Summary of the TRI Reporting Requirements and National Mining Association (NMA) Lawsuit

In May 1998, the National Mining Association (NMA) filed a lawsuit challenging EPA's 1997 Toxics Release Inventory (TRI) Industry Expansion rulemaking, which added the mining industry and other sectors to the universe of facilities subject to Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA).

Initial NMA Complaint

In its complaint, NMA challenged:

• EPA's authority to extend EPCRA Section 313 reporting obligations to mining operations;
• EPA's interpretation in the 1997 rulemaking that facilities were required to report the extraction and beneficiation of ores as "processing," on the grounds that the TRI chemicals contained in the ores had been manufactured prior to their extraction and beneficiation; and,
• EPA's interpretation that EPCRA Section 313 requires reporting of the quantity of toxic chemicals placed in containment units at mines.

2001 Court Decision

On January 16, 2001, in an Order and Opinion issued by the District Court, and then in a revised Order issued on March 30, 2001, the Court:

• Upheld EPA's authority to add the mining industry;
• Upheld EPA's interpretation that mining facilities must report their releases to land including into landfills;
• Set aside EPA's interpretation in its 1997 rulemaking that the extraction and beneficiation of undisturbed ores fall within EPCRA section 313's definition of "processing," on the grounds that "naturally occurring, undisturbed ores are not manufactured within the meaning of [EPCRA section 313]" (Order of Clarification, p.3.); and
• Made clear that it had not addressed the issue of whether the term manufacture includes extraction and beneficiation activities, and that the Order "merely addressed the issue of whether naturally occurring undisturbed ores are 'manufactured' within the meaning of [EPCRA section 313] (Order of Clarification, p.3.)."

Letter from NMA

On April 23, 2001, counsel for NMA submitted a letter to EPA stating that NMA "believes its members presently are not legally required to include, in their calculations of the amount of toxic chemicals that are 'processed' or 'manufactured' at mining facilities, toxic chemicals that are present in ores during extraction and beneficiation activities." Counsel for NMA also expressed their understanding that at the present time, mining facilities are not legally obligated to report on manufacturing that may take place during beneficiation.

EPA issued a response to the April 23, 2001 letter to clarify the extent and effect of the Court's Order. In the response, EPA notes that the Agency concluded in its 1997 rulemaking that extraction and beneficiation constituted "preparation" of the toxic chemicals in the ore, and that the Court had not set this finding aside. EPA also notes that the plain language of EPCRA section 313 explicitly identifies "preparation" of a toxic chemical as a threshold activity. EPA's letter does not allocate particular preparatory activities as "manufacturing" or "processing"; rather the Agency intends to initiate a rulemaking to adopt a revised interpretation that will allocate extraction and beneficiation between those two statutory terms. Until this rulemaking is completed, individual facilities will remain responsible for determining whether their preparation of toxic chemicals in ore is better characterized as "manufacturing" or "processing."

The response emphasizes that the Court's Order only addresses EPA's interpretation that naturally occurring undisturbed ores had been "manufactured" by natural forces, and that, therefore, the extraction and beneficiation of those ores constitutes the "processing" of the toxic chemicals contained in those ores. The Court explicitly declined to reach the question of whether manufacturing that occurs during the course of extraction and beneficiation is an EPCRA Section 313 threshold activity. Accordingly, facilities must continue to consider toward their manufacturing thresholds any toxic chemicals generated during extraction and beneficiation that were not present in the naturally occurring, undisturbed ores. This includes newly generated toxic chemical compounds from another compound within the same listed compound category (e.g., copper sulfate from copper sulfide).

Further, just because a particular quantity of a toxic chemical is not considered toward an activity threshold does not mean that releases of that particular quantity of the toxic chemical are not reportable if an activity threshold for that same toxic chemical or chemical category is exceeded elsewhere at the facility.