AMERICAN FISHERIES SOCIETY and MINERAL POLICY CENTER entrepreneurs, obtain a fair return to the Treasury for the value of both claims and minerals, and ensure actual enforcement of these provisions on the ground. It is generally admitted now that the hardrock mining program on Federal lands does contain problems. However, defenders of the Mining Law now argue that those problems are faults of administration or enforcement of the law, and that they can be solved administratively. We do not agree. "There is no 'no' provision in the Mining Law," as BLM Director Jamison testified at last week's hearing before the Senate Subcommittee on Mineral Resources, Development and Production. BLM administers the Mining Law as though it were impossible to say "no" to any mining proposal. Whether this is an accurate reading is for legal scholars to debate; the important reality on the ground is that BLM will never exercise discretion until Congress acts to give it a clear direction to do so. The United States is virtually alone among nations in granting an automatic right to mine whatever valuable minerals may be found on its lands. Other nations may negotiate generous concession agreements with companies which develop mines, but they negotiate, and they do retain the power to determine whether, and how, the project shall be executed. Even if it were possible to remedy the Mining Law's defects administratively, the recent efforts by the Bureau of Land Management to address acknowledged problems fall so far short that they prove the case for legislative direction. BLM's proud new bonding policy, for example, sets a maximum limit on bonding levels of $2,000 per acre. Yet the costs of cleaning up and restoring a mining site cannot be evaluated on a blanket per-acre basis, and the 1979 COSMAR study identified sites costing up to $64,000 per acre to reclaim - in 1979 dollars. ["Surface Mining of Non-Coal Minerals," National Academy of Sciences, 1979] AMERICAN FISHERIES SOCIETY and MINERAL POLICY CENTER DELAY IS COSTLY Not only is legislative action needed to reform the hardrock mining program, but it is needed soon. The American people will pay at least $880 million for Congress's failure to reform the 1872 Mining Law in 1990, at a very rough estimate. Every additional year that we delay reforming the Mining Law adds to the loss of public property, and adds to the environmental cleanup burden, which the Mining Law allows. This annual total is comprised of environmental cost, royalty cost, and loss of lands through patenting. The hardrock mining industry creates between one and two billion tons of solid waste each year. [EPA Report to Congress, 1985] Virtually no hardrock mining sites are currently required to be restored to pre-mining condition. "Reclamation," where required for hardrock mines on BLM lands, means no more than "taking such reasonable measures as will prevent unnecessary or undue degradation of the Federal lands," where "unnecessary or undue degradation" is defined by the Bureau of Land Management as "surface disturbance greater than what would normally result..." [43 CFR 3809.0-5] Groundwater impacts are ignored by BLM regulations, and the standard of "reclamation" required is minimal, at best. We estimate the environmental cost of a year's delay in 1872 Mining Law reform, on the public-lands portion of the hardrock mining industry, using a rough average of selected COSMAR study prices ($0.50/ton, p.237), as $200 million for unfunded cost to restore landscapes to pre-mining condition. [Estimated 400 million tons on public lands per year at $0.50/ton] The cost to the public of lost royalties, based on the 12.5% royalty rate we recommend, is 12.5% times about $4 billion/year in hardrock minerals production from public lands [GAO estimate], or $500 million. Finally, the cost to the public from patenting due to last year's Congressional postponement is estimated to be at least $180 million. Recent patent applications activity, according to the Bureau of Land Management, includes the following. Only applications filed in Fiscal Years 1989 and 1990 are listed, unless noted, and AMERICAN FISHERIES SOCIETY and MINERAL POLICY CENTER not all applications are included: ARIZONA: patent applications cover 1440 acres for copper ore and "millsites" for mining waste dumps. CALIFORNIA: 9675 acres; IDAHO: Patent applications filed in FY90 and FY91 cover 6975 acres for gold ore, calcium, building stone, and waste dump sites. MONTANA: 2137 acres. 1714 acres of this total cover the Stillwater Platinum mine. If the Stillwater patent applications are approved, the Treasury will receive $8570 for title to this mine, a one-third interest in which was sold for $48 million in 1988. The Stillwater mine patent applications were filed four days after the Senate defeated the FY91 patenting moratorium on 22 October 1990. NEVADA: Applications are pending for more than 4,000 acres, primarily for gold ore. NEW MEXICO: 6148 acres, for gypsum (plaster), pumice (for making "stone-washed" jeans), stone, and gold/silver. It must be stressed that the $180 million value given above for patenting loss is a very conservative figure, because BLM will not supply value figures for the many patenting applications which have been received in recent months. It is calculated simply by adding the known market value of the Stillwater Platinum mine to $1000 per acre for the other applications. These listings include the most recent information obtainable from the Bureau of Land Management. Some data are missing (notably Alaska); the patent applications noted above are moving toward issuance, if they are valid, unless the Congress quickly adopts 1872 Mining Law reform. There is no measure of the long-term environmental damage which may be caused by further delay in Mining Law reform. It may exceed the total of all of the figures shown above. Many studies have been done concerning the problems of the 1872 Mining Law and the goals of Federal hardrock mineral administration. My testimony before the Senate Subcommittee on Mineral Resources, Development and Production on 11 June contained a partial listing. No further study, such as that contemplated by S.785, re AMERICAN FISHERIES SOCIETY and MINERAL POLICY CENTER cently introduced in the Senate, is needed. If a similar bill is introduced in the House, this Subcommittee should not let the suggestion of a study deter it from continuing to pursue reform legislation without delay. H.R.918 H.R.918, the "Mineral Exploration and Development Act of 1991," would make significant improvements over current law and agency practice. Features of this bill which we particularly support include the following: Inclusion of a partial (though inadequate) discretion to "approve, require modifications to, or deny" a proposed plan of operations at Section 201(b)(5) ; Establishment of a hardrock "Abandoned Minerals Mine Reclamation Fund" to clean up old sites; Delegation of minerals management authority for National Forest lands to the Secretary of Agriculture; The elimination of the "discovery" test, which is a finding of fact, and should not form the basis for public policy decisions; Inclusion of a Citizen Suit provision; and Establishment of improved enforcement and penalty provisions. However, H. R.918 fails to resolve all of the issues surrounding hardrock mining on Federal lands. A comprehensive hardrock mining bill must contain, among other things, these provisions which are missing from H.R.918: NECESSARY PROVISIONS MISSING FROM H.R.918: Discretion Under Section 201(b) (4), land managers would not have the ability to deny approval to a proposed mining operation once a land use plan conforming to Section 203 had been completed. This perpetuates the current "can't say no" attitude of agencies administering the Mining AMERICAN FISHERIES SOCIETY and MINERAL POLICY CENTER TESTIMONY : 18 June 91: 8 Law. This denial of land manager's discretion places too much burden on the imperfect planning process. The lack of discretion will lead to more withdrawals of land from availability for potential mineral development, simply because the agency managers will lack the ability to study a miner's proposal, and approve or deny it, once an ore body is found. Discretion should be established in Mining Law reform. Findings A section on findings can help later interpretation and enforcement, particularly through citizens' suits. One should be included. Public Notice, Open Records Public Notice and open-records provisions are needed. A new subsection should provide that: The Secretary shall provide 30 days public notice and opportunity to comment prior to final approval of any permit, settlement or discharge of any enforcement action, or release in whole or in part of any bond pursuant to this Act. All records held by the Secretary, including records of cooperating State programs, pertaining to actions taken pursuant to this Act shall be open for public inspection and copying. Right to Know The provisions of the Emergency Planning and Commu-nity Right to Know Act ("EPCRA") should be made applicable to disposal of mining wastes generated by activities under this Act. (EPA does not now require EPCRA right-to-know disclosures for mining wastes.) State Programs Language addressing the relationship of state mining regulation programs is needed; consider adding the following subsection: Cooperation with States: The Secretary may establish cooperative agreements with States to carry out the purposes of this Act, provided that no such agreement shall supersede the responsibility of the Secretary. Surface Owner Consent Landowners whose lands overly Federal hardrock |