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DEPARTMENT OF THE INTERIOR AND RELATED AGENCIES APPROPRIATIONS ACT, 2000 -- (Senate - July 27, 1999)

1970--An analysis of the Mining Law prepared for the Public Land Law Review Commission by Twitty, Sievwright & Mills (a Phoenix, Ariz. law firm that represents the mining industry) closely tracked the argument by the American Mining Congress two years earlier:

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   ``When the mining laws were enacted in 1872, provision was made for the acquisition of five-acre mill sites to be used for mining or milling purposes. The typical mine then was a high-grade lode or vein deposit from which ore was removed by underground mining. The surface plant was usually relatively small, and the surface of the mining claims together with the incident mill sites adequately served the needs of the mines for plant facilities and waste disposal areas.

   ``Today, the situation is frequently different. The high-grade underground mines have, for the most part, been mined out. Open pit rather than underground mining is, with increasing frequency, the most economical way to mine the low-grade deposits which now comprise a major portion of the reserves of many minerals. The mining industry now relies on mechanization, the handling of large tonnages of overburden and ores and the utilization of large surface plants in order to keep costs down so that these low-grade deposits may be mined and treated at a profit. Such mining operations require not only substantial areas for plant facilities, but much larger ares than formerly for the disposal of overburden and mill tailings. The surface areas of mining claims and mill sites are no longer adequate for such purposes. *.*.*

   ``If a mineral deposit is partially or entirely surrounded by the public domain, the acquisition of adjacent nonmineral land from the United States for necessary facilities is now frequently extremely difficult because the laws do not provide a satisfactory way to make these acquisitions. Small areas may be acquired as mill sites, and in certain instances, if the lands meet the statutory requirement as isolated or disconnected tracts, larger acreages may be acquired at public auction. Mining companies planning large mining operations have been obliged to meet their needs for nonmineral lands by obtaining the necessary lands by other means.''

   Twitty, Sievwright & Mills, ``Nonfuel Mineral Resources of the Public Lands; A Study Prepared for the Public Land Law Review Commission,'' (Dec. 1970), at vol. 3, pp. 1047-48 (emphasis added).

   The Twitty, Sievwright study also states: ``Under the first clause of subsection (a) of [30 U.S.C. 42], each lode claimant is allowed, in addition to his lode claim, five acres of land to be used for mining or milling purposes.'' Id. at vol. 2, p. 323.

   1974--the Interior Board of Land Appeals rules in United States v. Swanson, 14 IBLA 158, 173-74, that:

   [A millsite] claimant is entitled to receive only that amount of land needed for his mining and milling operations, and this amount can embrace a tract of less than five acres. The statute states that the location shall not ``exceed five acres.'' ..... The reference to five acres in the statute is clearly a ceiling measure, not an absolute, automatic grant.''

   1977--Salt Lake City mining attorneys Clayton J. Parr and Dale A. Kimball write that ``Theoretically, one five-acre millsite can be acquired for each valid mining claim.'' Parr & Kimball, ``Acquisition of Non-Mineral Land for Mine Related Purposes,'' 23 Rocky Mtn. Min. L. Inst. 595, 641-42 (1977).

   1979--In an analysis of federal mining law, the Congressional Office of Technology Assessment states:

   ``[I]t is highly doubtful that [millsites] could satisfy all the demands for surface space.There could be at most as many millsites as there are mining claims, and each milliste would be at most one-fourth the size of the typical 20-acre claim, so that the millsites, in the aggregate, would be one-fourth the size of the ore body encompassed by the claims.''

   Office of Technology Assessment, Management of Fuel and Nonfuel Minerals in Federal Land, at 127 (April 1979).

   1984--In the second edition of American Law of Mining, Patrick J. Garver of the Salt Lake City law firm Parsons, Behle & Latimer (Mr. Garver is now executive vice-president of Barrick Gold Corp.) writes: ``Uncertainty also surrounds the issue of the amount of land that may be used by millsite claimants.'' 4 Am. L. Mining, 110.03[4] (2d ed. 1984).

   1984--Salt Lake City mining attorneys Clayton J. Parr and Robert G. Holt write in the second edition of American Law of Mining: ``Because of the relatively uncertain tenure of mill site claims, few miners choose mill sites as a location for permanent mining support facilities.'' 4 Am L. Mining 110.03[1].

   1987--In the revised second edition of American Law of Mining, Phoenix mining attorneys Jerry L. Haggard and Daniel L. Muchow write:

   ``The acquisition of federal lands or interests therein by means other than the locating of mining claims or mill sites is sometimes necessary to provide the additional ground needed for a planned mining operation. The restraints on the number and sizes of mill site claims can limit their usefulness as a land acquisition method.''--4 Am. L. Mining, 111.01 (2d ed. rev. 1987).

   1997--Solicitor of the Department of the Interior John D. Leshy issues opinion titled ``Limitations on Patenting Millsites Under the Mining Law of 1872.''

   Mr. DURBIN. I thank the Chair.

   I have quoted the specific words from the mining law of 1872. I can tell Senators that year after year, the 5-acre limitation was restated. There is nothing new about it. In 1872, again, the General Land Office refers to the law expressly limiting mill site locations made from and after its passage to 5 acres.

   Twelve years later, in 1884, Secretary of the Interior J.B. Hoggin provided that the aggregate for lode claims is not more than 5 acres. In 1891, similar references; 1903, the same reference is made by the Acting Secretary of the Interior ; the area of such additional tract is, by the terms of the statute, restricted to 5 acres. He goes on. In 1914, a treatise on mining by a gentleman named Curtis Lindley:

   Lode proprietors may select one tract per mill site if the aggregate does not exceed 5 acres.

   In 1955, Denver mining attorney John Shireman writes in the First Annual Rocky Mountain Mineral Law Institute:

   Each lode claim is entitled to 1 mill site for use in connection therewith.

   In 1960, Congress amended the mining law to allow location of mill sites in connection with placer claims. In its report on the bill, the Senate Interior Committee explained that it modified the language of the bill ``so as to impose a limit of one 5-acre mill site in any individual case, preventing the location of a series of 5-acre mill sites.''

   The references go on and on. The American Mining Congress has acknowledged the 5-acre limitation, and of course the branches of government have done the same.

   What is in dispute here is, in the minds of a few Senators and the mining industry, the mining process has changed. They want to be able to use more acreage to dump what is left over from this mining process.

   It is interesting that the mining industry is so confident that a court would hold up the 5-acre limitation that they have not in any way tested the solicitor's decision in court. They would rather find their friends here in the Senate. That opinion was issued by the solicitor almost 2 years ago.

   You will hear a lot of comment--I have heard it in committee--that what Mr. Leshy did in this situation was unfair, illegal, and we are going to stop this bureaucrat from overreaching.

   The obvious question is, If it is so unfair and illegal on its face, why didn't the mining industry go to court? They didn't go to court. They went to Congress because they know that their interpretation, their opposition to Mr. Leshy, can't stand up in court.

   The Craig rider and now the Reid amendment will allow more dumping of toxic mining waste on public lands and undermine efforts to reform the last American dinosaur, the 1872 mining law.

   What can we find in this mined waste? Lead, arsenic, cadmium, in addition to heavy metals. Because of irresponsible mining practices and poor regulation, the mining industry has left behind a legacy of 557,000 abandoned mines in 32 different States. The cost of cleaning up these sites is estimated to be between $32 billion and $72 billion. According to the U.S. Bureau of Mines, mining has contaminated more than 12,000 miles of rivers and streams and 180,000 acres of lakes in the United States.

   Let me speak for a moment about the environmental damage. For those who say this is an industry which, frankly, may not cause environmental damage, I hope they will listen closely to what I am about to say: 16,000 abandoned hard rock mine sites have surface and ground water contamination problems that seriously degrade the water around them--16,000 of them. Over 60 of these abandoned hard rock mines pose such severe threats to public health and safety that the EPA has listed them as Superfund priority sites.

   There are two or three things that I found incredible that I want to share and make a part of the RECORD.

   Each year the mining industry creates nine times more waste than all of the municipal solid waste generated and discarded by all of the cities in the United States of America. In 1987, mines in the United States dumped 1.7 billion tons of solid waste onto our land while the total municipal solid waste from all cities in America totaled 180 million tons.

   The second point--and this is hard to believe--each year the hard rock mining industry generates approximately

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the same amount of hazardous waste as all other U.S. industries combined --one industry, hard rock mining, generating the same amount of hazardous waste as all other U.S. industries combined. You would think when you listen to the arguments from those who would make this dumping unlimited that this is somehow a passive thing, that it is no threat to the environment.

   According to the EPA, the U.S. hard rock mining industry generated approximately 61 million tons of hazardous waste in 1985 compared to 61 million metric tons for all other American industries. And what the Craig and Reid amendment says is, for this dangerous waste, we will now give to the mining companies an unlimited landscape of taxpayer-owned land to dump it.

   Although the mining industry claims that modern mines employ state-of-the-art technology that prevents contamination, it is not consistently used or managed properly. Some have said our references to contamination are ancient. In 1995, reporting to Congress on mine waste, the EPA stated not only had past mining activities created a major waste problem, but some of the very waste practices that contributed to these problems were still being used by the mining industry.

   What kind of mining pollution? Acid mine drainage generated when rock which contains sulfide minerals reacts with water and oxygen to create sulfuric acid. Iron pyrite, fool's gold, is the most common rock type that reacts to form acid mine drainage. Acid leached from the rock severely degrades water quality, killing aquatic life and making water virtually unusable.

   Second, heavy metal contamination

   is caused when metals such as arsenic, cobalt, copper, cadmium, lead, silver, or zinc contained in excavated rock or exposed in an underground mine come in contact with water. Heavy metals, even in trace amounts, can be toxic to humans and wildlife. When consumed, the metals can bio-accumulate.

   Processing chemical pollution occurs when chemical agents used by mining companies to separate the target mineral from the ore--cyanide, sulfuric acid, or liquid metal mercury--spill, leak, or leach from the mine site into nearby waters. These chemicals can be highly toxic to humans and wildlife.

   The purpose of the amendment before us now is to expand the opportunity for dumping this kind of waste on public land, creating the opportunities for more environmental disasters and hazards to wildlife and humans as well.

   A teaspoon of 2 percent cyanide solution can be lethal to humans; over 200 million pounds of cyanide is used in U.S. mining each year.

   I have a lengthy list of examples here.

   Gilt Edge Gold and Silver Mine, South Dakota: Shortly after opening in 1988, the Gild Edge gold and silver mine cyanide leaked into the groundwater and nearby streams as a result of torn containment liners, poor mine design, and sloppy management practices. Beginning in 1992 the mine began generating acid mine drainage. As a result of acid drainage from Gilt Edge waste piles, pH measurements in nearby steams in 1994 and 1995 were as low as 2.1 (battery acid has a pH of approximately 1; pure water has a pH of approximately 7.0). Due to pollution from the Gilt Edge Mine, area streams are unable to support viable populations of fish and bottom dwelling invertebrates

   Summitville Gold Mine, Colorado: In 1986 Canadian based Galactic Resources opened the Summitville Gold Mine in Colorado. The company characterized the mine as a ``state-of-the-art'' cyanide heap leach gold mine. Immediately after gold production began, the protective lining under the massive heap of ore being treated with a cyanide solution tore, allowing cyanide to leak into the surface and groundwater. The cyanide, acid, and metal pollution from the mine contaminated 17 miles of the Alamosa River. Galactic declared bankruptcy and abandoned the site in 1992. The State of Colorado which had provide scant regulation of the mine asked the Environmental Protection Agency to take over the site under the Superfund program. As of 1996 taxpayers had spent over $100 million to clean up the site.

   Iron Mountain, California: Until production was halted in 1963, the Iron Mountain mine produced a wealth of iron, silver, gold, copper and zinc. It also left a mountain of chemically-reactive ore and waste rock that continues to leach enormous amounts of acid and heavy metals pollution into nearby streams and the Sacramento River.

   Despite expensive efforts to reduce pollution--Iron Mountain is now on the Superfund National Priority List--enormous amounts of contaminants continue to wash off the site. Each day Iron Mountain discharges huge quantities of heavy metals including 425 pounds of copper, 1,466 pounds of zinc, and 10 pounds of cadmium. Acid waters draining from the site have decimated streams, where the acidity in the water has been measured as low as minus 3 on the pH scale--10,000 times more acidic than battery acid. Streams downstream from the mine are nearly devoid of life. Experts have estimated that at present pollution rates the Iron Mountain site can be expected to leach acid for at least 3,000 years before the pollution source is exhausted.

   Oronogo Duenweg Superfund Site, Missouri: Drinking wells near this sprawling complex of lead and zinc mines in Southwestern Missouri have been contaminated by past mining activities.

   Chino Copper Mine, New Mexico: The mine has been plagued by spills, leaks and discharges of contaminated mine waste material. Much of the pollution has spilled into Whitewater Creek which runs through densely populated communities. In several incidents in 1987, the mine spilled more than 327,000 gallons of mine wastewater off the site. In 1988 another spill discharged more than 180 million gallons of mine wastewater. More than 90,000 gallons of wastewater were spilled in 1990, and another 120,000 gallons were spilled in 1992.

   Brewer Gold Mine, South Carolina: Nearly 11,000 fish were killed in 1990 when heavy rains cause a containment pond to breach, dumping more than 10,000 million gallons of cyanide-laden water into the Lynches River.

   DeLamar Mine, Idaho: The DeLalmar silver and gold mine in Idaho has repeatedly dumped heavy metal laced wastewater into nearby streams. Migratory waterfowl have been poisoned by cyanide from its ponds.

   Stibnite Mine, Idaho: The Stibnite gold mine has leaked cyanide into nearby groundwater and the East Fork of the Salmon River, an important salmon spawning run.

   Ray Mine, Arizona: The Ray Mine was polluted nearby groundwater with toxic levels of copper and Beryllium. In 1990, rainwater washed more than 324,000 gallons of copper-sulfite contaminated wastewater from the mine into the Gila River.

   Mr. President, what we are doing today--and I am supporting the amendment of the Senator from Washington, Mrs. MURRAY--is asking the mining industry to take responsibility for their actions, to follow the law as it is clearly written, which limits to 5 acres the mill site, or dump site, they can use for their mining activities. Some of the pictures here--I am sure the Senator from Nevada and others think this picture, as graphic as it is, is ancient. I don't know. There is no date on it, and I won't represent that it is a modern scene, but it shows what unregulated mining has led to. It is a clear indication of a stream that is still in danger because of the pollution from the mining activities.

   Modern mining techniques are represented in these photographs, and although they are hard for those following the debate to see, they suggest that when we get into hard-rock mining, we are talking about literally hundreds, if not thousands, of acres that become part of the dump site of this activity. A mining operation, after it has derived the valuable minerals from this Federal public land owned by taxpayers, got out of town and left this behind. So for generations to come, if they fly over, they will look down and say: I wonder who made that mess.

   That is as good as it gets under the 1872 mining law. That is a sad commentary. Those who support the Craig-Reid amendment would like us to expand the possibility that these dump sites near the mines would basically be unlimited. They could go on for miles and miles, and we, as taxpayers, would inherit this headache in years to come. There is clearly a need for comprehensive mining reform.

   About $4 billion worth of hard-rock minerals--gold, copper, silver, and others--are taken annually from public lands by mining companies without a penny paid to the U.S. taxpayer in royalties--not one cent. That is $4 billion each year out of our land, and not a penny is paid back to the taxpayers.

   What would you think about it if your next-door neighbor knocked on the door and said he would like to cut down the trees in your back yard, incidentally, and said he will give you $2.50, and I am sure that is no problem. Of course, it is a problem. It is our property. On that property are treasures of value to us. We are talking about public lands that are our property as American citizens. Those who live in some States believe that that land belongs to them, for whatever they want to use it for. Some of us, as part of the United States of America--``E. Pluribus Unum,'' as it says above the chair of the Presiding Officer, ``of many one''--believe that as one Nation we have an interest in this public land,

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an interest that goes beyond giving somebody an opportunity to profit and leave a shameful environmental legacy.


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