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Qs & As Analyzing
the Decision in Barrick Goldstrike Mines, Inc. v. Whitman
Do I have to consider "naturally occurring" toxic chemicals
when reporting to TRI?
Yes. "Naturally occurring" toxic chemicals - those chemicals
that are in exactly the same form as they were when they were extracted
from the ground - are not exempt from the TRI reporting requirements.
Once a threshold is exceeded for a toxic chemical, all quantities
of the toxic chemical released (e.g., upon retirement of the leach
pad) or otherwise managed as a waste that are not subject to an exemption
are required to be reported, including quantities of the toxic chemical
that were "naturally occurring." This is true even if the quantities
of the toxic chemical that were released were not themselves manufactured,
processed, or otherwise used.
In addition, EPCRA's definitions of the term "manufacture"
and "process" require facilities to report their preparation
of listed toxic chemicals, including any quantities of listed toxic chemicals
that may be "naturally occurring." 42 U.S.C. §§ 11023(b)(1)(C)(i)&(ii).
EPA's regulations define beneficiation as "the preparation
of ores" (emphasis added), and EPA concluded in 1997 that extraction
and beneficiation are preparatory activities. 40 C.F.R. § 372.3.
Although EPA has not been able to allocate particular preparatory activities
as "manufacturing" or "processing" since the NMA
decision, it intends to initiate a rulemaking on certain preparatory activities.
Until EPA completes this rulemaking, individual mining facilities will
remain responsible for determining whether their preparation of toxic
chemicals in ore is better characterized as "manufacturing"or
"processing."
When beneficiating my ore, metal compounds change from one compound
to another (e.g. copper sulfide to copper oxide). Do I have to
consider that?
Yes. The Court's order reaffirmed EPA's position that the production
of a toxic chemical constitutes the manufacture of that toxic chemical,
regardless of what the new toxic chemical was produced from. For example,
if during autoclaving "naturally occurring" copper sulfide is
transformed into copper oxide, this is considered the production of copper
oxide and therefore production of copper compounds. This must be considered
as the manufacture of copper compounds.
Do I have to consider toxic chemical impurities when reporting?
Yes. Impurities are not exempt from the TRI reporting requirements.
First, if impurities are produced during the beneficiation process, they
must be reported as manufactured. Second, if those manufactured impurities
are then prepared for distribution in commerce, they must also be reported
as processing. 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. Third, if
the toxic chemical impurities are "naturally occurring," the
facility may still have reporting obligations. EPA's regulations define
beneficiation as "the preparation of ores," 40 C.F.R.
§ 372.3 (emphasis added), and EPA concluded in 1997 that extraction
and beneficiation are preparatory activities, while the plain language
of EPCRA requires facilities to report on their preparatory activities.
42 U.S.C. §§ 11023(b)(1)(C)(i)&(ii). Until EPA completes
its 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 or otherwise managed as waste, they must
be reported (assuming an exemption does not apply) regardless of whether
they are manufactured or "naturally occurring."
Do I have to consider chemicals in my waste rock when reporting to
TRI?
Yes. Toxic chemicals in waste rock are not exempt from the TRI
reporting requirements. However, when considering toxic chemicals in waste
rock, it is important to be aware of the following limitation. 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).
Do I have to consider tailings or other byproducts when reporting to
TRI?
Yes. Tailings and byproducts are not exempt from the TRI reporting
requirements. In addition, because tailings and other byproducts are separated
from the process stream, toxic chemicals in tailings and byproducts 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.
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