Currie Associates, Inc. — Hazardous Materials Safety Interpretation

Page 1of Transportation U.S. Department 400 Seventh Street, S.W. Washinglon, D.C. 20590 Special Programs Research and Administration NOV 7 2000 Mr. John V. Currie President Ref. No. 00-0303 Currie Associates, Inc. 1118 Bay Road Lake George, New York 12845-4618 Dear Mr. Currie: This is in response to your letter dated October 14, 2000, regarding the definition of a hazardous substance. Specifically, you ask if a shipment of natural earth with deposits of minerall ores that contain arsenic trisulfide meets the definition of a hazardous substance in 49 CFR 171.8. In your letter, you state that your client is mining an ore that contains 3 to 4 percent arsenic trisulfide and transporting it in "large dump trucks and dump trailers." You state that these vehicles often transport several tons of the ore in a single shipment. Under § 171.8, a hazardous substance is defined as a material, including its mixtures and solutions, that: (1) is listed in Appendix A to § 172.101 of the HMR; (2) is in a quantity, in one package, which equals or exceeds its reportable quantity (RQ); and (3) is in a concentration by weight which equals or exceeds the concentration corresponding to the RQ of the material, as shown in the table under § 171.8. Arsenic trisulfide has an RQ of one pound. Therefore, a package (e.g., a dump truck or a dump trailer) containing 33.33 pounds or greater of an ore that is 3 to 4 percent arsenic trisulfide would meet the definition of a hazardous substance and would be subject to Hazardous Materials Regulations (49 CFR Parts 171-180). I hope this satisfies your request. Sincerely, Thomas G. Allan Senior Transportation Regulations Specialist Office of Hazardous Materials Standards#

Page 2• Egle KobAsen CURRIE ASSOCIATES, INC. 172,10/ THE GLOBAL COMPLIANCE PROFESSIONALS • classificatia Mr. Robert A. McGuire October 14, 2000 Applicability Associate Administrator, DHM-1 Research and Special Programs Administration 00-6303 Office of Hazardous Materials Safety 20 7th Street SV S Department ot Iransportatk Washington, DC 20590-0001 Dear Mr. MçGuire: I am writing on behalf of a client of Currie Associates, Inc. to request an interpretation regarding the applicabilty of the Hazardous Materials Transportation Regulations in Title 49 of the Code of Federal Regulations in regards to whạt may be considered to be a common activity but which has created some unique considerations as a result of the due diligence of my client. The client engages in mining activities for the purpose of extraction of valuable minerals and precious metals. The activities include the removal of large quantities of natural undisturbed earth known to contain deposits of such ores, transportation of the unrefined earth to a refinery site, grinding and extraction of the desired natural resource elements through a refining process, and disposal of the by-products and any resultant wastes. My client, in assaying the stockpiles of natural earth at the mine-site with deposits of mineral ores has discovered that the ore contains trace amounts of Orpiment (Arsenic trisulfide) as a natural element in the mined earth. I have attached copies ot the laboratory analysis conducted at the request of my client that indicates the presence of several natural elements present in the ore. 'The report further suggests that "elemental arsenic in ores can be disregarded." I would agree with the scientific analyst that in most cases the testing for the presence of minuscule traces of toxins as natural elements is not even considered since the toxicity of the elements would not be a factor due to the large quantity of dirt that would need to be ingested to reach the lethal dose, and the improbability it not impossibility of such an occurrence. While the criteria of S173.132 applicable to Class 6.1 is not met, OSHA may exercise jurisdiction over occupational exposure to the long-term chronic effects of dusts incurred in the operations. However, Arsenic trisulfide is listed in Table 1 to Appendix A of $172.101 with a reportable quantity of 1 pound or 0.454 kg. The ore that contains the traces of this element is transporting quantities of several tons depending on the capacity of the vehicle and the transported in large dump trucks and dump trailers trom the mine site to the retinery, otten weight limit on the highway. Using the table in $171.8 tor detining a hazardous substance with an RQ of 1 pound, the concentration by weight that meets that detinition would be RECYCLED 1118 BAY ROAD • LAKE GEORGE, NEW YORK 12845-4618 • TEL: (518) 761-0668 • FAX: (518) 792-7781 http://www.currieassociates.com Email: currie@netheaven.com#

Page 3.0002 percent or 20 parts per million. It is probable that a dump semi-trailer, filled to legal capacity, would contain a quantity exceeding the threshold, based on the laboratory analysis. I understand that the regulations of both the DOT and the EPA apply to the by-products and wastes resulting from the refining process if they met the classification criteria of Title 49 and/or Title 40 since they would no longer represent natural elements of our environment. However, while it seems impractical that the loads of dirt containing the ore that have just been mined from undisturbed earth would then be subject to the CERCLA regulations regarding releases back to their origination, it appears that there are no provisions excepting such application: Further, although my client has elected to do so, I would question whether mine operators were under regulatory obligation to conduct testing of natural undisturbed earth to determine the presence of regulated substances as natural elements. applicability of the Hazardous Materials Transportation Regulations (HMR) to these mining We are making a two-told request on behalt ot the client. We ask first that you consider the operations based on the test data presented and concur that the materials should not be considered hazardous in transportation. Are there exceptions to the HMR that would apply to the activities at issue? Secondly, if you should so find that the HIMR should apply, we would ask that you consider the scientific data and grant an exemption under Part 107, Subpart B, for transporting the ore from the mine site to the refinery by means of public highway. The exemption request would seek reliet trom the packaging requirements of 173.240(b) requiring sift-proof closed vehicles, the shipping paper requirements of Part 172, Subpart C, and the marking requirements of part 172, Subpart D, including $172.302(a). If such an exemption is required it is requested that it be granted as provided in S107.117 as permitted for emergency processing, since significant financial hardship will result from the suspending of the mining operation which involves transportation of approximately 6400 tons of ore per day. Additionally, numerous employees will be idled pending the outcome. Should this option be required, my client is prepared to forthwith prepare and submit any application documents deemed appropriate under Part 107. Your expeditious response with interpretation is requested. If additional information is needed please do not hesitate to contact me. incerely that Carrie John V. Currie President#

Page 4CURRIE ASSOCIATES, INC. THE GLOBAL COMPLIANCE PROFESSIONALS Mr. Robert A. McGuire October 12, 2000 Associate Administrator, DHM-1 Office of Hazardous Materials Safet lesearch and Special Programs Administratio 400 7ih Street SW US Department of Transportation Washington, DC 20590-0001 Dear Mr. McGuire: I am writing on behalf of a client of Currie Associates, Inc. to request an interpretation regarding the applicability of the Hazardous Materials Transportation Regulations in Title 49 of the Code of Federal Regulations in regards to what may be considered to be a common activity but which has created some unique considerations as a result of the due diligence of my client. The client engages in mining activities for the purpose of extraction of valuable minerals and precious metals. The activities include the removal of large quantities of natural undisturbed earth known to contain deposits of such ores, transportation of the unrefined earth to a refinery site, grinding and extraction of the desired natural resource elements through a refining process, and disposal of the by-products and any resultant wastes. My client, un assaying the stockpiles of natural earth with deposits of mineral ores has discovered that the ore contains trace amounts of Orpiment (Arsenic trisulfide) as a natural element in the mined earth. I have attached copies of the laboratory analysis conducted at the request ot my client that indicates the presence of several natural elements present in the ore. The report further suggests that "elemental arsenic in ores can be disregarded." I would agree with the scientific analyst that in most cases the testing for the presence of minuscule traces of toxins as natural elements is not even considered since the toxicity of the elements would not be a factor due to the large quantity of dirt that would need to be ingested to reach the lethal dose, and the improbability if not impossibility of such an occurrence. While the criteria of $173.132 applicable to Class 6.1 is not met, OSHA may exercise jurisdiction over occupational exposure to the long-term chronic effects of dusts incurred in the operations. However, Arsenic trisulfide is listed in Table 1 to Appendix A of $172.101 with a reportable quantity of 1 pound or 0.454 kg. The ore that contains the traces of this element is transported in large dump trucks and dump traiers from the mine site to the retinery, often transporting quantities of several tons depending on the capacity of the vehicle and the weight limit on the highway. Using the table in $171.8 for defining a hazardous substance with an RQ of 1 pound, the concentration by weight that meets that definition would be RECYCLED 1118 BAY ROAD • LAKE GEORGE, NEW YORK 12845-4618 • TEL: (518) 761-0668 • FAX: (518) 792-7781 http://www.currieassociates.com Email: currie@netheaven.com#

Page 50002 percent or 20 parts per million. It is probable that a dump semi-trailer, filled to legal capacity, would contain a quantity exceeding the threshold, based on the laboratory analysis. I understand that the regulations of both the DOT and the EPA apply to the by-products and wastes resulting from the refining process if they met the classification criteria of Title 49 and/or Title 40 since they would no longer represent natural elements of our environment. However, while it seems impractical that the loads of dirt containing the ore that have just been mined from undisturbed earth would then be subject to the CERCLA regulations regarding releases back to their origination, it appears that there are no provisions excepting such application. Further, although my client has elected to do so, I would question whether mine operators were under regulatory obligation to conduct testing of natural undisturbed earth to determine the presence of regulated substances as natural elements. We are making a two-fold request on behalt of the client. We ask tirst that you consider the applicability of the Hazardous Materials Transportation Regulations (FIR) to these mining operations based on the test data presented and concur that the materials should not be considered hazardous in transportation. Are there exceptions to the HMR that would apply to the activities at issue? Secondly, if you should so find that the HMR should apply, we would ask that you consider the scientific data and grant an exemption under Part 107, Subpart B, for transporting the ore from the mine site to the refinery by means of public highway. The exemption request would seek relief from the packaging requirements ot $173.240(b) requiring sitt-proot closed vehicles, the shipping paper requirements of Part 172, Subpart C, and the marking requirements of part 172, Subpart D, including $172.302(a). If such an exemption is required it is requested that it be granted as provided in $107.117 as permitted for emergency processing, since significant financial hardship will result from the suspending of the mining operation which involves transportation of approximately 6400 tons of ore per day. Ádditionally, numerous employees will be idled pending the outcome. Should this option be required, my client is prepared to forthwith prepare and submit any application documents deemed appropriate under Part 107. Your expeditious response with interpretation is requested. If additional information is needed please do not hesitate to contact me. Tohn V. Currie President#

Page 6MEMORANDUM TO: File 11154 • FROM: MI 4168 DATE: September 30, 2000 COPY: SUBJECT: Arsenic and Silica in U2 Stockpile Site submitted three samples from the U2 stockpile for identification of arsenic and silica phases. The first two samples were splits from coarse- and fine-grinds, and the third was made up of coarse (‡0.25") crystals of the suspected arsenic minerals. Representative splits of the ground samples were analyzed by XRD-XRF (Tables I and Il attached). The coarse crystals were mostly orpiment (yellow, As_S) with minor realgar (red, AsS). A prominent X-ray reflection representing orpiment appeared in the XRD pattern, and the count-rates yielded the 3-4% semiquantitative values for orpiment shown in Table I. (The amount of orpiment calculated from the XRF As results would be higher.) Realgar did not show up by XRD, indicating <1% quantities, or <25% of the fraction of arsenic as orpiment, consistent with a visual estimate of the coarse crystals. Arsenic is likely present also as a low (<2%) substitution in pyrite (FeS2). The 3-4% minuscule fraction compared to arsenic as orpiment. Similarly, arsenic may be present pyrite quantities found by XRD (Table I) would therefore yield <0.1% As as pyrite, a as arsenopyrite (FeAsS), but also as a very small fraction of the total. Elemental arsenic in ores is practically unheard of, and can be disregarded. Silica was present only as quartz, which is estimated at ‡70% of the material by XRD. Illite and kaolinite also account for some of the SiOz shown in Table II, indicating that the XRD figure for quartz may be somewhat high.#

Page 7Table l Semiquantitative X-ray Diffraction Analysis of U2 Stockpile T-2 STOCKPILE-FINE BAR ANHY PYR U-2 STOCKPILE-COARSE QTZ Quartz APT Apatite RUTL Rutile ILL Illite BAR Barite ORP Orpiment KAO Kaolin ANHY Anhydrite CAL Calcite PYR Pyrite Table Il Semiquantitative X-Ray Fluorescence Analysis of U2 Stockpile SAMPLE SIO2 AL203 FE MGO CAO NA2O K2O 0-2 STOCKPILE-FINE P205 69.97 10.31 2.04 U-2 STOCKPILE-COARSE 1.4T 0.59 0.48 68.78 9.43 2.24 0.00 2.27 1.30 S1O2 Silica T102 Titanium Oxide AL203 Alumina CU Copper P205 Phosphate MO Molybdenum FE Iron MGO Magnesium Oxide S Sulfur NI Nickle MNO Manganese Oxide CAO Calcium Oxide BA Barium PB Lead NAZO Sodium Oxide CO Cobalt SB Antimony K2O Potassium Oxide ZN Zinc CR Chromium AS Arsenic • .......#