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Legal victory for mining

When a metal mining company discovers a mineral deposit, it first tests whether the rock contains enough of the resource to make a profit. Rock that contains a profitable amount of metal is ore. All non-ore is designated as waste rock. After the miners blast the mine rock loose, trucks load up the ore and take it to the crusher and the mill for metal production. Other trucks take the waste rock to a pile where it sits pretty much until the mine closes.

Under a right-to-know act, mining companies must report all toxic chemicals manufactured, processed or otherwise used in its productions to the Environmental Protection Agency's (EPA) Toxics Release Inventory (TRI). Historically, this reporting has included trace minerals in waste rock. But exactly what constitutes "manufactured" or "processed" in the mining process has stood at the heart of a legal morass that has played out in the courts over the past several years.

The latest court battle is Barrick Goldstrike Mines vs. EPA, now being heralded as a victory for the mining industry. The U.S. District Court for Washington, D.C., ruled in April that mine operators do not have to report trace metals in waste rocks to TRI. Judge Thomas Penfield Jackson said that mining waste rock does not fall under the EPA's definitions for manufactured and processing and therefore cannot be included in reporting to TRI. Environmental groups say that the ruling severely limits public right-to-know laws.

Often, a mine reclamation plan will contour waste rock and seed it with native grasses, as seen in this 1992 picture of a reclaimed waste pile on the Carlin trend in Eureka County, Nev. A recent court case has ruled that mining companies no longer have to report the trace toxic chemicals in waste rock to the Environmental Protection Agency. Photo courtesy of Nevada Bureau of Mines and Geology/Newmont Mining Company.

Begun in 1988 under the Emergency Planning and Community Right-to-Know Act of 1986, TRI contains information on releases of nearly 650 chemicals from industries including manufacturing, metal and coal mining, electric utilities, and commercial hazardous waste treatment. Under a de minimis exemption — based on a legal principle that the court should not concern itself with triviality — companies need not report TRI chemicals in mixtures at concentrations below 1 percent or 0.1 percent if the chemical is an identified carcinogen. Judge Jackson ruled that de minimis applies to waste rock. The ore Barrick recovered over the past three years had less than 1 percent of metal compounds listed as toxic chemicals, and less than 0.1 percent of known carcinogens (save a 0.2 percent level of a carcinogenic arsenic compound).

However, industry produces a huge volume of waste rock and the numbers add up quickly. Since 1997, when EPA added mining companies to the TRI reporting requirements, the mining industry has topped the list as the country's number one TRI offender. In 1999, mining companies contributed slightly over half the 7.77 billion pounds of toxic chemicals released to the environment; more than 95 percent of those reported chemicals from mining are in waste rock.

Barrick and other mining companies have maintained that including those numbers in their annual reports to EPA makes them appear worse than they are. The recent ruling, industry members say, will hopefully shed a more positive, accurate light on mining practices.

"It affirms the position the industry has taken from day one, which is that it was unfair for EPA to require reporting of low concentrations of trace metals, naturally occurring minerals in the rock, when you move a pile of rock from point A to point B on the mine site," says Laura Skaer, executive director of Northwest Mining Association. "When you have naturally occurring metals in just plain old ordinary rock that's been there from day one and all you're doing is digging them up in one place and moving them to another, nothing is being released to the environment."

But, environmental groups contend that by removing the rock from the ground, the industry is exposing chemicals to the environment that otherwise would not have been disturbed — potentially creating acid water drainage and the release of heavy metals into water streams. "We're talking about chemicals in some cases like arsenic, mercury and lead," says Lexi Shultz of the Mineral Policy Center in Washington. "And this decision will not mean that those chemicals won't be released into the environment, it could just mean that the public no longer has the ability to know about them."

According to a 1999 National Research Council (NRC) report on hardrock mining on federal lands, if waste rock piles come into contact with water, contaminants could potentially leach to groundwater and surface water. Capping and sealing the rock, however, acts to prevent acid runoff and toxic release, according to the NRC report. Under the Clean Water Act, EPA regulates chemical releases into water. But, Shultz says, the dumping of waste rock by itself is not something that EPA has much regulatory control over.

Exactly how EPA will interpret the Barrick case has yet to be seen. The case included decisions on several other TRI reporting requirements, including upholding that industry must report toxic chemicals in mine tailings. As of early May, EPA had yet to offer its interpretation of the court ruling; the agency has until June 1 to file an appeal.

The Barrick ruling follows on the heels of a similar ruling in Denver last year. EPA, however, chose not to make new rules or guidance documents as a result. The Barrick case will likely make a larger impact — a decision in the D.C. court against a federal agency binds that decision to the entire country.

Lisa M. Pinsker

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