EPA Analysis
of Decision in Barrick Goldstrike Mines, Inc. v. Whitman
On April 2, 2003, Judge Thomas P. Jackson of the District Court for the
District of Columbia issued a decision in Barrick Goldstrike Mines,
Inc. v. Whitman, (Civ. Action No. 99-958 (TPJ)), regarding the TRI
reporting obligations of mining facilities. The decision discussed four
issues, however, only two may affect your reporting obligations:
Issues Where Your Obligations Will Not Change:
Intra-Category Manufacture: The Court upheld EPA's interpretation
that the creation of one member of a toxic chemical category from another
member of the same toxic chemical category constitutes a reportable "manufacture"
of the toxic chemical category. This means that if during beneficiation
"naturally occurring" copper sulfide is transformed into copper
oxide, you must consider the amount of copper oxide created as manufactured
and apply this amount toward the manufacturing threshold for copper compounds.
In addition, if the copper oxide is further prepared for distribution
in commerce, you must also report the entire amount of copper oxide created
in the process stream (e.g., the leach pad) as processed.
Reporting on Toxic Chemicals in Tailings: The Court upheld EPA's
interpretation that because tailings are separated from the process stream
as a byproduct they are not eligible for the de minimis exemption.
Therefore, if a threshold is exceeded for a toxic chemical in tailings
(including a "naturally occurring" toxic chemical), all release
and other waste management activities for that chemical must be reported.
Issues Where Your Obligations May Change:
Reporting of Impurities: The Court's opinion is limited to the
reporting of "naturally occurring" impurities. Therefore, you
must continue to report the impurities that you have manufactured, e.g.,
via intra-category production (either intentionally or coincidentally)
as manufactured and as processed if they are prepared for distribution
in commerce. When reporting the amount of an impurity as processed, report
the entire amount of the impurity in the process stream (e.g.,
the leach pad), not merely the amount actually distributed.
In addition, if the toxic chemical impurities are "naturally occurring"
- those chemicals that are in exactly the same form as they were when
they were extracted from the ground - the facility may still have reporting
obligations. EPA defines beneficiation as a preparatory activity and the
plain language of EPCRA requires facilities to report on their preparatory
activities. Until EPA completes its upcoming rulemaking on certain preparatory
activities, individual mining facilities will remain responsible for determining
whether their preparation of toxic chemicals in ore is better characterized
as "manufacturing"or "processing." Finally, if a threshold
is exceeded and toxic chemical impurities are released (e.g., the
toxic chemicals in the leach pad when the leach pad is retired) or otherwise
managed as waste, they must be reported regardless of whether they are
manufactured or "naturally occurring" (assuming no exemptions
apply).
Reporting on Toxic Chemicals in Waste Rock: Although "naturally
occurring" toxic chemicals in waste rock are not exempt from TRI
reporting obligations, the Court determined that non-PBT chemicals present
in the waste rock below concentrations of 1% (or 0.1% for OSHA carcinogens)
are eligible for the de minimis exemption. Note, however, that
concentrations of certain toxic chemicals in waste rock may be above
de minimis levels for certain mining facilities. 62 Fed. Reg. 23834,
23858-59 (May 1, 1997).
If you would like to ask a facility-specific question about the impact
of the Court's order, please contact Larry Reisman (202.566.0751) or Marc
Edmonds (202.566.0758), both staff of the TRI Program.
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