Statement of Lexi Shultz,
on behalf of the Mineral Policy Center

Before the Senate Environment and Public Works
Subcommittee on Clean Air, Wetlands and Climate

On Clean Water Regulatory Changes to the Definition of "Fill."

June 6, 2002

The Mineral Policy Center, on behalf of its thousands of citizens from across the country, would like to thank the Clean Air, Wetlands and Climate Change Subcommittee for holding a hearing on the recent Army Corps of Engineers' Clean Water Act regulatory change to allow waste to legally be dumped into the waters of the United States. This rule change was promulgated at the behest of the mining industry in the United States and will put waters across the West, not just in Appalachia, at severe risk. The Mineral Policy Center (MPC), which is a non-profit, non-partisan environmental group that works to protect communities and the environment from the impacts of hardrock mining, opposes this regulatory change and applauds the Subcommittee for addressing the harm this rule change will inflict on fragile waters across the nation.

The Army Corps of Engineers enacted its regulatory change under the Clean Water Act specifically to affect the outcome of a federal court case in Kentucky pertaining to the practice of mountaintop coal removal mining so as to legalize the ongoing, previously illegal practice of allowing coal mining companies to replace bodies of water with mountains of waste. But as egregious as the impacts to the streams and valleys of Appalachia are, the rule change is not worded so as to be specific to the East or to coal mining. Instead, the rule would allow the Army Corps of engineers to issue legal Clean Water Act section 404 permits for any material that replaces a stream, wetland or any other body of water, including all mining and industrial wastes.

In fact, the hardrock mining industry submitted comments actively seeking the change in the definition of fill to not only allow wastes to replace U.S. waters but to ensure that toxic material would not be excluded from what can be legally dumped.

Hardrock mining in the United States is mainly the extraction of ores containing metals like gold and copper and occurs predominantly in the arid and mountainous parts of the West. This type of mining is governed by a 19th century law, the General Mining Law of 1872, but modern mining practices bear little resemblance to the pick and shovel days of the Gold Rush. Instead, because precious metals exist mainly in very low-grade ore, modern hardrock mining operations are immense, with open pits that can be thousands of feet deep and miles across.

In the West, the availability of flat, dry land sometimes provides an alternative location for the dumping of some hardrock mining waste. However, Phelps Dodge Corp., in its comments on the rule change, noted "Of necessity, Phelps Dodge's domestic mining operations, which are located exclusively in the arid Southwest, discharge fill materials … that have the effect of replacing portions of waters of the United States with dry land or of changing the bottom elevation of such waters" (emphasis added). Given the huge and toxic nature of modern hardrock mines, the Army Corps' alteration of the definition of "fill" to allow mining waste of all kinds to be dumped into waters will cause particular damage throughout the West for three primary reasons.

First, hardrock mining waste is voluminous. In order to produce enough gold to create a wedding band, for example, a mine would have to extract tens or hundreds of thousands of pounds of ore. In addition, each mine produces thousands of tons of waste rock and other materials. The end result is that mines across the West create millions of tons of waste. This waste is usually stored on the earth's surface in vast piles that may be hundreds of feet high and cover an area the size of several football fields.

Second, hardrock mining waste contains highly toxic materials. In order to extract the metals from the low-grade ore, the mining operations pour chemicals like cyanide and sulfuric acid over enormous "leach piles." These chemicals remain in the leach piles even after the gold or copper has been extracted. What's more, the ores also contain heavy metals like arsenic, lead, and cadmium, among others. All of these toxic materials are dumped right along with the rock as waste. According to the Environmental Protection Agency's 2000 Toxics Release Inventory, released just two weeks ago, the hardrock mining industry is the nation's largest toxic polluter. Hardrock mining operations released a total of 3.34 billion pounds, of toxic chemicals into the environment, nearly half of all the toxics released by industry in the United States. In fact, fourteen of the top fifteen toxic polluting facilities in the country are hardrock mines.

The hardrock mining industry, aware of the toxicity of its waste, worked to ensure that toxic waste would not be excluded from the allowable definition of fill. In its comments on the proposed rule change, Phelps Dodge Corp. noted its opposition to defining any sort of unsuitable fill material, including "materials that have the potential for the leaching of contaminants to groundwater or surface water or materials that contain toxic pollutants in toxic amounts." Phelps Dodge acknowledged "[t]he vast majority of fill materials, including rock and dirt, has the potential to leach contaminants" (emphasis added). The National Mining Association in its comments echoed these remarks.

Third, toxic hardrock mining operations have a tremendous impact on the waters of the West. The mining industry is one of the West's largest industrial users of water. In 1984, the Bureau of Mines estimated that the mining industry used 2.27 trillion gallons of water - enough to provide 35 years worth of water for the city of Denver. In addition, the Environmental Protection Agency estimates that mining has polluted 40 percent of the headwaters of Western watersheds. The situation has been exacerbated by the sheer scarcity of water in the West, particularly given both how rapidly the population there is expanding and the current drought that much of the West is experiencing. Water is already the most precious resource in the West, not only for drinking water, but also for agriculture, ranching and wildlife habitat. Even so-called intermittent and ephemeral streams are indispensable sources of water.

Yet, Phelps Dodge argues that "[i]t is virtually impossible to construct large mining facilities such as leach operations, tailing facilities, or overburden and waste rock piles without impacting one or more ephemeral water ways." The Mineral Policy Center and its members believe that we should be seeking ways to control and limit hardrock mining's impacts on waterways, not allowing these increasingly diminished waters to be used as a private dumping ground by the hardrock mining industry.

In conclusion, the Army Corps' rule change will allow waters of the United States to be buried and forever destroyed by toxic mining wastes, along with other industrial wastes. This could be one of the most far-reaching and destructive changes to clean water regulations ever. The rule change eliminates a long-standing prohibition against using waste materials to fill streams, rivers, lakes and wetlands, and, as such, is inconsistent with the goals of the Clean Water Act. Moreover, given the damage that the hardrock mining industry already causes to waters throughout the water-starved West, we should be seeking to clean up the toxic mining pollution that already exists. Now, with this rule change, that pollution will only get worse.