United States Office of Enforcement EPA 300-N-00-015 Environmental Protection and Compliance Agency Assurance (2248A) EEnforcementnforcement AAlert lert Volume 3, Number 10 Office of Regulatory Enforcement November 2000 Hazardous Waste Management Practices at Mineral Processing Facilities Under Scrutiny by U.S. EPA EPA Clarifies ‘Bevill Exclusion’ Wastes and Establishes Disposal Standards vidence gathered by the U.S. En­ waste regulated under the Resource potentially resulting in noncompliance; Evironmental Protection Agency Conservation and Recovery Act and (EPA) indicates that some mineral pro­ (RCRA). Recent cases involving haz­ cessing facilities may be failing to prop­ � At some facilities, these violations erly identify and manage hazardous ardous waste violations at mineral pro­ have resulted in the leaching of toxic cessing facilities. metals such as lead and arsenic to groundwater and drinking water, and the About release of phosphine to the atmosphere. Improper Waste Disposal Enforcement Alert Recently, violations at three different Poses Environmental mineral processing facilities have re­ Hazards “Enforcement Alert” is sulted in penalties totaling $23.5 million, Mineral processing wastes, if im­ published periodically by the and more than $200 million in additional Office of Regulatory properly disposed, can cause harm to cleanup costs. Enforcement to inform and human health and substantial environ­ educate the public and EPA is concerned that these viola­ mental damage. Environmental damage regulated community of tions are arising because some compa­ attributed to mineral processing opera­ important environmental enforcement issues, recent nies are incorrectly assuming that cer­ tions includes: tain wastes are exempt from RCRA trends and significant � Groundwater contamination enforcement actions. under the so-called “Bevill exclusion,” or are engaging in sham recycling ac­ (e.g., arsenic, cadmium, copper, lead, This information should help tivities. zinc) caused by the placement of min­ the regulated community eral processing waste waters in un­ anticipate and prevent EPA and States with authorized haz­ lined surface impoundments; violations of federal ardous waste programs periodically in­ environmental law that could spect mineral processing facilities to de­ � Soil contamination (e.g., ar­ otherwise lead to enforcement termine whether company waste man­ senic, lead) caused by flue dust piles; action. Reproduction and wide and dissemination of this agement practices are in compliance publication are encouraged. with RCRA. Owners and operators of � Surface water contamination mineral processing facilities may be (e.g., cadmium, zinc) caused by re- For information on obtaining subject to RCRA and applicable regula­ leases of some process wastewaters. additional copies of this tions found at 40 C.F.R. Parts 260-271. publication, contact the editor listed below. To help mineral processing facili­ ties comply with RCRA, EPA highlights RCRA Regulatory in this issue of Enforcement Alert: Requirements for Mineral Eric V. Schaeffer Director, Office of � RCRA regulatory requirements Processing Facilities Regulatory Enforcement applicable to mineral processing facili­ When Congress amended RCRA in October 1980, it temporarily excluded Editor: Virginia Bueno ties; (202) 564-8684 from regulation “solid waste from the [email protected] � The “Bevill Exclusion” and its extraction, beneficiation, and process- (Please Email all address and applicability; name changes or subscription requests for this newsletter.) � Waste management practices Continued on page 2

This publication is found on the Internet at http://www.epa.gov/oeca/ore/enfalert Enforcement Alert Continued from page 1 cessing are not unless they are spe­ rule establishes universal treatment stan­ cifically identified as exempt under 40 dards for metal-bearing wastes from ing of ores and minerals.” This exclu­ CFR 261.4(b)(7). mineral processing, and requires that all underlying hazardous constituents in sion is commonly referred to as the The rules established that all min­ these wastes be treated before land dis­ “Bevill exclusion” (see box below for eral processing wastes, (except the 20 posal. more on the Bevill exclusion). wastes listed at 40 CFR 261.4(b)(7)), Since the 1980 amendment, EPA has are subject to RCRA Subtitle C haz­ On April 21, 2000, the U.S. Court established regulatory boundaries for ardous waste regulation if they are of Appeals for the District of Columbia the mining waste exclusion; articulated “listed” (see definitions on page 3) or Circuit issued a decision that vacated the criteria used to define exhibit one or more of the hazardous that portion of EPA’s LDR Phase IV rule “beneficiation” and “mineral process­ waste characteristics. that dealt with the issue of when sec­ ondary materials recycled as feedstock ing”; and evaluated whether individual The 1989 and 1990 rules also ad- are solid wastes under RCRA. With re­ wastes streams are eligible for the Bevill dress wastes that are “uniquely asso­ spect to mineral processing, the Court exclusion (54 Federal Register 36592, ciated” with primary mineral process­ left in place the part of the Phase IV Sept. 1, 1989; 55 Federal Register 2322, ing operations. Uniquely associated rule reducing the scope of the 1985 Jan. 23,1990). For purposes of regula­ wastes are eligible for the mining waste definition of the solid waste rule; the tory classification, EPA drew a “bright exclusion. In contrast, “non-uniquely result is that mineral processing spent line” between beneficiation and mineral associated” wastes (e.g., wastes that materials being reclaimed by the indus­ processing in its Bevill rules. are generated as a result of maintain­ try sector are wastes if they are stored ing mining machinery or other facility Beneficiation involves separating on the land, and that listed sludges and activities) are not. Many of the non- and concentrating mineral value from by-products being reclaimed are wastes uniquely associated wastes are identi­ extracted ore through physical activi­ under all circumstances. In addition, the cal to wastes generated by non-min­ ties including, but not limited to, grind­ Court upheld the Agency’s use of the eral processing industries. ing or crushing. Mineral processing Toxicity Characteristic Leaching Pro­ involves the use of processes that cause In May 1998, EPA promulgated cedure (TCLP) to determine whether a significant physical/chemical change “Land Disposal Restrictions (LDR)— mineral processing wastes are hazard­ to the ore or minerals. For example, the Phase IV: Final Rule” (http:// ous. The Court also noted that the smelting of copper or lead is commonly www.epa.gov/fedrgstr/EPA-WASTE/ Agency may continue to use “specula­ recognized as a mineral processing ac­ 1998/May/Day-26/f989.htm). The rule tive accumulation” and “legitimacy” as tivity. While wastes from benefication applies to all mineral processing wastes factors in determining whether disposal are exempt from RCRA under the Bevill that are discarded, except for 20 spe­ exclusion, wastes from mineral pro­ cific mineral processing wastes. The Continued on page 3

The Bevill Exclusion he Bevill exclusion exempts from RCRA Subtitle C regulation solid waste from ore and mineral extrac­ Ttion, beneficiation, and 20 mineral processing wastes. The 20 exempt mineral processing wastes are: 1. Slag from primary copper processing; 2. Slag from primary lead processing; 3. Red and brown muds from bauxite refining; 4. Phosphogypsum from phosphoric acid production; 5. Slag from elemental phosphorus production; 6. Gasifier ash from coal gasification; 7. Process wastewater from coal gasifica­ tion; 8. Calcium sulfate wastewater treatment plant sludge from primary copper processing; 9. Slag tailings from primary copper processing; 10. Fluorogypsum from hydrofluoric acid production; 11. Process wastewater from hydrof­ luoric acid production; 12. Air pollution control dust/sludge from iron blast furnaces; 13. Iron blast furnace slag; 14. Treated residue from roasting/leaching of chrome ore; 15. Process wastewater from primary magnesium processing by the anhydrous process; 16. Process wastewater from phosphoric acid production; 17. Basic oxygen furnace and open hearth furnace air pollution control dust/sludge from carbon steel production; 18. Basic oxygen furnace and open hearth slag from carbon steel production; 19. Chloride process waste solids from titanium tetrachloride production; and 20. Slag from primary zinc processing.

NOVEMBER 2000 2 Enforcement Alert Continued from page 2 � Failure to perform waste is a non-exempt solid waste subject to identification: Are mineral processing RCRA regulation. The Agency believes has taken place (Association of Battery wastes being improperly characterized that ferric chloride waste acid is a haz­ Recyclers v. EPA, 208 F.3d 1047 (D.C. as non-hazardous wastes or ardous waste if disposed. Cir., 2000)). beneficiation wastes? � Improper storage of wastes: The Cost of Noncompliance Wastes Not Covered by the Are hazardous wastes being managed The following cases highlight how Bevill Exclusion in waste piles or unlined surface im­ noncompliance with hazardous waste To restate, the Bevill exclusion ap­ poundments? Are hazardous wastes Continued on page 4 plies to extraction, beneficiation, and 20 and Bevill-exempt wastes commingled? listed mineral processing wastes. The exclusion does not apply to: � Sham recycling operations: Are wastes being legitimately recycled? Regulatory � All other mineral processing Definitions wastes; � Improper management of non-uniquely associated wastes: Are Characteristic Waste: A char­ � Wastes from scrap recycling; non-uniquely associated wastes (such acteristic waste is one that exhib­ as spent solvents, lab wastes and used its any of four different properties: � Wastes from chemical manu­ oil) being improperly managed? ignitability, corrosivity, reactivity, facturing (54 Federal Register 36592, and toxicity (40 C.F.R. Section Sept. 1, 1989); and � Waste impoundments clas­ 261.20-24). sified as “process impoundments”: � Wastes such as spent solvents, Are storage impoundments being used Listed Waste: Listed wastes pesticide wastes, laboratory wastes, and as waste disposal units? are wastes that are considered haz­ vehicle maintenance wastes (non ardous under RCRA because they uniquely associated wastes). meet specific listing descriptions Agency Concerned About (40 C.F.R. Section 261.31-33). EPA Investigates Waste Impact of Copper Smelters, Sham Recycling: EPA has Titanium Tetrachloride established guidelines for what Management Practices constitutes legitimate recycling EPA estimates that approximately Operations and has described activities it con­ 500 facilities throughout the United Copper smelting generates a wide siders to be illegitimate or “sham States process more than 50 types of variety of exempt and non-exempt recycling.” Some considerations mined minerals including lead, copper, wastes. A recent EPA evaluation of the in making this determination in­ titanium, and phosphate rock. Of those waste management practices at primary clude whether the secondary ma­ 500 facilities: copper smelters indicates that hazard­ terial is effective for the claimed ous wastes may be commingled and use, whether the secondary mate- � More than 40 percent of min­ disposed with non-hazardous wastes, rial is used in excess of the eral processing sites are located within frequently resulting in environmental amount necessary, and whether or one mile of a residential area. damage. EPA is particularly concerned not the facility manages the sec­ ondary material as a valued com­ � Approximately 140 facilities with the handling and disposal of flue modity. generate 118 potentially hazardous dust, acid wastes and other metal-bear­ waste streams. ing wastes. Speculative Accumulation: A EPA has evaluated titanium tetra- material is “accumulated specula­ � Mineral processing facilities tively” (e.g., stored indefinitely in chloride acid wastestreams and is con­ generate 20 million metric tons of liq­ lieu of recycling) if it has no viable cerned about practices such as com­ uids (wastewaters, acids, solvents) and market or if the person accumulat­ mingling of exempt and non-exempt 1.3 million metric tons of solids (slags, ing the material cannot demon­ solid wastes in unlined surface im­ ash, sludge, and filtrate) annually. strate that at least 75 percent of poundments. For example, some of the material is recycled in a calen­ EPA has been investigating the fol­ these facilities produce a waste ferric dar year (40 C.F.R Section lowing types of mineral processing chloride acid. EPA has previously de­ 261.2(c)(4)). practices: termined that ferric chloride waste acid

NOVEMBER 2000 3 United States Environmental Protection Agency Office of Regulatory Enforcement (2248A) 1200 Pennsylvania Avenue, NW Washington, DC 20460

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Continued from page 3 hazardous wastes, applying process water (containing toxic levels of arsenic Useful Compliance and lead) on the ground for dust sup­ Assistance Resources requirements may cause significant en­ pression, and illegally disposing hazard­ vironmental contamination: ous wastes— including caustic slag, re­ Office of Enforcement and fractory brick, filter cake, and spent car- Compliance Assurance: � On Oct. 16, 1998, the FMC Cor­ http://www.epa.gov/oeca/ poration reached a settlement with the bon. Under the settlements, ASARCO government for RCRA violations. The will pay over $6 million in penalties and Office of Regulatory Enforcement: FMC facility in southeastern Idaho pro­ over $50 million to reduce releases of http://www.epa.gov/oeca/ore/ duces elemental phosphorous. The bulk lead, arsenic, and mercury to ground- RCRA Enforcement Division: of the wastes generated by this facility water and surface water; and to restore http://www.epa.gov/oeca/ore/red/ wetlands near the Montana smelter. has been managed in unlined surface Hazardous Waste Resource impoundments resulting in environmen­ � On April 15, 1999, Encycle, an Conservation and Recovery Act Subtitle C: tal contamination. The facility was cited, ASARCO subsidiary located in Corpus in part, for failing to identify hazardous http://www.epa.gov/epaoswer/osw/ Christi, Texas, agreed to a settlement hazwaste.htm#ldr wastes, for placing ignitable and reac­ to resolve allegations that the company tive hazardous waste in surface im­ failed to comply with hazardous waste Office of Solid Waste (Land poundments, and for treating hazard­ Disposal Restrictions, phase IV acceptance and exporting requirements, Treatment Standards Set for ous wastes without a permit. Under stored hazardous wastes on the ground, Toxicity Characteristic Metal the settlement, FMC will clean up con­ failed to conduct waste analysis and Wastes, Mineral Processing tamination, close the illegal surface im­ Wastes, and Contaminated Soil): meet recordkeeping requirements. Un­ http://www.epa.gov/epaoswer/ poundments, and construct a waste der the settlement, Encycle will pay hazwaste/ldr/ldrmetal/facts.htm treatment plant. FMC also will pay a $5.5 million in civil penalties and $2 mil- civil penalty of nearly $12 million and Toxic Release Inventory Website: lion in additional environmental projects http://www.epa.gov/tri/index.htm spend approximately $158 million to at its El Paso and Corpus Christi facili­ come into compliance with RCRA and ties. RCRA Online: the Clean Air Act. http://www.epa.gov/rcraonline/ For more information, contact Vir­ � On Jan. 23, 1998, ASARCO, Compliance Assistance Centers: ginia Garelick, Office of Regulatory http://www.epa.gov/oeca/mfcac.html Inc. reached an agreement with the gov­ Enforcement, RCRA Enforcement ernment to correct hazardous waste and Division, at (202) 564-2316; Email: Audit Policy Information: water violations at the company’s lead http://www.epa.gov/oeca/ore/ [email protected]; or Steve apolguid.html smelting facility in Montana and its cop- Hoffman, Office of Solid Waste, Mu­ per mine and ore processing facility in nicipal and Industrial Solid Waste Di­ Small Business Gateway: Arizona. The two settlements resolved vision, at (703) 308-8413; Email: http://www.epa.gov/smallbusiness/ violations including failure to identify [email protected].

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