Newsflash from the Vice-Chair: Federal Court Rejects EPA Reporting Requirement for Metal Mining Waste Rock

Kirsten L. Nathanson
Mining Committee Newsletter Vice-Chair
Crowell & Moring LLP
Washington, D.C.

While the message from our chair is true, that federal and state regulation of mining is more pervasive than ever, a recent federal court decision has placed some limits on one aspect of that regulation. On April 2, 2003, Judge Thomas Penfield Jackson of the U.S. District Court for the District of Columbia issued an opinion in Barrick Goldstrike Mines Inc. v. Whitman, — F. Supp. 2d —, 2003 WL 1919310 (D.D.C. Apr. 2, 2003) upholding Barrick’s challenge to two aspects of EPA’s reporting requirements for the metal mining industry under the “Toxic Release Inventory” (TRI) program. First, Judge Jackson agreed with Barrick that trace elements of toxic chemicals found in mining waste rock should be eligible for the TRI program’s de minimis exemption, and rejected EPA’s interpretation that required reporting of all toxic chemicals in waste rock, no matter how minute the concentration. Second, the court rejected EPA’s interpretation that Barrick “processed” (and therefore had to report) naturally-occurring impurities in the gold bars it produced.

As many of you know, the TRI program springs from Section 313 of the Emergency Planning and Community Right to Know Act of 1986 (EPCRA), 42 U.S.C. § 11023, and requires certain facilities that manufacture, process or otherwise use certain toxic chemicals to report the “releases” of those toxic chemicals from their facilities on an annual basis. EPA added the metal mining industry to the TRI program in 1997. 62 Fed. Reg. 23834 (May 1, 1997). The TRI program regulations contain a de minimis exemption, which excludes trace amounts of toxic chemicals from inclusion in TRI reporting. 40 C.F.R. § 372.38(a).

In its TRI program guidance to the metal mining industry, EPA stated that toxic chemicals in waste rock and tailings were not eligible for the de minimis exemption, and that metal mining facilities would have to report all amounts of EPCRA toxic chemicals found in those substances. The impact of this interpretation on the metal mining industry was dramatic, as waste rock accounted for 85-99 percent of the toxic chemical releases reported by the industry during the years when Barrick’s challenge was pending. The resulting reported numbers from the metal mining industry made it appear to be the nation’s largest toxic polluter – ahead of the manufacturing and utilities industries – according to EPA.

Judge Jackson’s decision to exclude waste rock and trace dore impurities from the TRI program is therefore going to have a substantial minimizing effect on the toxic chemical releases reported by the metal mining industry, if EPA applies Judge Jackson’s decision on an industry-wide basis. While the opinion on its face applies to Barrick’s TRI reporting only, the holdings were based on the plain language of the de minimis regulation and EPA’s invalid interpretation of the EPCRA term “processing.” Therefore the decision could easily be applied to all metal mining TRI reporting.

EPA chose not to appeal the decision and has posted guidance relating to the new reporting requirements at www.epa.gov/tri.

Richard E. Schwartz and Kirsten L. Nathanson of Crowell & Moring LLP represented Barrick Goldstrike Mines Inc. throughout the district court proceedings.