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Mining and TRI Reporting
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    Position  |  Background  |  Issue  |  Impact  |  

    Position: EPA must implement mining-related TRI reporting requirements as directed by the courts. Failing to do so perpetuates the dissemination of information that is inconsistent with the intended purpose of TRI, which is to provide useful information to the public regarding the release of chemicals into the environment.
    Background: Congress passed the Toxics Release Inventory (TRI) in 1986 as part of the Community Right to Know and Emergency Response and Planning Act. TRI came in response to several high profile accidental releases into the air of toxic chemicals at manufacturing facilities in this country and abroad. The intent of TRI was to provide host communities with information about the chemicals released, stored and managed at local manufacturing facilities and to assist emergency response personnel. Congress originally applied TRI reporting requirements to 20 industrial categories, but gave EPA the authority to add categories consistent with the intent of the law.

    In 1997, EPA extended TRI reporting requirements beyond the traditional "manufacturing" facilities that are cited in the law and included coal and hardrock mining facilities (along with other industrial categories). In the reporting requirements for coal and hardrock mining facilities, EPA declared that any naturally occurring substance that is among the approximately 600 TRI-listed chemicals must also be reported when moved on mining land. By contending that nature manufactured these substances, EPA argued that these naturally occurring substances met the statutory test of being "manufactured" and thus mining facilities' extraction and beneficiation of these substances constituted TRI "processing".

    In rulings between January 16 and March 30, 2001, the United States District Court for the District of Colorado, Judge Edward W. Nottingham held that naturally-occurring TRI-listed chemicals are not "manufactured" by nature, and that extraction and beneficiation (as conducted at mining facilities) are not "processing" of TRI chemicals. The Court set aside EPA's "manufactured by nature" definition and enjoined the agency from characterizing extraction and beneficiation as "processing".

    In a related matter, while EPA exempted mining overburden from the reporting requirements, it re-defined "overburden" to include only the unconsolidated material -- leaving the consolidated material, or rock, in the reporting calculation. This definition is inconsistent with recognized technical publications and the agency's own definition of "overburden" in other regulations.

    The entire body of the correspondence with the EPA is provided as links below.

    Issue: In violation of the court rulings, EPA continues to insist that mining facilities must report extraction and beneficiation of naturally-occurring TRI chemicals as either "manufacturing" or "processing". Further, EPA has denied the industry's petition to rectify the agency's anomalous definition of "overburden." Both actions distort the purpose of TRI, cause an inaccurate characterization of materials that must be reported by the mining industry and fail to advance the public's understanding of toxic releases in the environment.
    Impact: As a result of EPA's actions, mining facilities must annually report under TRI the movement of dirt and rock containing hundreds of millions of pounds of naturally-occurring TRI-listed substances as "releases" to the environment. While TRI is strictly a volume-based reporting requirement, the annual reports are being misused in numerous regulatory contexts and in public hearings and declarations as a marker of relative risk to people or the environment. While this is inappropriate use of TRI generally, it particularly warps any attempt at informed analysis of the impact of mining on the environment. Rather than relying on more meaningful records of compliance with state water quality standards; reclamation requirements; federal air, water and waste management laws; or other local, state and federal laws and regulations, many incorrectly use TRI data as a tool to prevent new or expanded mining operations -- denying the use of resources that are important to our economic strength and our way of life.

     

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