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Federal Rules on the Regulation of Mineral Processing Wastes

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In keeping with Concerned Citizens of Adamstown v. EPA No. 84-3041, D.D.C., August 21, 1985, EPA proposed to narrow the scope of the Exclusion for mineral processing wastes to include only a few specific waste streams (see 50 FR 40292, October 2, 1985). However, the Agency did not specify the criteria that it used to identify these wastes, or to distinguish them from other wastes that were not identified as being eligible for the exclusion. In response to this proposal, many companies and industry organizations "nominated" wastes that they believed were eligible for the regulatory exemption. Faced with an inability at that time to articulate criteria that could be used to distinguish exempt from non-exempt wastes and the approaching Court-ordered deadline for final action, EPA withdrew its proposal on October 9, 1986 (51 FR 36233).

In July, 1988, the court in Environmental Defense Fund v. EPA, 852 F.2d 1316 (D. C. Cir. 1988), cert. denied, 109 S. Ct. 1120 (1989) held that EPA's withdrawal of its 1985 proposal was arbitrary and capricious, and ordered EPA to reinterpret the scope of the Exclusion for mineral processing wastes. In particular, EPA was directed by the court to restrict the scope of the Exclusion as it applied to mineral processing wastes to include only "large volume, low hazard" wastes. In a series of rulemakings, EPA has, over a three year period, established the boundaries of the Mining Waste Exclusion for mineral processing wastes, has articulated the criteria that were used to define "mineral processing," and has evaluated whether individual wastes are large volume and low hazard and, thus, eligible for the temporary exclusion provided by RCRA section 3001(b)(3)(A)(ii). This rulemaking process involved the publication of final rules on September 1, 1989 (54 FR 36592) and January 23, 1990 (55 FR 2322). With the completion of these rules, the Agency issued a Report To Congress on 20 mineral processing wastes. The final Bevill rulemaking was issued on June 13, 1991 (56 FR 27300) which codified the Bevill exclusion at 40 CFR 261.4(b)(7).

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