New mining regs, new discontent. (Regulations).

Of the 262 million surface acres of land under the care of the Bureau of Land Management (BLM), about 85% is potentially available for mining. According to the 1999 National Academy of Sciences report Hardrock Mining on Federal Lands, more than 157,000 acres are already being mined or are affected by active mining exploration. With the new year 2002 came new rules for mines that operate on public land overseen by the BLM.

These "3809 regulations"--which took effect on 31 December 2001 against vehement protests from environmental organizations such as the Mineral Policy Center and Great Basin Mine Watch--are a scaled-back version of rules signed in the last days of the Clinton administration. The new rules remove provisions that environmentalists say are vital for protecting air, water, wildlife, and such cultural resources as Native American sacred sites, but that industry groups say would cripple their ability to function.

The final Bush rules retain many aspects of the Clinton version. They regulate small exploratory operations of five acres or less that had been exempt under earlier rules. They require mines to control the discharge of cyanide, which is used to strip minute particles of metal from ore. They require mines to control acid mine drainage, a process in which the combination of water, air, specialized bacteria, and the sulfides found in some types of ore produce environmentally damaging acidic water. And they require mines--new or existing--to provide financial guarantees, or bonds, that cover the cost of reclamation (as estimated by BLM staff) after a mine closes.

But the Bush administration also removed several rules that were vital to protecting the environment, says Great Basin Mine Watch director Tom Myers. Missing, he says, are rules that addressed chronic mining problems: pollution such as increases in arsenic and mercury in surface and groundwater, and dewatering, the process in which groundwater levels are lowered to make mining possible. The new regulations do require that mining companies line their waste facilities, but, Myers says, "if there is a leak, the BLM can't go beyond requiring a liner to actually [requiring that mining companies] clean up the groundwater"--that's where other laws such as the Clean Water Act would presumably step in. Thus, says Jack Gerard, president and CEO of the National Mining Association, most of the provisions that were eliminated were unnecessary because they duplicated existing federal and state laws covered in the hundreds of permits a company must acquire before mining starts.

Although the bonding requirement was retained, it was significantly weakened, critics say, because the new rules lack the reclamation standards featured in the Clinton version. "What the provision [still] says is the bond would have to pay for one hundred percent of cleanup, but now it's very unclear what one hundred percent of cleanup would mean," says Lexi Shultz, director of regulatory and legislative affairs for the Mineral Policy Center. "Now the cleanup standards in the regulations are gone. So in addition to no longer assuring that there is going to be full environmental cleanup, what it also could mean is that the mining companies will have to post much lower bonds because what they have to pay for is not spelled out."

Especially disappointing to environmental organizations was the elimination of a provision that required mining companies to show that proposed new operations would result in no "substantial irreparable harm" to environmental, cultural, or scientific resources before they could be issued a permit. Gerard claims this so-called veto provision, which was inserted into the Clinton rules after the public comment period, was unfair, and that the grounds for which the BLM could have refused a permit, and the point in the process at which a refusal could have been issued, were unpredictable and arbitrary. "What it says is that, after meeting all of the criteria that the government sets out before you, [the BLM] can still say no. We think it is unconscionable to have such an open-ended provision," Gerard says. "There is no criteria to determine when you've met the task."

Although this provision covers much of the same legal ground as other environmental laws, Shultz says, it's necessary because it's the only way to prevent a potentially destructive mine before the damage begins. "In theory [the BLM has] the right to stop a mine if the permit would violate the Clean Water Act or the Endangered Species Act," she says, "but you're never going to know that until the mine's in place."