A Waste Is a Terrible Thing to Mind: Identification and Management of Hazardous Waste in the Industrial Minerals Industry Dean Miller Davis Graham & Stubbs LLP

Roadmap • Introduction to RCRA • Identification and Management of Solid Waste • Identification and Management of Hazardous Waste • Exemptions from Hazardous Waste Classification • The Bevill Exemption

Roadmap – What are Bevill wastes?

– Beneficiation vs. Mineral processing – How does the Bevill exemption apply to industrial minerals operations?

• How do you lose the Bevill exemption?

• How do you establish that your wastes are Bevill exempt?

• How do you maintain the Bevill exemption?

Mineral Processing Is On EPA’s Radar Screen • On December 10, 2003, EPA announced that its enforcement priorities for the next three years include increased enforcement against mineral processing facilities (68 FR 68893).

What’s at Stake?

• Managing waste as “solid waste” versus “hazardous waste” • Solid waste regulations much less stringent than hazardous waste regulations

Penalties • RCRA authorizes penalties of up to $27,500 per day for each violation • Plus economic benefit – i.e., amount saved through non-compliance

Resource Conservation and Recovery Act (RCRA) • RCRA Subtitle C regulates “hazardous waste” generators and transporters, and treatment, storage, and disposal (TSD) facilities • RCRA Subtitle D regulates management of “solid” waste • RCRA Subtitle I regulates underground storage tanks • “Cradle to Grave” regulation

Hazardous Waste Management Requirements • Identify and count waste • Obtain EPA ID number • Comply with accumulation and storage requirements (including requirements for training, contingency planning, and emergency arrangements) • Prepare waste for transportation • Track shipment and receipt of waste • Meet record-keeping and reporting requirements

Solid Waste Management • No open dumping • Disposal facilities must not threaten endangered species, surface water, ground water, or flood plains • Restrict public access • Restrict land spreading of certain wastes • Minimal Record-keeping requirements

Solid Waste Under RCRA • “Solid Waste” is “any discarded material” – Includes solids, liquids, gases • “Discarded Material” is any material that is abandoned, recycled, or considered inherently waste-like

Typical Solid Wastes • Garbage (e.g. egg shells, coffee grounds) • Refuse (e.g. metal scrap, sheet rock) • Sludges from waste-treatment plants • Hazardous waste that is excluded from regulation under Subtitle C (i.e., Bevill wastes)

Exemptions from Solid Waste Regulation • Twenty-one specific exclusions from regulation as solid waste, including: • Domestic sewage • Point source discharges regulated under Clean Water Act (NPDES) • Irrigation return flows • Materials subjected to

in situ

mining

Hazardous Wastes Under RCRA • “Hazardous Waste” is a subset of solid waste – All hazardous wastes are solid wastes – Not all solid wastes are hazardous wastes

Categories of Hazardous Wastes • Listed Wastes • Characteristic Wastes

Listed Wastes • Four different lists of specific industrial waste streams – F list (Wastes from non-specific sources) – K list (Known wastes from specific sources) – P & U lists (Hazardous pure or commercial grade formulations of specific unused chemicals)

Listing Criteria • Contains harmful chemicals that pose threat to human health or environment (toxic listed wastes) • Contains such dangerous chemicals that they pose a threat even when properly managed (acutely hazardous wastes)

Listing Criteria • Are ignitable, corrosive, reactive, toxic • Listed for other reasons

Characteristic Wastes • Ignitable; • Corrosive; • Reactive; or • Toxic

Ignitability • Wastes that can readily catch fire and sustain combustion – Paints, cleaners & other industrial wastes – Determined by flash-point test

Corrosivity • Acids and Alkaline (basic) wastes that can readily dissolve flesh, metal or other materials – pH Test • pH greater than or equal to 12.5 or less than or equal to 2 are corrosive

Reactivity • Waste that readily explodes or undergoes violent reactions – Discarded munitions or explosives – Can explode when exposed to water, heat or under normal handling conditions, or – Can create toxic fumes or gases when exposed to water or under common handling conditions

Toxicity • Wastes that have ability to leach dangerous concentrations of 39 known toxic chemicals into groundwater • Toxicity Characteristic Leaching Procedure (TCLP)

Categories of Hazardous Waste Generators

Conditionally Exempt Small Quantity Generators • Facilities that produce less than 100 kg of hazardous waste, or less than 1 kg of acutely hazardous waste per month • May accumulate less than 1,000 kg of hazardous waste or 1 kg of acutely hazardous waste • Must ID waste and ensure proper treatment and disposal • Less burdensome record-keeping requirements than small and large-quantity generators

Small Quantity Generators • Generate between 100 kg and 1,000 kg of hazardous waste per month (or less than 1 kg of acutely hazardous waste); and • Accumulate less than 6,000 kg of hazardous waste at any time

Large Quantity Generators • Generate more than 1,000 kg of hazardous waste per month, or • Generate more than 1 kg of acutely hazardous waste per month

Exemptions from Hazardous Waste Regulation • Eighteen different categories, including: – Household Waste – Mining overburden returned to the mine site – Oil & Gas exploration and production wastes – Solid waste from the extraction beneficiation, and processing of ores and minerals (i.e., “Bevill” wastes)

The Bevill Exemption • 1980 - Congress exempted from RCRA Subtitle C regulation “mining and mineral processing wastes generated by extraction, beneficiation, and processing activities” – Twenty specific mineral processing wastes exempted – All extraction and beneficiation wastes exempted

Uniquely Associated Wastes • Only wastes that are “uniquely associated” with extraction and beneficiation of ores and minerals (plus 20 listed processing wastes) are exempt • Wastes from ancillary operations not exempt • Non-uniquely associated wastes include used oil, PCBs, discarded commercial chemicals, cleaning solvents, filters, empty drums, lab wastes, and general refuse

How Can You Lose the Bevill Exemption?

• Engage in mineral processing operations – Acid digestion, chlorination, smelting • Mixing non-Bevill-exempt waste with Bevill-exempt waste (i.e., co-disposal)

Beneficiation vs. Processing

Beneficiation Operations

crushing, grinding, washing dissolution, crystallization, filtration, sorting, sizing

, drying, sintering, pelletizing, briquetting, calcining to remove water and/or carbon dioxide, roasting in preparation for leaching (except where the roasting/leaching sequence produces a final or intermediate product that does not undergo further beneficiation or processing),

gravity concentration

,

magnetic separation, electrostatic separation, flotation

, ion exchange, solvent extraction, electrowinning, precipitation, amalgamation, and heap, dump, vat, tank, and

in situ

leaching.

Beneficiation Operations • Beneficiation Operations – Generate high volume solid waste streams that are essentially earthen in character – After removal of valuable constituents, remaining material is physically and chemically similar to ore entering process • May be finer-grained

Beneficiation Operations • Separate and concentrate the mineral values from waste material, remove impurities, or prepare the ore for further refinement • No change in mineral values other than by reducing (e.g., crushing or grinding), or enlarging (e.g., pelletizing or briquetting) the particle size to facilitate processing • A chemical change in the mineral value typically does not occur • Use feedstocks that are less than 50% scrap materials

Processing Operations • Generally follow beneficiation and change the concentrated mineral value into a more useful chemical form • Commonly done by heat (e.g., smelting) or chemical reactions (e.g., acid digestion, chlorination) to change the chemical composition of the mineral

Processing Operations • Often destroy the physical and chemical structure of the incoming ore or mineral feedstock • Generate waste streams that bear little resemblance to original material • Most often destroys the physical structure of the ore – i.e., produce waste streams that are not earthen in character

Processing Operations • All operations downstream of processing operations are considered processing, regardless of whether they involve steps specifically identified as beneficiation operations – i.e., floatation or grinding following digestion are considered processing

Is your waste Bevill exempt?

• Determine whether the material is considered a “solid waste” under RCRA • Determine whether 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

Is your waste Bevill exempt?

• Establish whether the material and the operation that generates it are uniquely associated with mineral production • Determine where in the sequence of operations beneficiation ends and mineral processing begins (if it does) • If processing, is it one of the 20 specific exemptions?

How are industrial minerals operations treated?

Industrial Minerals Operations • November 3, 1986 EPA Determination – Ball Clay: shredding, drying, pulverizing, and air separation or slurrying – Pyrophyllite and talc: crushing, screening, and air or water classification • All of these processes covered by Bevill Exemption

Mixing of Wastes • The other way (besides engaging in mineral processing) to lose the Bevill exemption

The Mixture Rule • If any amount of a

listed

waste is mixed with any amount of non-hazardous waste, the resulting mixture is a listed hazardous waste • A mixture of a

characteristic

waste and a non hazardous waste is hazardous only if the mixture exhibits a characteristic, unless the characteristic imparted to the mixture is from an exempt waste (such as Bevill) – Mixture still subject to Land Disposal Restrictions (LDRs) unless it does not exhibit characteristic at point of generation

Mixtures of Wastes Listed for Hazardous Characteristic • A mixture of a non-hazardous waste and a waste

listed solely for exhibiting characteristics

of ignitability, corrosivity, and/or reactivity are hazardous only if the mixture exhibits a characteristic – Does not apply to waste

listed

for toxicity characteristic – Mixture still subject to Land Disposal Restrictions (LDRs) unless it does not exhibit characteristic at point of generation

Hazards of Mixing Wastes • Mixing a hazardous waste with Bevill exempt waste to render it non-hazardous meets the definition of treatment – Treatment requires RCRA permit • Mixing may be form of impermissible dilution

Derived-From Rule • Any material derived from a listed hazardous waste also is a listed hazardous waste – Most commonly applied to hazardous waste treatment (i.e., ash from burning listed waste carries the same listing) – Does not apply to characteristic wastes

Contained-In Policy • Applies to environmental media and debris contaminated with hazardous waste – Media include soil, sediments, and groundwater – Usually contaminated through spills, which result in media becoming hazardous waste • Can be handled as non-hazardous waste if handler can establish that media no longer pose sufficient health threat to deserve RCRA regulation • Must get determination prior to mixing with Bevill exempt waste

Land Disposal Restrictions (LDRs) • Disposal Prohibition – Requires that waste-specific treatment standards must be met before a waste can be land disposed – Ensures that wastes are properly treated and not simply diluted – Prevents indefinite storage of hazardous wastes instead of prompt treatment of wastes

How do you establish that your waste is Bevill-exempt?

Strategy • Try to resolve the issue on a site-specific factual (as opposed to legal) basis.

– Conduct a detailed analysis of your operations – Show that they involve either specific operations identified as beneficiation or that the waste stream from the process is similar to the original material that entered the process (i.e., it is earthen-like) • If possible, establish that waste from ancillary operations is not mixed with waste from primary operations

Tactics • Obtain all documents in EPA and State files that relate to the site and the issue – FOIA/Open Records Act requests may be necessary – EPA Guidance Documents • Obtain all other written determinations on the issue generated by EPA or the State, or at least those on which the agency is relying

How do you maintain the Bevill exemption?

• Consider the impact of any proposed process change on the Bevill-exempt status of your waste stream from the beginning • Do not mix ancillary wastes with Bevill exempt waste

Conclusion • Know the rules • Know how the rules apply to your processes

Dean Miller Davis Graham & Stubbs LLP 1550 17 th Street, Suite 500 Denver, CO 80202 303-892-7389 [email protected]

www.dgslaw.com