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Identification of Priority Classes of Facilities for Development of CERCLA Section 108(b) Financial Responsibility Requirements
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PDF Version (7 pp, 123K, About PDF) [Federal Register: July 28, 2009 (Volume 74, Number 143)] [Notices] [Page 37213-37219] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr28jy09-34] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-SFUND-2009-0265; FRL-8931-7] RIN 2050-AG56 Identification of Priority Classes of Facilities for Development of CERCLA Section 108(b) Financial Responsibility Requirements AGENCY: Environmental Protection Agency (EPA) ACTION: Priority notice of action. ----------------------------------------------------------------------- SUMMARY: Section 108(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, establishes certain regulatory authorities concerning financial responsibility requirements. Specifically, the statutory language addresses the promulgation of regulations that require classes of facilities to establish and maintain evidence of financial responsibility consistent with the degree and duration of risk associated with the production, transportation, treatment, storage, or disposal of hazardous substances. CERCLA Section 108(b) also requires EPA to publish a notice of the classes for which financial responsibility requirements will be first developed. To fulfill this requirement, EPA is by this notice identifying classes of facilities within the hardrock mining industry for which the Agency will first develop financial responsibility requirements under CERCLA Section 108(b). For purposes of this notice, hardrock mining facilities include those which extract, beneficiate or process metals (e.g., copper, gold, iron, lead, magnesium, molybdenum, silver, uranium, and zinc) and non-metallic, non-fuel minerals (e.g., asbestos, gypsum, phosphate rock, and sulfur). FOR FURTHER INFORMATION CONTACT: For more information on this notice, contact Ben Lesser, U.S. Environmental Protection Agency, Office of Resource Conservation and Recovery, Mail Code 5302P, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone (703) 308-0314; or (e-mail) Lesser.Ben@epa.gov; or Elaine Eby, U.S. Environmental Protection Agency, Office of Resource Conservation and Recovery, Mail Code 5304P,1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone (703) 603-844; or (e-mail) Eby.Elaine@epa.gov. SUPPLEMENTARY INFORMATION: A. How Can I Get Copies of This Document and Other Related Information? This Federal Register notice and supporting documentation are available in a docket EPA has established for this action under Docket ID No. EPA-HQ-SFUND-2009-0265. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information may not be publicly available, because for example, it may be Confidential Business Information (CBI) or other information, the disclosure of which is restricted by statute. Certain material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at the RCRA Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Avenue, NW., Washington, DC. The Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the Superfund Docket is (202) 566-0270. A reasonable fee may be charged for copying docket materials. B. Table of Contents I. Introduction II. EPA's Approach for Identifying Those Classes of Facilities for Which Requirements Will Be First Developed III. Identification of Classes of Facilities in Hardrock Mining IV. Hardrock Mining--Releases and Exposure to Hazardous Substances V. Hardrock Mining--Severity of Consequences Resulting From Releases and Exposure to Hazardous Substances VI. EPA's Consideration of Additional Classes of Facilities for Developing Financial Responsibility Requirements VII. Conclusion I. Introduction Section 108(b), 42 U.S.C. 9608 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, requires in specified circumstances that owners and operators of facilities establish evidence of financial responsibility. Specifically, it requires [[Page 37214]] the promulgation of regulations that require classes of facilities to establish and maintain evidence of financial responsibility consistent with the degree and duration of risk associated with the production, transportation, treatment, storage, or disposal of hazardous substances. The section also instructs that the President: \1\ --------------------------------------------------------------------------- \1\ Executive Order 12580 delegates this responsibility to the Administrator of the U.S. Environmental Protection Agency (``EPA'' or ``the Agency'') for non-transportation related facilities. 52 FR 2923, 3 CFR, 1987 Comp., p. 193. * * * identify those classes for which requirements will be first developed and publish notice of such identification in the Federal Register.\2\ --------------------------------------------------------------------------- \2\ 42 U.S.C. 9608 (b)(1). EPA is publishing this notice to fulfill its obligations under CERCLA Section 108(b) to identify those classes of facilities, owners, and operators (herein referred to as classes of facilities) for which financial responsibility requirements will first be developed. For the reasons that follow, the Agency has identified classes of facilities within the hard-rock mining industry as its priority for the development of financial responsibility requirements under CERCLA Section 108(b). For purposes of this notice only, hardrock mining is defined as the extraction, beneficiation or processing of metals (e.g., copper, gold, iron, lead, magnesium, molybdenum, silver, uranium, and zinc) and non-metallic, non-fuel minerals (e.g., asbestos, gypsum, phosphate rock, and sulfur).\3\ (See Section VI of this notice for a discussion of EPA's consideration of additional classes of facilities for developing financial responsibility requirements under Section 108(b) of CERCLA.) --------------------------------------------------------------------------- \3\ See memorandum to Jim Berlow, USEPA from Stephen Hoffman, USEPA and Shahid Mahmud, USEPA. Re: Mining Classes Not Included in Identified Classes of Hardrock Mining. June 2009. --------------------------------------------------------------------------- II. EPA's Approach for Identifying Those Classes of Facilities for Which Requirements Will Be First Developed In accordance with CERCLA Section 108(b) EPA worked to determine which classes of facilities it should identify as its priority. CERCLA Section 108(b) directs the President to ``identify those classes for which requirements will be first developed and publish notice of such identification [.]'' However, this simple sentence does not spell out a particular methodology by which the identification is to be made. While EPA views this statutory ambiguity as allowing substantial discretion in making the identification, EPA looked to the rest of CERCLA Section 108(b) to inform its exercise of this discretion. Examination of CERCLA Section 108(b) as a whole reveals repeated references to the concept of ``risk.'' The first sentence of paragraph (b)(1) refers to ``requirements * * * that classes of facilities establish and maintain evidence of financial responsibility consistent with the degree and duration of risk'' and the last sentence states that ``[p]riority in the development of such requirements shall be accorded to those classes of facilities * * * which the President determines present the highest level of risk of injury.'' Paragraph (b)(2) also states that ``[t]he level of financial responsibility shall be initially established, and, when necessary, adjusted to protect against the level of risk which the President in his discretion believes is appropriate * * * .'' Accordingly, EPA chose to look for indicators of risk and its related effects to inform its selection of classes for which it would first develop requirements under CERCLA Section 108(b). As a practical method of doing so, EPA reviewed information contained in a number of studies, reports, and analyses. This review pointed to numerous factors EPA should consider. For example, typical elements in evaluating risk to human health and the environment include: the probability of release, exposure, and toxicity.\4\ While some of the considerations reflect these basic elements of risk evaluation, others relate more closely to the severity of consequences that result when those risks are realized, such as the releases' duration if not prevented or quickly controlled as a result of economic factors and the exposures that can result. Therefore, EPA has chosen to evaluate the following factors: (1) Annual amounts of hazardous substances released to the environment; (2) the number of facilities in active operation and production; (3) the physical size of the operation; (4) the extent of environmental contamination; (5) the number of sites on the CERCLA site inventory (including both National Priority List (NPL) sites and non-NPL sites); (6) government expenditures; (7) projected clean-up expenditures; and (8) corporate structure and bankruptcy potential. --------------------------------------------------------------------------- \4\ ``Risk Assessment in the Federal Government: Managing the Process.'' National Research Council. National Academy Press, Washington, DC. 1983. --------------------------------------------------------------------------- Toxicity is reflected in the designation of substances as CERCLA hazardous substances. Current releases of hazardous substances, number of operating facilities, the physical size of an operation, the extent of environmental contamination, and the number of sites on the CERCLA site inventory (non-NPL sites and NPL sites) are factors that can relate to the probability of a release of a hazardous substance, as well as the potential for exposure. These are discussed in detail, in Section IV of this notice. Government expenditures, projected clean-up costs, and corporate structure and bankruptcy potential can relate to the severity of the consequences as a result of releases and exposure of hazardous substances. These are discussed in Section V of this notice. EPA's review of all these factors, as reflected in the information presented in this notice and included in the docket, makes it readily apparent that hardrock mining facilities present the type of risk that, in light of EPA's current assessment, justifies designating such facilities as those for which EPA will first develop financial responsibility requirements pursuant to CERCLA Section 108(b).\5\ --------------------------------------------------------------------------- \5\ Today's identification of hardrock mining is not itself a rule, and does not create any binding duties or obligations on any party. Additional research, outreach to stakeholders, proposed regulations, review of public comments, and finalization of those regulations are needed before hardrock mining facilities are subject to any financial assurance requirements. --------------------------------------------------------------------------- III. Identification of Classes of Facilities in Hardrock Mining For purposes of this notice, EPA has included the following classes of facilities under the general title of hardrock mining: facilities which extract, beneficiate or process metals (e.g. copper, gold, iron, lead, magnesium, molybdenum, silver, uranium, and zinc) and non- metallic, non-fuel minerals (e.g. asbestos, gypsum, phosphate rock, and sulfur).\6\ As explained below, hardrock mining facilities share common characteristics, and are thus being identified as a group. At the same time, those facilities included in the definition above differ such that ``hardrock mining facilities'' are properly considered to encompass multiple ``classes'' of facilities. The various classes in this notice's definition of hardrock mining are involved in two general activities: (1) The extraction of an ore or mineral from the earth; and (2) using various beneficiation activities and processing operations to produce a targeted material product, such as a metal ingot. The operations that comprise hardrock mining (i.e., extraction, beneficiation, and then processing) are all part of a sequential process of converting [[Page 37215]] material removed from the earth into marketable products, even though the intermediate and end products differ. Extraction, beneficiation or processing of ores and minerals can involve similar processes across types of mining, as discussed below. --------------------------------------------------------------------------- \6\ EPA notes that this notice does not affect the current Bevill status of extraction, beneficiation and processing wastes as codified in 40 CFR 261.4(b)(7). --------------------------------------------------------------------------- However, hardrock mining is also properly considered to encompass multiple ``classes'' that represent a range of activities and marketable products. Extraction differs from beneficiation and both differ from processing, and depending upon the product sought, different types of processes are used. Extraction, also called mining, is the removal of rock and other materials that contain the target ore and/or mineral. The physical processes used to accomplish this vary, but are nonetheless often shared across different types of mining. These physical processes include surface, underground, and in-situ solution mining. Overburden and waste rock are removed during surface and underground extraction processes in order to gain access to the ore. Overburden and waste rock are disposed of in dumps near the mine. The dumps may or may not be lined or covered. In-situ mining involves the recovery of the metal from the ore by circulating solutions through the ore in its undisturbed geologic state and recovering those solutions for processing. The principal environmental protection concern with in-situ mining is the control and containment of the leach solutions. Typically the next step after extraction, beneficiation involves separating and concentrating the target mineral from the ore. There are, however, many different ways in which beneficiation can occur. Beneficiation activities generally do not change the mineral values themselves other than by reducing (e.g. crushing or grinding) or enlarging (pelletizing or briquetting) particle size to facilitate processing, but can involve the introduction of water, other substances, and chemicals (including hazardous substances). A common beneficiation technique is flotation. Froth flotation involves adding forced air and chemicals to an ore slurry causing the target mineral surfaces to become hydrophobic and attach to air bubbles that carry the target minerals to the top of a floatation vessel. The surface froth containing the concentrated mineral is removed, and thus separated from the other waste minerals. The remaining waste minerals are called tailings. Leaching, another beneficiation technique, involves the addition of chemicals to ores or flotation concentrates in order to dissolute the target metal. For example, solvents, such as sulfuric acid are used to leach copper and sodium cyanide is used to leach gold. Following leaching, the leftover waste product is called spent ore (in heap leaching) or tailings (in other types of leaching). There are various other beneficiation techniques and intermediate processes that are used and not described here. However, flotation and leaching are the most common techniques used in the mining industry. Tailings from beneficiation are disposed in a variety of ways, most commonly in tailing ponds. Design of tailings ponds differ and may or may not include liners, seepage control, surface water diversions, and final covers. Regardless, many tailings ponds require long-term management of waste and the impoundment dam. Processing is the refining of ores or mineral concentrates after beneficiation to extract the target material. As with beneficiation, there are many different ways of processing the ores or mineral concentrates. For example, mineral processing operations can use pyrometallurgical techniques (the use of higher temperatures as in smelting), to produce a metal or high grade metallic mixture. Smelting generates a waste product called slag. Slag is initially placed directly on the ground to cool, and is often subsequently managed into a wide range of construction materials (e.g., road bed or foundation bedding). Both because of the ways that the facilities covered by this notice fit together, and because of the range of activities that they cover, EPA believes hardrock mining is properly identified as a group and considered to include multiple classes of facilities. IV. Hardrock Mining--Releases and Exposure to Hazardous Substances As discussed above, evaluations of risk typically include considerations of the probability of a release, including its potential scale and scope, the exposure potential and toxicity. EPA research indicates that the hardrock mining industry typically operates on a large scale, with releases to the environment and, in some situations, subsequent exposure of humans, organisms, and ecosystems to hazardous substances on a similarly large scale. Indeed, EPA estimates that the hardrock mining industry is responsible for polluting 3,400 miles of streams and 440,000 acres of land.\7\ The U.S. Forest Service (USFS) estimates that approximately 10,000 miles of rivers and streams may have been contaminated by acid mine drainage from the metal mining industry.\8\ --------------------------------------------------------------------------- \7\ U.S. EPA. 2004. ``Cleaning Up the Nation's Waste Sites: Markets and Technology Trends.'' EPA 542-R-04-015. Accessed at: http://www.epa.gov/tio/pubisd.htm. \8\ U.S. EPA 2004. ``Nationwide Identification of Hardrock Mining Sites.'' Office of Inspector General. Report No. 2004-P- 00005. Accessed at: http://epa.gov/oig/reports/2004/20040331-2004-p- 00005.pdf. --------------------------------------------------------------------------- The Agency examined its 2007 Toxic Release Inventory (TRI), and this data revealed that the metal mining industry \9\ (e.g., gold ore mining, lead ore and zinc ore mining, and copper ore and nickel ore mining) releases enormous quantities of toxic chemicals, at nearly 1.15 billion pounds or approximately 28 percent of the total releases by U.S. industry that is required to report under the TRI program.\10\ \11\ This overall percentage has remained relatively stable since 2003, ranging from 25 percent (1.07 billion pounds) of total releases in 2004 to 29 percent (1.26 billion pounds) of total releases in 2006. In 2007, the majority of releases of hazardous substances from the metal mining industry were to the land, with additional releases to both the air and surface waters. Additional releases of hazardous substances were reported to TRI from metal processing facilities (e.g., primary smelting of copper) with significant releases to the air and land. --------------------------------------------------------------------------- \9\ Metal mining industry is defined as NAICS Code 2122 (Metal Mining). \10\ U.S. EPA 2009. Toxic Release Inventory, 2007 Updated Data Releases, as of March 19, 2009. \11\ TRI estimates include all on-site and off-site releases to the land, air and surface water, including those disposed of in RCRA Subtitle C hazardous waste land disposal units and Safe Drinking Water Act (SDWA) permitted underground injection (UIC) wells. However, less than one percent of hazardous substances are managed in this manner. Thus, the data demonstrates the enormous volume of hazardous chemical releases reported to TRI by the metal mining industry and is an indication of the high volume of hazardous substances it manages, and the industry's potential for posing health and environmental risk. --------------------------------------------------------------------------- The potential for releases of and exposure to hazardous substances is also reflected in the number of active facilities operating in the U.S. While estimates of the number of active mining facilities vary, in 2004, EPA estimated that there were 1,000 metal and non-metal mineral mines and processing facilities in the U.S. Furthermore, many mining facilities have been in operation for decades and can exceed thousands of acres in size.\12\ Since large mines may be operated for decades, this can extend the time frame for potential releases and exposure of hazardous substances. At individual facilities, hardrock mining operations [[Page 37216]] may disturb thousands of acres of land and impact watersheds including, to varying degrees, effects on groundwater, surface water, aquatic biota, aquatic and terrestrial vegetation, wetlands, wildlife, soils, air, cultural resources, and humans that use these resources recreationally or for subsistence.\13\ --------------------------------------------------------------------------- \12\ National Research Council. 2005. Superfund and Mining Megasites: Lessons from the Coeur d'Alene River Basin. The National Academies Press, Washington, DC. Accessed at: http://www.nap.edu/ catalog.php?record_id=11359.\13\ National Research Council. 1999. Hardrock Mining on Federal Lands. National Academies Press. Washington, DC. --------------------------------------------------------------------------- Hardrock mining facilities also generate an enormous volume of waste, which may increase the risk of releases of hazardous substances. Annually, hardrock mining facilities generate between one to two billion tons of mine waste.\14\ This waste can take a variety of forms, including mine water, waste rock, overburden, tailings, slag, and flue dust and can contain significant quantities of hazardous substances. The 2007 TRI data demonstrate that hardrock mining facilities reported large releases of many hazardous substances, including ammonia, benzene, chlorine, hydrogen cyanide, hydrogen fluoride, toluene, and xylene, as well as heavy metals and their compounds (e.g., antimony, arsenic, cadmium, chromium, cobalt, copper, lead, manganese, mercury, nickel, selenium, vanadium and zinc).\15\ Similarly, the National Research Council (NRC) has indicated that hazardous substances of particular concern include heavy metals, ammonia, nitrates, and nitrites.\16\ --------------------------------------------------------------------------- \14\ U.S. EPA 2004. ``Cleaning Up the Nation's Waste Sites: Markets and Technology Trends.'' EPA 542-R-04-015. Accessed at: http://www.epa.gov/tio/pubisd.htm. \15\ See Memorandum to the Record: Toxic Release Inventory (TRI) Releases from Hardrock Mining Operations. June 2009. \16\ National Research Council. 1999. Hardrock Mining on Federal Lands. National Academies Press. Washington, DC. Also, EPA conducted a preliminary review of the Records of Decisions (RODs) for a selected group mining NPL sites. These substances were found to be common contaminants at these sites. Accessed at http://books.nap.edu/catalog.php?record_id=9682.