Case Overview, Limiting Mine Waste Disposal at Mill Sites

This document provides background information and summarizes the debate over limiting mine waste disposal at mill sites. The links to the left will lead you to public documents that we have found.

           It's not often that the contemporary Congress reviews a law written in 1872, but the 106th Congress did just that when it examined a mining law passed in that year. This ancient piece of legislation, the Mining Law of 1872, set rules for prospectors claiming land. A "load claim" by a miner pertains to the land where gold or other precious minerals may be found beneath the ground. "Mill site claims" are for the facilities and buildings that support the mining operation. Today such mill site structures might be used for processing ore or for containing waste materials that are the byproduct of mining. In 1872 the small scope of most operations and the primitive tools available to miners limited the damage from prospectors' search for precious metals and, thus, there were no real environmental concerns.

           Not so today. Mining is undertaken by large corporations, not by individual prospectors, and these companies use processes that have a considerable impact on the environment. The digging produces an upheaval and residue of rocks and leaves the ground different from its initial conditions. Also, dangerous chemicals can be used in the processing of ore. Although some mining processes are regulated, it's not unusual for chemicals, including cyanide, to leak into the ground. Nevertheless, tightening government control over mines is controversial in the western United States, where most mining for precious metals takes place. Mining supports jobs and rural, conservative areas of the West are generally inhospitable to government regulation of business.

           The mill site problem was pushed onto the congressional agenda 1997 by a policy statement written by John Leshy, the Solicitor General (chief legal counsel) of the Department of the Interior. Leshy was quite knowledgeable about the relevant law on mining and his declared intention to apply the 1872 law was a threat to mining companies. From the companies' perspective, the main problem was that a literal interpretation of this law limited the number of mill sites on their property. That law's restrictions had been winked at by mining companies and the Interior Department, both regarding it as unworkable for modern-day mining operations. One industry lobbyist argued that if Leshy's policy was carried out, it would "effectively eliminate mines in the United States." There's more than a little hyperbole in this statement, but his analysis reflects the horror with which the industry regards new restrictions on mill sites. On the other side of the issue, environmentalists were adamant that something needed to be done. A liberal lobbyist claimed that "the mining industry produces more waste than any other industry in the country." That, too, may be an exaggeration but it speaks to the seriousness of the problem.

           Congress moved to address Interior's new policy, though the House and the Senate went in opposite directions. The House passed an amendment to an appropriations bill on the floor that supported government regulation, while the Senate acted to forbid the expenditure of any government funds to enforce the mill site restriction. When the conference committee negotiated the difference, the language from both houses was dropped from the bill. What was reported out in the conference report was an exception to Leshy's policy for the Crown Jewel project in Washington, the state's first open pit mine. This victory for the company was probably engineered by Senator Slade Gorton (R.-Wash.) who was sympathetic to Crown Jewel's plight.

           Although Leshy's general policy withstood congressional review, it was nonetheless short-lived. After George W. Bush was elected President, his appointees in the Department of the Interior rescinded the mill site limitation.