

98. Id. at 1540, 23 ELR at 20655.

99. Id.

100. 759 F.2d 922, 15 ELR 20460 (D.C. Cir. 1985).

101. 6 F.3d 1332 (9th Cir. 1993), amended 13 F.3d 1378 (9th Cir. 1994).

102. Id.

103. Id. at 1339.

104. Id.

105. Id. at 1340.

106. See Iron Mountain Cleanup Ordered Under RCRA After Court Decides Mining Wastes Exempt, 24 Env't Rep. (BNA) 184 (May 28, 1993).

107. "[I]f the agency 'does not reasonably accommodate the policies of a statute or reaches a decision that is "not one that Congress would have sanctioned," … a reviewing court must intervene to enforce the policy decisions made by Congress.'" Environmental Defense Fund v. U.S. Environmental Protection Agency, 852 F.2d 1316, 1326, 18 ELR 21169, 21174 (D.C. Cir. 1988) (citing Natural Resources Defense Council v. Herrington, 768 F.2d 1355, 1383 (D.C. Cir. 1985)).

108. 467 U.S. 837, 14 ELR 20507 (1984).

109. 852 F.2d at 1327, 18 ELR at 21175 ("the structure of the Bevill Amendment suggests that Congress intended to single out high-volume 'special wastes' for regulatory suspension when it excluded "solid waste from the extraction, beneficiation and processing of ores and minerals, including phosphate rock and overburden from the mining of uranium ore.").

110. 952 F.2d 473, 495, 22 ELR 20376, 20388 (D.C. Cir. 1991). The court was addressing EPA's attempt to distinguish between beneficiation and mineral processing at Dupont's chloride-illmenite operation.

111. In the production sequence nonexempt mineral-processing wastes generated after beneficiation ends are often returned as feedstocks to beneficiation operations.

112. See generally Memorandum from Van Housman, Chemical Engineer, Office of Solid Waste, EPA, and Jim O'Leary, Deputy Director of the Definition of Solid Waste Task Force, Office of Solid Waste, EPA, to Jim Berlow, Director of the Definition of Solid Waste Task Force, Office of Solid Waste, EPA and Matthew Straus, Director of the Waste Management Division, Office of Solid Waste, EPA, Trip Report -- Site Visit to Magma Copper and Cyprus Miami Copper Mines (June 7, 1994) (EPA RCRA Docket F-94-DSWP).

113. Id.

114. NEWMONT MINING CORPORATION, 1992 ANNUAL REPORT TO STOCKHOLDERS (1992).

115. 467 U.S. 837, 843, 14 ELR 20507, 20508-09 (1984). The second prong of the Chevron doctrine examines whether the statute is silent on the issue or congressional intent is ambiguous. If either of these is true, then "the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id.

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