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In a baffling reversal on yet another environmental issue, the Obama administration has decided to defend in court a Bush-era regulation that allows unlimited dumping fo hard rock mining waste on public land, in Forest Service and Bureau of Land Management holdings.

The May 30 government filing in Earthworks et al. v. Department of the Interior et al., currently before the U. S. District Court for the District of Columbia, indicates that although the White House had an opportunity to either reverse the rule or study its effectiveness, it has chosen to defend it in court....

The lawsuit challenges a pair of Bush-era decisions, made in 2003 and 2008, that collectively allow private mining firms to dump their waste on public land without compensating the government for any environmental damage.

There are two Bush administration rules at issue, one which allows for the unlimited dumping of toxic mine waste from large-scale industrial mining on public lands, and the other which reverses a requirement that the government receive compensation from the mining companies for the use of the public land. The Obama administration decision to defend these rules comes after Interior Secretary Ken Salazar's promise last summer that the new administration would "make reforming the nation's 137-year-old hardrock mining law a top priority."

Salazar told a Senate committee considering reform legislation that "it is time to ensure a fair return to the public for mining activities that occur on public lands and to address the cleanup of abandoned mines."

The General Mining Act of 1872, which gives mining preference over other uses on much of the nation's public lands, has left a legacy of hundreds of thousands of abandoned mines that are polluting rivers and streams throughout the West. Mining companies also don't pay royalties on gold, silver, copper and other hardrock minerals mined on public land.

It also comes after a notice issued in July of last year from the EPA that "identifies mining as a taxpayer burden and the nation’s top polluter, documenting billions spent over the past decade on cleanup of mining industry toxic 'mega-sites.'” The taxpayer burden from hard-rock mining is a double whammy. Mining companies don't pay royalties back to the treasury for the precious metals they extract from public land, nor do they--under the Bush rules that the Obama administration is now backing--now have to pay any recompense for the environmental damage dumping the waste will cause. Which makes the antiquated and damaging 1872 mining law even worse.

These rules represent a huge liability to the taxpayer, and a massive gift to the industry that the EPA has identified as the sector "posing the highest financial risk for taxpayer cleanups," noting:

  • “[T]he hardrock mining industry has experienced a pattern of failed operations, which often require significant environmental responses that cannot be financed by industry.”
  • The hardrock mining industry “releases enormous quantities of toxic chemicals”—according to the 2007 Toxic Release Inventory, 28 percent of the total releases by U.S. reporting industries.
  • EPA estimates the cost of remediating all hardrock mining facilities between $20 and $54 billion.
  • EPA’s expenditure data shows that between 1988 and 2007, approximately $2.7 billion was spent on cleanup of hardrock mining facilities, with $2.4 billion going to National Priority List sites. The largest portion of these expenses has been incurred since 1998.

This administration decision has sort of flown under the radar this week, with the offshore drilling decision receiving much more attention. It hasn't, however, gone unnoticed entirely in Congress. Rep. Raul Grijalva blasted the decision, saying that it "puts short-term profits above longer-term considerations."

“Federal land isn’t a taxpayer-funded dumping ground, and it’s time the administration said so. Allowing mining companies to profit by using the Forest Service and the Bureau of Land Management as waste heaps is a decision that will be long remembered by the American people, and it should be reversed without delay.”

The administration could heed the words of its own EPA and reverse this decision, settling the lawsuit and revising the rule. It would be the environmentally and fiscally responsible thing to do.

Originally posted to Daily Kos on Fri Apr 02, 2010 at 10:20 AM PDT.

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