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Legislative and Regulatory Update - July 2002 (Vol. 71, No. 11)
Legislative and Regulatory Update
by Staff
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Celebrities take over hearing, and at least one senator is fed up
Washington, DC (AP)—The cable television network that broadcasts congressional hearings is looking more like “Entertainment Tonight” these days. The celebrities who turned up recently included Julia Roberts, Christie Brinkley, Michael J. Fox, and Kevin Richardson of the pop group Backstreet Boys.

Senator George Voinovich says enough is enough. He boycotted Thursday’s hearing of the Senate Environment and Public Works clean air subcommittee to protest Richardson’s appearance.

The singer testified about mountaintop mining, a practice in which the top of a ridge or mountain is sheared off to expose a coal seam. Dirt and rock waste then is pushed into nearby valleys and waterways.

“It’s just a joke to think that this witness can provide members of the United States Senate with information on important geological and water quality issues,” Voinovich said. “We’re either serious about the issues or we’re running a sideshow.”

Senator Joe Lieberman opened the hearing by defending his invitation to Richardson.

“Mr. Richardson is here as more than a well-known celebrity,” Lieberman said. “He is knowledgeable on this issue and has in fact worked to protect the environment in his home state. I believe his voice will add to our understanding of the issue.”

Richardson has an environmental group called Just Within Reach. It has been active on mountaintop mining, which is used in Richardson’s home state of Kentucky.

Richardson sat in the back of the hearing room while waiting to testify. His prepared remarks did not include any reference to Voinovich.

Political analysts agree there’s a fine line between celebrities with legitimate expertise and those who have been invited to appear before Congress just to draw media attention.


Ruling upholds EPA’s authority to address Garcia River, other waterways polluted by runoff
A U.S. Court of Appeals affirmed a landmark district court ruling on Friday that upholds the EPA’s and states’ authority to identify which U.S. waterways are polluted by runoff from urban areas, agriculture and timber harvesting, and to identify the maximum amount of pollutants that may enter these waterways. This could also cause additional restrictions on mining operations.

The opinion by Ninth Circuit Court Judge Marsha Berzon on behalf of a three-judge panel in San Francisco affirms the comprehensive scope of the Clean Water Act’s “Total Maximum Daily Load” program.  A TMDL defines the greatest amount of a particular pollutant that can be introduced into a waterway without exceeding the river’s water quality standard. The appellate panel found the District Court ruled correctly that Congress intended to include non-point source pollution (such as water runoff from roads) in the Clean Water Act’s water quality standards and planning program.

“This decision affirms our efforts to continue using a strong tool to help restore America’s rivers and clean up pollution, regardless of its source,” said Wayne Nastri, EPA regional administrator for the Pacific Southwest. “Non-point source pollution is the dominant water quality problem in the United States today.”

When the EPA developed a sediment TMDL for the Garcia River in 1998, the American Farm Bureau Federation and other agriculture and timber groups sued, claiming that the EPA and state should calculate TMDLs only for pollutants that are discharged from pipes, or “point sources.” The District Court and now the Ninth Circuit Court of Appeals rejected the argument presented in the Pronsolino case, holding that the Clean Water Act is designed to provide a comprehensive solution to the nation’s water quality problems, without regard to the sources of pollution. The Appeals Court held that the Clean Water Act is best read to include in the (waterbody) listing and TMDL requirements waters impaired only by non-point sources of pollution in addition to waters impaired by point sources.  

In California, only 1 percent of impaired waterways fail to meet water quality standards solely because of pollution that comes from pipes, municipal waste treatment works, or other point sources. EPA data shows that 54 percent of California’s impaired waterways are polluted by non-point sources exclusively, while another 45 percent are impaired by a combination of point and non-point sources.


US Supreme Court: Sokaogon Chippewa can set water standard
The US Supreme Court has let stand a lower court decision that gave the Sokaogon band of Chippewa Indians the power to set water quality standards on its reservation downstream from the proposed Crandon zinc and copper mine.

Those standards, higher than those set by the Wisconsin Department of Natural Resources (DNR), mean that Nicolet Minerals would have to return water from the Forest County mine at the same pristine quality it was before it came into contact with the mine.

Dale Alberts, president of Nicolet Minerals, said the company could comply with the stricter limits.

Alberts said the company believes it can extract 55 million tons of zinc and copper, and smaller amounts of lead, silver and gold, without harming surrounding groundwater.

“We decided that we could comply with their nondegradation standard, and we intend to do so,” he said.

The 7th US Circuit Court of Appeals in Chicago had ruled that the Environmental Protection Agency (EPA) can allow the Sokaogon band to regulate waters on its reservation. The court case pitted the Sokaogon and the EPA against the DNR.

The EPA argued that Congress authorized that federal agency to treat the American Indian tribes the same way as states.

But the DNR said it had authority over water resources within the state. The agency also said it had higher standing because Wisconsin achieved statehood before the Sokaogon were ceded land for a reservation.

But the federal appeals court panel said the Sokaogon band was a community and American Indian culture relies heavily on water resources. Further, the court said that the ore body’s 1,850 acres are all owned by American Indians.

Alberts said Nicolet Minerals wants to mine the site because the zinc there is one of the largest undeveloped sources in North America, and it lies within 500 miles of 64 percent of zinc consumption in the country.

Water quality plays a role in the mining process because groundwater seeps into the mine tunnels. Some of the water is pumped out, and some is used during the mining process. All the groundwater has to be treated before being returned to the aquifer.

The Sokaogon are concerned about how the mine will affect the groundwater, as well as nearby Swamp Creek and Rice Lake, which is fed by the stream. The Sokaogon harvest wild rice from the lake, and consider the annual harvest as highly important to their culture.

“We mainly harvest it for ceremonies,” said Tina Van Zile, the Sokaogon’s vice chairwoman.

The DNR said a decision on whether the mine can proceed probably will not take place until 2004. The agency must still complete an environmental review before the decision goes to an administrative law judge.

“We suspect that other tribes will be interested in this,” Mike Lutz, a DNR lawyer, said of the court’s decision.

Ken Fish, director of the Menominee tribe’s treaty rights and mining impact office, said that tribe will ask for the same authority as the Sokaogon because tribal members believe they can police their water better than the DNR.

“Currently the state of Wisconsin and the DNR have a different agenda than we do,” he said.


1872 Mining Law under attack
Representatives Rahall, Shays, and Inslee introduced another bill attacking the 1872 Mining Law. The latest assault includes an eight percent royalty, location fees, maintenance fees, citizen suit provisions, user fees, changes to patenting, surface management standards, permit requirements, and unsuitability reviews. The likelihood of the bill moving is not known according to Steve Borell, Alaska Mining Association Executive Director.


Waiting for a decision about 43CFR 3809
Comments were again submitted by ICMJ regarding 43CFR 3809 regulations during a brief window when the comment period was reopened. The largest issues currently facing small miners continues to be the financial guarantee requirement (bonding) and validity exams. There are no companies that issue the types of bonds that the BLM requires. BLM does not have sufficient resources to carry out validity exams in a timely manner. We are now awaiting the review and decision on these issues.

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