[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]
REFORMING THE MINING LAW
OF 1812--H.R. 7580, ``CLEAN
ENERGY MINERALS REFORM
ACT OF 2022''
=======================================================================
LEGISLATIVE HEARING
BEFORE THE
SUBCOMMITTEE ON ENERGY AND
MINERAL RESOURCES
OF THE
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTEENTH CONGRESS
SECOND SESSION
__________
Thursday, May 12, 2022
__________
Serial No. 117-21
__________
Printed for the use of the Committee on Natural Resources
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
or
Committee address: http://naturalresources.house.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
47-569 PDF WASHINGTON : 2022
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COMMITTEE ON NATURAL RESOURCES
RAUL M. GRIJALVA, AZ, Chair
JESUS G. ``CHUY'' GARCIA, IL, Vice Chair
GREGORIO KILILI CAMACHO SABLAN, CNMI, Vice Chair, Insular Affairs
BRUCE WESTERMAN, AR, Ranking Member
Grace F. Napolitano, CA Louie Gohmert, TX
Jim Costa, CA Doug Lamborn, CO
Gregorio Kilili Camacho Sablan, Robert J. Wittman, VA
CNMI Tom McClintock, CA
Jared Huffman, CA Garret Graves, LA
Alan S. Lowenthal, CA Jody B. Hice, GA
Ruben Gallego, AZ Aumua Amata Coleman Radewagen, AS
Joe Neguse, CO Daniel Webster, FL
Mike Levin, CA Jenniffer Gonzalez-Colon, PR
Katie Porter, CA Russ Fulcher, ID
Teresa Leger Fernandez, NM Pete Stauber, MN
Melanie A. Stansbury, NM Thomas P. Tiffany, WI
Nydia M. Velazquez, NY Jerry L. Carl, AL
Diana DeGette, CO Matthew M. Rosendale, Sr., MT
Julia Brownley, CA Blake D. Moore, UT
Debbie Dingell, MI Yvette Herrell, NM
A. Donald McEachin, VA Lauren Boebert, CO
Darren Soto, FL Jay Obernolte, CA
Michael F. Q. San Nicolas, GU Cliff Bentz, OR
Jesus G. ``Chuy'' Garcia, IL Vacancy
Ed Case, HI Vacancy
Betty McCollum, MN
Steve Cohen, TN
Paul Tonko, NY
Rashida Tlaib, MI
Lori Trahan, MA
David Watkins, Staff Director
Luis Urbina, Chief Counsel
Vivian Moeglein, Republican Staff Director
http://naturalresources.house.gov
------
SUBCOMMITTEE ON ENERGY AND MINERAL RESOURCES
ALAN S. LOWENTHAL, CA, Chair
PETE STAUBER, MN, Ranking Member
A. Donald McEachin, VA Yvette Herrell, NM
Mike Levin, CA Doug Lamborn, CO
Katie Porter, CA Garret Graves, LA
Diana DeGette, CO Thomas P. Tiffany, WI
Betty McCollum, MN Vacancy
Jared Huffman, CA Bruce Westerman, AR, ex officio
Debbie Dingell, MI
Raul M. Grijalva, AZ, ex officio
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CONTENTS
----------
Page
Hearing held on Thursday, May 12, 2022........................... 1
Statement of Members:
Grijalva, Hon. Raul M., a Representative in Congress from the
State of Arizona........................................... 2
Prepared statement of.................................... 3
Herrell, Hon. Yvette, a Representative in Congress from the
State of New Mexico........................................ 4
Stauber, Hon. Pete, a Representative in Congress from the
State of Minnesota, prepared statement of.................. 5
Westerman, Hon. Bruce, a Representative in Congress from the
State of Arkansas, prepared statement of................... 87
Statement of Witnesses:
Panel I
Feldgus, Hon. Steven H., Ph.D., Deputy Assistant Secretary
for Land and Minerals Management, Department of the
Interior, Washington, DC................................... 7
Prepared statement of.................................... 8
Questions submitted for the record....................... 13
Panel II
Chen, James C., Vice President of Public Policy, Rivian
Automotive, LLC, Washington, DC............................ 29
Prepared statement of.................................... 30
Questions submitted for the record....................... 35
Kalen, Sam, William T. Schwartz Distinguished Professor of
Law, University of Wyoming College of Law, Laramie, Wyoming 36
Prepared statement of.................................... 38
Stiffarm, Jeffrey, President, Fort Belknap Indian Community,
Harlem, Montana............................................ 26
Prepared statement of.................................... 27
Struhsacker, Debra, Environmental Permitting & Government
Relations Consultant, Co-Founder and Director, Women's
Mining Coalition, Reno, Nevada............................. 40
Prepared statement of.................................... 41
Questions submitted for the record....................... 71
Additional Materials Submitted for the Record:
Submissions for the Record by Representative Grijalva
National Parks Conservation Association, Letter dated May
11, 2022............................................... 107
U.S. Department of Agriculture, Statement for the Record. 108
Submissions for the Record by Representative Herrell
Horsford, Hon. Steven, U.S. House of Representatives,
Letter dated May 16, 2022.............................. 110
National Mining Association, Letter dated May 12, 2022... 111
List of documents submitted for the record retained in the
Committee's official files................................. 112
LEGISLATIVE HEARING ON REFORMING THE MINING LAW OF 1812--H.R. 7580, TO
MODIFY THE REQUIREMENTS APPLICABLE TO LOCATABLE MINERALS ON PUBLIC
DOMAIN LANDS, CONSISTENT WITH THE PRINCIPLES OF SELF-INITIATION OF
MINING CLAIMS, AND FOR OTHER PURPOSES, ``CLEAN ENERGY MINERALS REFORM
ACT OF 2022''
----------
Thursday, May 12, 2022
U.S. House of Representatives
Subcommittee on Energy and Mineral Resources
Committee on Natural Resources
Washington, DC
----------
The Subcommittee met, pursuant to notice, at 10 a.m., in
room 1324, Longworth House Office Building, Hon. Raul M.
Grijalva [Chairman of the Committee] presiding.
Present: Representatives Grijalva (ex officio), Porter,
DeGette, Huffman, Dingell; Herrell, Lamborn, Graves, Tiffany,
and Westerman (ex officio).
Also present: Representatives Fulcher, Carl, and Moore.
Mr. Grijalva. The Subcommittee on Energy and Mineral
Resources will come to order.
I am going to have the difficult responsibility today to
sit in for the Chair of the Subcommittee, Mr. Lowenthal. And my
apologies to the Ranking Member and to others for the fact that
it won't be as smooth as he runs his meetings. So, thank you.
We are meeting today to hear testimony on the legislation,
H.R. 7580, the ``Clean Energy Minerals Reform Act of 2022.''
Under Committee Rule 4(f), any oral opening statements at
the hearing are limited to the Chair and the Ranking Minority
Member, or their designees. This will allow us to hear from our
witnesses sooner and help Members keep to their schedules.
Therefore, I ask unanimous consent that all other Members'
opening statements be made part of the hearing record if they
are submitted to the Clerk by 5 p.m. today, or at the close of
the hearing, whichever comes first.
Hearing no objection, so ordered.
Without objection, the Chair may also declare a recess,
subject to the call of the Chair.
And without objection, Representatives Moore, Carl, and
Fulcher are authorized to question the witnesses in today's
hearing.
As described in the notice, all statements, documents, or
motions must be submitted to the electronic repository at
[email protected]. Members physically present should
provide a hard copy for staff to distribute by e-mail.
Please note that Members are responsible for their own
microphones. As with our fully in-person meetings, Members are
muted by staff only to avoid inadvertent noises.
Finally, Members or witnesses experiencing technical
problems should inform Committee staff immediately.
With that, let me begin with my opening statement.
STATEMENT OF THE HON. RAUL M. GRIJALVA, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ARIZONA
Mr. Grijalva. This week marks the 150th anniversary of the
Mining Law of 1872. Usually, anniversaries are something to
celebrate. But in this case it is a stark reminder that the
time for change is long, long overdue.
The mining industry has seized the antiquity of this mining
law as an opportunity to appropriate public lands, environment,
Indigenous communities, and public health without any semblance
of accountability. This is an industry that appears to think
that America's public lands are its birthright, and they should
be able to pick and choose where they get to dig and what they
get to spoil, all without paying a cent of royalties. It is all
backwards.
America's public lands belong to all Americans, not the
mining industry. That is why legislation has been introduced to
overhaul the Mining Law of 1872. And that is why I think it is
as important as ever to put this into law. The Clean Energy
Minerals Reform Act will improve the way we do mining in
several fundamental ways.
First, the bill puts a royalty in place for all minerals
extracted from public lands. Under the current law, mining
companies don't pay a single cent to use and to appropriate
from our public lands. Not even Big Oil has a deal that is
slanted that much toward its industry.
Second, the bill protects special places and brings mining
under the land-use planning process. When we talk about threats
to the Grand Canyon, or the Boundary Waters, or Indigenous
sacred sites like Oak Flat or Bears Ears, it all comes back to
the fundamental flaw in the mining law that tilts the balance
of power away from land managers acting on behalf of the
American people and toward the mining industry's corporate
interests and profit line. My bill gives power back to land
managers and sets benchmark environmental standards for
permitting and reclamation.
Third, the legislation protects tribal sovereignty and
requires minimal tribal consultation. For too long, tribes have
been overlooked when it comes to land management, and mining is
no exception. This bill ensures that Federal agencies hear
directly from tribes that are impacted by mining projects and
mining development.
And, finally, the bill finishes the work of the Bipartisan
Infrastructure Law by providing a dedicated source of funding
for abandoned hardrock mine cleanup. While that law moved us in
the right direction, hardrock mining cleanup didn't get the
funding. My bill makes sure that the industry, not the
taxpayer, foots the bill for this toxic legacy of pollution.
There is a lot of interest in Congress and the
Administration right now about critical minerals, especially
minerals that are important for renewable energy and our clean
energy transition. But we shouldn't sacrifice tribal sacred
sites, wilderness, national forests, and public health just
because the metals coming from the ground will go into a wind
turbine, or a solar panel, or an electric vehicle battery. I
think the Administration gets it. We all want to see mining
done under the best possible labor and environmental standards,
but that isn't possible without a comprehensive rewrite of the
mining law.
I hope that today's hearing makes it clear why this
legislation is so necessary, but also highlights the places
where we all might agree.
I look forward to hearing from the Biden administration and
our invited witnesses on the legislation, and I want to thank
them all for being here and for taking the time.
[The prepared statement of Mr. Grijalva follows:]
Prepared Statement of the Hon. Raul M. Grijalva, Chair, Full Committee
on Natural Resources
This week marks the 150th anniversary of the Mining Law of 1872.
Usually, anniversaries are something to celebrate, but in this case,
it's a stark reminder that the time for change is long overdue.
The mining industry has seized the opportunity to wreak havoc on
our public lands, environment, Indigenous communities, and public
health--without any semblance of accountability.
This is an industry that appears to think that America's public
lands are its birthright, and they should be able to pick and choose
where they get to dig and what they get to spoil, all without paying a
cent of royalties.
They have it backwards. America's public lands belong to all
Americans, not the mining industry.
That's why I introduced legislation to overhaul the Mining Law of
1872. And that's why I think it's as important as ever to put it into
law.
My Clean Energy Minerals Reform Act will improve the way we do
mining in several fundamental ways.
First, this bill puts a royalty in place for all minerals extracted
from public lands. Under the current law, mining companies don't pay a
single cent to use our public lands.
Not even Big Oil has a deal that slanted toward industry.
Second, the bill protects special places and brings mining under
the land-use planning process.
When we talk about threats to the Grand Canyon, or the Boundary
Waters, or Indigenous sacred sites like Oak Flat or Bears Ears, it all
comes back to the fundamental flaw in the Mining Law that tilts the
balance of power away from land managers acting on behalf of the
American people and toward the mining industry's corporate profits. My
bill gives power back to land managers and sets benchmark environmental
standards for permitting and reclamation.
Third, this legislation protects tribal sovereignty and requires
meaningful tribal consultation.
For too long tribes have been overlooked when it comes to land
management, and mining is no exception. This bill ensures that Federal
agencies hear directly from tribes that are impacted by mining
projects.
And finally, the bill finishes the work of the Bipartisan
Infrastructure Law by providing a dedicated source of funding for
abandoned hardrock mine cleanup.
While that law moved us in the right direction, hardrock mine
cleanup didn't get any funding. My bill makes sure that industry, not
taxpayers, foots the bill for their toxic legacy of pollution.
There's a lot of interest in Congress and the Administration right
now about critical minerals--especially minerals that are important for
renewable energy and our clean energy transition.
We shouldn't sacrifice tribal sacred sites, wilderness, national
forests, public health, just because the metals coming from the ground
would go into a wind turbine or a solar panel or and electric vehicle
battery.
I think the Biden administration gets it. We all want to see mining
done under the best possible labor and environmental standards but that
isn't possible without a comprehensive rewrite of the Mining Law.
I hope that today's hearing makes it clear why this legislation is
so necessary, but also highlights the places where we all might agree.
I look forward to hearing from the Biden administration and our
invited witnesses on the legislation. Thank you all for being here.
______
Mr. Grijalva. With that, let me recognize Representative
Herrell, who is sitting in for Ranking Member Stauber today. We
are both designees, per se, today.
Ms. Herrell, the floor is yours.
STATEMENT OF THE HON. YVETTE HERRELL, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NEW MEXICO
Ms. Herrell. Thank you so much, Mr. Chairman. I appreciate
the opportunity to be here in person with you and take the
place and fill the large shoes of Congressman Stauber. But I
want to thank the witnesses for being here in person and
virtually, as well.
And, Mr. Chairman, you have heard me and my colleagues
discuss hardrock mining many times this Congress. But as you
know, the issues go back many years. Concern about the rising
demand for minerals, the global dominance of China, and the
pending supply chain crisis pre-dates my time in this
Committee.
Now, the truth is undeniable. Demand for copper, lithium,
cobalt, and dozens of other minerals is rapidly outpacing
supply. This is largely due to the projected growth of the
renewable energy as electric vehicles, battery storage, and
wind and solar power cannot be built without these rare and
valuable resources.
The aggressive renewable goal set by the Biden
administration and other governments are exacerbating the
coming shortage. We cannot recycle our way out of this problem.
The International Energy Agency predicts demand for critical
minerals could increase by six times by 2040. The question is
not do we need more mining, but rather where and how should we
do it.
Unfortunately, the bill we are considering today, H.R.
7580, ignores these ever-worsening supply chain concerns. H.R.
7580 is framed as a reform of the Mining Law of 1872 for
renewable energy minerals. In reality, this bill would
permanently harm our domestic mining sector and cripple our
access to minerals for renewable energy or any other purpose.
I have been pleased to see the Biden administration
acknowledge the link between mining and renewables. But,
unfortunately, much of what the Biden administration says
directly conflicts with what it does. For instance, President
Biden hosted a roundtable in February to discuss the importance
of responsible domestic mining. The Administration even issued
a statement saying global demand for these critical minerals is
set to skyrocket by 400 to 600 percent, citing the importance
of expanding domestic mining, production, processing, and
recycling of critical minerals and material.
At the same time, we have seen the Department of the
Interior cancel decades-long mineral leases in my friend
Congressman Stauber's district, endangering one of the most
promising copper, nickel, cobalt projects in the world. The
Department of Ag is trying to withdraw that entire area in
northern Minnesota from mineral development, without even
letting the NEPA process take place.
The Administration and Congressional Democrats continue to
fight the Resolution Copper Project in Arizona, despite a
Federal land exchange and many years of environmental review
and tribal consultation.
Additionally, a proposed critical habitat designation for
Tiehm's buckwheat now threatens a lithium mine in Nevada, even
though worldwide demand for lithium will double by 2025.
And examples go on and on. We need to decide what policy
choices are in the best interest of our country.
The United States is, hands down, one of the best places to
mine, due to the richness of our resources, our skilled
workforce, and our world-class environmental and labor
standards. H.R. 7580 would unquestionably take us further away
from our technological goals and destroy any chance at
competitiveness on the world stage.
At a time of increasing international instability and the
threat of China looming ever closer, legislation like this is
more harmful than ever.
And to be submitted to the record, Mr. Chairman, I would
like to submit Ranking Member Stauber's statement for the
record.
Mr. Grijalva. Without objection.
[The prepared statement of Mr. Stauber follows:]
Prepared Statement of the Hon. Pete Stauber, a Representative in
Congress from the State of Minnesota
Thank you, Chairman Lowenthal. We need mining in America.
We need it for home heating, for running air conditioners, for cell
phones, for dialysis machines, for fighter planes, and for infinite
more applications.
And if we don't mine it here, we import it. And we import the raw
materials for everything I just mentioned from places like China,
Russia, and the Congo.
But we don't have to. America has an abundance of natural
resources, much of which is on Federal lands. In fact, my district
alone contains 95 percent of America's nickel, 88 percent of our
cobalt, and more than one-third of our copper.
However, today in the Energy and Mineral Resources Subcommittee, we
are debating legislation that, if passed, would essentially ban mining
on Federal lands in America.
It would endanger American energy independence, cripple our already
failing domestic supply chains, and continue to drive up costs for
Americans.
Let me be clear: this bill is designed to make mining in America
all but impossible, not easier.
And the Democrats know it. That's why they've embarked on an
aggressive rebrand, hand in hand with the Administration, and are now
calling their anti-mining legislation the so-called Clean Energy
Minerals Reform Act.
But we've been down this road before, and Americans know better.
Similar legislation died on the vine last year, and it'll die on the
vine again, because they can't even get all Democrats in Congress
behind this.
Previously, it was known as the ``Hardrock Leasing and Reclamation
Act'', and it's frequently referred to as ``Mining Law reform.''
Meanwhile, President Biden has issued recommendations that closely
track with the unpopular legislation we're debating here today, along
with rolling back common-sense permitting reforms.
And at the same time, he's offered a reinterpretation of the
Defense Production Act, which did nothing to make mining easier, and he
offered a toothless ``Permitting Action Plan'' just yesterday.
So, why are Democrats running from their own policies and issuing
these aggressive rebrands?
I'll tell you why. Americans want mining in America, but Democrats
don't. So they're hiding behind cute little bill title changes and
weak, beltway policy memos out of the White House.
Every single policy supported by Biden and the Democrats have made
Americans' lives harder and more expensive. Just try to order an
electric vehicle right now. Even if you wanted one, it'll take months,
if not years.
And that's because it is hard to mine domestically in this country.
Here's an example: The PolyMet project is approaching 20 years of
permitting and litigation. It is a copper, nickel, and cobalt project--
a lot of what you need for an electric vehicle.
And two Democrat administrations have lauded this project. The
Obama administration's EPA gave the project the highest rating possible
for a mine, the same as the Stillwater Bridge or other popular projects
in Minnesota.
And the Biden administration mentioned it in it's 100-day Supply
Chain Review as a potential option for nickel.
But what did this Administration do? It remanded the very permit
given high marks when Joe Biden was Vice President and the same project
he mentioned as a viable nickel source just last year.
At the same time, the legislation before us today actually adds two
more duplicative permits on top of an already impossible timeline.
More reviews, more extensions, and more permits mean more delays
for American mining.
Therefore, we will be more reliant on horrific supply chains, like
children in the Congo mining cobalt by hand. And, at the end of the
day, more delays for Americans to receive their needed products.
The bill also ignores a basic understanding of geology and
implements an oil-and-gas style leasing system. In the mining sector,
only about 1 in every 1,000 discoveries results in a mine, as opposed
to accessing a seam or well.
And, under the bill, every mine that invests multi-billions of
dollars; survives a multi-decade permitting scheme and lawsuits from
radical activists; and also happens to be a 1 in 1,000 exploration
lottery ticket for a viable deposit, is then subject to a punitive 12.5
percent royalty.
Why would any company want to invest in American resources under
such a hostile scheme put in place?
And that is the goal here. This legislation lengthens permitting
timelines, puts in place the wrong leasing system, and levies a royalty
to dissuade any investment and push mining abroad.
In fact, Chairman Grijalva, I'd like to offer you another rebrand
for your legislation: How about the UNclean Energy Minerals from China,
Russia, and Child Slaves in the Congo Act?
I think that fits a little better. Thank you, and I yield back.
______
Ms. Herrell. And also letters of opposition to H.R. 7580
and statement policies from Eureka County Board of
Commissioners, Elko County Board of Commissioners, Humboldt
County Board of Commissioners, Pershing County Board of
Commissioners, Western Governors Association, Coeur Mining,
American Exploration & Mining Association, National Mining
Association, Arizona Mining Association, and Arizona Chamber of
Commerce.
Mr. Grijalva. Without objection, so ordered.
Ms. Herrell. Thank you, Mr. Chair, and I yield back.
Mr. Grijalva. Thank you. Let me now invite the Honorable
Steven H. Feldgus, Deputy Assistant Secretary for Land and
Minerals Management for the Department of the Interior. Steve,
it is great to see you in the hearing room again, and you will
be recognized for 5 minutes for your statement.
STATEMENT OF THE HON. STEVEN H. FELDGUS, PH.D., DEPUTY
ASSISTANT SECRETARY FOR LAND AND MINERALS MANAGEMENT,
DEPARTMENT OF THE INTERIOR, WASHINGTON, DC
Dr. Feldgus. Thank you very much. Chair Grijalva, Ranking
Member Herrell, members of the Subcommittee, my name is Steve
Feldgus. I am the Deputy Assistant Secretary for Land and
Minerals Management at the Department of the Interior. Thank
you for the opportunity to discuss the need to reform the
General Mining Law of 1872 and Chair Grijalva's legislation,
the Clean Energy Minerals Reform Act of 2022.
Exactly 150 years and 2 days ago, President Ulysses S.
Grant signed the General Mining Law of 1872. Much like the
Homestead Act that was signed 10 years earlier, the mining law
was designed to encourage the settlement of the American West
by giving away public lands and resources at little to no cost.
The law allowed citizens to freely explore public lands for
valuable minerals, such as gold, silver, and copper, to stake a
claim if minerals were discovered, and to patent that claim,
gaining legal title to the land and all the minerals contained
within it for as little as $2.50 an acre.
The Mining Law of 1872 did not, however, account for the
legacy of environmental degradation that mining would have on
its surrounding communities, nor did it provide for royalties
or a comprehensive system to evaluate, permit, develop, and
reclaim mines to ensure sustainable mining and healthy public
lands.
Over the last 150 years, the management of our public lands
has evolved to meet the needs of our nation, with the
Department of the Interior serving as a steward of our public
lands and resources for future generations. Many of our laws
have changed with the times. The Homestead Act was repealed,
but the Mining Law of 1872 remains.
To be sure, Congress has updated the laws governing
minerals such as oil and gas, coal, and sand and gravel, many
of which were originally covered by the Mining Law of 1872. But
it has not done so for some of our most valuable and critical
hardrock minerals, and in particular the minerals that are so
important for a clean energy transition.
We can recognize the historic contribution that mining has
played in this country, but we must also acknowledge the limits
that exist today from relying on such an antiquated law. The
Biden-Harris administration recognizes the important role
mining will continue to play in the modern economy, and the
growing need for responsibly sourced critical minerals to
realize a clean energy economy, combat climate change, and
ensure the security of our nation. These are 21st century
imperatives, and they will be difficult to achieve by relying
on a relic of the 19th century designed during the Grant
administration for a United States with different needs,
different priorities, and different challenges.
This is why President Biden has outlined a whole-of-
government approach to ensure domestic mining is sustainable,
responsible, and efficient. This includes signing Executive
Order 14017, which directed an assessment of the supply chains
for critical and strategic minerals essential to the economic
and national security of the United States. And the President
also recently announced his intention to use the Defense
Production Act to support the responsible production of five
critical minerals needed for large-capacity batteries, which
will help accelerate the clean energy transition in the short
term.
The supply chain review has also made it clear that the
mining law must be reformed. In response, the Department of the
Interior formed an interagency working group tasked with
reviewing existing mining laws, regulations, and permitting
processes to make recommendations on what reforms are needed.
Two days ago, on the 150th anniversary of the mining law, that
working group hosted a meeting that brought together the mining
industry, tribes, states, environmental organizations, and
others to discuss the fact that everyone has something to gain
from reform of the mining law: tribes, taxpayers, mining
companies, mining communities, everyone.
This is just the start of an extensive series of public
input and comment sessions to ensure an inclusive process,
because the purpose of the working group is to listen to all of
these voices, and learn, and try to figure out how we can find
the common ground where everyone benefits.
This working group is being guided by the Administration's
fundamental principles for domestic mining reform, which lists
the key values that will drive the efforts to update the
country's mining regulations, laws, and permitting processes.
These principles would ensure that new production meets strong
environmental, community, and tribal consultation standards
during all stages of mine development, while improving the
efficiency and outcomes of the permitting process.
These reforms would ensure that taxpayers, for the first
time ever, receive a fair return for the extraction of valuable
metals from public lands and give the American public
confidence that the minerals and materials used in our electric
vehicles, smartphones, solar panels, and other technologies are
sourced under responsible social, environmental, and labor
standards.
Many of these principles are embodied in H.R. 7580, the
Clean Energy Minerals Reform Act, and we commend Chair Grijalva
and his co-sponsors for their work on this landmark piece of
legislation.
Thank you again for the opportunity to be here today. We
look forward to working with Congress, states, tribes, the
industry, and the general public to gather ideas and forge a
new path forward. I am happy to answer your questions.
[The prepared statement of Dr. Feldgus follows:]
Prepared Statement of Steve Feldgus, Ph.D., Deputy Assistant Secretary,
Land and Minerals Management, U.S. Department of the Interior
Chairman Lowenthal, Ranking Member Stauber, and Members of the
Committee, thank you for the opportunity to provide testimony on
President Biden's vision for a whole-of-government effort to reform the
General Mining Law of 1872 (Mining Law) and to promote the sustainable
and responsible domestic production of minerals and to ensure a fair
return to the taxpayer.
Tuesday marked the 150th anniversary of the Mining Law. At the time
of its enactment, Congress designed the Mining Law to encourage mineral
exploration and development on Federal lands and the settlement of the
West. The law allowed citizens to explore public lands for valuable
minerals (such as gold, silver, and copper), to stake a claim if
minerals could be extracted at a profit, and to patent the claim--
gaining legal title to the land for a nominal cost--to encourage
settlement. Congress did not, however, account for the legacy of
environmental degradation that mining would have on its surrounding
communities, nor did it provide for royalties, or a comprehensive
system to evaluate, permit, develop, and reclaim mines to ensure
sustainable mining and healthy public lands for future generations. In
short, it was very much legislation of its time.
Over the last 150 years, the management of our public lands--
through the Department of the Interior (Department) and its Bureaus--
has evolved to meet the needs of our nation and to serve as a steward
of our public lands and resources. While we can recognize the historic
and defining contribution that mining played in settling the West, we
also must recognize the limits that exist today from relying on such an
antiquated system. The Administration recognizes the important role
mining will continue to play in the modern economy and the growing need
for responsibly sourced critical minerals to meet our climate,
infrastructure, and global competitiveness goals, but believes that the
Mining Law of 1872 provides an inadequate structural framework and
serves as an impediment to a robust, environmentally, and socially
responsible, sustainable domestic mining industry.
We appreciate the work the Sponsor and the Committee have done to
propose reforms to the Mining Law through H.R. 7580, the Clean Energy
and Mineral Reforms Act. We look forward to continuing to work with
Congress as the Administration undergoes its review of the Federal
mining program and considers proposals for potential mining reforms.
Laws Governing Mining on Federal Lands
For almost 150 years, the Mining Law has allowed for domestic
mineral production on Federal lands. Initially, the Mining Law provided
disposal authority with no return to the taxpayer for development of
nearly all mineral resources. In 1920, Congress enacted the Mineral
Leasing Act (MLA), removing petroleum, natural gas and other
hydrocarbons, as well as phosphates, sodium, sulfur, and potassium,
from disposal under the Mining Law and creating a leasing-based system
for these minerals. In 1947, the Materials Act removed ``common
varieties'' of certain widespread minerals of common occurrence, such
as sand and gravel, from disposal under the Mining Law and instead made
them subject to sale or permit. Today, the minerals subject to disposal
under the Mining Law include both metallic minerals, such as gold,
silver, and copper, and various industrial minerals such as gypsum and
bentonite.
While the MLA and the Materials Act established a process to
provide the taxpayer with a financial return for those minerals that
are disposed of through sale or lease, minerals managed under the
Mining Law remain without similar consideration. Some fees are
required, including one-time fees to record mining claims with the
Bureau of Land Management (BLM) and a yearly maintenance fee unless
certain waiver requirements are met. But the Mining Law does not
require operators to report the quantity or type of minerals that are
produced by their operations to the BLM and, most importantly, they pay
no royalties to the U.S. government when they remove valuable mineral
resources from public lands--in sharp contrast to royalty payments
required for the extraction of oil, gas, coal, and other leasable
minerals from public lands.
Management & Regulation of Mining Under the Mining Law
Management of mineral development under the Mining Law has evolved
over time with the need to balance competing uses of public lands.
Prior to 1981, there were no regulations in place to regulate
prospecting, exploration, and mining activities under the Mining Law on
BLM-administered public lands. The BLM's surface management regulations
promulgated under the Federal Land Policy and Management Act (FLPMA) in
1981 and revised in 2001 provide a framework to prevent unnecessary or
undue degradation of public lands during mining and reclamation under
the Mining Law. To ensure that mining operations on public lands occur
in an environmentally sound manner, operations must comply with other
state and Federal laws, including the Clean Water Act, Clean Air Act,
Endangered Species Act, Wilderness Act, and the National Historic
Preservation Act. Certain exploration operations, known as notice-level
operations, do not require Federal approval and therefore are not
subject to the National Environmental Policy Act.
Per FLPMA, the BLM is responsible for recording and adjudicating
mining claims made on Federal lands. The BLM is also responsible for
conducting mineral examinations to determine if the mining claim is a
valid existing right under the Mining Law. Additionally, the BLM
administers the collection of the annual maintenance fee for each
mining claim, as well as location fees for new mining claims. In FY
2020, the BLM collected a total of over $65 million in fees associated
with nearly 391,000 active mining claims on Federal lands.
The Mining Law does not require reporting the type and quantity of
minerals produced on Federal lands to the Department. Therefore, the
Department is only able to track notices or authorized plans. At the
end of April 2022, there were 578 active mining plans of operation and
another 867 active mining notices on Federal lands. The Department does
not have an accurate account of total production occurring on Federal
lands, including critical minerals, from these plans and notices. The
Department also notes that, as mentioned previously, the Mining Law
does not require a royalty for the minerals produced on Federal lands;
therefore, the public is not receiving a fair return for the
development and use of these Federal resources.
FLPMA also requires the BLM to inventory abandoned mine sites on
public lands and provides the authority to withdraw Federal lands from
the operation of the Mining Law, subject to valid existing rights.
Currently, there are over 24 million acres--just under 10 percent--of
BLM-managed lands withdrawn from mineral entry.
Reclamation of Mining Operations Under the Mining Law
Reclamation of mineral development was not a requirement under the
Mining Law when enacted 150 years ago. Pursuant to FLPMA, the BLM
issued regulations in 1981, which were amended in 2001 and require
notices and plans of operation to include detailed reclamation plans.
These regulations also require operators to provide financial
guarantees covering the full cost to reclaim mining operations.
Additionally, the BLM's regulations allow the agency to require an
operator to establish a trust fund or other funding mechanism to ensure
the continuation of long-term treatment to achieve water quality
standards and for other long-term, post-mining reclamation and
maintenance requirements after a mine is closed. These regulations
provide the BLM with a mechanism to provide for protection of the
environment after mining has concluded.
In response to Government Accountability Office recommendations,
BLM implemented a tracking system under which BLM certifies each fiscal
year that the reclamation cost estimates for proposed and operating
mines have been reviewed and are sufficient to cover the cost of
reclamation. Currently, the BLM holds financial guarantees of $3.3
billion which is held to fund the costs of reclamation of mining
operations on BLM-managed public lands. Furthermore, the BLM
continuously reviews reclamation bonding requirements.
Reforming Domestic Mining
Since taking office, President Biden has outlined a whole-of-
government approach to ensure that U.S. mining activity is sustainable,
responsible, and efficient. Understanding that resilient supply chains
are necessary to revitalize and rebuild domestic manufacturing capacity
while maintaining America's competitive edge in research and
development, in February 2021 the President issued Executive Order (EO)
14017, ``America's Supply Chains.'' The EO directed a government-wide
approach to assess the vulnerabilities in, and strengthen the
resilience of, critical supply chains of various goods, including
critical and strategic minerals essential to the economic and national
security of the United States.
The EO also initiated a 100-day supply chain review requirement,
and the Administration published its findings in a report in June 2021
titled, ``Building Resilient Supply Chains, Revitalizing American
Manufacturing, and Fostering Broad-based Growth.'' Following the 100-
day supply chain review, the Department released an updated list of 50
critical minerals in February 2022 as required by the Energy Act of
2020.
While affirming the significant role critical minerals play in our
national security, economy, renewable energy development, and
infrastructure, the review also made clear the need to reform the
Mining Law to protect the environment, impacted communities, and Tribal
Nations while strengthening and updating the permitting system to
ensure certainty and timeliness of adjudication for project sponsors.
The report noted: ``We recommend that the government, working with
private sector and non-governmental stakeholders, encourage the
development and adoption of comprehensive sustainability standards for
essential minerals, such as lithium, cobalt, nickel, copper, and other
minerals. We further recommend establishing an interagency team with
expertise in mine permitting and environmental law to identify gaps in
statutes and regulations that may need to be updated to ensure new
production meets strong environmental standards throughout the life
cycle of the project; ensure meaningful community consultation and
consultation with Tribal Nations, respecting the government-to-
government relationship, at all stages of the mining process; and
examine opportunities to reduce time, cost, and risk of permitting
without compromising these strong environmental and consultation
benchmarks.''
Consistent with the recommendation of the 100-day review, on
February 22, 2022, the Department announced the launch of a new
interagency working group, comprised of experts in mine permitting and
environmental law from across the Federal Government, to review
existing mining laws, regulations, and permitting processes. This
working group will complement the effort outlined in the Bipartisan
Infrastructure Law (BIL; Public Law 117-58), which requires the
Department and the U.S. Department of Agriculture to submit a report to
Congress identifying legislative and regulatory recommendations to
increase timeliness of permitting activities for exploration and
development of domestic critical minerals.
The working group will host extensive public input and comment
sessions to ensure an inclusive process and will work with relevant
agencies to initiate updates to mining regulations. These efforts began
two days ago, on May 10th, the 150th anniversary of the signing of the
Mining Law, with a productive and constructive meeting that brought
together the mining industry, Tribes, states, environmental
organizations, outdoor recreation groups, automobile manufacturers,
labor unions, and legal experts with senior Administration officials to
discuss the common benefits--for both industry and impacted
communities--that can be obtained through mining reform. The working
group looks forward to engaging with Members of Congress as well to
consider your ideas and proposals, such as those in H.R. 7580, as it
conducts its deliberations and develops recommendations.
Additionally, in February, the President also authorized the use of
the Defense Production Act to support the responsible production of
five critical minerals needed for large capacity batteries (lithium,
cobalt, graphite, nickel and manganese). The authorization will help
accelerate the transition to clean energy economy in the short-term. As
the President said in remarks on Securing Critical Minerals for a
Future Made in America, ``As we build the economy, we're going to build
it around working Americans. That means making sure that labor is at
the table, that Tribes and the people from the community are at the
table from day one, and that environmental protections are paramount.''
With this effort, the President has made clear his commitment to
environmentally responsible and sustainable mining.
Fundamental Principles for Domestic Mining Reform
In concert with the announcement of the working group, the
Administration released its ``Fundamental Principles for Domestic
Mining Reform'' to identify the key values that will drive the efforts
to update the country's mining regulations, laws, and permitting
processes. These principles, summarized below, are necessary to ensure
that new production meets strong environmental and community and Tribal
engagement standards during all stages of mine development, from
initial exploration through reclamation, while improving the efficiency
and outcomes of the permitting process.
Establish Strong Responsible Mining Standards
Regulatory and legislative mining reform should create a level
playing field by establishing strong environmental, sustainability,
worker, health and safety, Tribal consultation, and community
engagement standards for mineral exploration and development. Americans
should know that the minerals found in their cars, phones, and other
products adhere to strong, responsible mining standards. This includes
establishing specific up-to-date financial assurance, operational,
performance, and reclamation standards that require protection of the
environment during exploration, discovery, active mining, reclamation,
and post-closure.
These standards should also reduce the risk and consequences of
legacy pollution, decrease the likelihood of catastrophic events, such
as tailings impoundment failures, and protect taxpayers against
companies that go bankrupt and leave operations inadequately closed. In
addition, efforts must also be in place to apply the standards to
minerals from foreign sources that may compete in the domestic market,
by including reliable traceability of the minerals and materials that
enter the U.S. economy.
Secure a Sustainable Domestic Supply of Critical Minerals
Domestic availability of critical minerals touches all points of
the supply chain: resource, processing, manufacturing, use, and
recycling. The transition to clean energy is projected to create a 400
to 600 percent increase in global demand for key critical minerals like
lithium, graphite, cobalt, and nickel to meet our climate goals, and
for some minerals the increase in demand will be many times higher.
Currently, the United States is reliant on Chinese imports for many of
these minerals in processed form.
The President is using all available tools, such as invoking the
Defense Production Act, but more will need to be done to meet current
and future demand, and to break our reliance on foreign sources and
provide good jobs for American workers. Mining reform should assure
that a reliable supply of critical minerals can be provided both
through environmentally and socially responsible mining and processing
projects, and other sustainable sources, such as recycling and recovery
from unconventional sources, including mine wastes, mine tailings,
mine-influenced waters, and coal ash. Provisions for recovery and
reprocessing of critical minerals must ensure existing selected and
implemented remedies or reclamation measures are protected and recovery
does not exacerbate existing site conditions.
Prioritize Recycling, Reuse, & Efficient Use of Critical Minerals
The recycling, reuse, and efficient use of existing mineral assets
(wastes and recyclable materials) should be prioritized, and
commercially viable methods supported and promoted. The resources
available from these sources should be assessed and relied upon, where
possible, before developing new sources. This includes developing
recycling programs; designing products that facilitate recycling at
end-of-use; reprocessing mine waste, appropriate treatment of mine
influenced waters, and ash material; and promoting other engineering
and innovation advancements, such as reducing the quantity of inputs
and identifying substitutes for critical minerals to reduce the need
for new mining of raw minerals and reliance on unsustainable sources.
Provide Permitting Certainty
Any new law covering mineral extraction, or updates of existing
mining regulations, should provide clear, consistent standards and
processes for mine exploration, operations, closure, and plan approvals
on public land. Consistent with a whole-of-government approach, Federal
agencies will improve interagency cooperation and coordination during
environmental review and permitting. This will be done in concert with
project proponents, state and local governments, as well as Tribal
Nations to improve permitting times, reduce conflicts with local
communities, and improve environmental, social, and economic outcomes.
Adopt Fair Royalties So Taxpayers Benefit
The Administration urges Congress to establish a royalty for all
minerals extracted from public land in order to provide a fair return
to taxpayers. The Department notes that hardrock mining is the only
extractive industry on U.S. public lands that does not pay a royalty,
while states and virtually all other countries charge royalties on
hardrock mines. Proceeds from these royalties should be invested to
prevent and mitigate adverse environmental and social impacts, improve
environmental and economic outcomes for underserved communities,
improve permitting and compliance, advance efficient and clean mining
and remediation technologies, and support Tribal Nations and Tribal
communities impacted by development on public lands.
Establish a Fully Funded Hardrock Mine Reclamation Program
Reclamation of mineral development was not a requirement under the
Mining Law when enacted 150 years ago. Consequently, there are over
500,000 legacy mining sites in the western United States alone.
Congress should establish a durable program to fund the remediation of
legacy abandoned hardrock mining sites through reclamation fees, just
as occurs with the coal industry and abandoned coal mines. These fees
should support well-paying jobs to remediate the environmental impacts
of abandoned mine sites and assist in community redevelopment.
Additionally, legal certainty is needed for Good Samaritans working
to remediate legacy pollution, including providing for permits and, as
appropriate, exemptions from or specialized provisions of environmental
laws and regulations that may otherwise dissuade Good Samaritans from
undertaking cleanup activities. This should include consideration of
projects that may responsibly extract critical minerals from legacy
mine wastes, thereby avoiding the need for additional greenfield mine
development.
Conduct Comprehensive Planning
Like other uses of public lands, mining should be governed by
comprehensive Federal land-use assessments and planning. The right to
explore and develop mineral resources on public lands not otherwise
withdrawn from mining must be managed to ensure appropriate and
sustainable use of public resources. Planning, assessment, mine
approval, and permitting decisions by Federal agencies should be
conducted in a timely, transparent, and responsible manner to avoid,
minimize, and mitigate for impacts generated by mining operations over
the short and long term.
In addition, any legislative reforms must ensure that environmental
review and safeguards, such as provided by the National Environmental
Policy Act, Clean Water Act, Clean Air Act, Endangered Species Act, and
associated regulations, are not circumvented, repealed, or weakened for
the purposes of mining, regardless of the importance of the targeted
resource. Processes must also meet government-to-government
responsibilities for consultation with Tribal Nations.
Protect Special Places
Some areas must be off-limits to mining and protected from mining
impacts. Our Federal land managers, in consultation with other decision
makers, must have discretion to reject projects that threaten sensitive
ecosystems, Tribal resources, and communities where pollution
prevention and mitigation are not possible. Agencies should retain and
use their authority to withdraw lands from mineral entry where
necessary.
Solicit Community Input & Conduct Tribal Consultation
This Administration is committed to regular, meaningful, and robust
consultation with Tribal Nations. This includes project-level public
engagement processes prior to any key decision-making regarding mining.
Land use planning processes must also allow upfront input from a broad
set of stakeholders including local and state governments, workers,
residents, and Environmental Justice communities about whether and
under what conditions mining might occur.
Utilize the Best Available Science & Data
Any decisions on development should be guided by the extensive
public and private data collected to map critical mineral resources,
identify key fish and wildlife habitat, safeguard workers, protect
community health and safety, and implement best practice avoidance and
mitigation strategies. Agencies should, as appropriate, work with
Indigenous traditional ecological knowledge holders and Tribal Nations
to assure that their knowledge and expertise are considered and
included in the process. This data should also inform public engagement
and Tribal consultation.
Build Civil Service Expertise in Mining
The Department notes that in recent years Federal agencies have
lost mining expertise due to retirements and downsizing. To achieve the
Administration's goals to reform mining, Federal agencies need to
rebuild expertise and fully staff agencies and offices, both through
hiring and interagency coordination. This will ensure that agencies
have sufficient qualified personnel and resources to accomplish
resource assessments, environmental reviews, permitting, and
consultations in an efficient and timely manner, as well as vigorously
enforce our laws and regulations.
Conclusion
The Department looks forward to working with Congress and this
Committee to continue to build areas of consensus around potential
reforms to our mining laws. We recognize the need for environmentally
and socially responsible and sustainably mined domestic production of
mineral resources to help transition the country to a clean energy
economy and to meet national security objectives. I appreciate the
opportunity to testify today and would be happy to answer any question.
______
Questions Submitted for the Record to Dr. Steve Feldgus, Deputy
Assistant Secretary for Land and Minerals Management, Department of the
Interior
Questions Submitted by Representative Stauber
Question 1. If the administration is truly interested in increasing
domestic production of critical minerals, why have we seen the
Department of the Interior take consistent steps to withdraw lands or
otherwise block new mines in places like Northern Minnesota, Arizona,
and Nevada?
Answer. The President has been clear on his support for responsible
and sustainable domestic development of critical minerals, and the
Department is following his lead. Under the Bureau of Land Management's
(BLM) multiple use mandate, the BLM works to ensure responsible mineral
development on public lands takes place in a balanced way while also
managing the public lands for a wide range of other activities such as
renewable energy development, recreation, conservation, and livestock
grazing. There are currently over 390,000 active mining claims on
public lands, with over 570 active mining plans of operations and
another 867 active mining notices. The administration has approved 20
new mine plans of operation since January 2021 and continues to review
and advance mining applications, including recently publishing a draft
environmental impact statement for the proposed Gibellini vanadium mine
in Nevada.
Understanding the importance of responsible mining to our modern
economy, the Department announced in February the formation of an
Interagency Working Group (IWG) that will review and make
recommendations to reform hardrock mining laws and permitting
regulations. Some of the goals of the IWG include ensuring mining
occurs under strong and consistent environmental standards; improving
the efficiency and outcomes of permitting for well-planned mining
projects; ensuring transparency in mining activities on public lands;
and providing accountability to taxpayers for management of national
resources.
Question 2. The Biden administration has issued several executive
orders, including Executive Order 14005, ``Ensuring the Future is Made
in America by All of America's Workers, launching a whole-of-government
initiative to strengthen the use of Federal procurement to support
American manufacturing.'' The Executive Order further states that the
``U.S. Government should, whenever possible, procure goods, products,
materials, and services from sources that will help American businesses
compete in strategic industries and help America's workers thrive.''
I just came back from an annual meeting hosted by the National
Mining Association--the very industry and companies that are trying to
ensure that we reduce our extreme import reliance on key minerals and
materials some from hostile countries by producing them here in
America, using American jobs, and with our existing strong labor and
environmental standards.
What Administrative steps are required to transition from a claims
system to a leasing system, would this process be subject to NEPA and
what timelines are associated with this transition? Given the many
steps required to impose a leasing system, how soon can new hardrock
mines be permitted in the U.S. under a potential new leasing system?
Answer. If the Mining Law of 1872 is updated to create a leasing
program, the BLM would need to initiate rulemaking as soon as the new
law is enacted. During the regulatory update, the BLM would need to
provide sufficient time for public comment and review. Other details
about a transition to a leasing system, such as how existing claims are
handled, would depend on the specifics of the legislation.
Question 3. The Infrastructure Investment and Jobs Act contained a
bipartisan provision in Section 40206 to address modest new metrics for
permitting efficiency improvements for mining on Federal land.
(3a). The provision also requires DOI to report to Congress by
November on how it will meet these goals. I know the IWG is taking
public comment on implementing this section, but how is DOI
implementing this directive, and will it meet the November 2022
deadline of its first report to Congress?
Answer. The BLM is one of many federal agencies working as part of
the IWG, which the Department created to meet the directives and
reporting requirements of Section 40206 of the IIJA (BIL). In pursuit
of these requirements, the IWG is seeking public comment, meeting with
stakeholders representing all interests (including the mining
industry), Tribal governments, and State governments. The
recommendations from the IWG are expected to be delivered this fall.
(3b). Section 40206 directs DOI and USDA to quantify the period of
time typically required to complete each step associated with the
development and processing of applications, operating plans, leases,
licenses, permits, and other use authorizations for critical mineral-
related activities on Federal land and compare to other countries in
terms of permitting efficiencies. What is the current timeline for
permitting, and how does the U.S. compare to other countries?
Answer. In 2016, the Government Accountability Office issued a
report that found the average time for the U.S. Forest Service and the
BLM to approve a Plan of Operations was approximately 2 years (GAO-16-
165). The time frames associated with processing mining Plans of
Operations are dependent on the size of the mine, the location, the
complexity of the proposed project, and if there is any litigation
involved. The BLM does not track timelines in other countries.
(3c). Global investment in U.S. mining production has dropped in
half over the last 20 years. How can DOI help reverse that trend?
Answer. The Secretary supports responsible and sustainable
development of domestic minerals. Under the BLM's multiple use mandate,
the BLM works to ensure responsible mineral development takes place on
public lands while also managing the public lands for a wide range of
other activities such as renewable energy development, recreation,
conservation and livestock grazing. There are currently over 390,000
active mining claims on public lands, with over 570 active mining plans
of operations and another 867 active mining notices.
The IWG will review and make recommendations to reform the hardrock
mining laws and permitting regulations. Some of the goals of the IWG
include ensuring mining occurs under strong and consistent
environmental standards; improving the efficiency and outcomes of
permitting for well-planned mining projects; ensuring transparency in
mining activities on public lands; and providing accountability to
taxpayers for management of national resources.
(3d). Section 40206 also requires track critical mineral production
progress at specific sites on OMB's priorities website. With resources
from DOE and now DOD going to new mineral production and processing,
how can DOI work with OMB and tools like the newly permanently
reauthorized Federal Improvement Steering Council to prioritize
development of critical minerals on Federal lands?
Answer. The IWG includes representatives from the Department of
Agriculture through the U.S. Forest Service; the Environmental
Protection Agency; the Departments of Commerce, Defense, Energy, and
State; the White House Council on Environmental Quality; the National
Economic Council; and others. Currently, the IWG is seeking public
comment, meeting with stakeholders representing all interests
(including the mining industry), Tribal governments, and State
governments.
Following the passage of President Biden's Bipartisan
Infrastructure Law (BIL), the Biden-Harris Administration released a
Permitting Action Plan to strengthen and accelerate Federal permitting
and environmental reviews, fully leveraging the permitting provisions
in the BIL. The plan can be accessed at the URL: https: / /
www.whitehouse.gov /wp-content /uploads /2022 /05 /Biden-Harris-
Permitting-Action-Plan.pdf. The goal of such permitting efforts is to
provide predictability and improve efficiency for applicants; BLM will
continue to apply existing laws and regulations to ensure that proposed
mining projects would not result in the unnecessary or undue
degradation of public lands.
In addition, the Secretary of Defense is directed to consult with
the Secretary of the Interior in implementing the Presidential
Determination invoking the Defense Production Act to increase domestic
mining and processing of critical materials for the large-capacity
battery supply chain.
______
Mr. Grijalva. Thank you very much, Dr. Feldgus.
And let me remind Members that Committee Rule 3(d) imposes
a 5-minute limit on questions.
The Chair now recognizes Members for any questions they may
wish to ask our first panel. Ms. Herrell, you are recognized,
if you have questions.
Ms. Herrell. Thank you, Mr. Chairman. And thank you so much
for your statement.
I do have a couple of questions, and hopefully we can kind
of get through these. I have two or three.
Do you know, did the U.S. Geological Survey find that the
import reliance of the United States on other countries for
minerals grew from 2021 in the report to 2022?
Dr. Feldgus. I don't have the USGS report in front of me,
but we can get that data and get that back to you.
Ms. Herrell. OK. I was just curious if it was in there, and
then if you would know how long it would require to change and
implement regulations to change the claim system to another
system like leasing. Was that addressed in the report, or do
you maybe have knowledge of that?
Dr. Feldgus. Do you mean in the U.S. Geological Survey
report?
Ms. Herrell. Right.
Dr. Feldgus. On minerals? They did not look at access
rights to minerals in the United States.
Ms. Herrell. OK. And then something else I wanted to bring
up, we are all aware of the problems as far as abandoned mine
sites and the need to clean them up. We have them in New
Mexico, and I know there are other locations.
One of the ways we might approach this issue is through
third-party, non-governmental organizations assisting with
remedy projects. Are you familiar with the so-called Good
Samaritan legislation? It was a Senate bill.
Dr. Feldgus. Yes.
Ms. Herrell. Understanding that as it is written, do you
think that this would be something that could work? Could it be
implemented?
The DOI is talking with the EPA and other agencies about
how to address abandoned mines through the Good Samaritan
arrangement, and I am just wondering your thoughts on that. Is
that a piece of legislation that actually could be developed to
work for what we are talking about in regards to abandoned
mines?
Dr. Feldgus. Sure, thank you for the question. I am not
familiar with the specifics of that legislation, and that is an
issue that would be dealt with by the Environmental Protection
Agency.
But I will say that Good Samaritan laws are endorsed in the
Administration's fundamental principles for mining reform, and
we think that is an excellent way to begin some of the
reclamation of these abandoned hardrock mine sites.
Ms. Herrell. OK, and you are right, the bill is written
kind of outside the Department of the Interior's purview, if
you will, but it is a bill that has been introduced by, I
think, Senators Heinrich and Risch.
And the last question for me is, can you weigh in on
whether liability protections for the third parties doing
reclamation work could help speed up the process in terms of
these abandoned mines?
Dr. Feldgus. Sure. Again, not an expert on that particular
piece of legislation, but I do understand that it is the
liability concerns under certain other legislation that does
hamper the ability of these third parties from coming in and
being able to clean up those sites.
So, the Administration, as a whole, certainly looks forward
to working with Congress to find a Good Samaritan solution that
can work and can help leverage those private dollars to help
address this abandoned hardrock mine problem.
Ms. Herrell. OK. And this final question, in your statement
that you just made, there was a sentence in there about
ensuring that the individual person, or the community, was a
beneficiary of the development right before you started talking
about phones, batteries, that type of thing.
Do you mean beneficiary in the sense of can go out and
purchase a product, or do you mean beneficiary as in would have
some kind of a vested interest and have a payout? You know,
monetary or just a beneficiary as in for products sold as a
result of mining?
Dr. Feldgus. Well, certainly, when we are talking about
local communities and tribes benefiting, in one sense we are
talking about the potential for a royalty that would then take
a certain portion of the mineral value and allow that to be
used for other purposes.
But, certainly, mining can be a very important component to
local economies. So, certainly, we are supportive of growing
local economies through responsible and sustainable domestic
mining.
Ms. Herrell. OK, thank you.
And thank you, Mr. Chairman.
Mr. Grijalva. Thank you. Let me now recognize the gentleman
from California.
Chairman Huffman, you are recognized for 5 minutes, sir.
[Pause.]
Mr. Grijalva. Mr. Huffman, you are recognized, if you can
hear us.
[Pause.]
Mr. Grijalva. Let me now invite Ms. DeGette, if she has any
questions for Dr. Feldgus, and then we will go back to Mr.
Huffman after Mr. Carl.
Ms. DeGette. Thank you so much, Mr. Chairman. It is great
to see you. And welcome to our witness.
I want to ask you a few questions about the way hardrock
mining is treated compared to oil and gas. Mr. Feldgus, am I
correct that oil and gas extraction on public lands operates
under a leasing system, and that this system requires the
companies to pay for the public's resources that they extract
from those lands?
Dr. Feldgus. That is correct.
Ms. DeGette. And is it also the case that, under the
existing 150-year-old mining law, mining companies, including
international mining companies, they don't have to ask
permission to mine public lands in places like my home state of
Colorado, because they are not under a leasing system?
Dr. Feldgus. That is correct. They are free to access and
state claims on any unwithdrawn piece of public land.
Ms. DeGette. Are there any requirements for mining
companies to alert nearby communities of their plans?
Dr. Feldgus. Not in the early stages, certainly not when it
comes to staking a claim or doing certain smaller exploration
work. Once they submit a plan of operations to develop a
commercial-scale mine, then they would enter the NEPA process,
and local communities would be notified.
Ms. DeGette. But say for a small town--I think about my
small towns in Colorado. If there was a company that wanted to
mine, the local citizens might not have any idea about it until
it is far along into the process. Is that correct?
Dr. Feldgus. Yes, that is correct.
Ms. DeGette. And now, is there anything inherently unique
about the mining industry, compared to other extractive
industries like oil and gas, that would make it impossible to
transition to a leasing system that would require royalty
payments?
Dr. Feldgus. I would just point to other nations that, by
and large, use leasing systems. We may be the only country in
the world that uses a claim system all the way through
production.
Ms. DeGette. So, actually, we are the only country that you
know of that doesn't use the same system for both, is that
right?
Dr. Feldgus. That is correct.
Ms. DeGette. Now, would we have to create a new and unique
governing system for the mining industry if we were to
transition to a leasing system?
Dr. Feldgus. Well, it all depends on how we structured that
system, whether it was leasing, or some sort of hybrid with
claims and leasing, or a third option.
Ms. DeGette. But we could use existing systems if we wanted
to, is that right?
Dr. Feldgus. Sure. We believe that we could modify the
existing structure to accommodate that.
Ms. DeGette. OK. Now I want to ask you a couple other
questions.
Am I correct that BLM has few options under current law to
deny a proposed mine, even if that mine was on, say, lands
sacred to Native American tribes?
Dr. Feldgus. There are certain legal questions about the
ability for the Bureau of Land Management to say no to a
particular mine plan. Companies have to meet the regulations
that are laid out by the BLM. But under the mining law, if
there is a discovery of a valuable mineral, there is a right to
mine. There can't be a complete shutdown of the mining
operation.
Ms. DeGette. Do you know of a current regulation that says
that BLM could regulate a mine on sacred lands?
Dr. Feldgus. I am not aware of any regulation that refers
to sacred lands.
Ms. DeGette. OK, or as defined by the Native American
tribes.
Dr. Feldgus. That is correct.
Ms. DeGette. OK. Now, is it true that the mining industry
is also able to pollute our water resources due to loopholes in
the Clean Water Act, the Resource Conservation Recovery Act,
and other environmental laws?
Dr. Feldgus. Unfortunately, I am not an expert in those
laws.
Ms. DeGette. OK.
Dr. Feldgus. But there are BLM regulations designed to cut
down on water pollution.
Ms. DeGette. OK. Perhaps you could go talk to the legal
experts and find out if there is anything in the Clean Water
Act, the Resource Conservation Act, and other laws that would
control pollution.
Dr. Feldgus. Yes, we can get back to you on that.
Ms. DeGette. That would be super.
Now, is it true that the--OK, I am not going to ask that
last question.
Instead, Mr. Chairman, I am done here, and I am going to
yield back. Thank you so much.
Mr. Grijalva. Thank you very much.
Let me recognize Mr. Fulcher for 5 minutes, sir.
Mr. Fulcher. Mr. Chairman, I think Mr. Carl is going to be
next.
Mr. Grijalva. I am working off the list I am given by
staff. So, Mr. Carl?
Mr. Carl. Thank you, Mr. Chairman. I appreciate that.
Dr.--is it Feldgus? Did I pronounce that correctly?
Dr. Feldgus. Feldgus.
Mr. Carl. I am from South Alabama. We sound a little
different.
Dr. Feldgus. That is all right.
Mr. Carl. Last night, literally when I was sleeping, your
Department announced it was not holding the remaining two
court-ordered leases in the Gulf of Mexico this year.
Gas prices are at an all-time high. You realize that,
right?
Dr. Feldgus. Yes.
Mr. Carl. Americans are hurting. When the cost of fuel goes
up, everything goes up: a loaf of bread, a pair of shoes, a
car, everything. If we continue to go down this path, we are
going to wind up like the UK, where the citizens are spending
more money when the windmills aren't turning, and this economy
is being crushed by it. And I want you to understand it. I want
you to understand how the people in Alabama feel. We need help.
We need the Gulf opened up. And the bureaucratic games that we
are playing are not playing out well in the state of Alabama.
Why are you all not holding these offshore lease sales when
the court mandated them?
And please don't give me the bureaucratic answer, because
we are all getting pretty sick of that.
Dr. Feldgus. Well, thank you for the question, Congressman.
I will say the President cares very deeply about the price
of gas and the impact of inflation on American families, and he
is doing everything he can to try to address that. That is one
of the reasons why he ordered the largest-ever release of oil
from the Strategic Petroleum Reserve.
Mr. Carl. That does nothing.
Dr. Feldgus. That oil can be produced more quickly than oil
from new leases, particularly offshore, which can take many
years to be developed.
Mr. Carl. Well, in the business world you plan many years
ahead. And when you shut things off, you shut them off, and it
takes many years to catch up.
And the people in Alabama and the people in this nation are
frustrated, and they are mad. My phones are lit up. People
don't like $5 a gallon. And I don't think this Administration
truly understands how it affects the common person, the single
moms that live from check to check. That double in fuel prices
you see in so many places, those independent truck drivers, I
mean, they are talking to me. They are getting paid $7 a mile
and paying $5+ for a gallon of fuel. They are losing money, and
it is killing this economy.
And then you turn around and shut these wells down, or
excuse me, you stop the leases in the middle of the night that
are court-ordered. It doesn't make sense.
We are supposed to be working together. I mean, when the
environment takes preference over human life, and that is where
we are at--I saw an illustration the other day. One of the
Senators, he was showing turtle eggs had more protection than a
baby. And it is the truth. And we don't need to get into that
discussion here, that is not what this is about.
But what is happening--I promise you in November it is
going to happen. November, you are going to see what people are
going to speak.
And I am going to say it from this podium right now. We
have to start drilling. We have to get our people back to work.
We have to get fuel prices down. And releasing a few barrels of
oil from our Reserve is not going to get it done.
Mr. Chairman, I give my time back. Thank you, sir, and I
appreciate your patience.
Mr. Grijalva. The gentleman yields back. Let me recognize
our colleague, Representative Dingell, but let me first thank
her for the visit to the Dingell refuge that we recently named.
And I appreciated that visit very much. And it was quite a
nice, welcoming set-up that was there. So, with that, let me
recognize the gentlelady for 5 minutes.
Mrs. Dingell. Thank you, Mr. Chairman, and it was an honor
to have you there to see the wonderful natural resources we
have in Michigan. I don't want to get sentimental today.
Thanks to all my colleagues for holding this hearing on
reforms to the Mining Law of 1872 and domestic production of
critical minerals. The Chairman was just in my state, and for
the auto industry it is a very, very important question.
It is good to see Dr. Feldgus join us again. Steve was a
valued member of our Natural Resources Committee staff for many
years, and we appreciate you lending your time and expertise
today on this important issue.
If the next century is to be another American century where
we are leading, it is essential that we secure reliable and a
sustainable supply of critical minerals and materials for EVs,
as well as other advanced industries. These are fundamental to
U.S. competitiveness, in creating good-paying jobs,
particularly in my home state of Michigan, home to the domestic
automotive industry, where electric vehicles are the future.
But the Biden administration's 100-day supply chain review
found that China controls an estimated 55 percent of global
rare earths mining capacity and 85 percent of rare earths
refining. The United States has fallen far behind.
Dr. Feldgus, do vulnerabilities in the supply chain for
critical minerals and materials pose a threat to our economic
welfare and national security?
Dr. Feldgus. Thank you, Congresswoman, and I will say yes,
the Administration is very concerned about supply chain
vulnerabilities and how those would impact economic welfare and
national security, which is one of the reasons why the
President issued Executive Order 14017 on America's supply
chains shortly after taking office. And those national security
concerns were also reflected in the Presidential Determination
under the Defense Production Act that the President signed in
March. The need for minerals for our transition to a clean
energy economy is also one of the reasons why we formed the
Interagency Working Group on Mining Regulations, Laws, and
Permitting.
So, while the Administration is very focused on the
economic welfare and national security impacts of our supply
chains, we also want to make sure that any new production is
able to meet the highest environmental and tribal consultation
standards. And the Defense Production Act determination makes
it clear that it does not affect environmental health or safety
laws.
Mrs. Dingell. Thank you. And I want to talk here--my
colleague, Jared Huffman, shares this concern with me. And I
know, while you all have--and I have shared this with the
Secretary of Energy--you have your interagency task force, like
we did on electric vehicles, we want to bring a table together
of the environmentalists and the unions to also talk about
these issues, so we can help everybody move forward on it
because it is a real competitive issue.
We know that electric vehicles are the future, which is why
China, the European Union, and other nations have made
investments in EVs and EV infrastructure such a priority. They
understand that orienting the industry toward lower and zero
carbon emissions is not only good for the environment, but it
will create jobs while supporting local economies and workers.
Dr. Feldgus, can we out-compete our geopolitical rivals
like China without addressing these supply chain
vulnerabilities for critical minerals and materials?
Dr. Feldgus. Well, I am not an expert in geopolitics, so I
can't give you a very complete answer to this question. But I
will say the importance of staying competitive with other
nations is one of the major themes that runs through all the
reports that were developed pursuant to the Executive Order on
America's supply chains.
Mrs. Dingell. Thank you. I am going to close by saying we
can't let supply chain vulnerabilities become a full-blown
crisis, which is why I appreciate the Administration's efforts
and the Chairman's proposal to this end. It is why this hearing
is so important.
Additionally, I am a strong supporter of the supply chain
resilience subtitle included in the America COMPETES Act, which
establishes a new Office of Manufacturing, Security, and
Resilience responsible for implementing a $46 billion program
to map and monitor our supply chains, providing financial
assistance to strengthen supply chains and domestic
manufacturing. As the conference process on USICA and America
COMPETES commences, we have to seize the opportunity to
enshrine this crucial program into law. That is why I thank the
Chairman, and I look forward to working with my colleague, Mr.
Huffman, on this subject, because we have to deal with it if
America is going to be competitive.
Thank you, Mr. Chairman, and I yield back.
Mr. Grijalva. Thank you very much. And at the request of
the Ranking Member, Ms. Herrell, you needed an additional bit
of time to make a statement, or ask a question?
Ms. Herrell. Just ask a question, yes.
Mr. Grijalva. OK.
Ms. Herrell. Thank you, Mr. Chair.
Mr. Grijalva. No problem.
Ms. Herrell. I will be brief. Back in February of this
year, my colleagues and I sent a letter to Secretary Haaland
regarding military unrest around the world and around Russia
that affect mineral supply chains.
Unfortunately--and I want to streamline this--the worst has
come to pass, of course, with Ukraine and Russia. They are now
in the midst of war. The DOI declined to take the warnings
about supply chains into account, leaving helium and uranium
off the critical minerals list.
So, given the requirement in the Consolidated
Appropriations Act of 2021 to forecast future supply and demand
trends, can you explain why active military conflicts involving
Russia, one of the largest global helium suppliers, was not
considered when finalizing the critical mineral list?
Dr. Feldgus. Well, it is hard for me to speak exactly to
the entire U.S. Geological Survey process for each mineral and
how they analyze that for whether or not it would get included.
I do understand that, with helium, because the United
States is the No. 1 world supplier for that element, that it
was not necessary to put it on the list. But I would have to go
get the U.S. Geological Survey to provide a more complete
answer for you.
Ms. Herrell. OK, thank you.
Mr. Chair, I yield back.
Mr. Grijalva. Before I ask any questions, Madam Ranking
Member, is there anyone that needs to be recognized at this
point?
Ms. Herrell. No, sir.
Mr. Grijalva. Because I would be the last asking questions
to Mr. Feldgus. OK, let me now at this point recognize myself
for a couple of questions.
Mr. Feldgus, we heard a very salient point, which was the
common person's needs out there, whether it is the rising cost
of gas, inflation rates, supply chain. And the fact remains
that, for that person, the issue is the cost. The issue is not
necessarily the reason, but the cost.
So, let's say that we are dealing with immediate relief for
that. If tomorrow morning, not only is this law OK, but it
needs to be even more open to the mining industry in terms of
extraction on our public lands, if that were to occur, when do
you see that kind of production of critical minerals that we
are talking about, or any other extraction, when would that
production actually have--in terms of time--an effect on that
price, on that cost? How long would it take?
Dr. Feldgus. Thank you. It would take quite a long time. I
am not an economist, but it takes a long time to find a mineral
prospect, explore it, and then develop it into a commercial
mine.
Mr. Grijalva. If you define ``domestic industry''--my
definition is that it is domestic because it is being extracted
from public lands and made in the United States--then the
definition of ``domestic'' changes in terms of most of the
major mining industries that are operating on our public lands
are multi-nationals, and many of them based outside the United
States, in terms of being a foreign company. Is that a correct
assessment?
Dr. Feldgus. Yes, that is correct. I don't have the exact
numbers, but many of the mining companies that operate on
public lands are owned by Canadian or Australian or Chilean
companies.
Mr. Grijalva. And most of the major conflicts that we are
seeing across this country, in terms of siting and operation
and planning process, whether it is the Grand Canyon,
Resolution, Boundary, name it, almost all of them have as the
source of that conflict, between whether it is Indigenous
communities, surrounding communities, environmentalists, land
use planners, et cetera, water issues in Arizona, all those are
then, if I am not mistaken--the proponent for this mine is
primarily a multi-national corporation if you look at
ownership.
I mention that because that is an effect, as well, and that
if we are going to create this domestic product for our own
security, there are no guarantees that that domestic product is
not exported, as the majority of extractions on hardrock mining
are to this present day.
Dr. Feldgus. That is correct. And that is why the refining
and processing components of these supply chains are so
important. And that is also a feature of the Administration's
approach.
Mr. Grijalva. Yes, I was getting to cleanup. How many
abandoned mines are on public lands? That has always been a
figure. And estimated cost for cleanup?
Dr. Feldgus. There are no exact numbers that I can give you
on that, unfortunately. There are a lot. Estimates range over
500,000 abandoned mine sites throughout the country. And we
just don't have a good inventory of those sites. There hasn't
been enough funding to go out there and actually count and
identify where all of these are.
And in terms of costs, we have seen estimates as high as
$50 billion or more.
Mr. Grijalva. Yes, so dealing with this legacy of the
mining industry, it is an important issue to all communities.
If there was any other reason for a royalty, a lease versus
a permit, this cleanup is going to require an investment
beyond, to some point, the capacity of even us in Congress
being able to designate that. It is going to require some
responsibility and accountability on the part of the people
doing business on our land.
So, isn't this reason enough for a royalty charge?
Dr. Feldgus. I think it is an excellent use for a royalty,
just as the coal industry has been paying for the last nearly
45 years a fee on each ton of coal produced in order to address
the legacy abandoned coal mines throughout the nation, and what
has been a very successful attempt to address those, we think
it would be fair for the hardrock mining industry to also
contribute a portion to the cleanup of the legacy hardrock
abandoned mine sites.
Mr. Grijalva. OK, I think my time is ostensibly up.
Thank you, Mr. Feldgus, and let me now recognize Mr. Graves
for your 5 minutes, sir.
Mr. Graves. Thank you, Mr. Chairman.
Mr. Feldgus, I appreciate you being back here as a
sacrificial lamb. Great to have you back in the Committee
again.
Mr. Feldgus, it has been amazing to me, watching this
Administration blaming Vladimir Putin for the energy price
crisis that is impacting every American family, people having
to make decisions between refueling their car or paying their
grocery bills.
It has been amazing to me, watching this Administration
again blame Vladimir Putin whenever the reality is before, well
before, the war in Ukraine we saw one of the largest price
spikes in gasoline costs that we have ever seen in our
lifetime, only to continue. We then saw the Administration
trying to deflect blame and say it is because of price gouging
of the oil and gas companies, it is their fault, it is price
gouging.
But what the facts reveal is something very, very
different. As you well know, it takes years to go from a lease
sale when lands are made available for energy production
onshore to go to production. It takes a decade for the
offshore. And what is this Administration doing? Absolutely
nothing.
This Administration's energy strategy is no to everything.
And yes, it is no to oil and gas. But you know what else? It is
no to solar, it is no to wind. It is no to geothermal. It is no
to everything. Because there is no plan, there is no strategy
in place. There is nothing. You have shut down. Speaking for my
friend, Mr. Stauber, you have shut down the Twin Metals Mine.
You can't have renewable energy production without the
resources. You can't have it.
This Administration is solely responsible for the prices
and the energy crisis that we are experiencing today, solely
responsible. This Administration, what do you do to lower
prices? You raise royalty rates 50 percent? I mean, who looks
at this and says, ``Oh, yes, I have a great idea.''
I have never seen more inexperience and just doubling down
on stupid strategies on energy in my entire life. Only last
night, to have the announcement that the area where 18 percent
of the oil for the United States is generated, 18 percent, the
Gulf of Mexico, and to shut down the Cook Inlet lease sale
offshore Alaska, as well. To say that we are not going to do a
lease sale.
Let me say it again. The only President in modern history
to say that we are not going to have a lease sale, we are not
going to offer any new energy.
Let's be crystal clear why there is an energy crisis. It is
because of this Administration. The Secretary of Energy just
last week or the week before said they haven't found price
gouging. She said it, this Administration's own officials.
Look, you are a nice guy. I enjoyed working with you, and I
know this isn't your fault. I know that you are sent here as a
sacrificial lamb. Crystal clear to all of us. But I will tell
you what. You have one in every five Americans right now that
can't afford to even cover their electricity bill. Like I said,
they are having to make false choices between whether they are
going to buy groceries for their family or they are going to
fill their car so they can drive to work.
This is absolutely disgusting. It is absolutely unforced
errors, self-imposed impacts on the U.S. economy. And it is not
limited to just energy, because the energy is one of the most
pervasive things. It is the primary driver of what we are
seeing right now with inflation, with the supply chain
problems, and probably contributing to worker shortage as well,
because people can't afford to get to work.
This Administration can no longer have no to everything as
an energy policy. I remind you, as I did last time, you can sit
here and say we are doing all this for climate change. You know
what? During the Trump administration emissions went down an
average of 2.5 percent a year. During the Biden administration
they have gone up 6.3 percent.
You can talk about production levels, and I am well aware.
And as I stated at the beginning--sorry for taking your talking
points--yes, production has gone up. But because of the lead
time, everything that is happening in regard to domestic energy
production is because of what the Trump administration did.
Under your administration, or under the Biden administration,
we have seen a significant drop in the approval of production.
We have seen a significant drop in the approval of APDs.
And as a matter of fact, just to put another finer point on
it, if you look at bonus bids, which, as you know, is the
auction bid that is provided at the beginning of a lease sale,
the immediate payment that is made in the auction, do you know
that those have gone down more than--right now, under this
administration, they are less than one-tenth the revenue that
was generated under the previous administration? Less than one-
tenth, despite the fact that energy prices are at record
levels. That gives you some indication of how flawed these
energy policies are. And for my home state, that is hurricane
protection funding, coastal restoration funding, preventing
additional disasters in FEMA funds.
``No'' is not an energy policy. This Administration is
solely responsible for the disasters we are experiencing now,
and I urge you to take that message back. Don't sink with this
ship.
I yield back.
Mr. Grijalva. The gentleman yields back, and I don't
believe there are any other further questions or dramatic
entrances and exits, but Mr. Feldgus, the one question for
information, and perhaps the Ranking Member needs it as well,
and I will encourage Members to send you specific questions and
we hope for a written response. The one question that I would
like to ask for the record, there has been discussion about all
the permits that are out there that are not being used. Fine.
Whatever that number is, 9,000. I would like to see where
principal ownership of those permits exists, in terms of the
companies that are holding onto them. And then we--as a
comparison, contrast with the crocodile tears that we are
hearing from industry and from Members in terms of this issue.
So, if you would, do that.
I appreciated in your testimony that fact and science is
going to drive this discussion. I appreciate the working group.
There are balances to be reached here. But one of the premises
has to be that this industry has to play by the rules, whether
I object--those rules, I think, need to be strengthened down
the road. But at this point the rules have to be.
And I find it ironic that states can charge on state land
for hardrock extraction, but the Federal Government next door,
same piece of land essentially, can't.
With that, let me thank you and wish you the best. And you
are not a sacrificial lamb, you are a lion. Bye, thank you.
Dr. Feldgus. Thank you very much, Mr. Chairman.
Mr. Grijalva. Our next panel is up, and we will give them a
little time to get situated, and then we will begin with that
part of it.
Let me welcome the next panel and the witnesses. As I
introduce the second panel, let me begin by welcoming you all
here, thanking you very much for your time, and let me now
recognize and introduce President Jeffrey Stiffarm from the
Fort Belknap Indian Community.
It is good to see you again, sir, and welcome. The floor is
yours.
STATEMENT OF JEFFREY STIFFARM, PRESIDENT, FORT BELKNAP INDIAN
COMMUNITY, HARLEM, MONTANA
Mr. Stiffarm. Good morning, everyone. I appreciate this
time to be here to speak about a very important matter. And I
would like to thank the Chair and the Committee members for
inviting me here to speak on behalf of my people.
I come from the Fort Belknap Indian Reservation, the home
of the A'aninin and Nakoda people. I am currently the Tribal
President there, and I am here to speak on behalf of our
people. I am here to testify on the urgent need for mining
reform and hardrock mining.
Fort Belknap has been affected by a lack of laws pertaining
to hardrock mining. As some of you might know, the Little Rocky
Mountains on the southern end of our reservation--our people
call them the fur caps--had an open pit cyanide heap leach pad
mining for 20+ years. It was called the Zortman Landusky Mine,
and it was experimental, the first cyanide heap leach mine in
the world. And it was owned by Pegasus Mining.
And while that was going on there were a lot of findings of
acid drainage leaking into the reservation, but that didn't
matter. They were allowed to get more permits and expand their
mining up to 1,200 acres, even though cyanide was leaking into
the Fort Belknap's water and groundwater. There were no rules
in place to hold the Zortman Landusky Mines accountable, or
Pegasus.
As the contamination went on and Fort Belknap started
filing lawsuits, the state started taking notice. Pegasus Mine
declared bankruptcy and left, and they left the cleanup to the
state and the Federal Government, which cost around $3-$4
million a year, currently, to help filter clean water down onto
our side of the reservation and into the Towns of Zortman and
Landusky.
And it is perpetual. So, the taxpayers are responsible for
these miners' mistakes that they have done, because there were
no rules in place to hold them accountable for what they did.
And our people will suffer forever for this.
Where Zortman and Landusky is currently mining, it was
called the Grinnell Notch. That was part of our reservation
that was forcibly taken from us by the Federal Government. They
starved our people out to sign the agreement to turn that land
over to them.
I have some pictures here, if you can zoom in your camera.
On this picture I am showing you here, in the background, right
here where my fingers are, that is our Sundance grounds. That
is like our cathedral, where we sacrifice ourselves in prayer
and song and dance to suffer for our people. And as you can see
below here, this orange, those are acid tailings running right
through our Sundance grounds.
My question to you is, would you like that running right
next to your church, right next to your cathedral? I don't
think so.
One other thing I would like to add is our people are
second-class citizens to the Federal Government and have always
been treated that way. We are not opposed to mining. We are
opposed to what they have done to our people, what they have
done to other communities, and what they are continuing to do
because of no accountability, no rules. We are just
dissatisfied.
And we would like to thank you guys again for allowing us
to say a few words on behalf of the Fort Belknap Indian
Community and the A'aninin and Nakoda people.
[Speaking Native language.] I am open for questions now.
[The prepared statement of Mr. Stiffarm follows:]
Prepared Statement of Jeffrey Stiffarm, Fort Belknap Indian Community
President
I. INTRODUCTION
Mr. Chairman and members of the subcommittee, thank you for the
opportunity to testify on the urgent need for mining reform. My name is
Jeffrey Stiffarm, and I am the President of the Fort Belknap Indian
Community in Central Montana. I'd like to talk a little about how hard
rock mining has devastated the Fort Belknap Reservation to illustrate
the vital need for better mining laws to prevent what happened to my
people.
II. HISTORY OF MINING IN THE LITTLE ROCKY MOUNTAINS
The Fort Belknap Indian Reservation is home to the Gros Ventre and
Assiniboine Tribes. Our Reservation was established and set aside for
the Tribes' use by an Act of Congress in 1888.\1\ At that time, the
Tribes received assurances from the U.S. Government that we would
retain our rights to all water necessary to fulfill the purposes of the
Reservation, including waters originating in the Little Rocky Mountains
that Tribal members used for irrigation, domestic supplies, and other
purposes.\2\
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\1\ 25 Stat. 113 (May 1, 1888).
\2\ See Gros Ventre Tribe v. United States, 469 F.3d 801, 804-05
(9th Cir. 2006); see also Winters v. United States, 207 U.S. 564, 567,
576 (1908) (recognizing Tribes' right to all waters flowing to and
entering Reservation lands, ``undiminished in quantity and
undeteriorated in quality'').
---------------------------------------------------------------------------
The original Fort Belknap Reservation included the Little Rocky
Mountains, which to this day are the headwaters for much of our water
resources. The Little Rocky Mountains are considered sacred by Tribal
members, and were traditionally used by the Tribes for hunting,
fishing, cultural, and spiritual purposes. This land, and especially
the Little Rockies, are the foundation of our cultural practices,
including fasting, prayer, and spiritual communion as well as home to
many of our sacred sites and cultural practices.
But when gold was discovered in the Little Rockies in the 1880s,
the federal government pressured our Tribes to cede the gold-bearing
areas of the Reservation to the United States. Congress carved out the
Little Rocky Mountains from the Reservation's boundaries in 1896.\3\
---------------------------------------------------------------------------
\3\ 29 Stat. 350 (1896).
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Then in the late 1970s, new mining technologies and a sharp rise in
the price of gold resulted in the development of open pit mining
operations at the Zortman and Landusky mines in the Little Rockies.\4\
These modern mines were operated under BLM-approved Plans of Operations
from 1981-2003.\5\ The mines used cyanide solution to extract
microscopic particles of gold from the ore. During that time, state and
Federal agencies approved numerous expansions of the mines. At its
largest, the mining complex covered over 1,200 acres.
---------------------------------------------------------------------------
\4\ See Gros Ventre Tribe, 469 F.3d at 805.
\5\ U.S. Bureau of Land Management, Action Memorandum for Water
Management at the Zortman And Landusky Mines, Non Time-Critical Removal
Actions, Malta Field Office, Bureau of Land Management, Phillips
County, Montana. September 2006.
---------------------------------------------------------------------------
III. THE CONTAMINATION
The Zortman and Landusky mine sites are surrounded on three sides
by the Fort Belknap Reservation and sit at the headwaters for many
creeks, that eventually flow through the Reservation.
Heap leaching at the Zortman-Landusky mines exposed significant
portions of rock containing sulfides to water and air, which resulted
in acid mine drainage. Among other impacts, mining operations at
Zortman-Landusky diverted stream flows away from the Reservation and
contaminated multiple streams running onto the Reservation.
In fact, the Fort Belknap Indian Community is facing permanent
surface and groundwater contamination and continues to suffer from
multiple devastating and lasting harms to the Tribes' beneficial uses,
including impairment of drinking water, fish and wildlife habitat,
recreation, agricultural, and industrial uses.\6\ Acid mine drainage
has likewise resulted in public health risks and continues to threaten
the Tribes' powwow grounds, ceremonial and sacred sites, including
other areas of cultural significance.
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\6\ Montana Department of Environmental Quality, Landusky Metals
Total Maximum Daily Loads and Framework Water Quality Improvement Plan,
March 2012, Available at: https://deq.mt.gov/files/water/wqpb/CWAIC/
TMDL/M31-TMDL-01a.pdf.
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IV. CONTINUED CONTAMINATION AND THREATS FROM NEW MINING
The mining stopped, but acid mine drainage and other contaminants
such as cyanide, selenium and nitrates from the mines continues to
pollute the water surrounding the mines. As stated by the U.S. District
Court for Montana, ``[i]t is undisputed that the Zortman-Landusky mines
have devastated portions of the Little Rockies, and will have effects
on the surrounding area, including the Fort Belknap Reservation, for
generations. That devastation, and the resulting impact on tribal
culture, cannot be overstated.'' \7\
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\7\ Gros Ventre Tribe, et al. v. United States, et al., No. CV 00-
69-M-DWM, slip op. at 12 (D. Mont. June 28, 2004).
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After the mine operator declared bankruptcy at Zortman-Landusky,
the mine was designated a CERCLA site in the early 2000s.\8\ State and
federal agencies contributed tens of millions of dollars to reclamation
and water treatment at the site.\9\
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\8\ U.S. Bureau of Land Management, Action Memorandum for Zortman
and Landusky Mines Time-Critical Removal, Operable Unit 1 & Operable
Unit 2, Malta Field Office, June 2004.
\9\ U.S. Department of Interior, Bureau of Land Management,
Proposed Zortman-landusky Withdrawal, April 2022.
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In the midst of this toxic legacy, mining interests continue to
target the area. Just last year, we were forced to challenge the
issuance of a mining exploration license upstream from the Reservation
by a mining company who was recently cited for exploring without a
permit.\10\ And while the BLM has temporarily withdrawn certain federal
public lands in the Little Rockies from new mining, a recent 2-day
lapse in that protection resulted in several new mining claims being
staked within the Zortman Landusky Reclamation Area \11\--jeopardizing
the enormous investment in existing and ongoing reclamation work.
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\10\ See Montana DEQ, Violation Letter #VLHRM20220330-00071 to Luke
Ployhar/Blue Arc LLC, April 1, 2022 (The Montana Department of
Environmental Quality recently issued notices of violations against
Luke Ployhar/Blue Arc LLC for allegedly conducting exploration and
mining activities at seven locations in Township 25N, Range 25E,
Section 7 without a permit. The disturbance associated with these
unpermitted and unbonded mining activities contributes further to the
degradation of the reclamation efforts in the Zortman Landusky
Reclamation Area.)
\11\ Specifically, reclamation efforts within the Zortman-Landusky
Reclamation Area were jeopardized by the Department of Interior's
failure to maintain the mineral withdrawal protections between the
expiration of PLO 7464 on October 4, 2020 and the segregation of lands
under this proposed mineral withdrawal on October 7, 2020. This 48-hour
lapse in protection allowed 10 mining claims to be staked on October 5,
2020 by Luke Ployhar/Blue Arc LLC on BLM lands within the mineral
withdrawal boundaries.
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This is a public safety threat of the highest magnitude. We must
and will remain vigilant to protect our land and our people from the
harmful impacts of hard rock mining. I should add we spend significant
time and resources working to protect our communities and our natural
and cultural resources despite insufficient public safety funding from
the Bureau of Indian Affairs.
Future mining at the site not only threatens the health and welfare
of tribal members, it threatens to further desecrate sacred tribal
land, including the potential to disturb the graves of relatives and
ancestors of tribal members.
V. CLOSING THOUGHTS
You have heard our story and I ask you to consider how you would
feel if this was going on in your communities. How hard would you work
to make essential updates to hard rock mining laws and regulations if
your water were flowing orange from acid mine drainage?
Reform of U.S. mining laws must include meaningful consultation
with Tribes and also the ability to say ``no'' to mines that would harm
other important land uses.
The Fort Belknap Tribes appreciate the opportunity to testify today
on urgency of reforming mining laws and regulations.
VI. PRESIDENT STIFFARM'S PRESS QUOTE IN FULL
The Fort Belknap Indian Community Supports House Natural Resources
Chairman Grijalva's Clean Energy Minerals Reform Act. Reforming the
Mining Law of 1872 is long overdue. The Fort Belknap Indian Community
has been directly affected by mining atrocities and to this day,
suffers the effects and is having to react and remediate the damage
allowed by outdated and loosely translated mining laws. The Fort
Belknap Indian Community is facing permanent surface and groundwater
contamination from decades of hard rock mining in the Little Rocky
Mountains on and adjacent to the Fort Belknap Reservation and continues
to suffer from multiple devastating and lasting harms to the Tribes'
beneficial uses, including impairment of drinking water, fish and
wildlife habitat, recreation, agricultural, and industrial uses. Acid
mine drainage has likewise resulted in public health risks and
continues to threaten the Tribes' powwow grounds, ceremonial and sacred
sites, including other areas of cultural significance. Negative
environmental impacts are exacerbated by these outdated laws. All
people, all governments, all environmental forums will benefit by
updated and standardized laws. The Fort Belknap Indian Community is
very supportive of the new legislation that helps to protect our sacred
sites and requires meaningful tribal consultation prior to permitting
activities that impacts our lands.
______
Mr. Grijalva. Thank you very much, Mr. President. Let me
now invite Mr. James Chen, Vice President of Public Policy at
Rivian Automotive.
Sir, the time is yours.
STATEMENT OF JAMES C. CHEN, VICE PRESIDENT OF PUBLIC POLICY,
RIVIAN AUTOMOTIVE, LLC, WASHINGTON, DC
Mr. Chen. Thank you very much and good morning, Chairman
Grijalva, Ranking Member Herrell, and distinguished members of
the Committee. Thank you for the honor of appearing before you
today for this important hearing to discuss ways to modernize
our domestic mining laws in the United States.
As noted, my name is James Chen, and I am the Vice
President of Public Policy and Chief Regulatory Counsel for
Rivian Automotive LLC.
We have already provided more extensive written comments to
the Committee for the record. My testimony today will be a
brief summary of the main points of those written comments.
Founded in 2009, Rivian is an independent U.S. company
focused on the mission to keep the world adventurous forever
through the design, development, manufacture, and distribution
of class-leading, all-electric trucks and sport utility
vehicles. Rivian currently produces three vehicles in the
United States--the R1T pickup, the R1S SUV, and the Amazon
delivery van named the EDV--all at our manufacturing facility
in Normal, Illinois.
Acquired in 2017 from Mitsubishi after they closed this
facility in 2016, Rivian has invested nearly $2 billion to
revitalize and transform the factory into a modern, high-tech
manufacturing facility that employs nearly 5,000 employees in
direct manufacturing jobs. Our growth at this plant continues,
and we have plans to hire even more workers and add a second
shift later this year.
The R1T, our flagship vehicle, is the first all-electric
pickup truck available in the U.S. market and has won numerous
awards and accolades, including being named Motor Trend's 2022
Truck of the Year. With a 0 to 60 time as little as 3 seconds,
towing capability of 11,000 pounds, payload capacity of over
1,700 pounds, and a quad motor design for the ultimate in
torque vectoring, stability, and traction control, the R1T is a
shining example of American ingenuity and American production.
In fact, the R1T was recently named the Coolest Thing Made in
Illinois by the Illinois Manufacturers Association.
Rivian was formed to help drive the transition to
sustainable transportation, developed and manufactured in the
United States in order to protect our planet for future
generations. Our mission to keep the world adventurous forever
extends beyond the impact of the products we build. As such,
our commitments go as well toward decarbonizing our business
and responsibly sourcing the components and elements that go
into our vehicles: complementary and necessary work that is
required to address the climate crisis.
The battery is one of the most important components in the
electric vehicle, and it accounts for a vast majority of the
electric vehicle supply chain. A battery's raw materials, their
processed derivatives, and the assembled cells themselves still
largely exists outside U.S. borders. But with targeted
policies, we enable an accelerated transition to a carbon
neutral, circular domestic economy that is far more sustainable
and secure in the long run.
Rivian is doing its part to create a strong, reliable, and
transparent American battery supply chain, investing billions
in manufacturing operations in Illinois, as mentioned, and
soon, as well, in Georgia, working closely with domestic
suppliers and others from allied nations and investing into
early, in-house development of new battery technology.
By modernizing its mining laws and securing the battery and
EV supply chain, the United States has an opportunity to lead
the world, ensure the global mineral race does not become a
race to the bottom. The Clean Energy Minerals Reform Act can
help expand and accelerate domestic mineral development, while
also conforming to our bedrock environmental laws and
protecting special places like our national parks and
monuments.
The bill also recognizes the impacts to rural communities
and Tribal Nations. A majority of the U.S. nickel, lithium,
copper, and cobalt reserves are located on or near tribal land.
So, tribal consultation is essential to any update to our
domestic mining laws.
The United States has the allies, the resources, and
industrial capability to create a strong and safe domestic
mineral supply chain. Lithium ion technology was developed and
modern electric vehicles were commercially proven in the United
States. America has consistently been a global leader in
transportation technology. Let's not cede that leadership to
foreign powers. Given the potential long-term security risks of
having a weak domestic mineral supply chain, the Federal
Government must put into place laws and policies that support
responsible mineral development and extraction, as well as
encouraging domestic supply.
Thank you again for the opportunity to testify today. I
look forward to your questions.
[The prepared statement of Mr. Chen follows:]
Prepared Statement of James C. Chen, Vice President of Public Policy,
Rivian Automotive, LLC
Chairman Lowenthal, Chairman Grijalva, Ranking Member Stauber, and
distinguished Members of the Subcommittee, thank you for the honor of
appearing before you today for this important hearing to discuss ways
modernize our domestic mining laws in the United States.
My name is James Chen and I am the Vice President of Public Policy
and Chief Regulatory Counsel for Rivian Automotive, LLC.
Rivian Background
Founded in 2009, Rivian is an independent U.S. company focused on
the mission to ``Keep the World Adventurous Forever'' through the
design, development, manufacture and distribution of class leading all
electric trucks and sport utility vehicles (``SUVs''). In 2017, the
company acquired the former Mitsubishi production plant in the town of
Normal, Illinois. Originally slated to be torn down and repurposed for
mixed use residential and commercial, Rivian has invested nearly $2
billion to revitalize the plant into a modern, high-tech manufacturing
facility. Employing nearly 5,000 employees in direct manufacturing
jobs, Rivian is now producing three all electric vehicle models in
Normal: the R1T, pickup truck, the R1S full-size SUV, and a commercial
delivery van for Amazon. The R1T, our flagship vehicle, is the first
all-electric pickup available in the U.S. market and has won numerous
awards and accolades, including being named MotorTrend's 2022 Truck of
the Year.
Following the successful debut of our three vehicles in 2021 and an
Initial Public Offering (``IPO'') that same quarter that raised
approximately $12 billion, Rivian is now focused on ramping up
production at our plant in Normal, Illinois, as well as beginning
construction on a second domestic manufacturing site in Georgia. Rivian
is also making significant investments into our next-generation vehicle
platforms and in-vehicle technologies which include a range of new
battery packs with new chemistries that are made with more common
elements, greater efficiency, and are best suited for different types
of vehicles and driving patterns.\1\
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\1\ Rivian Q4 2021 Shareholder letter. Rivian, Mar. 10, 2022.
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Rivian was formed to help drive the transition to sustainable
transportation and protect our planet for future generations. Our
mission to ``Keep The World Adventurous Forever'' extends beyond the
impact of the products we build. Our goal is to lead the sustainable
transformation of the automotive and energy sectors, and preserve
natural ecosystems that provide the backbone for life on this planet.
As such, we have committed to both decarbonizing our business and
helping to protect critical natural carbon sinks--complementary and
necessary work that is required to address the climate crisis.\2\
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\2\ Rivian Comment to U.S. Department of Interior request for
information on the American Conservation and Stewardship Atlas and
America the Beautiful Initiative, US Federal Register, March 7, 2022.
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The battery is one of the most important components of an EV, and
accounts for a vast majority of the EV supply chain. A battery's raw
materials, their processed derivatives, and the assembled cells
themselves--still largely exists outside U.S. borders. With targeted
policies, we believe this supply chain imbalance can be corrected and
enable an accelerated transition to a carbon-neutral, circular economy
that is far more sustainable in the long run than the fossil fuel, one-
time-use combustion-based economy we still largely have today.
Rivian is doing its part to help create a strong, reliable, and
transparent American battery supply chain, investing billions in
manufacturing operations in Illinois and Georgia, working closely with
domestic suppliers and others from allied nations, and investing early
into in-house development of new battery technology. By modernizing its
mining laws and securing its battery and EV supply chain, the United
States has an opportunity to lead the world, ensuring the global
mineral race does not become a race to the bottom.
For these reasons, we are encouraged by the discussion that this
bill has sparked today. The Clean Energy Minerals Reform Act can help
expand and accelerate domestic mineral development while also
conforming to our bedrock environmental laws and protecting special
places like our National Parks and Monuments.
This bill also recognizes the impacts to rural communities and
tribal nations. A majority of U.S. nickel, lithium, copper and cobalt
reserves are located on or near tribal land,\3\ so tribal consultation
in the form of free prior and informed consent must be central to any
update to our domestic mining laws.
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\3\ Mining Energy-Transition Metals: National Aims, Local
Conflicts, MSCI ESG consulting, June 3, 2021.
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EV Industry Outlook
The outlook for EVs is strong and positive. Demand for electric
vehicles, particularly trucks, SUVs and delivery vans is increasing.
For example, Rivian has pre-orders for approximately 80,000 R1T and R1S
vehicles. Our contract with Amazon includes an order for 100,000 EDVs
by 2030, the largest ever commercial fleet contract. Moreover, other
fleet operators have expressed strong interest in all electric delivery
vans as well. Demand is not an issue as we ramp up our production as
quickly as possible.
The convergence of key trends, including shifting consumer
preferences and targeted regulatory support, is contributing to the
robust demand for Rivian products and services. EV adoption is
accelerating as consumers and businesses better understand the benefits
of EVs. Businesses, from auto companies to the mining industry, are
responding to this demand to develop sustainable solutions. As a brand
built on sustainability, we aspire to develop strong working
relationships with all our upstream suppliers, including mining
companies.
Though EV adoption rates in the United States have nearly doubled
over the past couple years,\4\ EVs still only comprised 3.4 percent of
new auto sales in the U.S. 2021.\5\ Other countries, particularly in
Europe and Asia, are seeing higher rates of EV adoption,\6\ and
European and Asian auto manufacturers are quickly taking market share.
The United States has always been a global automotive leader. Failure
to employ a whole-of-government approach to securing a full domestic EV
supply chain--from manufacturing to processing to extraction--risks
ceding leadership to other nations. But as we did with oil in the 20th
century, we can lead on minerals in the 21st century.
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\4\ New Plug-in Electric Vehicle Sales in the United States Nearly
Doubled from 2020 to 2021, U.S. Department of Energy. Mar. 1, 2022.
\5\ Electric vehicles and hybrids surpass 10% of U.S. light-duty
vehicle sales, US Energy Information Administration. Feb. 9. 2022.
\6\ Electric cars fend off supply challenges to more than double
global sales, International Energy Administration. Jan. 30, 2022.
[GRAPHIC] [TIFF OMITTED] T7569.001
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.epsUpdating the 1872 Mining Law
As a Company that relies on the mining of critical minerals for our
products, Rivian recognizes our business has an upstream impact on
communities and ecosystems. As a result, we are actively seeking ways
to minimize that impact wherever possible, while still leading in the
areas of transportation and energy technology. We are also acutely
aware of the fact that mineral extraction needs to be placed in the
context of local community well-being and ecosystem fragility and
importance. Some places should have a level of permanent protection and
specifically prohibit, or limit harmful extractive uses. Those
decisions should be made within a modern framework.
Rivian supports updating our domestic mining law for the 21st
century. The planning, protection and consultation elements of this
bill will allow the United States to expand and lead in mineral
resource procurement while still adhering to our bedrock environmental
laws and protecting America's special places. The United States has
such strong environmental laws that we could have the cleanest and
safest mines in the world.
We also recognize that domestic mineral development needs to
accelerate in the near term, and that the mining sector remains
concerned about potentially punitive gross royalties and permitting
timelines. Permitting can be done in a more efficient and coordinated
way within current frameworks and future conflicts and slowdowns could
be avoided through thoughtful reform. We agree with mining industry
calls to ``focus on how to restore U.S. mining's competitiveness on the
global stage, decrease our import reliance, and ensure that existing
federal and state regulations are not duplicated.'' \7\
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\7\ White House push to reform mining law draws skepticism from
opponents, advocates, S&P Global, Feb. 25, 2022.
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We must also look for new and better ways to obtain critical
minerals and rare earth elements. American ingenuity and innovation are
already happening in this space (e.g., mineral coproduction from
geothermal brine and rare earth element recovery from abandoned mines).
Not only could these novel methods of mineral extraction create new
economic opportunities across America, they can also help rectify the
environmental legacies of mining in the 19th and 20th centuries.
Further consideration should be given to permitting around activity to
reclaim rare earth elements and other minerals from brownfields and
abandoned mines.
The federal government is making progress to address these issues
in bipartisan fashion. The Biden Administration has taken early steps
to address these issues, issuing Executive Orders to shore up our
domestic supply chains and invoking the Defense Production Act for
critical minerals. Rivian is a participant on the State Department's
Clean Energy Resources Advisory Committee, an effort that has carried
over from the previous Administration that we see as a signal of
bipartisan support for securing mineral supplies beyond our borders.\8\
There is also a strong spirit of bipartisanship that helped push
through the Infrastructure Investment and Jobs Act last year and the
Energy Policy Act of 2020, bills that funding for mineral processing
and battery manufacturing. We can build on this progress and further
enhance domestic mineral security by modernizing the law that governs
the highest reaches of the supply chain--extraction.
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\8\ Inaugural Meeting of the Clean Energy Resources Advisory
Committee, U.S. Department of State, Mar. 18, 2022.
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A balance needs to be struck between catalyzing domestic
development in the near term and ensuring taxpayers, tribes and local
communities will receive fair returns on minerals extracted from public
lands around them. Ultimately, funds from the proceeds should be set
aside for cleanup and conservation.
This bill uses the oil and gas sector as a model, where domestic
oil and gas developers adhere to a leasing and royalty system, and
still have helped the United States become one of the largest producers
in the world.\9\ Offshore oil royalties go into the Land and Water
Conservation Fund, which has protected thousands of acres across the
country and was recently permanently funded by a bipartisan act of
Congress--the Great American Outdoors Act.\10\
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\9\ What countries are the top producers and consumers of oil?,
U.S. Energy Information Administration, Dec. 8, 2021.
\10\ About LWCF, LWCF Coalition.
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Of course, the economics for oil and gas are different than mining,
but other countries like Canada and Australia show what's possible.
These mineral-rich countries have robust mining sectors that exist
within sophisticated royalty and permitting systems. Canadian and
Australian mines generate billions in annual tax and royalty revenues
for their governments each year,\11\,\12\ demonstrating that
having modern mining laws does not hinder domestic mineral development.
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\11\ Minerals and the economy, Government of Canada, Feb. 3, 2022.
\12\ Australian mining contributes record tax and royalty payments
to fund better services and infrastructure, Minerals Council of
Australia, May 17, 2021.
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The goal to strengthen our mineral supply chain by accelerating
domestic extraction must also include expansion in our midstream
capacity as well. Mineral recovery from abandoned mines could help
provide early feedstock to get new domestic processing facilities while
new mines come online. By ensuring that the processing and refining of
the raw materials that get extracted also remains domestic, we will
ensure supply chain security that would otherwise be vulnerable to
foreign influence if domestically sourced minerals still needed to be
shipped overseas for processing.
Greater United States Leadership is Needed
More than ever, the United States must lead in the area of new
transportation technology. Lithium-ion battery technology was invented
by U.S. physicist John Goodenough, now at the University of Texas,
Austin. Modern use of this battery technology in cars was introduced by
the founders of Tesla Motors, Inc., California-based company that
proved that long-range, highway capable, battery electric vehicles were
not only possible, but in many respects, superior to the incumbent
technology of internal combustion engines in terms of performance,
efficiency, and utility.
The United States simply cannot let this technology that was
discovered and commercially proven here at home to be dominated by
other countries. We have already seen the dangers of allowing foreign
countries dominate an industry. For example, around 90 percent of rare
earth minerals are produced exclusively in China. In the early part of
this decade, China sent world markets roiling when it drastically
reduced the allowed export of rare earth minerals. With rare earth
minerals used in critical industries as computer memory, rechargeable
batteries, cell phones, air pollution control, magnets, fluorescent
lighting; and critical defense uses such as precision-guided weapons,
night vision goggles, communications equipment, and GPS equipment,
restriction of this resource was a substantial threat to the U.S.'
security and economy. Such foreign dominance cannot be allowed when it
comes to new transportation technology.
In addition to historically being a global leader in automotive
manufacturing and EV technology, the United States is also a leader in
environmental conservation. Our National Parks are often called
``America's Best Idea'' and our bedrock environmental laws like the
Clean Air Act, the Clean Water Act, the Endangered Species Act, and the
National Environmental Policy Act set a high bar for environmental
standards among nations.
The United States has the allies, resources, and industrial
capability to create a robust domestic mineral supply chain, as well as
high environmental standards to ensure it is built and operated
ethically and responsibly.
Given the national, economic, and climate security risks associated
with the current global mineral supply chain, the federal government
must take an ``all-of-the-above'' approach. Updating our mining laws is
one piece of that, but it must be complemented with a broader suite of
domestic and international policy that would allow U.S. manufacturers
to move fast in scaling up their production and securing their supply
chains.
Accelerate EV Adoption. Greater domestic demand for EVs
will drive innovation and support domestic manufacturers'
efforts to onshore their supply chains. The federal
consumer EV tax credit should be expanded without
unnecessary limitations that hold American manufacturers
back from advancing the technology. The federal government
could also create exceptions to state dealership protection
laws,\13\ which remain one of the biggest barriers to EV
adoption in the US,\14\ and avoid setting punitive EV fees.
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\13\ How China Beat the U.S. in Electric Vehicle Manufacturing,
Issues in Science and Technology, Winter 2021.
\14\ The Simplest Way to Sell More Electric Cars in America, The
Atlantic, Jan. 21, 2022.
Deploy federal funding in a more targeted and efficient
manner. The DOE Advanced Technology Vehicle Manufacturing
loan program is well funded and expanded in scope, but it
comes with administrative burdens that discourage potential
applicants. The program can strike a better balance between
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holding loan holders accountable and not being burdensome.
Shore up allies and create new ones. The United States
must leverage its massive diplomatic and trade potential to
further open global supply chains for both raw materials
and talent. The International Development Finance
Corporation could better coordinate on securing mineral
supply chains. The State Department can begin
reinvigorating American diplomatic efforts in Asia, Africa,
and South America.
Update laws that regulate battery waste. As EVs
proliferate on U.S. roads, they become a strategic reserve
of minerals that can be collected and recycled later on.
The more we recycle, the less we will need to rely on
domestic extraction. Congress can set standards while also
maintaining flexibilities to suit the needs of a broad
range of battery types, sizes, weights, applications, and
users. Federal action should ensure industry is not beset
with multiple duplicative state programs and also involve
waste management companies.
Streamline EV test procedures. The Environmental
Protection Agency (EPA) and U.S. Department of
Transportation (DOT) could further streamline test
procedures initially created for internal combustion engine
vehicles. This could include broader groupings of EVs
certified in the same test group to more use of modeling in
range and consumption testing.
Streamline federal fleet requirements for EVs. To purchase
vehicles directly from a manufacturer, federal agency fleet
managers must go through the General Services
Administration (GSA) or else face burdensome paperwork. The
federal fleet procurement process could be streamlined,
either through GSA or allowing agencies to purchase
directly from a manufacturer.
Accelerate visas for engineers who want to help build the
EV industry here in the United States. Rivian has brought
together key talent from around the world, specializing in
automotive and aerospace engineering, semiconductor design,
consumer electronics, and cloud software. The federal
government should not stand in the way of people with
exceptional talent who want to help build the future in
America.
Thank you again for the opportunity to testify today. I look
forward to your questions.
______
Questions Submitted for the Record to Mr. James Chen, Vice President of
Public Policy, Rivian Automotive, LLC
Questions Submitted by Representative Stauber
Question 1. During an April hearing on EV minerals supply chains in
the House Science, Space, and Technology Subcommittee on Investigations
and Oversight, your colleague Chris Nevers, Senior Director of Public
Policy for Rivian was asked to expand on how we should change U.S. mine
permitting to help meet minerals demand for electric vehicle batteries.
One of his recommendations was that Mining Law should be reformed in a
way that supports ``conflict avoidance and permitting efficiency . . .
that protects special places while still expanding our domestic
resources and manufacturing capacity.''
(1a). What improvements would create permitting efficiencies to
ultimately ensure adequate minerals supplies to meet your company's
future demands and that also reduce our outsize reliance on foreign
sources of minerals, some with less stringent environmental and labor
standards?
Answer. Rivian supports increasing domestic mineral production, but
not at the expense of our special places, health of Indigenous and
rural communities and bedrock environmental laws.
With thoughtful collaboration between policymakers, industry,
public interest groups, tribes and local communities, the United States
can have the cleanest and safest mines in the world.
We agree that permitting could be done more efficiently under
current law with better coordination between federal agencies and
states to avoid duplicative processes. We support the provisions
included in the Bipartisan Infrastructure Law and the goals and
principles of the President's interagency working group to do that.
We believe that making decisions about appropriate places to mine
at the front end of the process would increase permit certainty, and
that will occur under proposals such as the House and Senate versions
of the Clean Energy Minerals Reform Act, which will give land
management agencies the ability to consider the appropriate use for our
lands at the beginning of the process.
Another factor contributing to permitting inefficiency is the
shortage of agency staff who oversees those processes. As Trout
Unlimited wrote in their testimony before the Senate Energy and Natural
Resources Committee last fall, ``natural resource management agencies
need staff to conduct timely environmental reviews, thorough permitting
processes, and appropriate monitoring and mitigation. For instance,
since 1995 the Forest Service has experienced a near 40 percent decline
in non-fire personnel. That means fewer biologists, fewer engineers,
fewer hydrologists, less community involvement, and fewer professionals
available to ensure mining is done in a way that is compatible with
other demands on our public lands.''
We encourage Congress to find a middle path forward, one that
ensures the global mineral race does not become a race to the bottom.
Question 2. According to a Feb. 2022 New York Times article, Rivian
is struggling to fulfill orders due to supply chain disruptions for raw
materials. In fact, customers that paid $1,000 down payments for both
the R1T and the R1S were initially told that the truck would arrive in
March or April this spring, but have now pushed those times out to the
first half of 2023.
(2a). H.R. 7580 among other things, increases permitting timelines
by adding additional requirements. Why are you supporting legislation
that makes it more difficult for you to deliver your product by the
timelines you promised to your customers?
Answer. Rivian supports modernizing the 1872 Mining Law for the
21st century, and increasing our domestic mineral production and
processing capacity.
Rivian is not alone in dealing with supply chain constraints this
year. The entire U.S. auto industry--and advanced manufacturing sectors
more generally--are experiencing supply chain constraints due to
numerous factors, including ripple effects from the global COVID-19
pandemic, historic inflation, rising transportation costs, and
logistics disruptions.
Rivian is in business to build the kind of future our kids and our
kids' kids deserve. As such, we take a long view on how we are building
our business, sourcing materials over the long term, and making sure we
do so in the most efficient but responsible way. With that, we firmly
believe that we need to modernize the 1872 Mining Law to ensure that
our mining industry leads in long-term social and environmental
responsibility--so our natural world and the services it provides is
sustained forever regardless of permitting timelines. Once established,
we then support the continued iteration of permitting processes to
become more efficient over time.
We acknowledged in our written testimony the different economics
governing the mining sector compared to the oil and gas sector, as well
as concerns from the mining industry around gross royalties. However,
we believe some level of royalty is appropriate and can be set without
discouraging new investment--and we have seen the mining industry
indicate this as well. We pointed to allied nations like Australia and
Canada that have modern mining laws and still have robust domestic
mining sectors.
In our testimony, we recognized the need to strike a balance
between catalyzing new domestic mining investment in the near term and
ensuring some portion of future royalties be set aside for reclamation.
Increasing domestic mineral production and modernizing mining laws are
not mutually exclusive, and bills like H.R. 7580 would establish a
framework that supports a responsible path forward for a new era of
mining in America.
______
Mr. Grijalva. Thank you very much. Let me now recognize Mr.
Sam Kalen. He is the William T. Schwartz Distinguished
Professor of Law at the University of Wyoming College of Law.
Professor, you are recognized.
STATEMENT OF SAM KALEN, WILLIAM T. SCHWARTZ DISTINGUISHED
PROFESSOR OF LAW, UNIVERSITY OF WYOMING COLLEGE OF LAW,
LARAMIE, WYOMING
Mr. Kalen. Thank you for the opportunity to appear before
you today and offer my views on the Mining Law of 1872. I also
appreciate the opportunity to appear remotely. My remarks today
are my own and do not necessarily reflect the views of the
Wyoming College of Law or its employees.
As the nation's premier public lands scholar, Charles
Wilkinson so aptly noted the 1872 Mining Law is one of the last
remnants of what he called a lord of yesterday, anachronistic
law that remains despite dramatic changes in policy since
President Grant signed the law roughly 150 years ago.
With the law's sesquicentennial upon us, this is surely a
propitious moment to reflect on the urgency of reform as a
nation confronts how to address its need for clean energy
minerals. And perhaps one starting point for reflection is how
the need for mining law reform has been appreciated now for
well over a century: the subject of my remarks today.
To begin with, it is worth noting that John Leshy, the
expert on the mining law, explained roughly 35 years ago that
the law has remained in perpetual motion for decades, evading
reform and yet universally acknowledged to be ill-suited to
modern times.
Historian Gordon Bakken, while explaining how the mining
law was designed in the post-Civil War era to regularize and
confirm mining practices, echoes an assessment by Jared Diamond
that suggests that this Federal statute, and I quote, ``is
among the greatest failures of judgment in world history.''
That may sound a bit too hyperbolic, but as the former
Secretary of the Interior, Ken Salazar, testified in 2009, the
law, unfortunately, according to Interior Secretary Salazar at
the time, ``despite decade after decade of fights about how it
is that we should reform the mining law, all of those efforts
have failed.''
My written testimony chronicles some of these efforts in
detail, but a few salient points are worth noting.
As early as 1880, the Public Land Law Commission suggested
the need for reform as it identified abuses surrounding the use
of the 1872 Mining Law during the law's first decade. Then, as
Congress, from the turn of the century on, began to develop
policies for other resources on the public lands, it routinely
rejected the 1872 Mining Law's approach of affording miners of
hardrock minerals the ability to discover valuable mineral
deposits on available public lands, and mined those minerals
without paying any value back to the United States and the
American people.
Today, consequently, the mining law stands alone amid the
host of other natural resource programs that provide at least
some measure of economic return to the public from the use of
the nation's public lands. Indeed, as far as I am aware, the
mining law remains unique worldwide in its failure to employ
some form of valuation method for lands owned and administered
by a Federal, State, or provincial government.
Not surprisingly, therefore, President Roosevelt's Interior
Secretary in the 1930s called for leasing. The 1950s Paley
Commission recommended establishing a leasing system. Then
reforming the old law surfaced as a recommendation of the 1960s
Public Land Law Review Commission. Interior Secretary Udall in
1969 lamented how reforming the 1872 law was one of--and I
quote--``the most important pieces of unfinished business on
the nation's natural resource agenda.''
In its 1970 report, One Third of the Nation's Land, the
Public Land Law Review Commission observed how ``the General
Mining Law of 1872 has been abused, but even without that
abuse, it has many deficiencies,'' and recommended a
combination of elements of the leasing system and ensuring a
fair return to the United States.
Reform conversations continued throughout the 1970s, and
even the U.S. Government Accountability Office, for example,
carried forward a recommendation for reform in 1979, just to
name one.
Today's hearing with the law's sesquicentennial upon us is
part of a conversation that began back in the 1880s, and one
that has continued almost unabated since. Reform is undeniably
now part of the law's heritage, hopefully approaching a
historic moment toward resolution.
I want to thank the Committee again for providing me with
this opportunity to share my thoughts on mining law reform.
Thank you.
[The prepared statement of Mr. Kalen follows:]
Prepared Statement of Professor Sam Kalen, University of Wyoming
College of Law
Thank you for the opportunity to appear today to offer my views on
Reforming the Mining Law of 1872, as it relates to H.R. 7580, the Clean
Energy Minerals Reform Act of 2022. I also appreciate the opportunity
to appear before you today remotely. My name is Sam Kalen, and I am the
William T. Schwartz Distinguished Professor of law and Associate Dean
at the Wyoming College of Law. I teach primarily in the field of
environmental, natural resources, and energy law and have written
extensively on these subjects.\1\ I also have worked on mining law
issues for a considerable part of my professional career. My remarks
today are my own and do not necessarily reflect the views of the
Wyoming College of Law or its employees.
---------------------------------------------------------------------------
\1\ See, e.g., Sam Kalen, An 1872 Mining law for the New
Millennium, 71 Colo. L. Rev. 343 (2000); Sam Kalen, Mining our Future
Critical Minerals: Does Darkness Await Us?, 51 Envtl. L. Rep. 11006
(Dec. 2021).
---------------------------------------------------------------------------
As one of the nation's premier public land scholars, Charles
Wilkinson, so aptly noted, the 1872 Mining Law is one of the last
remnants of what he called a Lord of Yesterday, an anachronistic law
that remains despite dramatic changes in policy since President Grant
signed the Act into law 150 years ago.\2\ With the law's
sesquicentennial upon us, this is surely a propitious occasion to
reflect on the urgency of reform--as the nation confronts how to
address its need for clean energy minerals. And perhaps one starting
point for reflection is how the need for Mining Law reform has been
appreciated for well over a century, the principal subject of my
testimony.
---------------------------------------------------------------------------
\2\ Charles F. Wilkinson, Crossing the Next Meridian: Land, Water,
and the Future of the West (1992).
---------------------------------------------------------------------------
To begin with, it's worth noting that John Leshy, the expert on the
Mining Law, explained roughly 35 years ago that the law has remained in
perpetual motion for decades, evading reform and yet universally
acknowledged to be ill-suited to modern times.\3\ Historian Gordon
Bakken, while explaining how the Mining Law was designed in the post-
Civil War era to regularize and confirm mining practices, echoes an
assessment by Jared Diamond that suggests that, ``this federal statute
. . . [is] among the greatest failures of judgment in world history.''
\4\ That may sound a bit too hyperbolic, but as former Secretary of the
Interior Ken Salazar testified in 2009 the law unfortunately,
``[d]espite decade after decade of fights about how it is that we
should reform the Mining Law all of those efforts have failed.'' \5\
---------------------------------------------------------------------------
\3\ John D. Leshy, The Mining Law: A Study in Perpetual Motion
(1987).
\4\ Gordon Morris Bakken, The Mining Law of 1872: Past, Politics
and Prospects 2 (2008). For another historical account, See Duane A.
Smith, Mining America: The Industry and the Environment, 1800-1980
(1987).
\5\ Mining Law Reform, Hearing Before the Committee on Energy and
Natural Resources, Receive Testimony on S. 796, Hardrock Mining and
Reclamation Act of 2009 and S. 140, Abandoned Mine Reclamation Act of
2009, U.S. Senate, 111th Cong. (2009) (statement of Ken Salazar,
Secretary, Department of the Interior).
These failed efforts, however, should not dissuade Congress from
crafting a mining law reform package that corresponds to modern
challenges: recognizing that a green economy may require producing some
domestic critical minerals, yet only allowing such production to occur
---------------------------------------------------------------------------
if we----
(a) abandon the location system that returns no value to the
American taxpayers for the use of the Nation's public
lands--rather likely costs the American taxpayer--and,
instead, replace it with a leasing system that, through
market-based royalties and rental fees, ensures a fair
return for the use of the Nation's public lands;
(b) protect our natural resources and ensure that activities will
not result in unnecessary or undue degradation of the
public lands--and through a leasing system by only allowing
leasing where and when the government can be assured that
those values will be protected;
(c) engage in meaningful consultations with Tribal Nations and
Indigenous peoples to ensure that no activities will be
allowed in areas of historic, cultural, or religious
significance, or allowed in any area that is otherwise
protected or secured by a treaty or other arrangement; and
finally
(d) address the clean-up of the Nation's public lands from historic
mining operations by imposing a fee on mining operations to
defray the cost of reclaiming thousands of abandoned mines
scattered across the public lands.\6\
---------------------------------------------------------------------------
\6\ For one report on the issue of cleaning up abandoned mines, see
U.S. Government Accountability Office, Abandoned Hardrock Mines:
Information On Number Of Mines, Expenditures, And Factors That Limit
Efforts To Address Hazards (March 2020).
My attached December 2021 article, Mining our Future Critical
Minerals: Does Darkness Await Us? \7\, goes into some of these issues
in a bit more detail and I will not repeat that detail here, but one
salient point is worth emphasizing. (See: https://www.eli.org/sites/
default/files/files-pdf/51.11006.pdf)
---------------------------------------------------------------------------
\7\ See supra note 1.
The need for mining law reform has been apparent for well over a
century. As early as 1880, the Public Land Commission suggested the
need for reform as it identified abuses surrounding the use of the 1872
Mining Law during just the law's first decade.\8\ Indeed, an initial
economic justification for allowing the free exploitation of the
Nation's resources was dubious from the outset.\9\ Then, as Congress
from the turn of the century on began to develop policies for other
resources on the public lands, it routinely rejected the 1872 Mining
Law's approach of affording miners of hardrock minerals the ability to
discover valuable mineral deposits on available public lands and mine
those minerals without paying any value back to the U.S. and the
American people. Today, consequently, the Mining Law stands alone amid
the host of other natural resource programs that provide at least some
measure of economic return to the public from the use of the nation's
public lands. Indeed, as far as I am aware, the Mining Law remains
unique worldwide in its failure to employ some form of valuation method
for lands owned and administered by a federal, state, or provincial
government.
---------------------------------------------------------------------------
\8\ Report of the Public Lands Commission, Created by the Act of
March 3, 1879, Relating to the Public Lands in the Western Portion of
the United States and the Operation of Existing Land Laws xix, H. Exec.
Doc. No. 46, 46th Cong., 2d Sess. (1880).
\9\ See Paul W. Gates, with a Chapter by Robert W. Swenson, History
of Public Land Law Development 717 (1968) (Written for the Public Land
Law Review Commission). Quite possibly, ``the basic problem with the
1866 Act [the precursor to the 1872 Act] was that no revenue was
reserved for the government. It is entirely possible that the mistake
which the eastern bloc . . . really made was in their conclusion that
leasing, which had never really been studied by Congress or the
government, was not workable.'' Id. at 719, 723.
---------------------------------------------------------------------------
Not surprisingly, therefore, Interior Secretary Harold Ickes in the
1930s promoted leasing hardrock minerals.\10\ So too, the highly
regarded 1950s Paley Commission recommended establishing a leasing
system.\11\ And Interior Secretary Stewart Udall, in 1969, similarly
recommended abandoning the location system in favor of leasing. ``After
eight years in office,'' the Secretary lamented, ``I have come to the
conclusion that the most important piece of unfinished business on the
nation's natural resource agenda is the complete replacement of the
Mining Law of 1872'' because its ``deficiencies . . . cannot be
remedied by tinkering.'' \12\ Reforming the old law surfaced as a
recommendation of the 1960s Public Land Law Review Commission. In its
1970 report, One Third of the Nation's Land, it observed how ``[t]he
General Mining Law of 1872 has been abused, but even without that
abuse, it has many deficiencies,'' and recommended a combination of
elements of the leasing system and ensuring a fair return to the United
States.\13\ When digesting the Commission's work, the New York Times
reported how ``all mineral interests known to be of value should be
reserved with exploration and development discretionary in the Federal
government and a uniform policy adopted relative to all reserved
mineral interests.'' \14\ Reform conversations continued throughout the
1970s; \15\ and even the U.S. Government Accountability Office (GAO),
for example, carried forward a recommendation for reform in 1979,\16\
just to name one. And mining law reform surfaced as a principal concern
of Secretary Babbitt, as well, during the 1990s.\17\
---------------------------------------------------------------------------
\10\ Wilkinson, supra note 2, at 318.
\11\ Leshy, supra note 3, at 301.
\12\ Id. at 302.
\13\ Public Land Law Review Commission, One Third of the Nation's
Land 121-138 (1970).
\14\ Digest of the Commission's Report and Recommendations on
Public Land Use, N.Y. Times, June 24, 1970, https://www.nytimes.com/
1970/06/24/archives/digest-of-the-commissions-report-and-
recommendations-on-public-land.html.
\15\ Leshy, supra note 3, at 304-05.
\16\ GAO, Mining Law Reform and Balanced Resource Management (1979)
(EMD-78-93).
\17\ See Kalen, An 1872 Mining law for the New Millennium, supra
note 1.
---------------------------------------------------------------------------
Today's hearing, with the law's sesquicentennial upon us, is part
of a conversation that began back in the 1880s, and one that has
continued almost unabated since. Reform is undeniably now part of the
law's heritage--hopefully approaching a historic moment toward
resolution. I want to thank the Committee again for providing me with
this opportunity to share my thoughts on Mining Law Reform.
______
Mr. Grijalva. Thank you very much. Let me now recognize our
final witness.
Ms. Debra Struhsacker is an environmental permitting and
government relations consultant, and co-founder and director of
the Women's Mining Coalition.
Ms. Struhsacker, you are recognized. Thank you.
STATEMENT OF DEBRA STRUHSACKER, ENVIRONMENTAL PERMITTING &
GOVERNMENT RELATIONS CONSULTANT, CO-FOUNDER AND DIRECTOR,
WOMEN'S MINING COALITION, RENO, NEVADA
Ms. Struhsacker. Thank you, Chairman Grijalva and Ranking
Member Herrell. I very much appreciate the opportunity to
testify today on behalf of the Women's Mining Coalition.
Members of the Subcommittee, the United States is standing
at a minerals crossroad. Either we can produce minerals from
domestic mines, which are the cleanest and safest mines in the
world, or we can import minerals from our adversaries, ignoring
Chairman Manchin's warning that Russia and China will weaponize
critical minerals against us, jeopardize our national security
and economy, and thwart the transition to clean energy.
And enacting H.R. 7580 will put Russia and China in charge
of our future. Please don't be fooled by the bill's title, the
``Clean Energy Minerals Reform Act.'' This bill will not
promote responsible development of critical minerals, because
it is designed to restrict mining on Federal lands for all
minerals, including the lithium, rare earths, antimony, cobalt,
nickel, graphite, and copper that are critical for clean
energy.
President Biden's Interagency Working Group has called for
public comments to inform future mining law legislation and is
seeking ideas about how to incentivize critical minerals
production, structure a royalty to reward taxpayers, and still
encourage mineral production and improve permitting. Forging
ahead with this bill to gut the mining law prior to the public
comment deadline renders the Interagency Working Group's work
irrelevant.
H.R. 7580 is premised on an anachronistic
mischaracterization of mining that ignores the environmental
safeguards that Federal environmental laws require at modern
mines. There are no exemptions or loopholes for mining in the
Clean Air Act, the Clean Water Act, the Endangered Species Act,
or any of the other Federal environmental laws applicable to
mining. Mines must comply with the same Federal environmental
laws as all other industries. The allegation that the mining
law needs overhauling because it does not include environmental
protection is tantamount to saying the Clean Water Act is
deficient because it does not protect air quality.
The mining law governs land tenure and how citizens obtain
mineral rights on certain Western public lands. If claim owners
beat the daunting 1 in 1,000 odds of finding a mineral deposit
that can become a mine, they must then secure environmental
permits and provide the Federal Government with financial
assurance to guarantee the mine will be reclaimed before mining
can begin. The U.S. permitting process takes 7 to 10 years to
complete, compared to Canada and Australia, where mines get
permitted in 2 to 3 years with similar environmental safeguards
as U.S. mines. The lengthy U.S. permitting process means that
there are no shovel-ready projects and is the main reason why
there are only 30 active metal mines in Nevada, which is the
country's largest public lands mining state.
Discussing the need to increase domestic critical minerals
production, U.S. Energy Secretary Jennifer Granholm recently
said, ``It takes forever to get a new permit. How crazy is
that?'' H.R. 7580 transforms Secretary Granholm's takes-
forever, crazy permitting process into Mission Impossible by
creating unachievable standards, allowing mine opponents to
declare many areas unsuitable for mining, and placing more
lands off limits.
In a 2018 final rule, the U.S. EPA concluded hardrock
mining regulations and bonding requirements provide
comprehensive and effective environmental protection and
guaranteed today's mines will not become tomorrow's
environmental problems. But ignoring the EPA's finding, H.R.
7580 fills an imaginary regulatory vacuum with impractical new
requirements.
The industry has long supported a royalty structure that
places mineral producers and taxpayers on the same side of the
financial equation, so everyone can go to the bank together.
But the gross royalty and fees in H.R. 7580 are not intended to
generate revenue. They are designed to make mining unprofitable
in order to curtail mining.
The mandatory conversion of mining claims into leases in
H.R. 7580 will destroy self initiation and the security of land
tenure needed to justify the hundreds of millions of dollars of
private-sector capital required to discover minerals and
develop mines.
And the system in H.R. 7580 is based on an existing program
for acquired lands, which fails to produce minerals and has
only generated $8.7 million in royalties in Fiscal Year 2018.
H.R. 7580 will cede control of our mineral future to Russia
and China. It guarantees the United States will continue down a
path of increased mineral insecurity, reduced prosperity, and a
much more dangerous future.
Thank you for this opportunity to testify. I am sorry I
can't be there in person. My husband came down with COVID, so I
could not travel at the last minute. But I look forward to your
questions.
[The prepared statement of Ms. Struhsacker follows:]
Prepared Statement of Debra W. Struhsacker, on behalf of the Women's
Mining Coalition
Introduction: Congress Needs to Wait for the Public Input Requested by
President Biden's Interagency Working Group Before Considering
H.R. 7580 to Gut the Mining Law
In June, 2021, the White House released the 100-Day review entitled
``Building Resilient Supply Chains, Revitalizing American
Manufacturing, and Fostering Broad-Based Growth'' that directed the
Federal government to establish an interagency team:
``. . . with expertise in mine permitting and environmental law
to identify gaps in statutes and regulations that may need to
be updated to ensure new production meets strong environmental
standards throughout the life cycle of the project; ensure
meaningful community consultation and consultation with tribal
nations, respecting the government-to-government relationship,
at all stages of the mining process; and examine opportunities
to reduce time, cost, and risk of permitting without
compromising these strong environmental and consultation
benchmarks.'' \1\
---------------------------------------------------------------------------
\1\ https://www.whitehouse.gov/wp-content/uploads/2021/06/100-day-
supply-chain-review-report. pdf, page 14. This team was developed in
response to President Biden's February 24, 2021 Executive Order 14017,
``America's Supply Chains.''
On March 31, 2022, this Interagency Working Group (IWG) \2\
published a Federal Register Request for Information (RFI) asking the
public to comment on important questions about the Mining Law, mining
regulations and permitting (FR Vol 87, No. 62, pp. 18811-18812.) The
public comment deadline is July 31, 2022.
---------------------------------------------------------------------------
\2\ The Department of the Interior chairs the IWG. The other
federal IWG agencies include the Department of Agriculture through the
Forest Service; the Environmental Protection Agency; the Army Corps of
Engineers; the Departments of Commerce, Energy, and State; the Council
on Environmental Quality; and the National Economic Council.
As explained in the RFI, the IWG is seeking this public input in
---------------------------------------------------------------------------
order to:
``assess the adequacy of existing laws, regulations, and
permitting processes, determine whether changes to those are
necessary to meet the goals laid out in the recommendations
from E.O. 14017 100-Day reviews, and if it concludes that
changes are necessary, make recommendations to the appropriate
Federal agencies or Congress on how to implement those
changes.'' (emphasis added)
Congress must not ignore the RFI's explicit request for public
input on whether existing laws and regulations need to be changed and
if changes are warranted, how to implement those changes. Initiating
the legislative debate about Chairman Grijalva's new bill, The Clean
Energy Reform Act, H.R. 7580, is premature without first obtaining the
public's input on whether, if, and how laws and regulations should be
changed. This hearing has put the cart before the horse and signals the
House Subcommittee on Energy and Mineral Resources is not interested in
and does not value the public's perspectives on mining. Congress should
table H.R. 7580 until it has received the public comments in response
to the IWG's RFI. The public's comments must be considered as part of
the legislative debate whether to functionally gut the Mining Law by
enacting H.R. 7580.
The following sections provide the Women's Mining Coalition's
preliminary responses to the RFI questions that are directly relevant
to Congress' evaluation of H.R. 7580.
I. RFI Question 1: Eliminating Mining Claims and Substituting a Leasing
System
``Would alternatives to the existing claim system, such as
leasing, or adjustments to the current system, such as
incorporating mining into comprehensive federal lands use
assessments and planning, lead to better outcomes for
communities, environment and a secure domestic supply of
minerals? If so, how should such an alternative or adjusted
system be structured?''
A. The Mining Claims System
The Mining Law governs land tenure, authorizes citizens to obtain
mineral rights on certain western public domain lands, and gives claim
owners the necessary security of land tenure to justify the enormous
investments required to explore for minerals and develop mines.
Substituting the leasing system proposed in H.R. 7580 will eliminate
land tenure security, significantly reduce mineral exploration and
development on public lands, and increase U.S. reliance on foreign
minerals. H.R. 7580 upends the mining claims system by requiring
mandatory conversion of life-of-mine claims to time-limited leases.
This ill-conceived, impractical, and unworkable proposal will
substantially interfere with the Biden Administration's policies to
increase domestic mineral production in order to strengthen domestic
supply chains and provide the minerals needed to build clean energy
infrastructure. It will also precipitate Fifth Amendment takings claims
against the federal government.
The current mining claims system is an effective way for the public
to benefit from private-sector investment in mineral exploration and
development projects. Under current law, U.S. citizens can take the
initiative to locate claims based on preliminary concepts about where
minerals may be located and then make substantial investments of time,
knowledge, and money to test these concepts to explore for minerals on
their claims with the hope of discovering a mineral deposit that can be
developed into a mine. This process, which is known as self-initiation,
greatly benefits our Nation because it effectively leverages private-
sector investment that transforms undeveloped federal land into mining
operations that create jobs, pay taxes, and provide the minerals the
country needs--at no risk or expense whatsoever to U.S. taxpayers.
Self-initiation gives prospectors and geologists the opportunity to
pursue their ideas about where mineral deposits may be located and
identify promising mineral targets. Finding a mineral deposit is a
daunting task that takes a lot of skill--as well as luck. According to
the National Research Council/National Academy of Science 1999
report,\3\ 1,000 mineral targets must be identified and evaluated to
discover a single deposit that can become a mine.
---------------------------------------------------------------------------
\3\ Hardrock Mining on Federal Lands, page 24.
---------------------------------------------------------------------------
Another benefit of the claims system is that it generates modest
revenue for the Treasury. Mine claimants pay the U.S. Bureau of Land
Management (BLM) annual claim maintenance fees to keep their claims in
good standing. The current claim maintenance fee is $165 per claim.\4\
The claim maintenance fee amount is indexed to the Consumer Price Index
adjusted accordingly every five years. In FY 2020, BLM collected over
$69.4 million in claim maintenance and other Mining Law holding
fees.\5\
---------------------------------------------------------------------------
\4\ https://www.blm.gov/programs/energy-and-minerals/mining-and-
minerals/locatable-minerals/mining-claims/fees.
\5\ https://www.blm.gov/sites/blm.gov/files/docs/2021-08/
PublicLandStatistics2020.pdf, Table 3-32, Page 158.
---------------------------------------------------------------------------
B. The Minerals Leasing System for Hardrock Minerals
The leasing system proposed in H.R. 7580 replicates the 75-year old
hardrock minerals leasing program applicable on acquired lands,\6\
which has a proven track record of being impractical and unproductive
in terms of producing minerals and generating royalty payments. If this
unsuccessful leasing program is imposed upon locatable minerals on
western public domain lands, it will completely destroy self-initiation
by putting the federal government in charge of deciding where and when
geologists can look for minerals and where and for how long miners can
operate a mine. These harsh land tenure restrictions will severely
compromise the Nation's ability to capitalize on private capital to
discover and develop domestic mineral deposits. The net result will be
significantly diminished domestic mineral production and increased
reliance on foreign minerals.
---------------------------------------------------------------------------
\6\ The Minerals Leasing Act for Acquired Lands of 1947, 30 U.S.C.
Sec. Sec. 351-359.
---------------------------------------------------------------------------
In marked contrast to the federal mineral leasing system for
hardrock minerals on acquired lands, the federal mineral leasing system
for oil, gas, and coal works for these energy commodities. Leasing is
suitable for oil, gas, and coal deposits because private industry and
the federal government already know where oil, gas, and coal deposits
are located prior to leases being offered and issued on public lands.
Oil, gas and coal occur in well understood sedimentary basins where
geophysical surveys can identify targets with a high likelihood of
success. Once an oil or gas well is drilled, it can readily be modified
into a production well.
The geology of most hardrock mineral deposits is quite different
than oil, gas, and coal deposits. Most hardrock mineral deposits occur
in areas with much more complex and diverse geology and typically have
unique geologic, geochemical, and metallurgical characteristics that
make each hardrock mineral deposit unique and therefore difficult to
find. Consequently, neither the federal government nor mineral
prospectors know with certainty where hardrock mineral deposits are
located. This is one of the main reasons the hardrock minerals leasing
program applicable to acquired lands (as well as on public domain lands
on national forests in Minnesota and in some Eastern states) does not
work for hardrock minerals and is failing to generate meaningful
mineral production and federal royalty payments, despite the highly
prospective geology on acquired lands in Minnesota and Missouri.
Discovering a hardrock mineral deposit requires extensive
exploration and development drilling because the location, depth,
mineral grade, and economic viability of hardrock mineral deposits is
generally unknown. Once drilling has sufficiently defined the deposit
to support a decision to develop it into a mine, huge investments on
the order of many hundreds of millions to more than a billion dollars
are typically required to build the mine and processing facilities.
Exhibit I, the July 2021 testimony from Mr. Jim Cress before this
Subcommittee, provides a detailed and informative discussion of the
many reasons why the federal hardrock mineral leasing program on
acquired lands is a failure. As discussed in Mr. Cress' testimony, some
of the reasons why the federal hardrock leasing program is a failure
include the following:
It was not designed to promote discovery and development
of hardrock minerals;
It contains no rights of self-initiation or rights to mine
any discovered minerals;
Prospecting licenses or permits require prior consent from
the surface management agency, are limited to two years
with a maximum four-year discretionary extension, and are
restricted to 2,560 acres per permit and a 20,480-acre per
person/company per state limit; and
Hardrock mining leases are limited to a primary term of 20
years, which may not be long enough to develop and mine
some deposits. This artificial time constraint is not in
the public's best interest. A mining lease must provide
security of tenure for as long as it takes to develop and
mine a deposit.
The leasing acreage and time limits in H.R. 7580, which are
identical to those in the hardrock minerals leasing program applicable
on acquired lands, are a proven impediment to mineral exploration and
development of hardrock minerals on these lands. The acreage and time
limits in H.R. 7580 will be similarly unsuccessful in producing
minerals or generating royalty payments from mining operations on
public domain lands.
Imposing the 20,480-acre (1,024 mining claims) per company per
state limit in H.R. 7580 will require the forfeiture of the private
property rights on thousands of mining claims located within the
boundaries of currently producing mining properties.\7\ This private
property seizure will completely disrupt active mining operations and
precipitate numerous Fifth Amendment takings claims as the government
forces the premature closure of viable mining operations or the
divestiture of lands that are part of productive mining operations.
Then the government will have to expend taxpayer funds to satisfy
taking claims without the benefit of any mineral production.
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\7\ For example, Nevada mining companies operate multiple mines and
own thousands of mining claims that cover their active mining
operations throughout the state.
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The temporary (two to six year) and spatially constrained (2,560-
acre, 128 claim maximum) prospecting license in H.R. 7580 is completely
unworkable for hardrock minerals. To put these limits into perspective,
most promising mineral exploration projects are typically comprised of
several hundred to several thousand claims to give the owner the
ability to conduct mineral exploration over a broad area with mineral
potential. It is not uncommon for exploration activities to take a
decade or longer to discover and then define the size and grade of a
mineral deposit. Additionally, Title I Section 105 of H.R. 7580 is a
disincentive to small miners, who after prospecting and finding a
mineral deposit, cannot legally transfer their lease to a development
company, but can only sell or transfer to a spouse or dependent.
The mine leasing provisions in H.R. 7580 are equally problematic.
Companies with a mineral discovery may apply for a 20-year non-
competitive mining lease if the surface management agency (e.g., BLM or
the USFS) consents to issuing the lease. Giving BLM or the USFS the
discretionary authority to decide whether to issue a mining lease puts
a company's entire exploration investment at risk and creates
uncertainty that will completely chill mineral exploration and
development in the U.S. Companies will not be able to justify to their
shareholders expenditures of the tens to hundreds of millions of
dollars required to discover a valuable mineral deposit if there is no
guarantee that they will have the right to develop those minerals.
The Biden Administration's recent decision to cancel the Twin
Metals mineral leases in the Superior National Forest in Minnesota
vividly illustrates the extent of the government's discretionary
authority to deny or cancel mining leases after a company has invested
hundreds of millions of dollars to explore and develop its leases.\8\
The government's cancellation of the Twin Metals mining leases clearly
demonstrates that mineral lessees have absolutely no security of tenure
under the federal hardrock minerals leasing program on acquired lands.
The adoption of this program in H.R. 7580 on western public domain
lands and the requirement that mining claims be converted into mineral
leases will similarly eliminate security of tenure on western public
domain lands.
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\8\ Twin Metals Minnesota has invested over $500 million to develop
a world-class critical minerals deposit containing nickel, cobalt,
copper, platinum, and palladium, https://www.mprnews.org/story/2022/02/
15/mn-dnr-suspends-environmental-review-of-controversial-twin-metals-
mine-proposal.
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The 20-year primary term for a mining lease is another serious
barrier to mineral investment because it is not unusual for mines to
operate for longer than 20 years. This is often essential to generate a
satisfactory, long-term return on investment that is needed to take a
project forward. Without the assurance that a mine can continue to
operate after 20 years, companies will be very reluctant to make the
enormous investment required to develop a mine.
Statistics about the hardrock minerals leasing program for acquired
lands available from BLM and the Government Accountability Office (GAO)
clearly show this program fails to generate meaningful royalties from
the small volume of hardrock minerals produced on acquired lands.
According to the BLM,\9\ there are 56 hardrock minerals leases covering
a miniscule 43,804 acres nationwide on acquired lands. With 36 leases,
Missouri is the state with the most leases where leases cover 33,623
acres located in the Mark Twain National Forest. The GAO \10\ reports
only 20 hardrock mineral leases nationwide have operating mines, just
seven of which pay federal royalties. In fiscal year 2018, these seven
operations paid a meager $8.7 million in federal royalties.\11\ It is
likely that the six operating leases at Missouri lead, zinc, and copper
mines paid most of this royalty.
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\9\ BLM 2020 Public Land Statistics, op. cit., page 115.
\10\ Mining on Federal Lands, GAO-20-461R, May 28, 2020, https://
www.gao.gov/products/gao-20-461r.
\11\ GAO May 2020, op. cit., page 10.
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The fourteen other hardrock mineral leases with active mining cover
an aggregate of only 2,304 acres and include mostly small mines located
in the following states: Arkansas (quartz and gemstones, 457 acres);
California (gold, 41 acres); Idaho (gemstones and gold, 121 acres);
Minnesota (limestone, 5 acres); Montana (gold, 57 acres); North
Carolina (olivine, 158 acres); South Carolina (gold, 1,109 acres); and
Virginia (limestone, 355 acres.)
The proposal in H.R. 7580 to replicate the unsuccessful hardrock
minerals leasing program on acquired and Eastern States lands and
unwisely impose it on western public domain lands is neither justified
nor rational. Based on the documented failure of the hardrock mineral
leasing system for acquired lands, it is definitely not in the public's
interest to replace mining claims with mineral leases. Besides
increasing the country's reliance on foreign minerals and exposing the
federal government to substantial takings litigation, this baseless
extinguishment of private property rights will destroy the economic
engines that sustain rural mining communities. Forced mine closures
will kill high-paying mining jobs and deprive states and local
communities of the tax revenues and other substantial economic benefits
that the mines generate.
Given the current extraordinary demand for minerals to build clean
energy infrastructure, to power electric vehicles, and to electrify the
Nation, this is an exceptionally inappropriate time to make sweeping
changes to the land tenure system in the Mining Law. Even if H.R. 7580
were proposing a satisfactory leasing scheme that provided security of
tenure, this is the wrong time to make such a change because the
transition from claims to leases would dramatically slow down mineral
exploration and development. The net result would be reduced mineral
production during a multi-year transition period and increased reliance
on foreign minerals.
Western mining states with mineral leasing programs on state lands
or trust lands work well because the lessor and lessee have the common
goal of finding a mineral deposit that can become a mine that pays
royalties to the lessor. In marked contrast, in H.R. 7580, the lessor
(e.g., the federal government) is a hostile landlord that creates
barriers to mineral exploration and development.
For example, the Utah School and Institutional Trust Lands
Administration (SITLA) \12\ is a successful and productive minerals
leasing program. SITLA's goal is to enter into exploration leases that
may discover mineral deposits that can be developed into royalty-
generating mines. SITLA issues exploration and mining leases to fulfill
its fiduciary duty to its Utah school system beneficiaries to support
exploration leading to development and generation of a royalty aimed
toward a beneficiary.
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\12\ https://trustlands.utah.gov.
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II. RFI Question 2: Mining Best Practice Standards
``Are there international mining best practices or standards
that the United States should consider adopting, or encouraging
the U.S. mining industry to adopt? If so, which practices or
standards and what improvements or benefits would they
provide?''
A. Overview of International Mining Standards
There are three types of international standard: country
requirements; investor standards; and voluntary standards.
Country standards are created based on the laws and specific
context of each country. While most standards of developed nations
share intent and content, they also include country-specific
requirements that would not be applicable elsewhere due mainly to
differences in site characteristics. Many countries have based their
programs on the laws, regulations, and standards developed and improved
in the U.S. over the last 50 years. The legal framework and guidelines
governing the responsible development of mineral resources of the U.S.
are more comprehensive and rigorously tested than in any other country
in the world.
Investor standards are developed by organizations that dictate
minimum requirements for financing projects. Organizations such as the
World Bank, the International Finance Corporation (IFC), the Equator
Principles (EP) Association, the Organisation for Economic Co-operation
and Development (OECD), and the European Bank for Reconstruction and
Development (EBRD) have developed minimum environmental and social
standards and guidelines for various industries including mining. These
are intended as risk management frameworks for financial institutions
to identify, assess and manage environmental and social risks when
financing projects, particularly for projects in countries with limited
governance frameworks.
The U.S. is classified as an Equator Principles Designated Country
because it is a member of the OECD and is a World Bank High Income
Country. The Equator Principles define Designated Countries, such as
the U.S. as ``those countries deemed to have robust environmental and
social governance, legislation systems and institutional capacity
designed to protect their people and the natural environment.'' \13\
This acknowledges that the legal framework for the protection of the
environment and people in the U.S. meets or exceeds the Equator
Principles standards for environmental and social performance.
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\13\ The Equator Principles: EP4. July 2020. Pg. 24.
---------------------------------------------------------------------------
Voluntary standards from organizations such as the International
Council on Mining and Metals (ICMM), the International Cyanide
Management Institute (ICMI), the International Union for Conservation
of Nature (IUCN), and others provide international standards and
guidance on specific environmental or social aspects affecting the
environmental and social performance of mining operations. These
standards and guidance protocols tend to be either topic specific or
general in nature and acknowledge the importance of considering
country- and site-specific context in the application of the standards
and guidelines. Some of these standards, such as the ICMI Cyanide Code
were based entirely or primarily on the standards and guidelines
developed in the U.S. Other voluntary standards that guide the mining
international mining industry are internal corporate standards that are
used to guide the governance of their operations in countries without
robust environmental and social government and legal frameworks. These
are often based on the requirements applicable to mining operations in
the U.S.
B. Nevada has the Gold Standard of Mining Regulation and Financial
Assurance Programs
Congress does not need to look to other countries for mining best
practices and standards that should be imported into the U.S. because
other countries typically look to the U.S. for guidance when
establishing their mineral regulatory and financial assurance programs.
In particular, the Nevada Division of Environmental Protection/Bureau
of Mining Regulation and Reclamation's (NDEP/BMRR's) regulations
governing hardrock mineral exploration, development, mine closure, and
financial assurance requirements, coupled with the federal land
management agencies' (e.g., BLM and the U.S. Forest Service, USFS) are
widely considered to be the ``gold standard'' of modern regulations for
hardrock minerals. Many foreign countries have sought NDEP/BMRR's
advice when establishing or updating their mining regulatory programs.
In Nevada, the BLM, USFS, and NDEP/BMRR have a Memorandum of
Understanding (MOU) that governs how these federal and state regulatory
agencies seamlessly integrate and coordinate their respective
regulatory and financial assurance requirements. Title III of H.R. 7580
would dismantle this arrangement, reinvent the wheel, and add some
corners to what is currently a smoothly running program that provides
comprehensive environmental protection during and after mine operation
and closure and highly successful reclamation results.
C. Overview of Environmental Regulatory Programs for Modern Mines
Modern U.S. mines must comply with the same environmental laws and
regulations as other manufacturing facilities and industrial projects.
Additionally, surface management and reclamation laws govern mineral
exploration and mining projects. Unlike many other industries, miners
must reclaim the land when mining is completed and provide state and
federal regulators with reclamation bonds and other forms of financial
assurance to guarantee the mine will be properly reclaimed. The
financial assurance amount is calculated on the basis of what it would
cost the government to reclaim the mine as well as providing for long-
term and care maintenance as necessary.
In 2018, the U.S. Environmental Protection Agency (EPA) issued a
final rulemaking for Section 108(b) of the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA), commonly called the
``Superfund,'' that determined EPA did not need to develop a separate
financial assurance program for the hardrock (metals) mining industry.
Instead, EPA found that BLM's, the USFS', and the states' environmental
regulations and financial assurance requirements effectively protect
the environment at modern mining operations and guarantee that
taxpayers will not have to pay to reclaim mines.
EPA's conclusions about modern mining practices disproves mining
critics' perennial distortions that modern mines are not safe for the
environment. As EPA recognized, the environmental laws and regulations
enacted since the late 1960s have had an enormous impact in changing
how modern mines operate. Prior to about 1960, there were no state or
federal environmental rules governing mining or other industries.
Mining started in the western U.S. in the mid-1800s and was completely
unregulated for more than a century. Congress enacted the country's
first environmental laws in the late 1960s. Most states did not start
passing environmental laws until the 1970s and 1980s.
During the era of unregulated mining, gravity was the miner's best
friend. Miners typically deposited mine wastes (mill tailings, waste
rock, and smelter slag) directly on the ground in the nearest valley or
low area. Once the ore was exhausted or falling metal prices made
mining unprofitable, miners commonly moved on to the next prospect and
abandoned the old one, giving no thought to reclaiming the land.
While this lack of environmental protection and reclamation is
unacceptable when viewed through the lens of our modern-day commitment
to protect the environment, it is important to understand that mines of
the past were no different than other contemporaneous industries that
operated without any environmental controls. Past mining and industrial
practices did not use environmental safeguards because protecting the
environment was not on anyone's radar screen. Back then, society did
not consider the long-term consequences of mining or other industrial
and manufacturing activities.
Pre-regulation mines produced the metals that helped build America,
tell the story of the development of the West, and helped win two world
wars. Although we recognize the important history and heritage these
mines represent, we are now left to deal with a difficult legacy of the
safety hazards and environmental problems left behind.
The 1970s began a new era of environmental awareness as America
celebrated the first Earth Day on April 22, 1970. In response to the
country's new commitment to clean-up the environment and minimize the
potential for future environmental pollution, Congress enacted numerous
environmental laws in the 1970s and 1980s shown in Table 1. States
quickly followed suit, enacting state laws to implement or complement
the federal environmental statutes. Depending on the environmental site
conditions at a given site, most or all of these laws govern modern
mining operations.
[GRAPHIC] [TIFF OMITTED] T7569.002
.epsIn 1974, the USFS enacted surface management regulations for
locatable minerals at 36 C.F.R. Part 228 Subpart A to protect the
environment at hardrock mineral exploration and mining projects on
National Forest System lands. The USFS regulations provide
comprehensive environmental protection and require mine operators to
minimize adverse environmental impacts whenever possible, and provide
substantial financial assurance (reclamation bonds) to guarantee that
mines will be reclaimed when mining is completed.
In 1980, BLM enacted surface management regulations for hardrock
mining at 43 C.F.R. Subpart 3809 that require mineral exploration and
development activities to prevent unnecessary or undue degradation.
BLM significantly updated the 3809 regulations in 2001, adding more
detailed financial assurance requirements, establishing environmental
performance standards that must be followed to comply with the mandate
to prevent unnecessary or undue degradation, and providing authority
for enforcement actions against non-compliant operators.
Prior to approving mineral activities on public lands, BLM and USFS
must comply with the National Environmental Policy (NEPA) requirement
to prepare either an Environmental Assessment or an Environmental
Impact Statement (EIS).\14\ Most mining proposals require the agency to
prepare an EIS; many exploration projects can be authorized with an
Environmental Assessment.
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\14\ Initial exploration projects that disturb fewer than five
acres of BLM-administered lands can typically qualify for a Notice that
does not require BLM to prepare a NEPA document. However, BLM reviews
Notice applications to ensure that sensitive resources will not be
impacted and to establish the financial assurance (reclamation bond)
amount that the applicant must provide before any surface-disturbing
activities commence.
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Generally speaking, there are more hardrock mining operations on
BLM-administered lands compared to National Forest System lands. Over
one-half of the country's 390,595 \15\ active mining claims are located
in Nevada. BLM and the USFS have authorized under 200,000 acres of
surface disturbance for mineral exploration and development activities
in Nevada, which is less than 0.32 percent of the roughly 60 million
acres of Nevada's federal minerals estate and clearly demonstrates
mining is a minor use of public lands in Nevada.
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\15\ BLM 2020 Public Land Statistics, op. cit., page 125.
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Despite being the country's largest mining state, there are only 30
active metal mines in Nevada.\16\ These operations are fully bonded
with over $3.4 billion in financial assurance instruments provided to
BLM, USFS, and the NDEP/BMRR to guarantee Nevada's mineral exploration
and mine sites will be reclaimed. The evolution of Nevada's mining
regulations and financial assurance program since 1980 when the State's
reclamation law was first enacted illustrates a 40-year history of
continuous improvement to refine the program based on cooperation and
collaboration between state and federal regulators and Nevada's mining
industry.
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\16\ https://pubs.nbmg.unr.edu/The-NV-mineral-industry-2020-p/
mi2020.htm.
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Current federal and state environmental regulations require mines
to be designed, built, operated, and closed using effective
environmental safeguards that provide comprehensive protection for all
environmental resources and minimize the potential for environmental
problems to develop during mining and after mining is completed. In
order to comply with these regulations, mines use state-of-the-art
environmental protection technologies including liners, water treatment
facilities, air emission control equipment, and environmental
monitoring systems. Mine operators are required to routinely monitor
the performance of these systems to verify they are functioning
properly, the mine is complying with its permit requirements, and
environmental protection is ensured.
In striking contrast to old mining practices, modern U.S. mines
carefully manage mine wastes and use liners and covers to isolate these
materials from the environment. Whereas waste rocks and tailings at old
mines were typically deposited directly on the ground or into streams
and rivers, tailings and waste rock storage facilities at modern mines
are designed to be stable and minimize seepage and interaction of the
mine wastes with surface water and groundwater resources.
The powerful combination of comprehensive and effective
environmental regulations and financial assurance requirements is what
led the EPA to conclude in 2018 that the environmental regulations and
financial assurance requirements for mining fully protect the
environment and that a new EPA program would be duplicative and
unnecessary. EPA based its decision on a detailed analysis of the scope
and effectiveness of federal and state environmental protection and
financial assurance rules for hardrock mining:
``EPA has analyzed the need for financial responsibility based
on risk of taxpayer funded cleanups at hardrock mining
facilities operating under modern management practices and
modern environmental regulations . . . [T]he degree and
duration of risk associated with the modern production,
transportation, treatment, storage or disposal of hazardous
substances by the hardrock mining industry does not present a
level of risk of taxpayer funded response actions that warrant
imposition of [additional EPA] financial responsibility
requirements for this sector.'' \17\
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\17\ U.S. EPA Financial Responsibility Requirements Under CERCLA
Section 108(b) for Classes of Facilities in the Hardrock Mining
Industry, Federal Register, Vol. 83, No. 35, February 21, 2018, pp.
7556-7588, at p. 7556. https://www.govinfo.gov/content/pkg/FR-2018-02-
21/pdf/2017-26514.pdf.
EPA's decision distinguishes between problematic past mining
practices that are no longer lawful and modern practices, stating that
legacy contamination at sites operated before the development of modern
environmental regulations are not relevant in assessing the potential
for environmental risks at existing and future mines. EPA's rulemaking
explains that it is inappropriate to point to environmental problems at
historical, pre-regulation facilities and assert that modern, heavily
---------------------------------------------------------------------------
regulated mines pose similar risks--because they do not:
``. . . the primary determinant of risk is how current
operations at the mine are conducted, including the current
regulatory regime under which they operate . . . EPA has
determined that modern regulation of hardrock mining facilities
. . . reduces the risk of federally financed response actions
to a low level such that no additional financial responsibility
requirements for this industry are appropriate.'' \18\
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\18\ Federal Register Vol. 83, No. 35, pp. 7564-7565.
EPA's 2018 final rulemaking has withstood judicial review. In Idaho
Conservation League et al versus Andrew Wheeler and the U.S.
Environmental Protection Agency,\19\ the U.S. Court of Appeals for the
District of Columbia agreed with EPA's findings and upheld the agency's
decision that a new financial assurance program for the hardrock mining
industry was unwarranted. In July 2019, the Court denied the
Petitioners' request for the Court to vacate EPA's final rulemaking.
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\19\ USCA Case #18-114, https://www.cadc.uscourts.gov/internet/
opinions.nsf/EE3F3054B78C5C 228525843C0051989A/$file/18-1141.pdf.
D. The Unworkable Provisions in H.R. 7580 Title III are Designed to
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Curtail Mining on Public Lands
The performance track record of modern, highly regulated mines
clearly demonstrates that Title III of H.R. 7580, ``Environmental
Considerations of Mineral Exploration and Development'' is completely
unnecessary to ensure that future mines are safe for the environment.
The unworkable environmental standards and duplicative permitting
process for mineral exploration and operations will guarantee mineral
production will decline. Title III imposes a new environmental
performance standard that will be impossible for mining projects (or
any other public land uses) to meet and creates a complex regulatory
review that adds another layer of bureaucracy designed to make mineral
projects more difficult to permit and develop. The Title III
environmental standards and permitting processes are intended to
advance the overarching purpose of H.R. 7580 to reduce mining.
The most troubling aspect of Title III is its proposal to amend the
undue and unnecessary degradation (UUD) environmental protection
mandate in Section 302(b) of the Federal Land Policy and Management Act
of 1976 (FLPMA, 43 U.S.C. Sec. Sec. 1701 et seq) that currently applies
to all activities on BLM-administered public lands. H.R. 7580 Section
301 would change this mandate for hardrock mineral projects to ``undue
degradation'' (UD) and prohibit degradation that is necessary in order
to mine. Because mining cannot occur without causing some unavoidable
changes to the land due to excavating pits, storing mine wastes, and
building other facilities, eliminating the concept of necessary impacts
from UUD and changing it to UD makes mining impossible if future BLM
regulators have the discretionary authority to deem unavoidable and
therefore necessary impacts undue. This impossible-to-achieve standard
is clearly designed to eliminate future mining on federal lands.
Section 301 of H.R. 7580 makes similar changes to the current
environmental performance standard for mineral activities on National
Forest System lands.
Changing the FLPMA 302(b) standard from UUD to UD for hardrock
mining projects would create a different environmental performance
standard for hardrock mining than all other multiple use activities on
public lands. Recognizing that all human activities create impacts,
some of which are unavoidable, the FLPMA 302(b) UUD standard
accommodates this reality while giving BLM the authority to prohibit
impacts that go beyond what is necessary and are therefore excessive,
unnecessary, and undue. H.R. 7580 Section 301 eliminates this
practicality for hardrock minerals and potentially sets a precedent
that could be applied in the future to other multiple uses of public
lands. Changing UUD to UD sets the multiple use principle that is the
core of FLPMA's management directive for public lands on a dangerous
course toward zero-impact management of the Nation's public lands.
The Title III permitting processes in H.R. 7580 replace the
comprehensive and effective BLM, USFS, and state regulatory
requirements and permitting processes that currently govern mineral
exploration and development with the unworkable prospecting permits and
mineral leases discussed in Section I for hardrock mineral exploration
and development on acquired lands. The unsuccessful 75-year old
hardrock minerals permitting and leasing system for hardrock minerals
on acquired lands is a completely impractical template for hardrock
minerals exploration and development. The fact there are only seven
operating mines on acquired lands that pay federal royalties clearly
demonstrates this system is unsuitable for discovering and producing
hardrock minerals.
However, if the objective of a minerals leasing program is to
discourage and prevent mineral activities on federal lands, the
hardrock minerals leasing program on acquired lands will accomplish
this goal. Because the purpose of H.R. 7580 is to curtail hardrock
mining on public domain lands, it is not surprising that this bill
seeks to replicate the many barriers to mineral exploration, discovery,
and development in the hardrock minerals program for acquired lands and
apply them to western public domain lands currently governed by the
Mining Law.
III. RFI Question 3: Hardrock Production Royalty Program
``If the U.S. were to place royalties on hardrock minerals
produced from public domain lands, what factors should be
considered and what structures would best protect the interests
of the taxpayer while responsibly incentivizing production? In
addition, if royalties were collected, how should those
revenues be allocated?''
A. Congress Does Not Have the Necessary Data to Make Informed Decisions
about a Royalty
Congress does not have correct information about the size of the
hardrock mining industry or the level of minerals production to know
whether there is sufficient hardrock mining on lands subject to the
Mining Law to warrant adding a federal hardrock royalty to the Mining
Law or to predict revenues from a future royalty program. The
information the GAO has recently provided to Congress is inaccurate
because the GAO misinterpreted data that the BLM and USFS provided on
the number of Plans of Operation. The GAO's May 2020 report to Chairman
Grijalva \20\ incorrectly states there are 728 hardrock mining
operations. The report should have said there are 728 hardrock mineral
Plans of Operations, with most Plans being for mineral exploration--not
for mining. Relying on this incorrect GAO report, Congress likely
believes the U.S. mining industry is much larger than it really is.
---------------------------------------------------------------------------
\20\ May 2020 GAO Report, op.cit.
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Knowing the number of active locatable mineral mines on lands
subject to the Mining Law is a critical piece of information that
lawmakers must have in order to make informed decisions about whether
to enact the major changes proposed in H.R. 7580 to overhaul this law.
Unfortunately, the information that BLM, USFS, and GAO have provided is
insufficient to assess mineral production and the number of active
metal mines operating under the Mining Law nationwide.
Fortunately, the geological surveys and taxation departments in the
western mining states typically maintain accurate information about the
number of operating mines in their state and the level of production
from each mine that is subject to state taxes and/or royalties. This
state data should be used to inform the Mining Law dialogue.
For example, the Nevada Bureau of Mines and Geology (NBMG), which
is the State's geological survey tasked with researching Nevada mineral
deposits, seismic hazards, flood zones, and landslide dangers, compiles
detailed information about mining in Nevada. NBMG's data show there
were only 30 operating metal mines in Nevada in 2020,\21\ despite the
fact that Nevada was the country's largest mining state in 2020.\22\
The Nevada Department of Taxation's annual Net Proceeds of Minerals
(NPOM) Bulletin is another source of useful information about Nevada
mineral production. The 2020-2021 NPOM Bulletin lists 30 mineral
producers/NPOM taxpayers. Twenty-nine represent gold and silver mines;
the other mine produces copper. The Nevada Department of Taxation
collected roughly $189 million in NPOM taxes from these producers
during calendar year 2020. According to the Nevada Division of Minerals
(NDOM), roughly 52 percent of the gold produced in Nevada during 2021
came from mines located on public lands subject to the Mining Law; the
rest of the gold was produced from mines on private lands.\23\
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\21\ https://pubs.nbmg.unr.edu/The-NV-mineral-industry-2020-p/
mi2020.htm.
\22\ U.S. Geological Survey, 2021, Mineral commodity summaries
2021: U.S. Geological Survey, 200 p., see Table 3 and Figure 4, which
show Nevada as the largest mining state, https://doi.org/10.3133/
mcs2021.
\23\ https://minerals.nv.gov/uploadedFiles/mineralsnvgov/content/
home/features/RP/RP_GSN_20220502_NDOM%20Mike%20Visher.pdf, Slide 7.
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As shown in Table 2, Nevada is by far the largest public lands
mining state with over half of the country's active mining claims and
nearly half of the Plans of Operation submitted and reviewed in FY
2020. If the ten other western Mining Law states had a combined total
of another 30 active mining operations on public lands, there might be
on the order of 60 operating mines subject to the Mining Law
nationwide. This is a sharp contrast to the 728 mining operations
misidentified in the May 2020 GAO report discussed above. Lawmakers
should consider whether it makes sense to establish and administer a
federal royalty program for such a limited number of mining operations.
[GRAPHIC] [TIFF OMITTED] T7569.003
.epsThe Nevada mining statistics clearly show that the outcome of
the debate about changing the Mining Law will have the biggest impact
in Nevada, the state where most of the mining on public lands occurs.
---------------------------------------------------------------------------
\24\ https://www.blm.gov/sites/blm.gov/files/
PublicLandStatistics2019.pdf, Tables 3-22 and 3-23.
\25\ https://www.blm.gov/sites/blm.gov/files/
PublicLandStatistics2019.pdf, Table 1-3.
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The size of mining's footprint on public lands subject to the
Mining Law is another statistic that lawmakers should consider when
assessing if the Mining Law should be amended to include different
environmental and reclamation requirements. The GAO's May 2020 report
shows the BLM and USFS have authorized a total of 317,783 acres of
mineral-related surface disturbance for exploration and mining
throughout the 11 western Mining Law states, which is a miniscule 0.05
percent of the 635 million acres (Table 2) of the federal mineral
estate subject to the Mining Law.\26\
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\26\ The actual surface disturbance associated with mineral
exploration and mining is less than the acres of authorized surface
disturbance in these Plans of Operations. Mineral activities typically
occur on only a portion of the authorized surface disturbance acres
because the entire Plan of Operations project area is not mineralized.
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The limited number of mines and the small footprint of mining
activities signals the Mining Law debate is about a minor use of the
Nation's public lands. The small amount of public lands being used
nationwide under the Mining Law coupled with the dwindling mineral
production statistics described below should establish the contours of
future legislative debates about changing this law--especially in light
of the urgent and growing demand for critical minerals for the clean
energy revolution. Finding ways to reverse this decline by increasing
mineral exploration and production should be the focus and purpose of
any future legislation to amend the Mining Law. H.R. 7580 will do just
the opposite; it will discourage mineral exploration and mining.
B. The U.S. Hardrock Mining Industry is Declining
For the past 40 years, the amount of mineral production has
steadily decreased. As discussed above, Nevada, the largest public
lands mining state, has only 30 operating metals mines. Nevada's gold
production has dropped from a high of about 9 million ounces in 1998 to
less than 5 million ounces in 2020 \27\ as shown in Figure 1.
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\27\ NBMG, op. cit.
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The U.S. Center for Disease Control and Prevention (CDC) compiles
information on the number of U.S. metal mines based on mine employment
data from the Mine Safety and Health Administration (MSHA) from mines
at all mine-life stages. The CDC's data thus include many mines that
are no longer producing minerals but still employ caretakers and other
personnel. The CDC data that are shown in Figures 2 and 3 document a
precipitous decline in mining since 1983; they do not paint a picture
of a thriving industry.
The Mining Law debate should focus on reversing this downward trend
and developing policies that encourage mineral exploration and
development of more mines that can generate future royalty payments.
The 30-year controversy over a gross versus net royalty is at this
point a distraction. Congress must look to the future to increase
mineral production to support a future hardrock royalty program. The
documented decline in the U.S. mining industry also raises questions
about whether Congress should spend taxpayer resources to enact and
administer a federal royalty program for a shrinking industry.
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\28\ NV Bureau of Mines & Geology, The Nevada Mineral Industry
2020, Special Publication MI-2020.
[GRAPHIC] [TIFF OMITTED] T7569.004
.eps[GRAPHIC] [TIFF OMITTED] T7569.005
.eps[GRAPHIC] [TIFF OMITTED] T7569.006
.epsC. Why the Oil and Gas Royalty Program will not Work for Hardrock
Mining
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\29\ The decline in mineral production and the number of mines
shown in Figures 1-3 is one of the reasons the Nation's reliance on
foreign minerals has steadily increased over the last several decades.
H.R. 7580 proposes a royalty of not less than 12.5% of the gross
value of the minerals or mineral products derived from the lease. For
producing mines that are forced to convert to a lease, the proposed
legislation would charge a minimum gross royalty of 8%. For many years,
the mining industry has presented testimonies in hearings before House
and Senate committees and subcommittees explaining why a gross royalty
structure bootstrapped from the oil and gas royalty program, like the
royalty proposed in H.R. 7580, is unworkable for hardrock minerals and
will lead to significantly less mining on federal land. (See, for
example Exhibits II and III.) These testimonies demonstrate that using
the coal, oil, and gas royalty programs as a template for a hardrock
royalty is ill-conceived and impractical due to the substantially
different geologic characteristics of oil, gas, and coal compared to
hardrock minerals.
As discussed in Section 1, oil, gas, and coal are more abundant
than hardrock mineral deposits, making these energy minerals easier to
find than hardrock minerals. Consequently, discovering and developing a
hardrock mineral deposit takes much longer and requires a much larger
investment compared to oil and gas.
Unlike oil, gas, and coal operations, the raw minerals produced at
most hardrock mines are not salable; they must undergo costly
processing steps to produce a product that can be sold. Although
federal royalties for oil, gas, and coal are called gross royalties,
this is a misnomer. The federal oil, gas, and coal royalties are in
reality comparable to a net royalty because they are based on the value
of the marketable products from an oil and gas well or a coal mine.
(See Exhibit III, at 5).
A workable federal hardrock minerals royalty must be assessed at
the same point in the value-added steps that produce the first
marketable product from the mine. Therefore, the costs the mine
operator must incur to produce a salable product from raw, unrefined
minerals should be deducted from the royalty base on which a federal
royalty is calculated.
D. Net versus Gross Royalties
Royalty payments to the United States should be based on the value
of the federal government's ownership interest in the minerals, which
is limited to the raw minerals in the ground, and allow the mine
operator to deduct the costs associated with the value-added mineral
processing steps that are necessary to produce a salable mineral
product. The H.R. 7580 royalty is unfair and confiscatory because it is
calculated on the gross value of mineral products that includes the
value added by the operator to process, refine, and produce a salable
mineral product from the raw minerals removed during mining.
A hardrock royalty must not be paid on the hundreds of millions of
dollars of value added to the raw minerals that mining companies must
routinely spend to find, produce, process, and sell the mineral
products. Although under the Mining Law, the U.S. makes land available
for mineral exploration, it does not contribute anything to the
enormous costs and efforts required to find, produce, and process
minerals. Without relying on any federal subsidies, mining companies'
investments of private-sector capital is a unique and advantageous
aspect of the Mining Law that already benefits U.S. taxpayers. Despite
the costs and daunting odds against making a discovery of an economic
mineral deposit that can be developed into a mine, the Mining Law
stimulates private-sector investment that transforms undeveloped
federal land into mining operations that create jobs, pay taxes, and
provide the minerals the country needs--at absolutely no cost to U.S.
taxpayers.
Exploring for minerals and developing a discovery of a valuable
mineral deposit into a mine takes a mammoth investment of capital. As
described in Mr. Rich Haddock's \30\ October 2021 testimony before the
Senate Energy and Natural Resources (SENR) Committee (see Exhibit IV),
companies made an initial investment of $7.5 billion to develop the
mines and processing facilities in Nevada's famous Carlin Gold Trend in
Eureka County. The investment to date in the Carlin Complex is $40
billion, with substantial annual investments required to maintain the
mining and mineral processing facilities. For example, replacing one of
the roasters or autoclaves in the complex would cost at least $1
billion.
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\30\ Mr. Haddock is General Counsel of Barrick Gold Corporation.
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The amount of investment and length of time required to discover a
mineral deposit are also staggering. Mr. Haddock's testimony states
that it has taken Barrick Gold Corporation over twenty years and $459
million to define the Goldrush ore body which is currently in the mine
permitting process and therefore still several years away from starting
production.
Because commodity price cycles are variable and cyclical, a gross
royalty has a very different effect on mining investment compared to a
net royalty. Royalties assessed on gross income discourage investment
by increasing economic risks. Consequently, projects subject to a gross
royalty will require a higher pretax and after-tax rate of return to
accommodate the increased risk. In contrast, a net royalty has a
smaller effect on the variability of after-tax rates of return and is
less of a deterrent to investment. When commodity prices decrease, the
rate of return required to justify a mining investment increases more
dramatically under a gross royalty than under a net royalty. Because
most mine operating costs are relatively fixed, a gross royalty takes a
bigger piece out of the mine's reduced income during periods of low
commodity prices.
A gross royalty is especially problematic during industry downturns
due to low commodity prices because they cause a greater reduction in
cash-flow during periods when profits are already low. A gross royalty
can functionally reduce the portion of the ore deposit that remains
economic to mine. During low commodity price cycles, low-grade ores may
become uneconomic to mine and process and become low-grade waste
materials that are not processed or not mined at all, which shortens
the life of the mine and reduces the total amount of mineral that will
be produced from the mine. Gross royalties may thus contribute to
premature mine closures with the concomitant loss of jobs; reduced
local, state, and federal tax revenues and/or royalty payments; and
business losses for the mine's vendors and suppliers.
A net proceeds or net income royalty, in contrast, does not cause
mines to operate at a loss because the royalty owed is automatically
reduced during periods of low prices, and increases again when prices
are higher. A net royalty thus allows mining operations to continue to
operate during periods of low commodity prices and also enables maximum
recovery of low-grade ore during high commodity prices. Because mineral
demand is cyclical and commodity prices fluctuate, a net royalty
provides the best incentive to explore for minerals on federal lands in
spite of variable mineral demand and commodity price cycles. A net
royalty thus minimizes volatility in the mining industry which helps
keep the domestic industry viable and the nation's mineral supply
secure.
Testimony from Ms. Katie Sweeney \31\ at the October 2021 SENR
hearing discusses another important aspect of assessing a federal
royalty on hardrock mineral production. (See Exhibit V.) In determining
an appropriate royalty structure and rate, Congress should consider the
total government ``take,'' defined as the aggregate of federal, state,
and local royalties, taxes, and fees, and compare that take to what
mineral producers pay in other countries. In order to reduce the
Nation's reliance on foreign minerals and strengthen our mineral supply
chains, a future federal hardrock royalty must not make the total
government take so high that U.S. mines become uncompetitive compared
to mines in other countries.
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\31\ Executive Vice President and General Counsel of the National
Mining Association (NMA).
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As explained in Ms. Sweeney's testimony, the existing government
take affecting U.S. hardrock mining operations is close to 40 percent
for most NMA members, which is close to the top range for other cost-
competitive mining countries. The 8 percent gross royalty on new mining
operations and the 4 percent on existing operations that were being
considered last fall in the Budget Reconciliation Bill would have
increased the total government take to over 50 percent and would have
made the U.S. an uncompetitive country for mineral investment and
mining. The higher (8 to 12.5 percent) royalty rates proposed in H.R.
7580 would increase the total government take for U.S. mines making
them even less competitive.
Mr. Haddock's testimony compares the total government take in the
U.S. compared to Australia or Canada, our two most important mining
allies. Currently, the three countries have about the same total
government take ranging from 38 to 39 percent. Adding a 2 percent net
royalty to hardrock mineral production on federal land would increase
the total take on U.S. hardrock mining operations to roughly 41
percent. At this rate, U.S. mines would not be cost competitive with
mines in Australia or Canada. Obviously, imposing the 8 to 12.5 percent
royalties in H.R. 7580 would make U.S. mines even less competitive with
mines in Australia and Canada--especially in light of the far more
reasonable two- to three-year permitting timeframes in these countries.
E. Takings Implications of a Retroactive Royalty
Assessing a retroactive royalty on existing claims, as proposed in
H.R. 7580, runs the risk of exposing the federal government to takings
claims. If a mineral production royalty or additional fees are enacted
in the future, they should only apply to post-enactment mining claims
to minimize the potential for takings claims against the federal
government. Exhibit VI is an American Exploration & Mining Association
July 2021 white paper entitled ``Mining Law Fifth Amendment Takings
Analysis'' that discusses the protected rights and interests held by
U.S. citizens who have invested their time, effort, and capital to
explore for, identify, and develop hardrock minerals under the Mining
Law. This white paper describes how these rights and interests are
protected by the Fifth Amendment of the U.S. Constitution. It also
presents the history of past Congressional amendments and attempted
changes to the General Mining Law which explicitly preserved claim
owners' property rights and successfully avoided exposing taxpayers to
unconstitutional takings claims.
F. Creating a Royalty Program that Incentivizes Production
``. . . What factors should be considered and what structures
would be best [t] responsibly incentivize production?''
The Administration's RFI question about how to charge a royalty and
at the same time incentivize production is especially important in
light of the skyrocketing demand for the minerals needed to build clean
and renewable energy systems, essential infrastructure, and President
Biden's directives to strengthen U.S. mineral supply chains by
increasing domestic mineral production. Policies to incentivize
hardrock mineral production must consider more than just the royalty
issue and must also focus on security of land tenure, permit
streamlining, and creating a positive business climate that can attract
private-sector investment in the Nation's mineral resources on public
lands.
The following are the Women's Mining Coalition's preliminary
suggestions for a fair and affordable royalty and other Mining Law
elements designed to incentivize and increase mineral production on
public lands subject to the Mining Law:
Improve the business investment climate by ending the
uncertainty engendered by the 30 year-long debate over
mining royalties and other elements of the Mining Law that
has significantly chilled investment in the U.S. mining
industry and diminished discovery of mineral deposits that
can be developed into profitable mines.
Enact a prospective net royalty at a rate that keeps U.S.
mines cost competitive with mines in Canada, Australia, and
other countries. As discussed above, it appears that U.S.
mines cannot support a net royalty that exceeds about 2
percent and remain cost competitive.
Eliminate all consideration of a retrospective royalty
that would be applied to claims in existence on the date of
enactment, which would expose the federal government to
Fifth amendment takings claims.
Maintain self-initiation and the existing mining claims
land tenure systems and do not replicate the unworkable and
failed 75-year old federal hardrock leasing system
applicable to acquired lands on public domain lands.
Keep lands open to mineral exploration and development.
Recognize that the significant differences in the geology
and business profiles for oil, gas, and coal, compared to
hardrock minerals make the oil, gas, and coal royalty
programs inappropriate and infeasible for hardrock
minerals. Stop trying to force-fit the oil, gas, and coal
royalty structure on to hardrock minerals.
Allow claims maintenance fees and other fees to be
credited against future royalty payments.
Consider flow-through investment arrangements similar to
those in some Canadian provinces and other incentives to
stimulate mineral investment.
IV. RFI Question 4: Financial Assurance
``What changes to financial assurance requirements for mining
should be considered?''
The short answer to this question is there are no changes required
to the BLM's or the USFS' financial assurance/reclamation bonding
requirements because the current requirements provide regulators with
funds to reclaim a mine in the event the operator goes bankrupt or
fails to properly reclaim a mine site. After conducting an in-depth
evaluation of the financial assurance requirements for hardrock
exploration and mining, the EPA concluded in 2018 that the existing
programs under the federal land management agencies' surface management
regulations, (e.g., BLM's 43 CFR Part 3809 regulations and the USFS' 36
CFR Subpart 228A regulations) provide comprehensive environmental
protection and financial assurance:
``EPA has determined that modern regulation of hardrock mining
facilities . . . reduces the risk of federally financed
response actions to a low level such that no additional
financial responsibility requirements for this industry are
appropriate.'' \32\
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\32\ Federal Register Vol. 83, No. 35, pp. 7564-7565.
The environmental problems at some legacy mines are attributable to
bankrupt operators who did not reclaim their mines. Today's financial
assurance requirements for mines completely eliminate a bankrupt mine
from creating future environmental problems because state and federal
regulators (e.g., BLM and USFS) have the necessary funds to reclaim a
mine if the operator goes bankrupt or for other reasons fails to
reclaim the site. As EPA found in its 2018 CERCLA 108(b) final
rulemaking, problems due to operator bankruptcies are a relic of
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unregulated and, in some cases, inadequately bonded mines in the past.
As explained in EPA's final rulemaking, federal and state
regulators currently have adequate reclamation bond funds if a mine
operator goes bankrupt. The amount of required financial assurance is
based on what it would cost BLM, USFS, or the state agency to hire
third-party contractors to reclaim the site in accordance with the
site's approved closure and reclamation plans. Each mine's closure and
reclamation plan and financial assurance requirement are based on a
detailed and site-specific evaluation of the closure, reclamation, and
post-cost closure care and maintenance costs for that site. The
sufficiency of reclamation bonds must be reviewed and adjusted on a
regular basis to make sure the required financial assurance amount
keeps pace with inflation and on-the-ground conditions.
EPA's final rulemaking determined that the Standardized Reclamation
Cost Estimator (SRCE) software developed in Nevada provides a robust
methodology for calculating the cost for the BLM, USFS, or a state
agency to step in and reclaim a mine.\33\ Because a SRCE-calculated
Reclamation Cost Estimate assumes that the reclamation work is being
conducted by a federal or state governmental agency, it generates very
comprehensive financial assurance requirements that include the
following:
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\33\ Federal Register Vol. 83, No. 35, p. 7573.
Third-party contractor costs based on Davis-Bacon
prevailing wage rates established by the U.S. Department of
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Labor for the area in which the mine is located;
Indirect agency costs including a surcharge of
approximately 40 percent on top of the direct costs to
cover the agency's costs to manage the third-party
contractors' reclamation work;
Costs to manage the process fluid inventory (i.e., fluids
in ponds and tailings storage facilities) that must be
dealt with before a site can be closed and reclaimed;
Costs to perform regular monitoring, sampling, and
inspection throughout the mine closure and reclamation
phases of the mine life, which may last several decades;
and
Long-term financial assurance requirements if site-
specific conditions require long-term operation of water
treatment systems, other environmental controls, or site
monitoring. At sites where long-term financial assurance
mechanisms are needed, they are designed to provide the
funding necessary for perpetual care and maintenance of the
reclaimed mine site.
Based on these assumptions, EPA found that reclamation bond amounts
calculated with a SRCE or a comparably robust reclamation cost
estimating protocol eliminate the concern that taxpayers will be
responsible for paying reclamation costs.
V. RFI Question 5: AML Reclamation
``How might the U.S. best support reclamation of existing AML
sites including the development of meaningful good Samaritan
proposals as well as remining and reprocessing of mine tailings
and waste, where feasible?''
Developing a funding mechanism to pay for reclaiming Abandoned Mine
Lands (AMLs) that were created before the enactment of laws and
regulations to protect the environment is one of the drivers of the
Mining Law debate. Many of the Mining Law bills that Congress has
considered for the past 30 years have included an AML reclamation
program to be funded by hardrock royalties, fees, and taxes.
However, amending the Mining Law is not the only way to create an
AML reclamation fund. Recognizing the importance of developing a
funding source to reclaim hardrock AMLs sooner rather than later, the
Women's Mining Coalition suggests the annual Mining Law holding fees
and service fees paid by mining claim holders in excess of the amount
the BLM requires to administer its Mining Law Program could be used for
AML reclamation. These excess funds currently vanish into the ether of
the Treasury's general fund, with no directive to use them for public
land management.
BLM's 2020 Public Lands Statistics Report shows BLM collected
$69,420,974 in Mining Law holding fees in Fiscal Year 2020 and states
Congress has appropriated $40,196,000 for Mining Law Administration
program operations, including the cost to administer the mining claim
fee program. Collections in excess of $40,196,000 are deposited to the
general fund.\34\
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\34\ https://www.blm.gov/sites/blm.gov/files/
PublicLandStatistics2019.pdf, Table 3-32, Page 158.
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Assuming these statistics are a reasonable estimate of future
Mining Law holding fees and Mining Law program administrative costs,
approximately $29 million per year could be earmarked in future
appropriations measures for AML reclamation without amending the Mining
Law.
Abolishing mining claims and substituting a leasing system, as
proposed in H.R. 7580, would obviously eliminate the possibility of
using a portion of future claims maintenance fees to fund AML
reclamation. A future Mining Law bill that retains the mining claims
system but includes the other onerous provisions in H.R. 7580 would
reduce investment and the number of claims and leave less funding
available for AML cleanups.
For nearly three decades, the mining industry has advocated for bi-
partisan legislation to enable AML cleanup consisting of two key
elements: 1) creating a hardrock AML fund using proceeds from a
workable and prospective net royalty assessed on mineral production
from future mining claims; and 2) addressing the Clean Water Act and
Superfund liability issues that are a serious barrier to third-party
Good Samaritan AML cleanup efforts.
The Women's Mining Coalition thus strongly supports S. 3571, ``The
Good Samaritan Remediation of Abandoned Hardrock Mines Act of 2022''
that Senators Heinrich and Risch introduced earlier this year in the
SENR Committee. The 15 Abandoned Mine Land (AML) remediation pilot
projects authorized in this bipartisan bill will begin to pave the way
toward addressing the liability issues at AML sites that do not have
complex water quality issues. We strongly urge this subcommittee to
consider and support a similar bill.
Virtually everyone who has evaluated AML policy issues has
recognized and documented the legal impediments to voluntary cleanup of
AMLs with complex surface water and groundwater contamination issues
due to contact with mine wastes and/or seepage from old underground
workings. Policymakers and independent researchers like the NRC/NAS and
the Western Governors' Association have urged Congress to eliminate the
liability exposure that thwarts parties that have no previous
involvement with a mine from undertaking voluntary reclamation and
remediation activities.
The Biden Administration's 100-day supply chain report directs
evaluating reprocessing mine wastes as a viable source of critical
minerals. Mine wastes at previously mined and now abandoned mines
should be included in this evaluation. To stimulate public- and
private-sector reprocessing and reclamation of AML sites containing
critical mineral resources, Congress should exempt Good Samaritan \35\
remining and reprocessing proposals at AML sites with critical minerals
from Clean Water Act and CERCLA liability, if the Good Samaritan can
demonstrate the site will be remined and/or reprocessed in a
responsible manner in compliance with permitting requirements and
applicable regulatory standards.
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\35\ As used here, ``Good Samaritan'' refers to a public- or
private-sector entity who had no prior involvement with or ownership
interest in the AML site.
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Perpetua Resources' mining and remediation proposal for the
Stibnite Mine in central Idaho is a pioneering example of a private-
sector proposal to remediate an AML site to recover gold and the
critical mineral, antimony. In World War II, when Japan invaded China
and cutoff antimony supplies needed to build war munitions, the U.S.
federal government started producing antimony and tungsten from an
emergency mining operation at the Stibnite Mine. This wartime mining
supplied the U.S. with the raw materials needed to fight the war and
was credited with saving one million American soldiers' lives and
shortening the war by at least one year.
But this accomplishment came with a serious environmental cost. The
urgent need for minerals eclipsed any concerns about the environment
and created an environmental mess that continues to impact water
quality, wildlife habitat, local residents, and Native American
ancestral lands. Although modern state and federal environmental laws
and regulations would prevent this from happening today, there is no
easy solution to cleaning up the complex and costly historical
environmental problems.
Because significant gold and antimony reserves remain at Stibnite,
Perpetua Resources is proposing to spend $1 billion of private-sector
capital to redevelop Stibnite into a modern, environmentally sound
mining operation that will remediate the World War II-vintage
environmental impacts by reprocessing some of the old mine wastes and
building modern facilities that include environmental safeguards.
Perpetua Resources has spent years permitting this project, which is in
its sixth year of the NEPA analysis process.
Congress could expedite critical minerals reprocessing/AML
remediation projects by directing the federal land management agencies
to expedite the permitting process for projects proposing to remediate
AML sites by reprocessing old mine wastes to recover critical minerals.
Although Perpetua Resources' mine and restoration plan does not rely on
Good Samaritan liability relief, granting some measure of relief based
on a site-by-site evaluation could encourage remediation of other
sites.
Perpetua Resources' leadership at the Stibnite Mine could be a
model applicable to other AML sites. Expediting the permitting process
for this type of AML mine remediation project and evaluating the
appropriateness of some liability relief on a project-by-project basis
could stimulate other companies' involvement with other AML mine
restoration projects. Obtaining critical minerals from existing mined
materials would accelerate acquiring critical minerals from domestic
sources because recovering minerals from existing mine wastes could
probably be accomplished faster than exploring for, discovering, and
developing new mineral deposits. Secondly, it would result in
meaningful source reduction of the metals that may be leaching from old
mine wastes and impacting surface water and groundwater quality at AML
sites. Thus, a federal program to reprocess AML sites that contain
critical minerals would have many public benefits.
The 10-year time limit in H.R. 7580 Section 304 for water treatment
facilities is an ill-considered impediment to both new project
development and AML restoration. Water treatment facilities built to
support a new mining project can become a valuable long-term asset that
may facilitate a wide range of post-mining redevelopment projects that
can use the treatment plant infrastructure for other industrial or
municipal purposes that will benefit local communities long after
mining is completed.
The prohibition in Section 304 of H.R. 7580 against water treatment
projects lasting longer than 10 years is especially problematic in the
context of AML remediation. Some AML projects are likely to require
long-term water quality treatment to successfully improve and maintain
water quality. The investments made in water treatment facilities
create valuable infrastructure. Financial assurance requirements for
both new projects and AML restoration projects requiring long-term
water treatment facilities can (and already do) include long-term
funding mechanism to operate and maintain these facilities.
VI. RFI Question 6: Successful Mine Reclamation
``What would a successful mine reclamation program include? Are
there existing programs that the U.S. should adopt?''
As described above in Section IV, Congress should rely on EPA's
2018 conclusions regarding the scope and success of existing
reclamation programs under the BLM's and the USFS' surface management
regulations. Both the BLM's 43 CFR Subpart 3809 and the USFS' 36 CFR
Subpart A regulations include comprehensive mine reclamation and
financial assurance requirements that ensure that all mineral
exploration projects and mining operations will be completely
reclaimed.
The Women's Mining Coalition suggests that Congress consider the
MOU included as Exhibit VII between BLM, the USFS, and NDEP/BMRR as an
example and possible template for how a state regulatory agency
coordinates with the federal land management agencies to provide
comprehensive regulation, reclamation, and financial assurance for
hardrock mineral projects on federal lands.
Section II of the Nevada MOU lists the following state and federal
statutes and regulations that are the foundation of the MOU:
The General Mining Law of 1872 as amended;
The Organic Administration Act of 1897;
Title 36 Code of Federal Regulations, Part 228, Subpart A
as amended;
Title 30 U.S.C. Section 612;
Title 36 Code of Federal Regulations, Part 219, as amended
Title 36 Code of Federal Regulations, Part 261, as amended
Sections 102(a)(12), 302, 303, and 603 of The Federal Land
Policy and Management Act of 1976
Title 43 U.S.C. Sections 1201 and 1457
Title 43 Code of Federal Regulations, Subparts 3802, 3809,
and 3715
It's important to note that this successful reclamation program is
accomplished under the existing statutory and regulatory framework,
clearly demonstrating the overhaul of the Mining Law proposed in H.R.
7580 is completely unnecessary and unwarranted.
Title III of H.R. 7580 essentially guts the laws and regulations
listed above. These draconian changes are not designed to improve
mining on federal lands. To the contrary, H.R. 7580 has just one
purpose--to substantially reduce mining on federal lands. This ill-
considered bill would increase the Nation's reliance on mineral
imports, weaken our mineral supply chains, and jeopardize national
security by putting Russia, China, and other adversaries in charge of
our mineral future.
VII. RFI Question 7: Tribal and Community Engagement
``How can Tribes and local communities be effectively engaged
early in the process to ensure that they have meaningful input
into the development of mine proposals?''
Numerous mining companies are making a concerted effort to contact
tribal communities near their operating or proposed mines to try to
establish meaningful dialogues about how mine development can be
respectful of tribes' ancestral lands and at the same time find ways to
develop long-term, collaborative and mutually beneficial working
relationships. Some larger mining companies have established policies
for working with Indigenous communities based on their worldwide mining
operations. These policies are premised on companies' respect for the
deep and special relationships that Indigenous people have with their
ancestral lands and the companies' sincere desire to build a better
awareness and sensitivity to tribes' concerns about how mining impacts
their ancestral lands.
The success of the communication and relationship building that are
the objectives of these corporate outreach efforts depends
significantly on the willingness of tribal communities to engage with
companies in a meaningful way. When viewed with an open-minded
perspective, a company's efforts to engage a tribe can evolve into
significant opportunities for tribal communities.
Generally speaking, modern mining companies are committed to
working collaboratively with community and tribal stakeholders to make
a proposed mine the best possible project for the area's environment
and people. Stakeholder engagement dialogues between mining companies,
communities, and tribes are already achieving productive and
collaborative outcomes. There is no need for the bureaucratic and
cumbersome government-to-government consultation provisions in H.R.
7580 Title II that duplicate many of the requirements under the
National Historic Preservation Act (NHPA) and NEPA, and would serve
very little purpose except to slow down the permitting process.
The Women's Mining Coalition understands that many tribes may be
frustrated with the government-to-government consultation process
pursuant to Section 106 of the NHPA that federal agencies must conduct
during development of a NEPA document. Hopefully tribal communities
will respond to the IWG's RFI with suggestions on how to obtain more
meaningful results from the Section 106 consultation process. Based on
our experience with the mine permitting process and NEPA, starting the
consultation process earlier at the project planning and development
stage might elicit a better response from tribal participants. Starting
consultation earlier would give agencies, companies and tribes
opportunities to share information about a proposed project, learn
about the tribes' values, concerns, and goals for their future, and
look for common ground.
The company-driven stakeholder engagement and outreach efforts
underway at mines that are currently in the permitting process and at
operating mines clearly demonstrate the mining industry's commitment to
work with a broad array of stakeholders to listen to their suggestions
for and concerns about a proposed project. There are many examples of
how working collaboratively with stakeholders has resulted in important
improvements and refinements to a project proponent's proposed mining
Plan of Operations to reduce project impacts, preserve public access,
enhance environmental outcomes, and identify ways to benefit local
communities.
Stakeholder engagement lasts for the duration of the permitting
process and continues once a mine is operating. It is not unusual for
mining companies and community and tribal leaders to establish formal
advisory groups that meet on a regular basis to focus on addressing
community concerns about a proposed or operating project and identify
mutually beneficial opportunities for sustainable development measures
to repurpose project infrastructure (e.g., roads, transmission lines,
pipelines, water treatment facilities, etc.) to provide jobs and tax
revenues to local communities after mining is completed. A commitment
from all parties to frequent collaboration and communication often
solves problems and develops initiatives that bring long-term benefits
to communities and tribes.
These stakeholder engagement efforts are a business standard for
today's mining companies and executives who realize building and
operating a hardrock mine today is about more than creating shareholder
value by excavating rocks and producing metals. It involves an equally
important focus on creating benefits for the communities where mines
are operated, which requires a strong commitment to Environmental,
Social, and Governance (ESG) values. ESG accountability starts with C-
Suite corporate executives and directors. Chief Executive Officers and
Boards of Directors take responsibility for developing, implementing,
and overseeing ESG programs and corporate social responsibility
initiatives.
Shareholder ESG demands and expectations partially drive companies'
focus on ESG programs. But the commitment to ESG goes far beyond
responding to shareholders and extends to the needs of the communities
where a mine's workforce lives. Mines must be able to attract a
qualified workforce to live in nearby communities that are safe and
welcoming places to raise a family and that offer good schools, medical
and emergency services, adequate shopping, recreational opportunities,
and other public services and amenities.
Because many metal mines are located in rural and remote areas with
limited job opportunities and public services, a mining operation can
become a community's and even a region's best opportunity to improve
the quality of life for everyone. Many mining companies make
substantial financial investments in their local communities to build
or improve schools, upgrade roads and Internet services, subsidize
medical services, offer vocational training to prospective employees,
and provide scholarships and other educational opportunities for their
workforces. These investments represent voluntary donations in addition
to the state and local taxes the mines pay.
It must be emphasized that the value of these corporate outreach
efforts to area tribes and communities depends largely on the level of
stakeholder participation. Ongoing and collaborative dialogues between
companies and stakeholders typically produce the best results based on
finding synergies between the company, local communities, and the
tribes who are an important part of these communities.
Many mining companies make a special effort to engage tribes in
early and frequent dialogues with the objective of addressing tribal
concerns and finding common ground to work together on programs to
benefit tribes. Examples of beneficial outcomes from dialogues with
Native American communities include:
Workforce development initiatives
Training facilities
Environmental restoration projects
Environmental and cultural resources monitoring programs
Ethnographic and ethnohistory research projects
Business arrangements and agreements
Education funding and scholarship programs
Culture and language preservation programs.
Table 3 lists examples of the many positive outcomes resulting from
mining company stakeholder engagement programs with communities and
tribes and demonstrates that the consultation requirements proposed in
Chairman Grijalva's Mining Law reform principles would create a
superfluous process that would delay, duplicate, and complicate the
permitting process.
[GRAPHIC] [TIFF OMITTED] T7569.007
.epsThe H.R. 7580 consultation process ignores and duplicates the
NEPA requirement to carefully and thoroughly evaluate alternatives to a
mining company's proposed project in the Environmental Impact Statement
(EIS) that federal agencies must prepare for the project. The public
plays a pivotal role in evaluating alternatives during the NEPA
analysis process by providing comments on a proposed project during
scoping for the EIS and public comment periods for the draft and final
documents. NEPA also requires evaluating the impacts that the proposed
project and project alternatives would have on environmental justice.
It is not uncommon for the NEPA alternatives analysis process to
identify different locations for project facilities and operating
procedures that could reduce a project's environmental impacts, and to
develop measures to address community concerns about preserving public
access; reducing traffic, noise, and visual impacts; maintaining dark
skies; managing demands on emergency services and schools; selecting
access routes to avoid environmentally and culturally sensitive areas;
and many other issues identified as important to the public.
Because public involvement is at the heart of the NEPA process, the
public is engaged in every step of this process starting with project
scoping, which is one opportunity for the public to suggest project
alternatives, to reviewing the draft and final EIS documents. This
commitment to public involvement guarantees a transparent permitting
process that gives the public full access to the environmental baseline
studies and other relevant information.
VIII. RFI Questions 8 and 9: Streamlining Permitting
``How could updates to the Mining Law of 1872, or other
relevant statutes, help provide more certainty and timeliness
in the permitting process?''
``What improvements can be made to the mine permitting process
without reducing opportunities for public input or limiting the
comprehensiveness of environmental reviews?''
A. Permitting Delays and NEPA
Permitting hurdles are a substantial contributing factor in the
declining gold production in Nevada shown in Figure 1 and the
plummeting number of metals mines shown in Figures 2 and 3. Permitting
delays are impeding clean energy mineral projects across the country:
important Nevada lithium projects are facing litigation and regulatory
delays; in Idaho, the proposed Stibnite gold-antimony mine is in its
sixth year of permitting and a cobalt mine has taken more than a decade
to permit; and the permitting process for a proposed Arizona copper
mine, where permitting started in 2013, is undergoing additional
scrutiny. Permitting adds investment-killing uncertainties for would-be
mine developers and investors and harms communities that must wait
years for the jobs, tax revenues, and other socioeconomic benefits
mining brings to rural communities.
There is growing concern among elected officials about the
protracted permitting process for mineral exploration and development
projects. U.S. Energy Secretary, Jennifer Granholm, recently said ``it
takes forever to get a new permit--how crazy is that?''--and committed
to a take a whole-of-government approach to streamlining permitting.
Unfortunately, the mineral exploration and mine development permitting
processes in H.R. 7580 Title III are a whole-of-government approach
that transforms Secretary Granholm's ``takes forever, crazy''
permitting process into Mission Impossible.
President Biden's March 31, 2022 Memorandum on Presidential
Determination Pursuant to Section 303 of the 1950 Defense Production
Ac, as amended, seeks to facilitate and expedite domestic production of
critical minerals. Unfortunately, these important objectives cannot be
accomplished without also streamlining the permitting process.
The NEPA process is the primary reason that permitting takes so
long for any type of project requiring a federal permit. There is no
such thing as a ``shovel-ready'' project to construct infrastructure,
build new clean energy facilities and transmission lines, or develop a
mine due to NEPA. NEPA appeals and litigation create uncertainties that
wreak havoc on businesses, and cause massive cost overruns. Project
opponents are experts at weaponizing NEPA by using appeals and
litigation to challenge agencies' decisions to purposefully create
these lengthy and costly delays. Consequently, NEPA has a long history
of obstructing new projects and proposals to expand existing projects.
For example, the infrastructure construction projects that were part of
the 2009 stimulus bill took years to build--if they were ever built at
all--due to permitting barriers. In a 2010 New York Times interview,
President Obama admitted there's no such thing as shovel-ready
projects.
Although NEPA provides important environmental information about a
project's impacts and seeks valuable public input, it's a paper tiger
that does not directly protect the environment. That protection comes
from the Clean Water Act, the Clean Air Act, and other federal
environmental laws that require permits with stringent environmental
protection standards that make U.S. mines the cleanest and safest in
the world.
In considering updates to the Mining Law of 1872, Congress could
amend NEPA to establish reasonable timelines and page limits and reduce
project opponents' currently unfettered abilities to challenge agency
NEPA decisions. By distinguishing between the environmental review and
disclosure requirements in NEPA and the environmental protection
requirements in the Clean Air Act, Clean Water Act, Endangered Species
Act, and other environmental protection laws, Congress could enact
streamlining measures to the NEPA process without diminishing any
environmental protection measures.
A streamlined NEPA process could retain the existing public review
process that provides the public with opportunities to participate in
public scoping at the earliest stages of project permitting and then
review and comment upon draft and final NEPA documents. The public
review timelines for reviewing draft and final documents currently
specified in NEPA are reasonable. However, federal agencies should be
instructed to limit the use of extensions to established comment
periods to mollify project opponents. The most important change
Congress could make to the NEPA process would be to reduce the
frequency and duration of litigation challenging agencies' NEPA
decisions by requiring NEPA litigants to post bonds in order to sue and
limit cost recovery of attorneys' fees under the Equal Access to
Justice Act.
Another way to streamline the NEPA process would be to make better
use of activity-specific and/or region-specific programmatic NEPA
documents for exploration drilling or other projects involving a
limited range of routine actions such as building temporary exploration
roads and drill sites and reclaiming these features when the project is
completed. Programmatic NEPA documents could establish Best Management
Practices (BMPs) for mineral exploration activities. Projects that
adhere to the BMPs could then be evaluated using a Categorical
Exclusion or a Determination of NEPA Adequacy. This would save time and
agency resources.
Reinstating the 2020 NEPA regulations would also help streamline
permitting. The thoughtful changes made in the 2020 NEPA rule reflected
decades of experience with the NEPA process. These changes improved the
practicality of the NEPA analysis process, the readability of NEPA
documents, and facilitated better interagency coordination.
B. Permit Streamlining Measures in the Infrastructure Investment and
Jobs Act
In evaluating ways to improve and streamline the permitting process
to provide more certainty and timeliness, the IWG does not have to
create a permit improvement process out of whole cloth because Congress
recently enacted a program to improve the permitting process for
critical minerals in Section 40206 of the recently enacted
Infrastructure Investment and Jobs Act (also known as President Biden's
``Bipartisan Infrastructure Law''). The IWG should recommend the permit
streamlining measures in Section 40206 to Congress as a template for
updating the Mining Law with a permitting process that would provide
more certainty and timeliness. Updating the Mining Law with the permit
streamlining provisions in Section 40206 would help alleviate some of
the roadblocks currently standing in the way of efficiently developing
the country's mineral resources.
The Section 40206 permit streamlining provisions should be applied
to: 1) the hardrock minerals subject to the Mining Law (also called
``locatable minerals''); 2) the 50 minerals on the USGS 2022 Critical
Minerals list: and the host minerals shown on the inner circle on the
Wheel of Metals Companionality in Figure 5. As discussed in Section IX,
many critical minerals are only economic to produce as by-products and
co-products of other minerals (e.g., aluminum, titanium, iron, nickel,
copper, zinc, lead, tin, platinum, and gold.)
The Infrastructure Investment and Jobs Act establishes a key
principle for securing our mineral future in Section 40206(b)(3): ``. .
. to the maximum extent practicable, the critical mineral needs of the
United States should be satisfied by minerals responsibly produced and
recycled in the United States,'' and correctly finds in Section
40206(b)(4) that the current permitting process is a problem: ``the
Federal permitting process has been identified as an impediment to
mineral production and the mineral security of the United States.''
The ``Federal Permitting and Review Performance Improvements'' in
Section 40206(c), direct the Secretaries of the Interior and
Agriculture to improve the quality and timeliness of Federal permitting
and review processes and to the maximum extent possible require
completing the process with maximum efficiency and effectiveness, while
supporting vital economic growth by:
(1) establishing and adhering to timelines and schedules for the
consideration of, and final decisions regarding,
applications, operating plans, leases, licenses, permits,
and other use authorizations for critical mineral-related
activities on Federal land;
(2) establishing clear, quantifiable, and temporal permitting
performance goals and tracking progress against those
goals;
(3) engaging in early collaboration among agencies, project
sponsors, and affected stakeholders----
(A) to incorporate and address the interests of those
parties; and
(B) to minimize delays;
(4) ensuring transparency and accountability by using cost-
effective information technology to collect and disseminate
information regarding individual projects and agency
performance;
(5) engaging in early and active consultation with State, local,
and Tribal governments----
(A) to avoid conflicts or duplication of effort;
(B) to resolve concerns; and
(C) to allow for concurrent, rather than sequential,
reviews;
(6) providing demonstrable improvements in the performance of
Federal permitting and review processes, including lower
costs and more timely decisions;
(7) expanding and institutionalizing Federal permitting and review
process improvements that have proven effective;
(8) developing mechanisms to better communicate priorities and
resolve disputes among agencies at the national, regional,
State, and local levels; and
(9) developing other practices, such as preapplication procedures.
The Women's Mining Coalition supports these directives and believes
their implementation would substantially improve and streamline the
permitting process. We also support the reporting requirements in
Section 40206(d) that direct the Secretaries to develop a report to
Congress within one year that identifies additional measures, including
regulatory and legislative proposals that would increase the timeliness
of permitting activities for the exploration and development of
domestic critical minerals.
The provision in Section 40206(d)(2) that authorizes BLM and USFS
to accept cost recovery payments from permit applicants to pay for
federal agency staffing and training to facilitate agency reviews of
permit applications is another excellent suggestion for streamlining
the federal permitting process. Agency staffing shortages can be a
source of delay in the permitting process. Cost recovery arrangements
could be especially important in Nevada where roughly one-half of the
country's Notices and Plans of Operation are filed each year,\36\ with
many Notices and Plans of Operations being located in just two BLM
district offices: Battle Mountain and Winnemucca. The Battle Mountain
and Winnemucca BLM District Offices regulate many of Nevada's largest
mining operations; their jurisdictions cover several of Nevada's most
important mineral districts.
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\36\ BLM 2020 op. cit. Table 3-23.
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The performance metric established in Section 40206(e) and the
annual reports in Section 40206(f) are important tools for monitoring
and disclosing the agencies' permitting timelines and track records.
They will function as a continuous improvement mechanism to determine
if certain steps in the permitting process are contributing to
unnecessary delays. Together, these provisions should lead to further
refinements and time-savings procedures.
IX. RFI Question 10: Incentivizing Domestic Critical Minerals
Production
``What types of incentives would be appropriate to encourage
the development of critical minerals, and what is the proper
definition of a ``critical mineral mine''?
A. Eliminating the Current Disincentives Would Incentivize Critical
Minerals Production
The most effective way to incentivize critical minerals production
is to eliminate the two major disincentives listed below that are
currently obstructing mineral exploration and development:
1. Bills like H.R. 7580 that are hostile legislative proposals to
overhaul the Mining Law that are perennially introduced in
this subcommittee and in the SENR Committee; and
2. The protracted mineral exploration and mine permitting processes
that are fraught with uncertainties, take too long, and
cost too much.
H.R. 7580 and its predecessor versions considered in earlier
sessions of Congress send a strong and continual signal that mining is
not welcomed in the U.S. These bills chill investment in U.S. mineral
exploration and development that adversely affects critical minerals
projects. Even if H.R. 7580 is not enacted, it and previous bills have
cast a dark shadow on the future of mining on U.S. public lands because
these unfavorable legislative proposals create concerns that the U.S.
does not have stable mining policies.
This perceived instability makes companies reluctant to invest the
hundreds of millions of dollars necessary to explore for minerals and
develop mines.
The importance of keeping public lands open to mining by
maintaining the current mining claim system and eliminating the other
uncertainties created by H.R. 7580 and similarly hostile legislative
proposals cannot be overstated. As shown on Figure 4 on the following
page, data from the Nevada Division of Minerals show that Nevada hosts
deposits of 33 of the 50 minerals on the U.S. Geological Survey's 2022
list of critical minerals.\37\ Many of these minerals are located on
the 60 million acres of federal minerals estate subject to the Mining
Law in Nevada (see Table 2.)
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\37\ https://www.usgs.gov/news/national-news-release/us-geological-
survey-releases-2022-list-critical-minerals.
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Because Nevada is the country's largest public lands mining state,
with over one-half of the nation's active mining claims, Nevada stands
poised to become an important future source of domestic critical
minerals. In the foreseeable future, Nevada is likely to become a major
source of domestic lithium production from the numerous lithium
claystone deposits that have recently been discovered and are in
various stages of exploration and development. There are several
sizable, advance-stage lithium claystone deposits in the following
Nevada counties: Humboldt, Nye, and Esmeralda. Southeastern Oregon also
contains a known, large lithium claystone deposit.
Adopting the royalty incentives discussed in Section III would also
incentivize critical mineral exploration and development. Exploration
and development of domestic mineral deposits would increase if
companies were confident that critical mineral production would be
assessed a fair and workable net royalty at a reasonable royalty rate,
that claims maintenance fees and other fees could be credited against
future royalty payments, and that flow-through investment incentive
similar to those in Canada were applicable to critical mineral
investments.
The permit streamlining measures described in Section VIII would
also incentivize exploration for and development of critical minerals.
The current lengthy permitting process is a significant disincentive
that makes it less attractive for companies to pursue U.S. critical
minerals projects when similar projects can be permitted in Australia
and Canada for a fraction of the time (two to three years) compared to
U.S. projects, which take seven to ten years, or longer.
[GRAPHIC] [TIFF OMITTED] T7569.008
.epsB. Expanding the Definition of Critical Minerals would Increase
Critical Minerals Production
Section 40206(b)(2) of the recently enacted Infrastructure
Investment and Jobs Act/Bipartisan Infrastructure Law recognizes that
``many critical minerals are only economic to recover when combined
with the production of a host mineral.'' Unfortunately, the U.S.
Geological Survey's 2022 list of critical minerals does not adequately
recognize this fact.
A 2015 study from the Center for Industrial Ecology at Yale
University \38\ substantiates that many critical minerals mainly occur
in deposits of other more common minerals and illustrates the
occurrence of by-product minerals in primary mineral deposits in the
``Wheel of Metals Companionality'' shown on Figure 5. As described in
this study, the principal host metals form the inner, darkest blue
circle. Companion elements appear in the outer circles at distances
proportional to the percentage of their primary production (from 100 to
0 percent) of the host metal indicated. The companion elements in the
white region of the outer circle are elements for which the percentage
of their production from the host metal indicated has not been
determined.
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\38\ https://advances.sciencemag.org/content/1/3/e1400180.
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The Wheel of Metals Companionality illustrates there are many
primary metal deposits that have significant potential to produce
important critical minerals as by-products or co-products. For example,
antimony (Sb), is shown in association with primary (host) mineral
deposits of gold, (Au), and lead (Pb). Copper (Cu) deposits are a host
metal for several critical minerals including tellurium (Te), rhenium
(Re), tin (Sn), cobalt (Co), bismuth (Bi), uranium (U), indium (In),
barite (Ba), and arsenic (As).
Development of the primary host-mineral deposit is typically the
economic driver that enables co-production or by-product production of
the critical mineral(s). In many cases, producing the critical mineral
as a stand-alone operation is not feasible or economic. The antimony
that will be produced as a co-product of gold production at the
Stibnite Mine discussed in Section V is a good example of how the
economics of host-mineral production facilitates critical minerals
production.
Except for aluminum (Al), the U.S. has significant mineral deposits
of all of the host metals shown in the inner, dark-blue circle of the
wheel: titanium (Ti); iron (Fe); nickel (Ni); copper (Cu); zinc (Zn);
lead (Pb); tin (Sn); platinum (Pt); and gold (Au). Critical mineral
production could be incentivized by policies that encourage development
of host-mineral deposits where critical minerals can be produced as co-
products and by-products.
[GRAPHIC] [TIFF OMITTED] T7569.009
.epsX. RFI Question 11: Should Lands be Off-limits to Mining
``Are there areas that should be off-limits from mining, and if
so, how should those be identified?''
There can be no doubt that putting more lands off-limits to mining
would increase the Nation's reliance on foreign minerals. Knowing with
some precision the amount of federal land that remains open to location
under the Mining Law should inform Congress' and the Administration's
deliberations about how much land should remain subject to the Mining
Law and whether more lands should be put off limits.
Unfortunately, Congress and the federal land management agencies do
not have this essential data. According to the GAO's May 2019 letter
report to U.S. Senator Tom Udall entitled Hardrock Mining: Availability
of Selected Data Related to Mining on Federal Lands,\39\ BLM and USFS
do not know the percentage of the federal mineral estate that has
already been withdrawn from mineral entry under the Mining Law. It is
inappropriate to consider the land withdrawal provisions in H.R. 7580
without obtaining this information.
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\39\ https://www.gao.gov/products/gao-19-435r. This GAO
investigation asked the Department of the Interior (DOI)/Bureau of Land
Management (BLM) and the Department of Agriculture (USDA)/U.S. Forest
Service (USFS), for information on 16 hardrock mining data elements and
found the agencies had no information on six elements.
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NDOM's data show roughly 19.5 percent of Nevada's public lands are
designated for conservation or preservation purposes, making them
partially or completely off-limits to mineral activities. Congress must
not develop additional legislative or administrative ways to set aside
more western public lands from operation of the Mining Law without
first knowing how much of the federal mineral estate in the Mining Law
states is already unavailable for mining.
Former DOI Solicitor, John Leshy, recently presented data showing
that out of the 600 million acres of reserved public lands, roughly 400
million acres are set aside for conservation and preservation purposes
and are thus functionally off-limits to mining. According to Professor
Leshy, during the period from 1980 to 2020, the acres of conservation
and preservation lands grew from 250 million to 400 million.\40\ These
statistics show that existing land withdrawal and conservation measures
are effective in setting aside lands, calling into question why the new
mining-specific tools in H.R. 7580 are warranted. Before inserting land
withdrawal provisions into the Mining Law, Congress should evaluate
whether additional land withdrawal tools are necessary and if it is
sound public policy to bar mining on additional lands, keeping in mind
that mining has impacted just 317,783 acres (roughly 0.05 percent) of
the Nation's federal mineral estate subject to the Mining Law.
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\40\ John D. Leshy, America's Public Lands--A Look Back and Ahead,
67th Annual Rocky Mountain Mineral Law Institute, July 19, 2021.
---------------------------------------------------------------------------
It is not necessary to withdraw lands in order to protect the
environment at future mine sites. As described in Section II, the
existing regulatory requirements and environmental performance
standards applicable to mining effectively safeguard the environment at
today's mines. Modern mining regulations prohibit approving a project
that would create unnecessary or undue degradation on BLM-administered
lands (43 C.F.R. Sec. 3809.5) or that fails to minimize adverse
environmental impacts on National Forest surface resources (36 C.F.R.
Sec. 228.8). In addition to these surface management regulations, the
numerous federal environmental laws listed in Table 1 and state laws
and regulations also protect the environment at mining operations.
There are existing statutory and administrative tools for
withdrawing truly exceptional lands where there is a compelling and
demonstrable public interest in barring mining on these lands despite
the need for minerals. H.R. 7580 essentially jettisons the existing
rigorous land withdrawal processes that appropriately consider broad
public interests in determining whether lands are more valuable for
their mineral resources or for scenic, cultural, recreational or other
land uses.
The suitability determination provision in Title I, Section 112
gives the Secretary a mine veto without any attempt to balance the need
for minerals and other uses of public lands as is currently mandated
under FLPMA Section 102(a)(12). The laundry list of ``Special
Characteristics'' that make lands unsuitable for mining will put broad
swaths of land off-limits to mineral development. Widespread site
characteristics including the presence of water resources and aquifers,
lands eligible for the National Register of Historic Places, lands with
critical habitat, and the ``adjacent lands'' buffer zone in Title I,
Section 112, will be used to withdraw large blocks of land from mining.
Even more problematic is the vague, catch-all provision in Section
112(b)(2)(F) that authorizes the Secretary to designate ``the presence
of other resource values as the Secretary concerned may by rule
specify, determined based upon field testing, evaluation, or credible
information that verifies such values.''
Given our urgent need for domestic sources of critical minerals, it
would be unwise to create a new process for designating lands that
contain valuable critical minerals like lithium, copper, antimony,
nickel, cobalt, rare earths and others off limits to mining without
giving equal consideration to the country's needs for these minerals.
XI. Conclusions
Despite its title, ``The Clean Energy Minerals Reform Act,'' H.R.
7580 will not promote the development of domestic clean energy minerals
to support the Biden Administration's goals to reduce carbon emissions,
phase out fossil fuels, and shift to carbon-free energy systems.
Although there would never be a right time to enact the draconian
measures in H.R. 7580, this is an especially bad time to make radical
changes to the Mining Law that will make mining clean energy minerals
more difficult if not impossible.
Transitioning from the claims system to a leasing system is
especially inappropriate right now given the exponential demand for the
hardrock minerals needed to power the clean and renewable energy
systems to help the Nation achieve its goals for national
electrification and to meet the targeted 2030 reductions in greenhouse
gas emissions. The one-year timeframe for the Secretary of the Interior
to write the claim conversion regulations after the date of enactment
is completely unrealistic. Once the regulation has been written, it
will require at least several years to implement. This timeline will be
a serious impediment to achieving the 2030 carbon emission reduction
goals and will contribute to further weakening of our mineral supply
chains.
H.R. 7580 is diametrically at odds with the Administration's clean
energy policies, including President Biden's recent declaration to use
the Defense Production Act to increase critical minerals production. It
flagrantly ignores the President's directive to form the IWG with the
express purpose of seeking public comments on the Mining Law, mining
regulations, and permitting. While the IWG is asking the public for
suggestions on how to incentivize critical minerals production, enact a
royalty that encourages production, and ways to streamline and improve
the permitting process, the sponsors of H.R. 7580 are simultaneously
trying to take the country in an entirely different direction that will
substantially reduce domestic mineral production.
Because H.R. 7580 is designed to reduce and even eliminate mining
on public lands, its sponsors did not need to do the hard work of
creating thoughtful and practical land tenure, royalty, or
environmental provisions suitable for hardrock mining. To the contrary,
they have cobbled together policies developed for other commodities and
imposed them on hardrock minerals. The royalty proposed in H.R. 7580 is
borrowed from the oil, gas, and coal program, energy minerals that
occur in substantially different and much simpler geologic settings
than hardrock minerals. The leasing and permitting procedures in H.R.
7580 are imported from the 75-year old unsuccessful federal hardrock
leasing program for acquired lands.
The War in Ukraine demonstrates the dangers of relying on
adversaries like Russia and China for minerals. Since 1995, the U.S.
reliance on foreign minerals has nearly doubled. In 1995 we imported
100 percent of just eight minerals and 50 percent or more of 16
minerals. Today, we import 100 percent of 17 minerals and 50 percent or
more for another 30 minerals. This growing reliance on foreign minerals
is not for lack of domestic mineral resources. The minerals on
America's public lands are a precious endowment that could provide
domestic sources of most of the minerals needed to strengthen domestic
supply chains and achieve our clean energy objectives. Obtaining
minerals from domestic mines would ensure our minerals come from the
cleanest and safest mines in the world because the existing
comprehensive federal and state environmental laws and regulations that
govern mining ensure a clean and safe environment at America's mines.
As Congress contemplates amending the Mining Law, the Women's
Mining Coalition strenuously opposes H.R. 7580 and strongly recommends
that the following key elements of the current law be preserved to
encourage development of the mineral resources on our public lands:
Maintain the existing mining claims system which provides
the security of land tenure necessary to attract investment
in mineral exploration and development.
Do not jettison the claims system and substitute the
impractical leasing system in H.R. 7580, which has a
75-year history of failure to produce minerals and
generate royalties from hardrock mining operations on
acquired lands.
Keep lands open to mineral exploration and development.
Do not put more lands off-limits to mining as proposed
in H.R. 7580.
Preserve the Plan of Operations permitting system for
life-of-mine permits that comply with environmental
protection standards and provide reclamation bonds.
Do not adopt the impractical and unworkable permitting
process in H.R. 7580 that is based on the federal
hardrock leasing procedures that have a long history of
discouraging mineral exploration and mining on acquired
lands.
Require compliance with the existing framework of federal
and state environmental protection regulations that
effectively prohibit unnecessary impacts, safeguard all
aspects of the environment, and mitigate mining impacts.
Do not create the unworkable environmental standards in
H.R. 7580 that fail to recognize that mining creates
some impacts that are unavoidable and necessary and
gives regulators the discretion to deny projects that
create unavoidable impacts.
Retain current financial assurance requirements to
guarantee reclamation.
The U.S. EPA's CERCLA 108(b)final rule found that
existing financial assurance requirements guarantee
reclamation of modern mines and will prevent today's
mines from becoming tomorrow's environmental problems.
Streamline the mine permitting process to minimize delays
and uncertainties that chill minerals investment.
Enact the streamlining measures in Section 40206 of the
Infrastructure Investment and Jobs Act.
Use the Mining Law holding fees not needed to administer
BLM's Mining Law Program to establish a federal fund to
reclaim abandoned hardrock mines on public lands.
Based on FY 2020 statistics, roughly $29 million per
year could be used for this purpose.
Thirty years ago, Women's Mining Coalition started working with the
103rd Congress on proposed legislation to amend the Mining Law. Many
aspects of the Mining Law debate have not changed much in the past
thirty years.
Today, we stand ready to work with the 117th Congress on this issue
with the sincere hope that we can have a thoughtful dialogue about the
Mining Law that focuses on enacting policies that will reverse the
current decline in mineral production, encourage mineral exploration
and development to strengthen domestic supply chains for minerals--
especially the minerals that are crucial for the clean energy
revolution, and enable reprocessing and reclamation of previously mined
materials that contain critical mineral resources by exempting these
sites from Clean Water Act and CERCLA liability.
The Women's Mining Coalition appreciates this opportunity to
testify.
******
The following documents were submitted as supplements to Ms.
Struhsacker's testimony. These documents are part of the hearing record
and are being retained in the Committee's official files. Ms.
Struhsacker's submitted testimony along with these Supplemental
Exhibits is available for viewing at:
https://naturalresources.house.gov/imo/media/doc/Testimony%20-
%20Struhsacker %20-%20EMR%20Leg%20Hrg%20-%205.12.22.pdf
LIST OF EXHIBITS
Exhibit I--July 2021 Testimony of Mr. Jim Cress, House Energy &
Mineral Resources Subcommittee
Exhibit II--January 2007 Testimony of Mr. Jim Cress, Senate Energy
and Natural Resources Committee
Exhibit III--July 2017 Testimony of Mr. Jim Cress, House Energy &
Mineral Resources Subcommittee
Exhibit IV--October 2021 Testimony of Mr. Rich Haddock, Senate
Energy and Natural Resources Committee
Exhibit V--October 2021 Testimony of Ms. Katie Sweeney, Senate
Energy and Natural Resources Committee
Exhibit VI--American Exploration & Mining Association Mining Law
Fifth Amendment Takings Analysis
Exhibit VII--Nevada Division of Environmental Protection--Bureau of
Land Management--U.S. Forest Service Memorandum of Understanding
______
Questions Submitted for the Record to Debra W. Struhsacker, The Women's
Mining Coalition
Questions Submitted by Representative Stauber
Question 1. Why is a claims system so much better suited to
hardrock development than a leasing system in the United States? Some
nations do have leasing systems for hardrock minerals--why does leasing
function in some places, but would not work the same way in the United
States?
Answer.
A. The Unworkable and Impractical Aspects of the Minerals Leasing
System in H.R. 7580
The leasing system proposed in H.R. 7580 is identical to the failed
leasing program currently in place for hardrock minerals on acquired
lands. As documented in a May 2020 Government Accountability Office's
(GAO's) report,\1\ in FY 2018, this program had only 20 hardrock
mineral leases nationwide that had operating mines, just seven of which
generated an inconsequential $8.7 million in federal royalty payments.
It is likely that six operating leases for lead, zinc, and copper mines
in Missouri paid most of this royalty.
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\1\ Mining on Federal Lands, GAO-20-461R, May 28, 2020, https://
www.gao.gov/products/gao-20-461r.
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The meager mineral production from the Nation's acquired lands does
not reflect a lack of mineral potential. To the contrary, there are
some promising mineral deposits known on these lands. The federal
leasing program for hardrock minerals on acquired lands clearly fails
to realize benefits from the mineral wealth on these lands and is an
ineffective way to generate revenue from mineral production. If this
leasing system worked well, there would be many more leases producing
minerals and paying royalties.
The lack of meaningful mineral production and royalty payments from
hardrock mineral projects on acquired lands is due to the unfavorable
prospecting permit procedures and lease terms that impede exploration
and development. The acquired lands hardrock minerals leasing program
is a failure because it does not provide the security of tenure
required to explore for, discover, develop, and mine hardrock minerals,
which are rare, difficult, time-consuming, and costly to find.
According to the National Research Council/National Academy of Science
1999 report,\2\ 1,000 mineral targets must be identified and evaluated
to discover a single deposit that can become a mine. It can take ten to
twenty years to discover and develop a hardrock mineral deposit. This
timeframe is simply incompatible with the arbitrarily truncated time
limits and acreage restrictions that would be applicable to the
prospecting permits and minerals leases in H.R. 7580.
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\2\ Hardrock Mining on Federal Lands, page 24.
The H.R. 7580 leasing system replicates the barriers to mineral
exploration and development in the acquired lands leasing program. Just
like the hardrock minerals leasing program on acquired lands, H.R. 7580
includes the following unworkable time limits and acreage constraints
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that are unsuited to hardrock mineral exploration and development:
Prospecting licenses or permits are limited to two years
with a maximum four-year discretionary extension, and are
restricted to 2,560 acres per permit and a 20,480-acre per
person/company per state limit; \3\ and
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\3\ The acreage and time limits for prospecting permits and leases
are modeled after the temporal and acreage parameters for leasable
minerals (e.g., oil, gas, coal, phosphate, potash, and sodium) in the
Minerals Leasing Act of 1920, 30 U.S.C. Sec. Sec. 181 et seq.
Hardrock mining leases are limited to a primary term of 20
years, which may not be long enough to develop and mine
many deposits. This artificial time constraint is not in
the public's best interest. A mining lease must provide
security of tenure for as long as it takes to develop and
---------------------------------------------------------------------------
mine a deposit.
The acreage and time limits for prospecting permits and leases are
modeled after the temporal and spatial parameters for leasable minerals
(e.g., oil, gas, coal, phosphate, potash, and sodium) in the Minerals
Leasing Act of 1920, 30 U.S.C. Sec. Sec. 181 et seq. The significant
differences in the geologic settings for hardrock minerals compared to
oil, gas, and coal (as discussed below) make shoehorning a system
developed for oil, gas, and coal and force-fitting it onto hardrock
minerals inappropriate, and is the main reason the federal hardrock
minerals leasing program on acquired lands is a failure.
At a broader level, even if a leasing system that provided adequate
security of tenure were developed, Congress would need to consider the
practical implications of developing and implementing such a system at
a time when the Nation is already challenged to move critical and
strategic mineral projects forward under the current system. Changing
from a claims system to a leasing system would take years. During this
multi-year transition period, investment in mineral exploration,
development, and production would decrease in response to the
uncertainty, making the U.S. would become even more dependent on
foreign minerals. Given the Nation's need for critical minerals for
clean energy systems, national defense, manufacturing, infrastructure
and other important applications, this would be an especially bad time
to change the land tenure system for hardrock minerals.
B. Why Self-Initiation and Mining Claims are Optimal for Hardrock
Minerals
The geology of hardrock mineral deposits must define the land
tenure system. The Mining Law claim location system is exceptionally
well-suited for hardrock mineral exploration because it promotes self-
initiation and facilitates the iterative exploration process that is
necessary to discover minerals. This process involves gradually zeroing
in on mineralized areas, which may take decades, using the data
obtained from exploration drilling and other mineral investigation
techniques, which evolve and improve over time. Collecting these data
allows geologists to upgrade or downgrade prospective areas, and to
modify the size of a claim block on the basis of this information by
either dropping or adding claims. Under this self-initiated exploration
and claim location system, there are no arbitrary or rigid time limits
or acreage restrictions unlike the H.R. 7580 limits for prospecting
permits and minerals leases. At the same time, all the costs and risks
are borne by the individual or company conducting the exploration and
their investors.
Hardrock minerals are rare and hard to find. They are typically
found in areas with complex geology where the host rocks have been
folded, faulted, and altered by mineralizing fluids. In contrast, oil
and gas deposits are fairly abundant. They occur in well-understood,
large sedimentary basins that can be effectively explored using
geophysical techniques that require little or no surface disturbance.
Laterally extensive coal seams are also easy to identify.\4\ The
substantial differences in the geologic setting of oil, gas, and coal
compared to hardrock minerals is one of the main reasons the federal
leasing programs for coal, oil and gas cannot be successfully used for
hardrock minerals.
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\4\ As explained in Mr. Jim Cress' July 2017 testimony before this
Subcommittee, coal is a solid mineral of generally uniform quality and
composition that requires little or no processing. In the West, where
most federal coal deposits exist, coal beds are vast, world-class
deposits of great thickness. For example, in Wyoming's Powder River
Basin, coal beds average 80 feet and up to 200 feet in thickness.
Little exploration for coal is required, and it is relatively easy to
determine the quality of the coal and the thickness of a seam prior to
mining with drilling and sampling. (See Exhibit III, page 5 of my May
2022 testimony.)
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Mr. Rich Haddock's \5\ October 2021 testimony before the Senate
Energy and Natural Resources Committee, which is attached as Exhibit I,
documents the costs, time, and difficulties in discovering a hardrock
mineral deposit. As discussed in Mr. Haddock's testimony, Barrick Gold
Corporation's Goldrush-Fourmile Project in Nevada is 2,000 feet below
the ground surface. Barrick drilled 427 holes in the project area
before discovering the deposit.\6\ The costs to drill each exploration
drill hole at this project has ranged from $500,000 to $1 million.
Barrick has been exploring this project for over 20 years, has drilled
roughly 1,200 holes to define the size and grade of this deposit, and
spent over $459 million in drilling and technical and environmental
studies.
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\5\ Mr. Haddock is General Counsel of Barrick Gold Corporation.
\6\ https://www.barrick.com/English/news/news-details/2018/
fourmile-journey-to-a-high-grade-discovery/default.aspx.
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The footprint of the 2,000-foot deep orebody projected to the
surface covers roughly 45 acres, which is slightly larger than two
unpatented mining claims. (An unpatented mining claim can cover a
maximum of about 20 acres.) The Plan of Operations boundary covers
19,895 acres of land comprised of 772 acres of private land and 19,123
acres of BLM-administered public lands.\7\ The comparative sizes of the
ore deposit (45 acres) and the surrounding project area (19,825 acres)
illustrates the difficulties in finding an ore deposit, and helps
explain why it took so long and so many drill holes to discover the
Goldrush-Fourmile deposit. The exploration history and expenditures at
the Goldrush-Fourmile Project are not atypical for a hardrock mineral
exploration project, and are emblematic of the daunting nature of
hardrock mineral exploration, which is literally like looking for a
needle in the haystack.
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\7\ https://www.govinfo.gov/content/pkg/FR-2021-08-10/pdf/2021-
17040.pdf. To secure the company's land position, Barrick has over 900
unpatented mining claims on the public lands in the project area.
---------------------------------------------------------------------------
Under the federal leasing programs for oil, gas, and coal, the
federal government decides where companies can explore for and develop
these energy resources. That is a workable system for oil, coal, and
gas because both the federal government and the industry know with some
precision where these resources are located before they are leased.
This is not the case for hardrock minerals, whose locations are not
known prior to drilling numerous exploration drill holes.
To make a hardrock mineral leasing system work, the federal
government would have to invest billions to discover hardrock minerals.
Because the government has not made this investment on acquired lands,
and the current prospecting permit-leasing system on these lands
discourages private-sector investment, the federal leasing program for
hardrock minerals on acquired lands is unsuccessful. Replicating this
failed system on public domain lands will be similarly unsuccessful.
C. There are No Problems Identified with the Self-Initiated Claim
System
It must be emphasized that there are no problems with the self-
initiated claims location system that need to be solved. In fact, there
is a compelling public interest in preserving this system because
taxpayers benefit from the substantial private-sector investments made
to explore for minerals under the existing Mining Law. Self-initiation
deploys private investment to take the initiative to locate claims
based on preliminary concepts about where minerals may be located and
effectively leverages private investments that transform undeveloped
federal land into mining operations that create jobs, pay taxes, and
provide the minerals the country needs--at no expense whatsoever to
U.S. taxpayers.
Also, it is important to understand that the U.S. Bureau of Land
Management (BLM) knows where all mining claims in the country are
located because claim owners must record the locations of their claims
and pay annual claim maintenance fees. Although the self-initiated
claims system does not dictate where prospectors explore for minerals
on lands open to location under the Mining Law, the BLM maintains an
accurate database of where active claims are located. Therefore,
allegations that the claims location system does not give the federal
government adequate information about where claims are located to
manage public lands have no merit.
D. Elements of Successful Mineral Leasing Programs
There are examples of workable minerals leasing programs in some
western states and in other countries where these systems successfully
attract mineral investments, encourage mineral exploration, produce
minerals, and generate taxes or royalties payable to the lessor.
However, these systems are markedly different from the leasing system
proposed in H.R. 7580.
Successful mineral leasing programs are specifically designed to
stimulate and facilitate mineral discovery and production. They do not
include any of the time restrictions or acreage limitations described
above in H.R. 7580. Successful leasing programs are premised on the key
principle that the lessor and lessee share a common and mutually
beneficial goal to find mineral deposits that can become a mine that
pays royalties to the lessor. The H.R. 7580 leasing program has none of
these attributes because the lessor (e.g., the federal government) is a
hostile landlord whose prospecting permits and mineral leases create
numerous barriers to mineral exploration and development.
Given the current extraordinary demand for minerals to build clean
energy infrastructure, to power electric vehicles, and to electrify the
Nation, this is an exceptionally inappropriate time to make sweeping
changes to the land tenure system in the Mining Law. Because there are
no demonstrated problems with the claims location system, there would
be no public policy benefits from converting the claim location system
to a minerals leasing system--even if the terms of a future minerals
leasing system provided adequate security of land tenure to promote
mineral exploration and development.
Transitioning from a claims system to a leasing program would be an
extraordinarily complicated and time consuming process to develop and
implement new leasing regulations and procedures, which could be
delayed by years of litigation in the federal court system. During this
protracted transition period, mineral exploration and discovery would
decline due to the uncertainties about the terms in a future minerals
leasing program. The net result would be reduced mineral production
during the transition period and increased reliance on foreign
minerals.
Question 2. Federal oil, gas, and coal all operate in the United
States with a 12.5 percent royalty. Why shouldn't hardrock mining have
the same rate? Can you explain the difference between a ``net'' and a
``gross'' royalty, and why that matters in regards to hardrock
production?
Answer.
A. Royalty Rates
All royalties--whether they are a gross royalty or a net royalty--
add operating cost to every ounce of produced minerals. The bigger the
royalty, the bigger the cost. The most immediate impact of a royalty is
it reduces cash-flow. Another important and unfavorable impact of a
royalty is the reduction in reserves and resources. If an excessive
royalty increases the cost per ounce too much, reserves will shrink,
mine life will be shortened, and the capital used to build the mine
will be wasted because the mine will have to close before the
investment in the mining and processing facilities can be recouped.
The end result of a confiscatory royalty is that mines are forced
to close prematurely, leaving reserves in the ground. An excessive
royalty hurts both the mine owner and the community as the economic
engine that a mine creates for state and local governments grinds to a
halt. High-paying mining jobs are lost and revenue streams from tax
payments and the purchase of goods and services vanish.
An especially problematic aspect of the royalties in H.R. 7580 is
that they would be applied retrospectively to claims in existence on
the date of enactment. This will exacerbate the economic hardships that
a royalty creates and will likely cause premature closure of those
currently operating mines that cannot remain economically viable if
they must pay an eight percent gross royalty. As discussed in Section
III of my May 12, 2022 written testimony, imposing a retroactive
royalty on existing mining claims will expose the federal government
and taxpayers to Fifth amendment Constitutional takings claims.\8\
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\8\ Also see Exhibit VI, ``American Exploration & Mining
Association Mining Law Fifth Amendment Takings Analysis,'' in my May
22, 2022 written testimony.
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The dramatically different geologic and market characteristics of
oil gas, coal, and hardrock minerals dictate the need for different
approaches to assessing an appropriate royalty rate for these
materials. A cookie-cutter approach that uses the 12.5 percent gross
royalty applicable to oil, gas, and coal is overly simplistic and fails
to consider the significant differences in how and where these minerals
occur, how they are produced, substantial differences in processing
costs, and marketplace realities. Using the federal royalty rate for
oil, gas, and coal for hardrock minerals is just as unworkable and
inappropriate as replicating the federal hardrock leasing system on
acquired lands to public domain lands.
Because coal, phosphate, sodium, and potash are solid minerals that
are mined from the ground rather than pumped from wells, they are more
similar to hardrock minerals than oil and gas and help illustrate why a
one-size-fits all 12.5 percent royalty rate is inappropriate. First,
there are two different royalty rates for federal coal: 8 percent for
coal mined from underground operations; and 12.5 percent for coal mined
from surface operations. These different royalty rates reflect the
different costs associated with underground mining operations, which
are typically more expensive to operate than surface mining operations.
Because hardrock minerals are produced from both underground and
surface mines, a uniform 12.5 percent royalty rate would be similarly
inappropriate.
Second, a uniform 12.5 percent rate is not applicable to other
leasable minerals besides oil, gas, and coal. The leasable minerals
sodium, potash, and phosphate are not assessed a uniform 12.5 percent
royalty rate because these low-margin industrial and fertilizer
minerals cannot support a 12.5 percent royalty rate. The statutorily
established base rate for phosphate is 5 percent and is 2 percent for
potash and sodium. These different royalty rates reflect the different
nature and economics of these commodities as well as their dissimilar
marketing considerations. Thus, the federal royalty rates for these
leasable minerals take into account the differences in these minerals'
value and market dynamics, and clearly demonstrate there is precedent
for not applying a one-size-fits-all 12.5 percent royalty rate to all
leasable minerals.
Historically, mines for these leasable minerals have paid lower
royalty rates during periods when economic conditions and foreign
competition have resulted in the federal government accepting lower
royalty rates to keep these mining operations from becoming
unprofitable, because it is not in the public's best interest for mines
that cannot afford to pay the federal royalty to close. Under these
circumstances, a lower government-approved royalty rate is sound public
policy because it allows a mine to continue to operate, employ workers,
and pay taxes and royalties during economically challenging times.\9\
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\9\ Jim Cress, op cit.
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Another compelling reason why applying a 12.5 percent royalty rate
to hardrock minerals would be inappropriate is that this would make
U.S. mines uncompetitive compared to hardrock mining operations in
other countries. Testimony from Ms. Katie Sweeney \10\ in October 2021
before the Senate Energy and Natural Resources Committee describes why
royalty rates must consider the total government ``take,'' defined as
the aggregate of federal, state, and local royalties, taxes, and fees,
and compare that take to what mineral producers pay in other countries.
A future federal hardrock royalty must not make the total government
take so high that U.S. mines cannot compete with mines in other
countries.
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\10\ Executive Vice President and General Counsel of the National
Mining Association (NMA). Ms. Sweeney's testimony is included as
Exhibit V in my May 2022 testimony.
---------------------------------------------------------------------------
As explained in Ms. Sweeney's testimony, the existing government
take affecting U.S. hardrock mining operations is close to 40 percent
for most NMA members, which is close to the top range for other cost-
competitive mining countries. The 8 percent gross royalty on new mining
operations and the 4 percent on existing operations that were being
considered last fall in the Budget Reconciliation Bill would have
increased the total government take to over 50 percent and would have
made the U.S. an uncompetitive country for mineral investment and
mining. The higher (8 to 12.5 percent) royalty rates proposed in H.R.
7580 would increase the total government take for U.S. mines making
them even less competitive.
Mr. Haddock's testimony at the same October 2021 hearing (see
Exhibit I) compares the total government take in the U.S. compared to
Australia or Canada, our two most important mining allies. Currently,
the three countries have about the same total government take ranging
from 38 to 39 percent. Adding a 2 percent net royalty to hardrock
mineral production on federal land would increase the total take on
U.S. hardrock mining operations to roughly 41 percent. At this rate,
U.S. mines would not be cost competitive with mines in Australia or
Canada. Obviously, imposing the 8 to 12.5 percent royalties in H.R.
7580 would make U.S. mines even less competitive with mines in
Australia and Canada--especially in light of the far more reasonable
two- to three-year permitting timeframes in these countries.
B. Net versus Gross Royalties
Although there is widespread belief that oil, gas, and coal pay a
gross federal royalty, this is not true. All three commodities pay a
net royalty because certain allowable deductions are applied to the
value of these energy minerals before calculating the royalty. As the
GAO explains, the ``gross'' royalty that coal miners pay on coal
produced from federal coal leases allows coal mine operators to
subtract certain costs to produce a sellable product before the royalty
is computed:
``For coal, certain costs are deducted from the price of coal
at the first point of sale, including transportation and
processing allowances, before the amount is calculated for
royalty purposes.'' \11\
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\11\ Oil, Gas, and Coal Royalties, Government Accountability Office
Report, June 2017, GAO-17-540.
Similarly, federal oil and gas royalties are a net royalty and not
a gross royalty because they are based on the value of the sellable
products from an oil and gas well. Although federal royalties for oil,
gas, and coal are called gross royalties, this is a misnomer. The
federal oil, gas, and coal royalties are in reality comparable to a net
royalty because they are based on the value of the sellable products
from an oil and gas well or a coal mine.\12\
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\12\ Cress, op cit.
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Unlike crude oil and natural gas, for which there are market
valuations on a per barrel or per MMBtu basis respectively, there is no
market or valuation for ``crude'' (i.e., unprocessed) hardrock mineral
ores as defined in H.R. 7580. For example, the Commodities Market
Digest on Page 8 of the May 20, 2022 edition of the Wall Street Journal
shows market prices of $121.21 per barrel for crude oil and $8.308 per
MMBtu for natural gas. This Commodities Market Digest does not show a
price for crude gold ore because it has no market value and is never
sold as crude ore. It does, however, list the price that day for
refined gold as $1,841.20 per troy ounce.
To illustrate the point during the hearing that crude ore must be
processed to extract the valuable and sellable hardrock minerals, I
showed the piece of crude gold-silver ore from a mine in Nevada that is
shown on the following page. The dark-gray lines contain the gold and
silver. But before these precious metals can be recovered from this
crude ore, the rock must be crushed, ground to a fine powder, and
subjected to a number of metallurgical processing steps to liberate the
gold and silver and produce a product called dore that gets sold. The
dore must then be refined, typically at an off-site facility, to
produce gold and silver that can then be used for currency, medical
applications, electronics, jewelry, etc.
Photograph of Crude Gold-Silver Ore
[GRAPHIC] [TIFF OMITTED] T7569.010
.epsThe H.R. 7580 royalty does not allow deductions for any of the
costs to transform crude ore into a sellable product. This is not
comparable to the federal royalties for oil, gas, and coal which are
based on the value of the first sellable products after certain
allowable deductions for the costs to produce a sellable product.
A workable hardrock royalty program needs to have a similar
structure that allows deductions for the processing steps needed to
produce the first sellable hardrock mineral product. To be treated
equitably with oil, gas, and coal, a future federal hardrock mineral
royalty should be assessed at a comparable point in the value-added
steps to produce the first sellable product. For hardrock minerals, the
mine operator must be able to deduct the costs associated with the
value-added mineral processing steps that are necessary to produce a
sellable mineral product. The H.R. 7580 royalty is unfair and
confiscatory because it is calculated on the gross value of mineral
products that includes the value added by the operator to process,
refine, and produce a sellable mineral product from the crude ore
removed at the initial step in the mining process.
Because commodity price cycles are variable and cyclical, a gross
royalty has a very different effect on mining investment compared to a
net royalty. Royalties assessed on gross income discourage investment
by increasing economic risks. Consequently, projects subject to a gross
royalty will require a higher pretax and after-tax rate of return to
accommodate the increased risk. In contrast, a net royalty has a
smaller effect on the variability of after-tax rates of return and is
less of a deterrent to investment. When commodity prices decrease, the
rate of return required to justify a mining investment increases more
dramatically under a gross royalty than under a net royalty. A gross
royalty takes a bigger piece out of the mine's income during periods of
low commodity prices.
A gross royalty is especially problematic during industry downturns
due to low commodity prices because they cause a greater reduction in
cash-flow during periods when profits are already low. A gross royalty
can functionally reduce the size of the ore deposit that remains
economic to mine. During low commodity price cycles, low-grade ores may
become uneconomic to mine and process and become low-grade waste
materials that are not processed or mined at all, which shortens the
life of the mine and reduces the total amount of mineral that will be
produced from the mine. Gross royalties may thus contribute to
premature mine closures with the concomitant loss of jobs; reduced
local, state, and federal tax revenues and/or royalty payments; and
business losses for the mine's vendors and suppliers, which in turn
harms nearby communities and local and state governments.
A net royalty, in contrast, does not cause mines to operate at a
loss because the royalty owed is automatically reduced during periods
of low commodity prices, and increases again when prices are higher. A
net royalty thus allows mining operations to continue to operate during
periods of low commodity prices and also enables maximum recovery of
low-grade ore during high commodity prices. Because mineral demand is
cyclical and commodity prices fluctuate, a net royalty provides the
best incentive to explore for minerals on federal lands in spite of
variable mineral demand and commodity price cycles. A net royalty thus
minimizes volatility in the mining industry which helps keep the
domestic industry viable and the nation's mineral supply secure, which
is in the public's best interest.
Fuel costs have a significant impact on a mine's bottom line. Mines
subject to a net royalty will be in a better position to withstand the
current extraordinarily high costs for diesel and natural gas compared
to mines that must pay a gross royalty. This is another public policy
benefit of a net royalty compared to a gross royalty. A net royalty
allows mines to continue operating during periods of high costs for the
fuel, power, and supplies needed to keep a mine running.
For many years, the U.S. mining industry has been willing to
negotiate a reasonable prospective federal hardrock mining net royalty
that recognizes the costs to produce hardrock minerals. A net royalty
accomplishes an important public policy objective that provides
taxpayers with revenue from mining on public lands while at the same
time not creating such a substantial burden that the royalty makes
mining uneconomic.
Both taxpayers and mine operators ``go to the bank together'' under
a net royalty. Taxpayers receive higher royalty payments during periods
of robust commodity prices. Mine operators pay reduced royalties when
commodity prices are low, but their mines have a better chance of
remaining economically viable and can continue to operate, keeping mine
workers employed and providing tax revenues to local and state
governments and corporate federal income taxes.
Question 3. GAO has issued a report saying that the average
permitting timeline takes about 2 years, but, in reality, we've
observed that it often takes much longer. How long does the average
hardrock mine take to become active in the United States, from
exploration to production, and why?
Answer. By its own admission, the two-year average mine permitting
timeline in GAO's January 2016 report entitled ``Hardrock Mining: BLM
and Forest Service Have Taken Some Actions to Expedite the Mine Plan
Review Process but Could Do More'' \13\ is based on unreliable and
inconsistent data. Therefore, this report does not provide accurate or
useful information on how long it takes to obtain permits from the BLM
or the U.S. Forest Service for a hardrock mine on western public domain
land. In the citations below, GAO acknowledges the serious shortcomings
in this investigation:
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\13\ https://www.gao.gov/products/gao-16-165.
``To determine the number of mine plans that were approved from
fiscal years 2010 through 2014, we examined data from BLM's
Legacy Rehost 2000 (LR2000) system and the Forest Service's
Locatable Minerals database--automated information systems the
agencies use to track key dates and milestones in the mine plan
review process. Through interviews with agency officials, our
analysis of these data, and comparisons to other publicly
available information from federal agencies, we determined that
these data from these databases were not sufficiently reliable
to measure the time it took these agencies to complete the mine
plan review process, as discussed later in the report.
Consequently, we instead worked with agency officials to
collect data from paper and electronic records maintained by
BLM field offices and Forest Service ranger districts to
develop a list of mine plans approved from fiscal years 2010
through 2014. To ensure that we reviewed data on comparable
projects, we requested data on mine plans that were 5 acres in
size or larger, and were plans for new mines or mine
expansions.'' \14\ (Emphasis added.)
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\14\ GAO, op cit., pages 3-4.
``Because we selected a nonprobability sample of BLM and Forest
Service locations, our findings are not generalizable to all
BLM and Forest Service locations conducting reviews of mine
plans.'' \15\ (Emphasis added.)
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\15\ GAO, op cit., page 5.
``BLM and the Forest Service's tracking of the mine plan review
process is hindered by limitations with their data systems; as
a result, BLM does not have adequate information, and the
Forest Service does not have complete information, necessary to
track the length of time to complete the mine plan review
process.'' \16\ (Emphasis added.)
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\16\ GAO, op cit., page 13.
In addition to the shortcomings of BLM's and the Forest Service's
mine permitting tracking systems and databases described in this GAO
report, it is obvious that GAO has misinterpreted the data the agencies
provided on the number of Plans of Operation that were reviewed and
authorized during the 2010 to 2014 timeframe. GAO incorrectly assumed
that all Plans of Operations were for mining operations and failed to
understand that most Plans of Operation are for mineral exploration
projects--not for mining projects. The following statement illustrates
---------------------------------------------------------------------------
this point:
``Mine size. The sizes of the mines proposed in these 68 plans
varied greatly, ranging from 5 to 8,470 acres.\17\ The average
proposed mine was approximately 529 acres, and the 68 mine
plans totaled nearly 36,000 acres.'' \18\
---------------------------------------------------------------------------
\17\ Five acres is the surface disturbance threshold that triggers
the requirement to submit a Plan of Operations for mineral exploration
activities on BLM-administered lands. The Forest Service requires a
Plan of Operations for all surface-disturbing mineral activities, even
if only a few acres will be disturbed.
\18\ GAO, op cit., page 14.
GAO's failure to distinguish between Exploration Plans of Operation
(EPOs) versus Mine Plans of Operation (MPOs) produced a meaningless
analysis that inappropriately lumps EPOs and MPOs together.
Consequently, GAO's findings that it takes an average of two years to
permit a mine are wildly inaccurate and frequently misrepresented.
Figure 4 and GAO's summary statement: ``Timeframes for approving Plans
ranged from about one month to over 11 years and averaged two years''
\19\ is based on a jumble of apples and oranges data. These widely
divergent timeframes reflect it takes less time for the agencies to
review and authorize EPOs versus much more time to review and authorize
MPOs. Therefore, the analysis in this report has little or no relevance
or value and should not be used in future policy discussions about the
mine permitting process or the length of time required to permit a
mine.
---------------------------------------------------------------------------
\19\ GAO, op cit., page 16.
---------------------------------------------------------------------------
As discussed at length in my July 2021 Questions for the Record
\20\ for the July 27, 2021 hearing ``The Toxic Legacy of the 1872
Mining Law'' before the House Subcommittee on Energy and Mineral
Resources, GAO made the same error and failed to distinguish between
EPOs and MPOs in its May 2020 Report ``Mining on Federal Lands, GAO-20-
461R,'' \21\ which led GAO to inaccurately state there are 728 active
mining operations on public lands. This grossly overestimates the
number of active mines because most of the 728 Plans of Operation are
EPOs--not MPOs.
---------------------------------------------------------------------------
\20\ Included herein as Exhibit II. Also see Section III of my
testimony for the May 12, 2022 hearing, ``Reforming the Mining Law of
1872.''
\21\ https://www.gao.gov/products/gao-20-461r.
Finally, the 2016 GAO report acknowledges that in addition to
permits from the BLM and U.S. Forest Service, most project proponents
must also secure many additional permits before a mine can be built and
---------------------------------------------------------------------------
operated:
``Based on a review of NEPA documents, state permitting
guidelines, and studies of hardrock mining requirements, we
identified six categories of federal permits and authorizations
that mine operators may need to obtain from entities other than
BLM and the Forest Service and seven categories of state and
local permits and authorizations across 12 western states that
may be required depending on the nature of the mining
operations . . .'' \22\
---------------------------------------------------------------------------
\22\ GAO op cit., page 17.
Congress may want to ask GAO to update and correct its analysis of
the amount of time it takes to permit MPOs and EPOs. The following are
some recommended parameters that would greatly improve the reliability
---------------------------------------------------------------------------
of a future GAO study:
1) The BLM and the U.S. Forest Service should improve the
agencies' recordkeeping and databases to clearly distinguish
between EPOs and MPOs; and
2) The GAO should perform separate analyses of the length
of time required for the agencies to authorize EPOs versus
MPOs.
It would also be useful for GAO to compare the length of time it
takes BLM to authorize these mineral activities versus the time it
takes the U.S. Forest Service to approve EPOs and MPOs. Based on my
experience, this comparison is likely to reveal that it takes longer
for the Forest Service to review and authorize EPOs and MPOs than the
BLM. But the permitting timelines for both agencies take too long for
both EPOs and MPOs. The permitting process for some EPOs can take
longer than two years.
Rather than relying on this inaccurate GAO analysis, Congress may
want to consider the data that the Council on Environmental Quality
(CEQ) compiled during its recent rulemaking to consider changes to the
CEQ regulations implementing the National Environmental Policy Act
(NEPA). CEQ's July 2020, report \23\ presents information on the
timelines it took federal agencies to prepare Environmental Impact
Statements (EISs) from 2010 through 2018. CEQ found that it took an
average of more than 4.5 years for federal agencies to complete the
NEPA process starting with issuance of a Notice of Intent (NOI),
completing an EIS document, and issuing a Record of Decision (ROD).
---------------------------------------------------------------------------
\23\ https://ceq.doe.gov/nepa-practice/eis-timelines.html.
Question 4. Does the lack of a comprehensive resource assessment in
the United States for metals and minerals provide a disincentive to
mine project proponents under a leasing system, as proposed in H.R.
---------------------------------------------------------------------------
7580? Please describe why or why not.
Answer. A comprehensive U.S. mineral resource assessment would be
extremely useful information that could stimulate more private-sector
investment in mineral exploration on federal lands throughout the
country, including on public domain and acquired lands if it is coupled
with favorable mining policies. However, a mineral resource assessment
would not make the hardrock mineral leasing program in H.R. 7580 (or
the same program that currently governs acquired lands) any more
practical or workable because the time limits and acreage constraints
discussed in Section I would remain as serious barriers to mineral
exploration and development.
The length of time allowed under a prospecting permit (a two-year
initial term with a maximum of six years) and the acreage constraints,
(a maximum of 2,560 acres per lease and only eight leases, 20,480
acres, granted per company), are not enough time or land to allow the
self-initiated and iterative exploration work that is required to find
the ``needle-in-the-haystack'' hardrock mineral deposit. The
exploration and discovery timeline described in Section I for Barrick
Gold Corporation's Goldrush-Fourmile Project is typical of the length
of time (two decades) to discover a hidden mineral deposit that is not
exposed at the surface.
Because most mineral deposits that are exposed at the surface have
already been explored, it is likely that the majority of future mineral
discoveries will be hidden deposits that are covered by a thick
sequence of unmineralized rocks. These deposits are difficult,
expensive, and time-consuming to discover and delineate. The current
claims system is ideal for facilitating the time-consuming and self-
initiated iterative exploration process that can lead to a discovery of
the hidden mineral deposit. The H.R. 7580 prospecting permit/leasing
system is simply impractical. It does not give explorers enough time or
land to enable discovery of mineral deposits. The failure of this same
system on acquired lands proves that it is an ineffective system for
discovering and developing mineral deposits.
The U.S. Geological Survey (USGS) is currently undertaking the
Earth Mapping Resources Initiative (Earth MRI), which has the stated
goal to:
``. . . improve our knowledge of the geologic framework in the
United States and to identify areas that may have the potential
to contain undiscovered critical mineral resources.'' \24\
---------------------------------------------------------------------------
\24\ https://www.usgs.gov/special-topics/earth-mri.
The geophysical and lidar surveys that will be performed as part of
the Earth MRI may be useful in identifying broad areas with hidden
mineral potential. However, if and when the Earth MRI delineates areas
with critical mineral potential, it will still be necessary for
companies to do the expensive, time-consuming, and iterative
exploration work to find the ``needle-in-the-haystack'' mineral deposit
hidden within larger areas with mineral potential. The H.R. 7580
leasing program is completely incompatible with the geologic realities
of discovering and developing hardrock minerals. Consequently, the
Earth MRI or other mineral resources assessment surveys are unlikely to
significantly increase the discovery and development of critical
minerals if the self-initiated mining claims system is eliminated and
replaced by the H.R. 7580 leasing system.
Conversely, the Earth MRI data may be very useful in stimulating
mineral exploration for buried mineral deposits if the current self-
initiated claims system under the Mining Law remains in place. This is
especially true in the Great Basin portion of western public domain
lands where there are broad areas covered by unmineralized rocks. (The
Great Basin extends across most of Nevada and about half of Utah, with
small portions in Idaho, Oregon, Wyoming and California.) The Nevada
Division of Minerals estimates that alluvium covers roughly 48 percent
of Nevada, obscuring the rocks that may host attractive mineral
targets. About 79 percent of these covered lands are currently open to
location under the Mining Law.\25\
---------------------------------------------------------------------------
\25\ Personal communication, Lucia Patterson, Nevada Division of
Minerals, GIS/Field Specialist, Geologist.
Question 5. During the hearing, Rep Porter displayed a whiteboard
denoting column ``A'' and column ``B,'' regarding siting decisions and
environmental costs of solar farms and mining projects. Could you
explain why this isn't an ``either/or'' proposal in terms of materials
---------------------------------------------------------------------------
needed for solar energy technologies?
Answer. The hypothetical scenario that Congresswoman Porter
described on her whiteboard involving conflicting land uses between a
hardrock mineral mine and a solar facility reflects a lack of
understanding of where and how mines are located versus the site
selection process for a solar facility. As described in Section I,
hardrock mineral deposits are rare and difficult to find.
Statistically, only 1 in 1,000 mineral prospects will have the
geological and mineralization characteristics necessary to become an
economically viable mine.\26\
---------------------------------------------------------------------------
\26\ Hardrock Mining on Federal Lands, op cit.
---------------------------------------------------------------------------
Mines can only be developed where a mineral deposit has been
discovered. Once a mineral deposit is discovered, it cannot be moved.
The Goldrush-Fourmile gold deposit discussed in Section I is a good
example of a 20-year long, $459 million exploration effort that was
eventually successful in delineating the ``needle-in-a-haystack''
deposit which is 2,000 feet below the ground surface and covers just 45
acres within a 19,895-acre project area.
In contrast, there may be many feasible locations where the sun
shines on a regular basis for a solar facility, which gives solar
project proponents the ability to select one or more optimal sites
factoring in the hours of sunshine, landownership, zoning, topography,
proximity to existing infrastructure, and power users, and other site
parameters. The solar developer has the ability to find the best sunny
site based on these considerations. Mineral developers do not have the
same flexibility because minerals do not occur everywhere the sun
shines. They can only hope to discover minerals where geologic
conditions are favorable for the formation of a mineral deposit, which
may take decades and the investment of hundreds of millions of dollars
to discover, as was the case for the Goldrush-Fourmile deposit.
Although a mineral deposit cannot be moved or mined elsewhere,
development of a mine and a solar facility are not mutually exclusive
land uses. With proper planning and permitting, it may be feasible to
co-develop a mine and a solar field to use solar energy to help power
the mine. Alternatively, some mine sites are being considered for
redevelopment into solar fields once mining has been completed.
Co-development and post-mining redevelopment of mine sites for
renewable energy facilities such as solar installations create
sustainable use of the transmission lines and other infrastructure
developed to support the mine. Because many mine sites use line power
and have constructed nearby transmission facilities, capitalizing on
this existing electricity transmission infrastructure removes a
significant barrier to solar (and wind) power, which otherwise would
have to be able to support the costs to build a transmission line to
the solar or wind farm. The costs associated with bringing transmission
lines to a proposed solar or wind project can make some projects
uneconomic. Taking advantage of preexisting transmission infrastructure
may make many more solar and wind projects economically feasible.
The Nature Conservancy's (TNC's) ``Mining the Sun Initiative'' is
actively looking for opportunities at operating and old mines to
capitalize upon the synergies between mining and renewable energy and
is recruiting mining partners with operating and closed mines as
potential sites for solar fields:
``. . . Nevada mine sites have existing road and power line
infrastructure, making them attractive for solar development.
In fact, . . . there are more than 1 million acres of potential
minefields and brownfield sites in Nevada. If developed with
solar power, TNC estimates their solar energy generation
potential in Nevada to be 20,219 megawatts--enough to power 3.8
million homes.'' \27\
---------------------------------------------------------------------------
\27\ https://www.nature.org/en-us/what-we-do/our-priorities/tackle-
climate-change/climate-change-stories/nevada-west-virginia-solar-
energy-former-mines/.
---------------------------------------------------------------------------
Question 6. H.R. 7580 adds two more permitting requirements in
Title III to a process that already has significant overlap and can
take around two decades. Will these new proposed permits duplicate
existing requirements? Will the new proposed permits create more
bureaucratic delays?
Answer. H.R. 7580 Section 303 creates a new Exploration Permit;
Section 304 creates a new Operations Permit. It is unclear whether the
Title III permitting processes in H.R. 7580 would be in addition to the
comprehensive and effective BLM, USFS, and state regulatory
requirements and permitting processes that currently govern mineral
exploration and development or would replace these processes. Either
way, the Title III permitting processes will make mineral projects much
more difficult--if not impossible--to permit.
The problems associated with these Title III permitting
requirements extend far beyond creating more bureaucratic delays
because these sections include a number of impractical and unworkable
requirements and standards that are designed to make mine permitting
impossible. The Section 111 Sacred Places criteria and the Section 112
suitability criteria strongly influence both the Section 303 and 304
permitting processes and will put many more federal land areas off
limits to mining.
As discussed in Section X of my May 12, 2022 written testimony, the
suitability determination provision in Title I, Section 112 gives the
Secretary a mine veto without any attempt to balance the need for
minerals and other uses of public lands as is currently mandated under
Section 102(a)(12) of the Federal Land Policy and Management Act of
1976, 43 U.S.C. Sec. Sec. 1701 et seq (FLPMA). The laundry list of
``Special Characteristics'' that would make lands unsuitable for mining
under H.R. 7580 will put broad swaths of land off-limits to mineral
development. Widespread site characteristics including the presence of
water resources and aquifers, lands eligible for the National Register
of Historic Places, lands with critical habitat, and the ``adjacent
lands'' buffer zone in Title I, Section 112, will be used to withdraw
large blocks of land from mining. Even more problematic is the vague,
catch-all provision in Section 112(b)(2)(F) that provides discretionary
authority to the Secretary of the Interior and to the Secretary of
Agriculture to designate ``the presence of other resource values as the
Secretary concerned may by rule specify, determined based upon field
testing, evaluation, or credible information that verifies such
values.''
Title 1, Section 112 should be considered in the context of
existing laws that have withdrawn over 400 million acres of land from
mineral entry.\28\ As a starting point, mineral entry on federally
administered lands is only allowed in nineteen (19) states. Vast areas
of federal lands have been withdrawn from mineral entry for National
Parks; National Monuments; Indian reservations; reclamation projects
under the Bureau of Reclamation; Military reservations; scientific
testing areas; wildlife protection areas managed by the U.S. Fish and
Wildlife Service; lands designated by Congress as part of the National
Wilderness Preservation System; lands designated as a wild portion of a
Wild and Scenic River; and lands withdrawn by Congress for study as a
Wild and Scenic River.
---------------------------------------------------------------------------
\28\ John D. Leshy, America's Public Lands--A Look Back and Ahead,
67th Annual Rocky Mountain Mineral Law Institute, July 19, 2021.
---------------------------------------------------------------------------
Another very problematic aspect of the Section 303 and 304
permitting processes is that mineral projects will have to comply with
the new and unrealistic undue degradation standard. As discussed in
Section X of my written testimony for the May 12, 2022 hearing, H.R.
7580 eliminates the undue and unnecessary degradation (UUD)
environmental protection mandate in FLPMA Section 302(b) and replaces
it with ``undue degradation'' (UD) for hardrock mineral projects, which
would prohibit degradation that is necessary in order to mine. Because
mining cannot occur without causing some unavoidable changes to the
land due to excavating pits, storing mine wastes, and building other
facilities, eliminating the concept of necessary impacts from UUD and
changing it to UD makes mining impossible if future BLM regulators have
the discretionary authority to deem unavoidable and therefore necessary
impacts undue. This impossible-to-achieve standard, which could be
applied at any point during the permitting process, is clearly designed
to eliminate future mining on federal lands. Section 301 of H.R. 7580
makes similar changes to the current environmental performance standard
for mineral activities on National Forest System lands.
The Title III environmental standards and permitting processes
creates a complex regulatory review that adds another layer of
bureaucracy designed to make mineral projects more difficult to permit
and develop. Taken together, Sections 111, 112, 303, and 304 will
advance the overarching purpose of H.R. 7580 to discourage and prevent
mineral activities on federal lands.
Question 7. Will this be the first time the Mining Law has been
amended in 150 years?
Answer. Congress has amended the Mining Law many times since it was
enacted in 1872. However, in stark contrast to the wholesale gutting of
Mining Law rights proposed in H.R. 7580, all previously enacted
amendments to the Mining Law carefully preserved claim owners' Mining
Law property rights. Table 1 summarizes some of the laws that have
amended the Mining Law and preserved Mining Law property rights.
Table 1
Amendments to the Mining Law that Change Rights Under the Mining Law
While Still Preserving Mining Law Rights
------------------------------------------------------------------------
Preservation of Mining Law Property
Laws Amending the Mining Law Rights
------------------------------------------------------------------------
1910: 43 U.S.C. Section 142-- bona fide occupants or claimants in
The 1910 Pickett Act, which ``diligent prosecution of work leading
FLPMA repealed in 1976 to'' discovery not to be affected by
withdrawal order ``so long as such
occupant or claimant shall continue
diligent prosecution of said work''
------------------------------------------------------------------------
1920: 30 U.S.C. Sections 181 ``. . . [D]eposits of coal, phosphate,
et seq--The Minerals Leasing sodium, oil, oil shale, and gas, herein
Act, (MLA) Section 37 referred to, in lands valuable for such
Savings Clause minerals . . . shall be subject to
disposition only in the form and manner
provided in this Act, except as to valid
claims existent at date of the passage
of this Act and thereafter maintained in
compliance with the laws under which
initiated, which claims may be perfected
under such laws, including discovery.''
(emphasis added)
------------------------------------------------------------------------
1955: 30 U.S.C. Section 612-- Sec. 612. Unpatented mining claims (a)
The 1955 Surface Use Act Prospecting, mining or processing
operations
``Any mining claim hereafter located
under the mining laws of the United
States shall not be used, prior to
issuance of patent therefor, for any
purposes other than prospecting, mining
or processing operations and uses
reasonably incident thereto.''
(b) Reservations in the United States to
use of the surface and surface resources
Rights under any mining claim hereafter
located under the mining laws of the
United States shall be subject, prior to
issuance of patent therefor, to the
right of the United States to manage and
dispose of the vegetative surface
resources thereof and to manage other
surface resources thereof (except
mineral deposits subject to location
under the mining laws of the United
States). Any such mining claim shall
also be subject, prior to issuance of
patent therefor, to the right of the
United States, its permittees, and
licensees, to use so much of the surface
thereof as may be necessary for such
purposes or for access to adjacent land:
Provided, however, That any use of the
surface of any such mining claim by the
United States, its permittees or
licensees, shall be such as not to
endanger or materially interfere with
prospecting, mining or processing
operations or uses reasonably incident
thereto . . .''
------------------------------------------------------------------------
1955: 30 U.S.C. Section 615-- ``Nothing in this subchapter and sections
The 1955 Surface Use Act 601 and 603 of this title shall be
construed in any manner to limit or
restrict or to authorize the limitation
or restriction of any existing rights of
any claimant under any valid mining
claim heretofore located . . .
------------------------------------------------------------------------
1955: 30 U.S.C. Section 624-- ``[N]othing in this chapter shall be
The 1955 Mining Claims construed to limit or restrict the
Rights Restoration Act rights of the owner or owners of any
applicable to power mining claim who are diligently working
development reservations to make a discovery of valuable minerals
at the time any future withdrawal or
reservation for power development is
made.''
------------------------------------------------------------------------
1976: Federal Land Policy and ``. . . no provision of . . . Section
Management Act, 43 U.S.C. [302(b)] or any other section of this
Section 1701 et seq. (FLPMA) Act shall in any way . . . impair the
rights of any locators or claims under
that Act [the Mining Law of 1872] or,
including, but not limited to, rights of
ingress and egress.''
------------------------------------------------------------------------
1992: Claim Maintenance Fee Unpatented mining claim owners must pay
Department of the Interior an annual rental fee that applies to all
and Related Agencies claims regardless of their life cycle
Appropriations Act of 199329 stage or discovery status.
and subsequent Department of
the Interior appropriations
bills
------------------------------------------------------------------------
As shown in Table 1, there is a well-established legislative
history of Congress enacting changes to the Mining Law. As discussed
below, these amendments range from removing energy minerals from the
Mining law and establishing a new law governing these commodities,
restricting non-mining uses of unpatented claims and mill sites,
establishing a mandatory claim recordation requirement, and charging an
annual claim maintenance fee to keep claims in good standing.
---------------------------------------------------------------------------
\29\ Pub. L. 102-381, 106 Stat. 1374 (1992).
---------------------------------------------------------------------------
Despite these significant changes, Congress has never amended the
Mining Law in ways that would categorically extinguish claim owners'
rights to use and occupy lands open to the Mining Law for mineral
purposes. The provisions in H.R. 7580 to eliminate mining claims and
charge a royalty on existing claims would be the first amendment that
would fail to respect claim owners' Mining law property rights. H.R.
7580 is thus likely to subject the federal government and taxpayers to
Fifth Amendment takings claims.
Some of the more significant amendments to the Mining Law and the
ways in which the changes preserved Mining Law property rights are
discussed below:
A. The Minerals Leasing Act of 1920
One of the most significant changes to the Mining Law occurred in
1920 when Congress enacted the Minerals Leasing Act (MLA), which
removed oil, gas, oil shale, and other non-metalliferous minerals from
the Mining Law and established a leasing and royalty system for future
development of these resources. The MLA's Section 37 savings clause
eliminated Fifth Amendment takings concerns by exempting preexisting
unpatented mining claims from the new leasing and royalty system. The
MLA is the only major amendment to the Mining Law that substantively
changed the claims interest structure for mineral deposits on public
lands into a leasehold process. However, the MLA did not include a
blanket mandatory conversion of then existing claims into leases--in
marked contrast to the mandatory leasing provision in H.R. 7580.
Rather, in 1920, Congress surgically amended the Mining Law to preserve
the Mining Law property rights associated with all properly maintained
claims for oil, gas, oil shale, etc. in existence on the date of
enactment, thereby avoiding protracted litigation and costly
Constitutional ``takings'' claims.
If Congress determines that a future leasing system is appropriate
for hardrock minerals, it should replicate what Congress did in the
1920 MLA and enact a savings clause modeled after the MLA Section 37
savings clause that exempted all existing claims from the new leasing
system and royalty, and grandfathered their status under the Mining Law
in order to preserve the Mining Law property rights associated with
these mining claims. However, as discussed in Section I, the
significant geological differences between oil, gas, coal, and other
bedded sedimentary deposits compared to hardrock minerals makes the
H.R. 7580 leasing system impractical for hardrock minerals. Preserving
the self-initiated claims system is a far superior way to optimize the
likelihood of discovering and developing hardrock minerals.
B. The Federal Land Policy and Management Act of 1976
Section 314 of FLPMA established new claim recordation requirements
that substantially changed the Mining Law by requiring claim owners
with claims located prior to FLPMA's enactment date to record their
mining claims and sites within three years to keep their claims and
sites in good standing. FLPMA's claim recordation requirements and
deadlines conditioned the rights under the Mining Law by creating a new
obligation for claim and mill site owners and a process by which the
federal government could void stale mining claims and determine where
active claims and mill sites were located.
However, the FLPMA claim recordation requirement did not terminate
or in any way diminish the rights of claim owners who complied with the
new Section 314 recordation requirements and deadlines. Unlike the H.R.
7580 mandate to convert mining claims to minerals leases, FLPMA's
Section 314 recordation requirements fully protected claim owners'
property rights to their mining claims and mill and tunnel sites
through compliance with the Section 314 recordation requirements. By
establishing a three-year transition period in FLPMA Section 314, and
applying the recordation requirements to all claims and sites
regardless of whether they covered lands with a valuable mineral
deposit or lands being used for mill site purposes, Congress avoided
costly Constitutional takings claims.
Additionally, the FLPMA Section 314 claim recordation requirement
applied to all mining claims regardless of their discovery status. All
claims had to be recorded whether they were being actively mined or
whether they were located at early exploration-stage projects where
minerals had not been discovered. This stands in marked contrast to the
provision in Section 304 of H.R. 7580 which seeks to limit mining
permits to claims with a discovery of a valuable mineral deposit and
requires a Right of Way for ancillary facilities.
C. The Claim Maintenance Fee
The claim maintenance fee that Congress enacted in 1992 is the most
recent Congressional action affecting the Mining Law. This new fee
recognizes claim owner's rights associated with mining claims and sites
so long as the annual fee is timely paid. Payment of this fee secures
claim owners' rights to use and occupy their mining claims and sites
during the claims fee year, subject to compliance with the applicable
surface management regulations (e.g., the 43 C.F.R. Subpart 3809
regulations for BLM-administered lands and the 36 C.F.R. Part 228
Subpart A regulations for National Forest System lands), and all other
applicable state and federal environmental protection regulations. When
initially enacted in 1992, the annual claim maintenance fee was $100
per claim. The claim maintenance fee amount is indexed to the Consumer
Price Index and adjusted accordingly every five years. The current
claim maintenance fee is $165 per claim.\30\ In FY 2020, BLM collected
over $69.4 million in claim maintenance and other Mining Law holding
fees.\31\
---------------------------------------------------------------------------
\30\ https://www.blm.gov/programs/energy-and-minerals/mining-and-
minerals/locatable-minerals/mining-claims/fees.
\31\ https://www.blm.gov/sites/blm.gov/files/docs/2021-08/
PublicLandStatistics2020.pdf, Table 3-32, Page 158.
The claim maintenance fee requirement applies to all claims
regardless of their discovery status. The fee must be paid for claims
with a minerals discovery that is being actively mined as well as to
claims where exploration has not yet successfully discovered a mineral
---------------------------------------------------------------------------
deposit, and even to claims where exploration work has not yet started.
D. Environmental Protection Statutes
BLM's 43 CFR Part 3809 surface management regulations for locatable
minerals and the Forest Services' 36 CFR Subpart 228A surface
management regulations require compliance with all applicable federal
environmental laws and regulations. Therefore, numerous federal
environmental laws functionally amend the Mining Law. Project
proponents must demonstrate their proposed mineral exploration and
mining projects comply with the Clean Air Act, the Clean Water Act, the
Endangered Species Act, and the many other federal environmental laws
listed in Table 2. Thus, as a practical matter, the environmental
performance standards and permit limits enforced under these
environmental protection laws condition claim owners' rights under the
Mining Law to use and occupy public lands for mineral purposes. State
laws also govern mining operations and, to the extent that a given
state requirement is more stringent than a federal counter-part
requirement, the mining operation must meet the more restrictive state
law.
Table 2
Chronology of Enactment of Federal Environmental Protection Laws
------------------------------------------------------------------------
Decade Enacted Partial List of Federal Environmental Laws
------------------------------------------------------------------------
1960s National Historic Preservation Act
Air Quality Act
National Environmental Policy Act Wilderness
Act
Solid Waste Disposal Act
------------------------------------------------------------------------
1970s Federal Water Pollution Control Act Amendments
Clean Air Act
Clean Water Act
Endangered Species Act
Marine Protection, Research and Sanctuaries
Act
Federal Land Management and Policy Act
Uranium Mill Tailings Radiation Control Act
Safe Drinking Water Act
Resource Conservation and Recovery Act
Toxic Substances Control Act
Magnuson-Stevens Fishery Conservation and
Management Act
------------------------------------------------------------------------
1980s Safe Drinking Water Act Amendments of 1986
Comprehensive Environmental Response,
Compensation, and Liability Act
Superfund Amendments and Reauthorization Act
Archaeological Resources Protection Act
Emergency Planning and Community Right to Know
Act
Water Quality Act Amendments to the Clean
Water Act
------------------------------------------------------------------------
1990s Oil Pollution Act
Hazardous Waste and Solid Waste Amendments Act
Clean Air Act Amendments
Safe Drinking Water Act Amendments of 1996
------------------------------------------------------------------------
2000s Small Business Liability Relief and
Brownfields Revitalization Act
------------------------------------------------------------------------
Additionally, if Congress or states enact new environmental
protection statutes or regulations in the future, the mandates in BLM's
43 CFR Part 3809 regulations and in the Forest Service's 36 CFR Subpart
228A regulations will be automatically updated to include any new
requirements. Thus, the agencies' 3809 and 228A surface management
regulations governing hardrock minerals are ``living regulations'' that
are designed to evolve with time to incorporate any new environmental
protection compliance requirements.
Conclusions
Despite its title, ``The Clean Energy Minerals Reform Act,'' H.R.
7580 will not promote the development of domestic clean energy minerals
to support the Biden Administration's goals to reduce carbon emissions,
phase out fossil fuels, and shift to carbon-free energy systems.
Although there would never be a right time to enact the draconian
measures in H.R. 7580, this is an especially bad time to make radical
changes to the Mining Law that will make mining clean energy minerals
more difficult--if not impossible--and is diametrically at odds with
the Administration's clean energy policies and objectives.
At best, H.R. 7580 reflects a profound lack of understanding of the
laws and regulations governing modern mines which require mines to be
built and operated with numerous environmental safeguards and
substantial financial assurance, making U.S. mines the cleanest and
safest in the world. To address this lack of understanding, the Women's
Mining Coalition would like to offer to arrange mine tours and/or
webinars for members of the Subcommittee and staff to showcase the
environmental protection measures and technology at modern mining
operations, the significant career opportunities for women at all
levels in the mining industry, and the important role that mining plays
in the economic and social wellbeing of the communities where mines are
located. Because ``seeing is believing'' the suggested mine tours could
play an important role in enhancing the tenor of future legislative
dialogues about the Mining Law of 1872.
In 1993, the Women's Mining Coalition started working with the
103rd Congress on proposed legislation to amend the Mining Law. Many
aspects of the Mining Law debate have not changed much in the past
thirty years. Just as we have since then, the Women's Mining Coalition
stands ready to work with the 117th Congress on this issue of national
importance. We truly appreciate the opportunity to testify at the May
12, 2022 hearing and to respond to the Questions for the Record
discussed above.
******
The following documents were submitted as supplements to Ms.
Struhsacker's responses to questions submitted for the record. These
documents are part of the hearing record and are being retained in the
Committee's official files. The Supplemental Exhibits, along with the
responses above, are available for viewing at:
https://docs.house.gov/meetings/II/II06/20220512/114700/HHRG-117-II06-
20220512-QFR025.pdf
LIST OF EXHIBITS
Exhibit I--October 2021 Testimony of Mr. Rich Haddock, Senate
Energy and Natural Resources Committee
Exhibit II--July 2021 Questions for the Record for the July 27,
2021 House Energy & Mineral Resources Subcommittee Hearing on ``The
Toxic Legacy of the Mining Law of 1872''
______
Mr. Grijalva. Thank you very much.
On that note, let me remind the witnesses that we are going
to now begin the questioning process. Let me now turn and
recognize the Ranking Member of the Full Committee, Mr.
Westerman, for 5 minutes.
Sir.
Mr. Westerman. Thank you, Mr. Chairman, and thank you to
the witnesses. And Mr. Chairman, I apologize for not being here
at the start of the meeting. I was testifying in another
hearing.
Mr. Grijalva. Well, I just want to tell you that your
designee has done a magnificent job----
Mr. Westerman. I am sure she has done a much better job
than----
Mr. Grijalva [continuing]. And I am going to miss her,
Westerman, when she leaves.
[Laughter.]
Mr. Westerman. I would like to submit my opening statement
for the record.
Mr. Grijalva. So ordered.
[The prepared statement of Mr. Westerman follows:]
Prepared Statement of the Hon. Bruce Westerman, a Representative in
Congress from the State of Arkansas
Thank you, Mr. Chairman, and thank you to the witnesses for being
here today.
Today, we will consider H.R. 7580 to supposedly ``reform'' the
Mining Law of 1872. Before I get to that, however, the administration
made announcement yesterday that I must address--DOI is canceling the
remaining lease sales in the 5-year offshore leasing plan, Lease Sales
258, 259, and 261.
I cannot express how terrible this decision is for the country, not
to mention tone deaf, in light of gas prices hitting new record highs
this week at $4.40 a gallon. This is yet another example of the Biden
administration claiming to do all it can to relieve energy prices and
other rising costs for Americans, but taking actions that will have the
exact opposite effect.
We have seen this flawed, contradictory approach in the
administration's mining policy as well. What we should be discussing
today the true minerals problem--the alarming global shortage of
hardrock resources needed for our future. We know that demand for
renewable energy, electric vehicles, battery storage, and other
technologies will soon surpass the known supply of the minerals to
build them.
So I am bewildered and disappointed when the Department of the
Interior and many of my colleagues on the other side of the aisle take
actions and support bills--like the bill we are discussing today--to
kill some of the most promising mining projects in North America.
First, let's talk about ``fair return'' for the taxpayer, as my
colleagues across the aisle say. There will be no return to the
taxpayer if harmful bills like this are made law, and mining in the
U.S. becomes too difficult and uneconomic to occur. Further, the idea
that federal lands are somehow ``given away'' to operators is a myth.
In addition to location fees and annual claim maintenance fees paid to
maintain mineral rights, mining generates billions of dollars in
federal, state, and local tax revenue and provides thousands of high-
paying jobs throughout the West.
I have also heard comments about the mining industry not being
regulated enough. The Mining Law itself is essentially a land tenure
law, with an extensive network of environmental protection statutes and
financial assurance requirements laid over it. Outside of the Mining
Law, hardrock operations are subject to approximately three dozen
environmental laws and regulations including NEPA, the Endangered
Species Act, the Clean Water Act, the Clean Air Act, and the National
Historic Preservation Act. The additional requirements in this bill
would add no additional benefit to what already exists.
However, I am aware of the abandoned mine sites from operations
before modern regulation. This is a significant problem that needs to
be addressed. That said, if the true goal is remediation of these
abandoned sites, assessing a high gross royalty and additional fees on
current operators is not an effective way to do so. Instead, operators
would likely move onto non-federal lands or even overseas, leaving the
abandoned mine problem unsolved.
I believe my colleagues on both sides of the aisle and even the
administration seem to share the same goal--responsibly acquiring the
minerals our country needs. However, if we enact legislation or
administrative policy that make mineral development too challenging or
uncertain, the inevitable result is a total reliance on China and other
nations to meet skyrocketing demand. I don't think that future is what
anyone here wants. It is vital to keep that in mind as we consider H.R.
7580 today.
Thank you and I yield back.
______
Mr. Westerman. Thank you.
I find it ironic that we are having a hearing on Mining Act
reform. I do believe we all agree on one thing: there is a
shortage of elements and metals and minerals, rare earths, in
the United States. And we are dealing with a Majority who has
already voted to take our best uranium deposits out of possible
development that, in their failed Build Back Better plan,
actually wanted to close down a copper mine that could produce
20 percent of the United States' demands for copper for the
next 50 years. Also, we have an administration that has pulled
the lease on the Twin Metals Project. So, this is something we
definitely need to talk about, but I think we need to be
talking about it in different terms.
And GAO has issued a report saying that the average
permitting timeline takes about 2 years, but in reality we have
observed that it often takes much longer. In fact, I have a
chart right here that shows the process for approving new
mining projects in the United States.
While they are unrolling that--and it might take a while--
Ms. Struhsacker, how long does the average hardrock mine take
to become active in the United States, from exploration to
production? And why does it take so long?
Ms. Struhsacker. Thank you, Ranking Member Westerman. From
first discovery to developing a mine, it can take as long as 20
years. And the reason for that is twofold.
One, hardrock minerals are very difficult to find, so it
takes a while to explore for them, which is one of the reasons
a lease will not work for us, because they are time limited. We
need to be able to be on the ground for as long as it takes to
explore for the minerals, discover them, and then put them into
production. And other countries can do it in 2 to 3 years,
using the same safeguards as we do here, and there is really no
reason it needs to take that long. The NEPA process is the
primary reason it takes so long, but that is not the source of
our environmental protections. Our environmental protections
come from the laws that apply to mines like other industries:
the Clean Water Act, Clean Air Act, Endangered Species Act, and
others.
Mr. Westerman. This looks like something you would see on a
comedy skit. But, unfortunately, it is the sad reality of what
it takes to permit a mine in Nevada.
How would this bill affect the timeline going forward for
mining projects? Would this get more simple, or would it get
more complicated?
Ms. Struhsacker. I am afraid it would get much more
complicated, and it wouldn't add any other increment of
environmental protection. I mean, we already have comprehensive
environmental protection. The EPA found that in a very
intensive rulemaking in the 2016-2018 time frame.
Mr. Westerman. So, we would have a lot of squeeze and not
much juice out of this new law.
I have to move on. I wish we could talk more about that.
Mr. Chen, you mentioned building electric batteries in the
United States, which is a great thing. We need to do more of
that. Where are 80 percent of the world's batteries built
today?
Mr. Chen. Well, we source our cells from Asia, where most
of the battery cells are produced today.
Mr. Westerman. China. When you say Asia----
Mr. Chen. China, Korea, Japan.
Mr. Westerman. Right. So, when you build this battery
plant, where are you going to get the lithium, the metals, the
rare earths that are needed to build the batteries? Where will
they come from?
Mr. Chen. Well, that is why we are here today, to talk
about where we can create additional source. We are currently
looking, frankly, literally, around the world, and working with
various suppliers and mineral resource extractors.
Mr. Westerman. Would it surprise you to know that USGS says
that we have all of the elements and minerals that we need
right here in the United States?
Mr. Chen. No, it would not. In fact, we are speaking to
quite a few U.S. companies about resources in the United
States. As an example, we are aware of, for example, lithium
deposits both in the Southwest, as well as in North Carolina,
and are in talks with certain companies about access to those
sources.
Mr. Westerman. We have huge lithium deposits in my district
in South Arkansas, but there is also the hurdle of building a
lithium refinery and processing it in the United States. How
long do you think that would take? What are you projecting?
Mr. Chen. That is a good question. We, as a car
manufacturing company, do not get into the processing, but we
are talking to suppliers about that.
Mr. Westerman. It definitely affects your supply chain.
I wish we had more time. I am out, and I yield back.
Mr. Grijalva. Thank you, sir. The gentleman yields. I
recognize Representative Dingell for 5 minutes.
Representative, you are recognized.
Mrs. Dingell. Thank you, Mr. Chairman and to the Ranking
Member for convening today's hearing, again, and to the panel,
to these witnesses for their patience.
As you know, this issue really does matter. Domestic supply
and production of critical minerals are fundamental to the
automotive industry, the economic engine of my home state of
Michigan. Electric vehicles, which are the future of the
automotive industry, and it is where we are headed, are going
to require substantially more minerals than a gas-powered car.
And that is why addressing the critical minerals supply is
fundamental to the clean energy economy, as well as the
economic future of working Americans, not only in my district,
but across the country.
So, Mr. Chen, we know that EVs are vital for achieving our
climate goals, and we support a rapid deployment of them, but
we want to make sure they are built responsibly. Can you tell
us what Rivian is doing to lower the overall mineral demand for
each of their trucks?
And is Rivian engaged in any efforts for battery and
mineral recycling?
Mr. Chen. Thank you for that question, Representative. Yes,
Rivian is involved heavily in looking at the entire supply
chain of electric vehicle batteries and the cells that we use
in our products.
To respond directly to your question, we are looking not
only at domestic supply from the get-go, we are also looking at
recycling options. We have designed our batteries, for example,
to be second-use batteries, or second-life batteries, right
from the vehicle without any further modification. If you look
at an electric vehicle battery, you have a useful life of 10-
plus years. Once that battery capacity falls below roughly 70
percent, there is still adequate storage. And we are able to
take those and actually put those into stationary storage
applications for yet another decade. After that, we are looking
at recycling and recapturing them.
Unlike our rivals in the internal combustion engine side,
the batteries, precious metals aren't actually consumed during
the use of that battery, during the recharge and charge cycles.
We are actually able to extract those minerals, recycle them,
and put them into new batteries for repurposing.
Mrs. Dingell. Let me ask you this, then, in addition. What
signals are you getting from shareholders about sourcing for
critical minerals for your vehicles?
Mr. Chen. More and more shareholders are recognizing the
importance of supply chain and responsible supply chain. That
is why we are here today to work with Congress, with this
Committee to look at ways of structuring laws in the United
States to help bring on domestic manufacturing, domestic supply
chains, and responsible production overall.
Mrs. Dingell. Mr. Chen, is Rivian a member of the Zero
Emission Transportation Association?
And what is the industry outlook for supporting more
responsible domestic mining?
Mr. Chen. Yes, we are absolutely members of ZETA, and we
are, as an industry, heading in the direction for more and more
responsible production and manufacture. We signed on to the
Global Climate Initiative, where we are working toward reaching
zero emissions by, I believe it is, 2035. We continue to look
at our supply chain and our own practices to reduce our carbon
footprint and the use of our materials as much as possible.
One initiative we are particularly proud of is our Ocean
Plastics Initiative, where we have diverted plastics going into
the waste stream and have actually made them into durable totes
and supply containers that are used in our factory for
production. We have taken additional plastics, recycled them,
and actually made them into panels for a number of our
vehicles.
Mrs. Dingell. Thank you for your testimony today.
I am going to yield back in a minute, Mr. Chairman, but I
want to make this point to all of my colleagues, that I look
forward to continuing to work with my colleagues on the issue
of domestic production of critical minerals in a way that we
can bring everybody together: the manufacturers, the
environmentalists, the unions, the workers together. It is
vital for America's economic competitiveness, our national
security, and our environmental future.
So, I think this hearing is one of the more important ones
we are doing right now. Thank you, Mr. Chairman. I yield back.
Mr. Grijalva. The lady yields. Let me recognize Mr.
Fulcher.
Sir, you are recognized for 5 minutes.
Mr. Fulcher. Thank you, Mr. Chairman. A question for Ms.
Struhsacker, please.
Ms. Struhsacker, the Stibnite Project you may be familiar
with, that happens to be in my home state of Idaho, and that
represents the largest reserve of antimony outside of Russia or
China. And that mine is actually in a position to where it
could move quite quickly if it had the permissions to do so.
This is a critical mineral, as you know. This is used in a
broad base of applications: next generation utility-scale
batteries, important military applications, munitions,
infrared, semiconductors, wind turbines, all kinds of things.
If this bill were enacted, can you tell me what kind of impacts
you would foresee for that project and others like it?
Ms. Struhsacker. Thank you, Mr. Fulcher. I can't emphasize
enough the importance of the Stibnite gold and antimony project
as an important source of critical minerals.
If this bill were enacted, I am not sure that the project
proponent, Perpetua Resources, would be able to justify the
investment they are proposing to make of $1 billion to clean up
that site, because they would have no security of tenure under
the leasing system that is proposed in H.R. 7580.
Mr. Fulcher. Just as an FYI, my office was contacted, I
believe, just yesterday, and there is interest through Defense
Logistics Agency, DOD, and others specifically concerned about
the stockpile of antimony. So, this is an interesting
situation, where we have one component of the Federal
Government that is raising concerns and trying to put some
urgency into the situation and another that is looking to
potentially extend a timeline so that it can't be engaged.
But as you alluded to, there is some cleanup that comes
with this project, and this would be done by private industry.
I find it interesting that this was actually caused, if you
will, by a World War II demand by the Federal Government, which
led to the situation that they have right now. But here we have
a private company looking to basically clean this up as a
function of that. It looks like a win-win to me. Do you see it
that way?
Ms. Struhsacker. Absolutely, Congressman. It is a win-win
for American taxpayers that we have a company that is proposing
to invest $1 billion of private-sector money to cleaning up
what was an environmental problem that was created during World
War II, when the Japanese blockaded the antimony source the
country was using in China. So, we kind of see history
repeating itself with Russia and Europe right now.
It is an extremely important project that demonstrates that
reprocessing and remining of historic mine sites can be an
important source of critical minerals, and that private-sector
involvement in those sites can be a very effective way to clean
up what was an abandoned mine. And we are very fortunate that
Perpetua Resources is proposing to make that investment.
Mr. Fulcher. We are almost out of time, but are you
familiar with any other examples where there has been a similar
situation, where private industry has moved in and operators
take on an environmental clean-up project?
Ms. Struhsacker. Modern mining is absolutely the best way
to address historic problems at old, pre-regulation mining
sites. Unfortunately, the liability issues associated with
doing that chills people's ability to do that. So, we could
enhance reclamation of these AML sites by enacting some Good
Samaritan legislation.
Mr. Fulcher. Thank you, Ms. Struhsacker.
Mr. Chairman, I yield back.
Mr. Grijalva. Thank you very much, and the gentleman
yields. Let me now recognize the Chair of the Oversight
Subcommittee.
Representative Porter, you are recognized.
Ms. Porter. Thank you very much, Mr. Chair.
Mr. Kalen, the Forest Service has repeatedly said that they
can't say no to mining projects. What do you mean by that? What
do they mean by that?
Mr. Kalen. Well, what they mean is that when you get a
mining claim right now under the law, that is a possessory
right. It is a property right. So, in order for the Forest
Service to be able to say no, the argument from industry has
always been that that would effectively take a property right
away from the industry.
There are a lot of questions and legal issues about whether
the Forest Service might have the authority to say no. But I
think that is why there is need for reform, in order to be able
to clarify what that authority really is.
Ms. Porter. Does the mining law establish hardrock mining
as the highest and best use of the land?
Mr. Kalen. What it does is--historically, it has been
perceived by agency officials dating back to the early 1900s as
effectively evincing the highest and best use of the lands. So,
while there is nothing specific in the law that says that,
because of the way the operation of the law works, that is the
way it has been treated historically. So, yes.
Ms. Porter. Well, I think what we see from that is, when we
have competing permits on public land, what we see the agency
doing is something like this.
Like, say they have Project A, which is mining minerals on
U.S. land to sell to competitor countries. And that has a
pretty significant environmental harm, even if it is properly
cleaned up. It is a big change to the environment. And Project
B is solar panels on that same public land that would power a
neighboring city. And, of course, there is still disruption to
the land, there might still be environmental impacts.
But let's say they decide that the environmental harm is--
under current Forest Service policy, the Bureau of Land
Management, they tell us, the Forest Service, that they
basically have to pick Project A. They have to pick the mining
project, because they cite back to that highest and best use of
the land.
So, we all think that we need to be doing more to develop
appropriately as much U.S. mineral capacity as we can. But at
the project-by-project level, we are just not seeing
thoughtful, best-use decisions on each and every parcel.
Sometimes the best use may be hardrock mining, and sometimes it
may be a different project. But the way the law is currently
set up doesn't get us to that, because of this 150-year-old law
and the interpretations of that over time.
I want to turn to Mr. Chen. Thank you very much for being
here. Rivian is headquartered, as you know, in my home district
of Irvine, and I am grateful to your colleagues for showing me
around. I wanted to ask you. What would reforming the Mining
Law of 1872 do to improve Rivian's supply chain and their
ability to create jobs here in the United States?
Mr. Chen. Yes, I think reforming the Mining Law of 1872
would do a lot to help increase domestic supply of critical
minerals.
Our CEO was recently quoted in The Wall Street Journal as
mentioning that there is an upcoming supply shortage of cells,
and that supply shortage traces back to those critical
minerals. By reforming the mining laws of the United States, to
take into account not only increased production but responsible
increased production, we have an opportunity to lead the world
in not only increasing our supply, but showing that this can be
done in a responsible way.
Ms. Porter. Thank you very much. Do you currently face
supply chain issues relating to having to import minerals?
Mr. Chen. Well, like the rest of the industry and the
current economic factors, we do face challenges. We do
believe--and again, our CEO was quoted recently, I think, as
soon as yesterday in The Wall Street Journal--that we do see
ourselves climbing our way out of the supply chain constraints.
That all said, the way to make sure that this is a long-
term solution and not just a temporary one is to increase
access to domestic mineral supplies.
Ms. Porter. I love that answer about looking for long-term
solutions, because I think too often Congress does not. We are
trying to solve yesterday's problem tomorrow. This was a
problem that has been a long time in coming, as we have seen
electric vehicle production and battery production ramp up. And
it is time to act today to reform the mineral law so that we
set ourselves up on a good path for the right kind of law that
can facilitate our ability, as the United States, to
manufacture electric vehicles here in the United States.
I know you are opening a new plant here, so I am really,
really excited about being able to advance this law in a way
that both protects the environment and encourages our business
community.
Thank you so much, Mr. Chair. I yield back.
Mr. Grijalva. The gentlelady yields. Let me recognize Mr.
Carl.
Sir, you are recognized.
Mr. Carl. Thank you, Mr. Chair.
Ms. Stewsacker--did I pronounce that--did I get close?
Ms. Struhsacker. Close.
Mr. Carl. OK, I am sorry. How would you characterize the
environmental protection in the United States, compared to
other major producers of critical minerals in the world such as
China?
Ms. Struhsacker. Congressman Carl, we have the cleanest and
safest mines in the world, and it is important that we
responsibly source the minerals that we need for the clean
energy transition from environmentally responsible sources, and
that is right here in the USA. Places like China and Russia,
where there are very little environmental protections in place,
there is slave labor used in some places.
So, our laws not only for protecting the environment, but
also worker health and safety, are absolutely the world's best
example. Other countries come to us when asking, ``How do we
protect the environment at our mines?''
Mr. Carl. Thank you. I got to go through the Iron Range in
Minnesota, and I was just so impressed with what I saw out
there. And, of course, we have the copper mining out there shut
down, which that copper is now coming from China. So, I
understand, we are kind of at a stalemate.
A second question: What would be the impact of imposing an
8 percent gross royalty on the existing mines?
And how would this impact the domestic industry and the
needs for these materials like electric car companies?
Ms. Struhsacker. Oh, it would have a devastating impact if
you were to impose a royalty on currently operating mines. And,
in fact, we believe that that would probably expose the Federal
Government to takings.
Putting a royalty like that on an existing operation, where
there are many, many years of investment-backed expectations
that have gone into the financial analysis of the economics of
that mine would be totally disrupted by an 8 percent
retroactive royalty, and it would probably make many of those
mines uneconomic to continue to operate.
So, the outlook would be that mines would shut down, jobs
would be lost, we would lose production of important, critical
minerals, and we would become even more dependent.
Mr. Carl. Thank you, I appreciate that.
Mr. Chen, real quick, what recommendations have you and
others in your industry made to the Administration to change
our policy to ensure that we can acquire minerals that you need
here in the United States?
What changes or recommendations have you made?
Mr. Chen. Our recommendations are certainly to update the
mining laws to catalyze new investment in responsibly sourced
domestic mineral supply, as well as shoring up existing allies
and trading partners to create new ones, like in Eastern Europe
and the Pacific Rim.
So, our recommendation to the government has been an all-
of-the-above approach, not only on the domestic side, but also
with certain trading partners. We have also made
recommendations outside the area of mining, as well, on
workforce development and consumer-facing policies, as well.
Mr. Carl. So, with that said, what do you see as the
biggest challenge to building a domestic minerals supply chain?
Mr. Chen. I think currently there are several. One of those
is availability. One of those is building not only the access
to the critical minerals themselves, but the processing that
goes along with all of that, as well. You don't just take
lithium or cobalt or nickel and just throw them into batteries.
There is an entire value chain that must be built up, an entire
industry that must be built up to take advantage of that.
The challenge for us is not only the supply itself, but
being able to have all the supporting infrastructure to get to
that result. So, this is a long-term solution that starts with
the minerals and starts with the access.
Mr. Carl. How far do you all project your business?
I mean, do you move from year to year, or are you looking 5
years out?
Mr. Chen. We look not only year to year, 5 years out, 10
years out, we are looking 30 years out, as well.
Mr. Carl. Thank you. That is the point I am trying to make
here. We have to start planning much further out than the next
election. And that is the problem we are having here in
Congress.
With that, Mr. Chairman, I turn it back to you. Thank you,
sir.
Mr. Grijalva. Thank you, sir. Let me now recognize Mr.
Moore.
Sir, you are recognized.
Mr. Moore. Thank you, Chair.
Yes, I think that we would all agree that we get stuck in
these 2-year election cycles for those in the House of
Representatives. And our CEOs, our industry, and our private
sector folks, you have to be thinking 30 years out. And we just
make it virtually impossible for you to predict what
environment it is going to be.
I am firmly committed--particularly Utah 1, my district,
has one of the most dynamic, diverse workforces in the country,
with different areas with mining and energy, but also tourism
and conservation. We have to be more thoughtful about this.
Ms. Struhsacker, along those lines, I believe we all are,
regardless of party, concerned about maintaining a healthy,
safe environment. We are aware of abandoned hardrock mines from
pre-regulation times. What protections are in place to ensure
that today's mines won't become tomorrow's environmental
problem? Can you give me any thoughts on that?
[No response.]
Mr. Moore. Ms. Struhsacker?
[Audio malfunction.]
Mr. Moore. OK. Ms. Struhsacker, can you hear me?
We were having technical difficulties, I apologize. Let me
just quickly ask a question--we are all concerned about a
healthy, safe environment. What protections are in place to
ensure that today's mines won't become tomorrow's environmental
problem?
Ms. Struhsacker. Thank you. We have a whole host of Federal
and State environmental laws and regulations that guarantee
that today's mines are developed in a responsible manner that
protects the environment. And the EPA took a very close look at
this in 2018 and concluded that this regulatory framework
provides comprehensive environmental protection, and also
financial assurance.
For example, in Nevada, where I live, the State and Federal
agencies have $3.4 billion in reclamation bond monies to
guarantee today's mines will be responsibly reclaimed.
Mr. Moore. Would you say that that review that was done in
2018 and what has been established is sufficient, with a
forward-leaning outlook, so we are not just thinking about this
year or next year, we are forward leaning?
And would any additional environmental protection
provisions in this bill add any benefit?
Ms. Struhsacker. Thank you. The bill would add no
incremental benefit in terms of protecting the environment.
And the way our environmental laws and regulations are set
up for mining, they are already forward-looking because, in
order to get a permit from the BLM or Forest Service, you have
to demonstrate that the mine will comply with existing Federal
and State regulatory requirements. So, it is a living
regulation, if you want to look at it that way.
So, if there is an update to an air quality standard, or a
water quality standard, or a new law that is put on the books,
it is automatically included in part of the compliance
requirements under the BLM's and the Forest Service's current
regulations.
Mr. Moore. So, it allows for it to be dynamic in nature,
where you can continually update as we go. That is a point I
wasn't fully aware of, either. So, that is good, that is great
to hear.
We all agree that reclaiming abandoned mines is extremely
important. What are some proposals to pay for it that won't
necessarily discourage mining investments on Federal lands?
Ms. Struhsacker. Well, I think one of the best things you
could do--and you could do it without changing the law--is to,
through the appropriations process, designate that the mining
claims fees that are in excess of what is required to
administer the mining law program be earmarked for abandoned
mine reclamation. Right now, those excess fees--and they are on
the order of about $30 million a year--just vanish into the
ether of the general treasury. If they were earmarked for
abandoned mine reclamation, we could start building an AML
reclamation fund right now.
Mr. Moore. Are you familiar with the so-called Good
Samaritan legislation that allows third parties to get involved
in mine cleanup? And do you think industry is supportive of
this idea?
Ms. Struhsacker. Yes. Since I have been working on this
issue for the last 30 years, industry has been very supportive
of a Good Samaritan law. And, yes, that is an important step
forward in reclaiming more abandoned mines.
Mr. Moore. I have seen from the Utah Mining Association
groups that have been heavily involved in making sure that they
leave the area better than they found it, I think they are
always engaged in these types of good ideas that are productive
solutions.
Thank you so much, and I yield back.
Mr. Grijalva. The gentleman yields. Now we recognize Mr.
Tiffany.
Sir, you are recognized.
[Pause.]
Mr. Grijalva. He can't hear? We are having a technical
issue. I apologize to the witnesses, but we are going to recess
to fix the issue.
[Recess.]
Mr. Grijalva. Let me reconvene the meeting, and I
appreciate the time from the witnesses. I had to go take care
of this myself. I got into the fuse box, and I believe it is
now functional.
[Laughter.]
Mr. Grijalva. Let me now recognize Mr. Tiffany for 5
minutes.
Sir, you are recognized.
Mr. Tiffany. Well, thank you, Mr. Chairman. I appreciate it
very much. And I am glad you had the fuses to get it done.
I would like to ask a question of Mr. Chen. Do you believe
energy and mineral independence is important for America?
Mr. Chen. Thank you for that question. Energy and mineral
independence is not simply important, it is vital to the
survival and leadership displayed by this country.
Mr. Tiffany. Do you think it is ethical for us to be
getting some of our, especially our mineral resources from
countries that do not share our standards, as far as work
standards, environmental standards, when we have those minerals
right here in our country?
Mr. Chen. That is a great question. And it is not. And it
is, in fact, why Rivian has a robust supplier code of conduct
and policies in place to ensure that wherever our suppliers are
worldwide that we are ensuring that they adhere to the highest
standards that we hold ourselves to.
Obviously, having a domestic supply chain and domestic
suppliers would make enforcing those that much easier, and why
it is so critical that we look at and reform our current mining
laws.
Mr. Tiffany. That America look at and reform its mining
laws?
Mr. Chen. Yes, that the United States look at reforming and
modernizing our laws to ensure that we are taking into account
all the factors that I mentioned during my opening remarks
about ensuring critical mineral supplies, but also ensuring
protection of our bedrock environmental laws, protecting our
sacred spaces, and ensuring that we are consulting with local
and rural communities and the tribes.
Mr. Tiffany. Do you source any of your materials from
China?
Mr. Chen. Yes, we do. I don't have the specific figures,
but some of our components and resources do come from suppliers
in China.
Mr. Tiffany. Can you assure us today on this panel that
none of your products----
[Audio malfunction.]
Mr. Chen. I am sorry, Congressman, you broke up during the
feed. I didn't hear the entire question.
Mr. Tiffany. Can you assure those of us on the panel that
none of your products, your sourcing, are coming from slave
labor in China?
Mr. Chen. We actually do have a robust anti-slave labor
policy that we push out to all of our suppliers. And we have
mechanisms in place to audit them to ensure that this is not
the case.
Mr. Tiffany. Do you think the NEPA process should be
streamlined to protect environmental standards, but to end this
process of taking 10, 20 years to get permits completed that
companies are doing in a responsible manner?
Mr. Chen. We agree that the use of the NEPA process is
important, but certainly that there are ways we should and
could improve and streamline that process without compromising
environmental protections or other issues that are important to
the United States.
Mr. Tiffany. Thank you for your answers.
We are really receiving conflicting messages from the Biden
administration here in rural America. I just got a note
yesterday. While President Biden is talking about let's do some
subsidies for fertilizer, things like that in agriculture, and
encouraging agricultural production because we are seeing food
shortages at this point, in the meantime they are advancing the
CRP program, which takes agricultural land out of production.
Very conflicting.
We are seeing the same thing with mining, where we see
these conflicting messages. And the unfortunate part is those
that seek to curtail production seem to be winning. Ms.
Struhsacker, is this accurate, that it appears those that are
opposed to natural resources utilization actually have the
upper hand in the current administration?
Ms. Struhsacker. Mr. Tiffany, unfortunately, I believe that
is the case. I mean, I think you look at H.R. 7580, it is
designed to curtail mining on Federal land. So, there is a real
mixed message here about the need for domestic minerals and
strengthening our supply chains, and yet an initiative like
this that is absolutely counter-opposed to that.
I would also like to say that the interagency working group
that Dr. Feldgus described in the first panel is a very
important opportunity for numerous stakeholders to come
together to see if there are some things that we could fine-
tune in the current process. But H.R. 7580 is not the answer.
Mr. Tiffany. Thank you for your answer.
What we are seeing is American weakness. And the problems
that we have here in America, whether it is inflation, the
border crisis that is going on, crime at record levels in
cities across America, all these things, energy and mineral
independence, they are all real easy to fix. It is unfortunate
that committees like this are not advancing proposals, as cited
by Ms. Struhsacker just in the last minute here, that we don't
have things that could actually turn this around.
All I can say is, to Americans out there, the solutions are
simple, but the current Congress leadership is not bringing
those solutions to us Americans.
I yield back, Mr. Chairman.
Mr. Grijalva. The gentleman yields.
Ms. Herrell, you are recognized for 5 minutes.
Ms. Herrell. Thank you, Mr. Chairman. And I am so thankful
for your technical skills. But next time thermostat skills. It
is getting cold in here.
Mr. Grijalva. I know, it was an offset. When I moved the
one--never mind.
[Laughter.]
Ms. Herrell. Thank you. Anyway, I do want to say one thing
about my colleague from California who had the chart up
earlier. The Chart A, mining; Chart B, solar--but there was
concern about Chart A getting the priority. But the clear and
concise answer needs to be--and I think we all get this--you
cannot have B without A. You cannot have solar, you cannot have
these green projects without critical minerals. And I just want
to make sure we are very clear on that.
But with that, I do have a question for Ms. Struhsacker.
Federal oil, gas, and coal all operate in the United States
with a 12.5 percent royalty. Why shouldn't hardrock mining have
the same rate? What would that look like?
Ms. Struhsacker. Thank you very much for that question. You
can't just cookie cutter a royalty system that was designed for
oil and gas and superimpose it upon a completely different
industry, which is hardrock mining.
I have--and I was hoping to be able to pass this around
during the hearing--this is a picture of high-grade gold and
silver ore from a mine in Nevada. There is no valuation for
this rock. In order for the products, the gold and silver, to
be liberated from this rock, we have to grind it. We have to
crush it. We have to leach it. We have to do many things. And
that has to be part of the consideration in a structure for a
royalty.
In contrast, there is a market for crude oil. Basically, as
it comes right out of the ground, you can find it in The Wall
Street Journal, a per-barrel price per day. There is no price
or valuation for this crude ore. That is why you can't simply
use what is in place for oil and gas and put it on to a
completely different industry.
Ms. Herrell. Right. So, what kind of return to the taxpayer
should we expect if a high royalty rate were suddenly put on
the operators?
Ms. Struhsacker. I think what you would find is most mines,
or many mines, would become uneconomic. So, you would have a
royalty of zero from a mine that can't be in production because
the royalty is too high to make it profitable. So, you would
lose jobs, so you lose tax revenue, and certainly we would lose
mineral production, making us even more reliant on foreign
sources for minerals.
Ms. Herrell. All right, thank you. And I wanted to follow
up with Mr. Chen on a question that he just answered for
Congressman Tiffany as it relates to child slave labor. I know
that if Pete Stauber were sitting here today, that would
absolutely be a question he would ask.
And you mentioned that you have policies in place or an
audit process in place. Who actually can perform those audits,
especially in countries like China? How do you have the
capability to perform those audits, to have that access, if you
will, to their mines?
Mr. Chen. Well, we actually work with our first-tier
suppliers and our second-tier suppliers to provide them the
standards that we expect them to adhere to, and do this under
contract. And part of those contracts include the ability to
have audits.
We would often use third-party auditors to do that, but
then we would also push down for suppliers onto them the
obligation to provide us reports from auditors that they may
choose to be able to review their practices.
Ms. Herrell. But, I mean, can you honestly guarantee to the
American consumer that there is absolutely no child labor being
used to produce the minerals necessary for these batteries,
without hesitation?
Mr. Chen. We are using all of the best tools possible and
commercially available to us to ensure that that is the case--
--
Ms. Herrell. But wait, I mean, just yes or no, can you 100
percent assure the American consumer that none of these
batteries are being produced by child slave labor?
Mr. Chen. Again, we are using the best available tools to
us to ensure that that is not the case.
Ms. Herrell. But that is a no, because you can't for sure
guarantee, but that is OK. I do appreciate the fact that you
are looking for long-term solutions, because my question was--
and I think you already kind of alluded to this--with so many
now opportunities to go green, and so much competition for our
minerals, my problem is, or my question is, do you concern
yourself with the availability or the stability of minerals
being available because of all the pull now for whether it is
for windmills or for other green products?
I am just wondering how concerning is that to you, in terms
of your projections? I know you said earlier you are looking
out for 30-year projections on some of your products.
Mr. Chen. Yes, that is exactly why we are here today
testifying on an area that is not directly tied to electric
vehicle manufacturing, but is further on down the supply chain.
It is absolutely critical for us as we do our long-term
planning to be able to find a diversified source of critical
minerals for our suppliers and for us.
Ms. Herrell. Yes. And just one more question. How much does
one of these trucks cost?
Mr. Chen. The R1T starts at $67,500 and goes up there,
depending on how you option it.
Ms. Herrell. Awesome. Thank you.
Mr. Chen. Yes.
Ms. Herrell. I went a little bit over, but thank you.
Mr. Grijalva. No, thank you. I thank the Ranking Member.
Let me recognize myself.
President Stiffarm, thank you very much for the discussion
on the cultural significance of the Little Rockies to your
people, and what the threat of mining means to your cultural
heritage and the history.
Part of the discussion has been about--that was damage done
then, but we are moving into a new era. And if nothing changes,
Mr. President, and we acknowledge that there has to be
collateral damage of some sort in this process if nothing
changes, then do you think that, in terms of the tribe, in
terms of sacred sites, and in terms of other issues, what does
good-faith tribal consultation look like in relationship to
what is going on with mining and the role that the tribes such
as yourself need to play? Or are we still talking about
collateral damage?
Mr. Stiffarm. Thank you, Mr. Chairman, for that question.
Good-faith consultation to the tribes means at least being
at the table. What happened with Pegasus and Zortman Landusky
mining left behind almost happened again here this past year,
when another mining permit was allowed to another mining
company called Blue Arc without consulting the tribes. The
state DEQ and the BLM never consulted us. The only way the
tribes found out about this is that we read about it in the
newspaper. And then, once we found out about it, we filed a
lawsuit.
And it is just a lack of communication. Like I said in my
opening remarks, tribes, or our first peoples of this country,
are second-class citizens to most people. They don't care, they
brush us aside. But they seem to forget this was our land
first, and we will fight for it. And we believe everything in
our culture is living, including the mountains, the rocks, the
grass, everything. And that is how we believe. And we will
always believe that. Thank you.
Mr. Grijalva. There is a legacy in Indian Country of
collateral damage, and in rural America to a great extent. And
that collateral damage, whether you are talking about the
situation President Stiffarm brought to us today or the
countless other examples of where tribes have been left out of
the process--and now we have an issue where we have a contested
and controversial decision in front of agencies that really
have no power to control any of the other parts of it, and I
think that is the point of the law.
But let me ask Professor Kalen. What are the biggest
loopholes in the mining laws that exist that hurt public lands?
Mr. Kalen. I think there are a whole bunch of loopholes,
unfortunately.
No. 1 is that it doesn't return any value to the United
States if it is a claim and location and entry system.
No. 2, there is a lack of clarity on how the mining
actually operates today with the use of things like mill sites.
So, there is actually a need to be able to clarify some aspects
of the mining law that are anachronistic.
I think another sort of problem is that there needs to be
better enforcement, there needs to be better bonding, and then
going on to financial assurances, there needs to be better
mechanisms for financial assurance, as well. The Trump
administration did decide that there was no need to change the
law or change the regulations. It actually flipped what the
prior administration had actually said. So, initially, they did
determine that they needed to have financial assurances, but
that was then flipped during the Trump administration.
The other thing is we don't have really good abandoned mine
reclamation fund operations, so we need to sort of fix that
loophole.
And, finally, as you noted, there needs to be a better
mechanism to deal with the selection of what we are going to be
doing on the public lands. I think the critical way, in terms
of facilitating critical minerals, is going to be involving
everybody through a land planning process. So, if you were to
use and employ a land management planning process to decide
what to do with the lands, involve Tribal Nations and
Indigenous people early on, you would probably avoid a lot of
the conflicts later on. You would probably be able to get a
better social license to operate at a community, and you would
probably facilitate, if you will, the ability to mine with much
more certainty than the mining industry has today.
Mr. Grijalva. Thank you.
And Ms. Herrell, I am going to extend my time and return
the courtesy to yourself or any Member that wishes for
additional time, if that is OK. Thank you.
Do you think that updating this 1872 law is going to lead
to fewer conflicts between mining companies, local communities,
and the conflicts that we have around sacred sites and tribes?
Do you think updating, reforming this law will lead to less of
that, Mr. Kalen?
Mr. Kalen. I think the answer is yes, because if you update
it, then what you can do is you can begin to have a planning
process that involves the Tribal Nations, that involves the
Indigenous communities, that involves, as I said, local
communities. And if the law were updated and actually utilized
the land management planning process to make some of these
decisions, you would have earlier efforts to try to figure out
how to reach an accommodation by both the industry and all
those affected in the local community, including the Tribal
Nations and Indigenous people.
So, I think there is a lot of that opportunity with reform.
Thank you.
Mr. Grijalva. Thank you.
And if I may, Ms. Struhsacker, one question. I don't think
there is any disagreement on any side of the aisle here
regarding human rights issues--slavery, child labor that we
find in other parts of the world: Central Africa, South Africa,
parts of Latin America, Peru, Brazil in particular, parts of
Central America, and parts of Asia. And the American people
expect the high standards, and we should have the high
standards. I don't think that is a fair comparison. But you are
right. The issue of human rights and environmental rights is
important, and we do a better job. I don't question that.
What I do question is--do you feel that if there is a
multi-national company doing business in Peru with a horrendous
track record on human rights violations, do you believe that
they should still have access to Federal domestic public lands,
given their track record of abuse elsewhere, and being
restrained from that abuse here in the United States by
existing law?
Do you feel that they should be banned from doing business
on public land, based on a human rights record?
Ms. Struhsacker. Chairman Grijalva, I believe that today's
mind-frame with the investor pressure for environmental,
social, and governance, the ESG initiatives that are forefront
of the mind of the investment community really make that
situation hypothetical.
For a company to be able to come and operate in the United
States, they have to be able to gain a social license, and they
have to be able to demonstrate to the stakeholders--and that is
a broad sector of the community, tribal communities--and their
shareholders that they are responsible corporate entities.
Mr. Grijalva. OK, hypothetically, if Rio Tinto Multi-
national Mining Corporation has a couple of problems in Africa,
has a couple of problems in Australia, in terms of other issues
in Peru or Chile, and they want to do business on public land,
and have a permit, do we continue to honor that, given that
that is a verifiable public record with existing human rights
violations?
Ms. Struhsacker. Thank you, Mr. Chairman. I think you have
to view everything in a very site-specific and situation-
specific consequence.
Again, I believe that companies----
Mr. Grijalva. So, a track record of human rights
violations, worker violations is not sufficient to create a
ban?
Ms. Struhsacker. Again, I don't believe that that would be
allowable here. And companies have to be able to earn a social
license. And if their track record does not allow them to do
that, then I believe the system will respond to that.
Mr. Grijalva. Thank you. And maybe that is an addition we
need to look at specifically within the legislation that we are
proposing, because I think, down the road, that has to be part
of the criteria.
If we are opening up and deregulating, as many are asking
for, and not dealing with reform at the very fundamental level,
and not dealing with royalties, and at $30 million a year it
will take another 150--we will be doing the 300th anniversary
of the Law of 1872--for us to get at the lowball estimate of
$50 billion to clean up abandoned and orphaned mines across
particularly the Southwest and other parts of this country.
But with that, let me now turn to Mr. Lamborn for his 5
minutes and recognize you. And you have additional time if you
so choose, Mr. Lamborn. Thank you.
Mr. Lamborn. Thank you, Mr. Chairman. And I would like to
help answer your next-to-last question.
If this law took effect, we would have fewer conflicts,
because we would have a lot less mining going on in this
country. And with less mining, there would be less conflicts.
Ms. Struhsacker, I would like to ask you a couple of
questions about the taxation and royalties. For those who do
not understand, what is the difference between a net tax and a
gross tax?
Ms. Struhsacker. Thank you, Congressman. A net tax allows
the producer to subtract the cost of making a sellable product,
a marketable product, before the royalty is imposed. And a
gross tax does not allow that at all. There are very few
deductions allowable in a gross tax.
So, comparing oil and gas again, oil is pretty well
marketable as crude oil, right as it comes out of the ground
from the wellhead. And in contrast, hardrock mining operations,
like this rock shows, you have to do a lot of work and invest
in processing facilities that can cost upwards of $1 billion
before you can extract the gold and silver from that rock and
have a marketable product.
So, a net royalty allows you to make deductions for the
cost to extract the gold and silver from this rock, and a gross
royalty wouldn't. And you would end up paying on something that
is not profits. I mean, we support a royalty that is a fair
royalty on our profits, but not on the totality of the
investment in the project.
Mr. Lamborn. Thank you, I appreciate that answer.
And, also, people don't have a crystal ball. They don't
know what future economic cycles are going to be. Sometimes
minerals go in volatile ups and downs. They have volatile
swings in their price. So, what might be profitable at one
price would be breaking even at a lower price, and losing money
at an even lower price. And you will drive them out of
business, won't you, if you are taxing on the gross revenues,
as opposed to the net revenues, would you agree with that?
Ms. Struhsacker. Yes, that is an important point. A net
royalty allows both the taxpayer and the mineral producer to go
to the bank together, which means when mineral prices are high,
then the net royalty payments are very high. When mineral
prices fall, then, obviously, the royalty payments aren't as
big, but it doesn't put a mine out of business. And you
preserve the jobs, you preserve a revenue stream there.
A gross royalty is very insensitive to prices, and it
ignores the fact that your cost to get the gold out of this
rock are fixed costs. And a gross royalty is very punitive in
periods of low mineral prices.
Mr. Lamborn. So, the way this bill is structured, with a
royalty on gross revenues in combination with a dirt tax, which
I have not really seen before, what would that do to
prospective mining operations?
Would any even go forward under what I consider onerous
conditions?
Ms. Struhsacker. Thank you, Congressman. I think the
investment in the U.S. mining industry would decline even more
dramatically under the gross royalty and the dirt tax
provisions in this bill. It would have a devastating effect.
And, ultimately, we will become even more and more reliant on
foreign sources for minerals.
Mr. Lamborn. I won't accuse this bill of being intended to
drive mining out of business, but I think it would certainly
have that effect, whether it is intended or not. Would you
agree with that?
Ms. Struhsacker. Absolutely. This is not the bill--there
would never be, in my opinion, the right time for this bill.
But this is an especially bad time for this bill, when we are
staring in the face of a mineral availability crisis.
Mr. Lamborn. And then what would happen to the cost of
consumer goods, like electric vehicles or cell phones or
computers, if the minerals couldn't be produced in this
country, and we had to look for foreign sources, especially
China?
Ms. Struhsacker. I think the cost would inevitably go up,
because not only would we have to be importing these minerals,
it would exacerbate the shortage of minerals that we are
already facing, as we heard from Mr. Chen. So, availability of
the raw materials to build products would be constrained and
cause prices to rise.
Mr. Lamborn. And what disadvantages do we face when it
comes to looking at China as a supplier of raw materials, or
refined materials, for that matter, that we are not able to
produce in this country because of stringent environmental laws
or taxation? What does that do to our national security?
Ms. Struhsacker. Oh, it is very scary, what it does to our
national security. As Chairman Manchin said on the Senate side
6 weeks ago or so, Russia and China are poised to weaponize
critical minerals against us. And we have seen what that has
done to Europe. Europe was inappropriately reliant on Russian
oil and gas. And we have seen, unfortunately, with the tragedy
of the war in Ukraine, what that can do to national security.
It is a very alarming situation.
Mr. Lamborn. And let me ask you this, because I have just a
little bit of time left. Why is the mining claims system
beneficial compared to leasing?
Ms. Struhsacker. It is beneficial because we don't know
where hardrock minerals are located. That is very different
than the situation for oil and gas, which is a much more
abundant resource, and they occur in well-understood, big
sedimentary basins. We have to look very hard. There is a 1 in
1,000 chance of discovering a mineral deposit that can become a
mine. And the claim system works beautifully for that, because
it allows geologists to stay on the land long enough to make
that discovery.
And I want to make the point that this is a system that has
worked well. There is nothing wrong with it. And the BLM
already tracks where claims are located. So, even though we
have self-initiation and can go where our geologic nose leads
us based on our drill hole data, the BLM knows where each claim
is located. You have to record a claim with the BLM in order to
make it a valid claim, and you have to pay a fee.
Initially, each claim costs $225 per claim to establish.
Mr. Lamborn. And seeing that I have still a little bit of
time to equalize things, I hear references to the Mining Law of
1872, 150 years old. And it is sometimes, I think, understood
by people who are new to this subject that this law is
antiquated and anachronous and has never been modified or
changed.
What are changes that our country has made to mining and
environmental laws surrounding mining in the last 150 years
that I think seriously and dramatically amend the 1872 law?
Ms. Struhsacker. You are absolutely right, Congressman.
Every single environmental law that applies to other industries
applies to the mining industry. Keep in mind that our
environmental regulations and laws are relatively new in this
country. They started being enacted in the very late 1960s and
1970s through the 1980s. Those all apply to mining. And the
mining law itself has been amended many times.
The Federal Land Policy and Management Act of 1976 was one
of the more important amendments to the mining law, and it
inserted in the mining law an environmental performance
standard. That is the unnecessary or undue degradation standard
in Section 1732(b) of FLPMA, which requires mines to comply
with all other environmental protection regulations.
Mr. Lamborn. OK. I thank you for setting the record
straight on these questions, and I appreciate your testimony,
Ms. Struhsacker.
Mr. Chairman, I yield back.
Mr. Grijalva. Ranking Member, any closing comments?
Ms. Herrell. I would just say I appreciate the
conversation, dialogue we have had today, and I am grateful to
have gotten to fill in for my good friend, Congressman Stauber.
Thank you for chairing this, as well.
Mr. Grijalva. Thank you very much. And let me just thank
the witnesses.
And the members of the Committee may have additional
questions for our witnesses today, and we will ask you to
respond to those in writing. They must submit those within 3
business days following this hearing. Then we will keep the
hearing record open for an additional 10 days for the responses
from our witnesses.
I want to thank everybody. I appreciate it.
President Stiffarm, thank you very much. You know,
understood and not said was that the 1872 Mining Law, like the
Homestead law of that same time, was also an instrument of
dispossession for Native American Nations across this country.
And we can't forget that. And we can't forget that we need to
correct. We can't rewrite that history, you can't erase that
history, but you can correct anything going forward. And the
whole intent today is what do we need to do going forward to
correct.
And it is a right time to talk about this, where the
urgency to make the climate change has created an urgency for
us to transition to renewable and clean energy, and that
urgency requires critical and essential minerals. We know that.
And this law is not about stopping mining, but bringing it
into this 21st century reality, No. 1.
And No. 2, part of that reality is the public's right to
know, transparency, and to bear some accountability and
responsibility for what comes afterwards. After an operation is
done, 20 years, 23 years, whatever that time period is, what
happens then? Whose responsibility is it to reclaim, restore,
or mediate and provide remediation for what is left behind? I
think it belongs also with the industry, and it belongs,
through royalties, with the ability to begin to deal with that
backlog. And that is not assessing responsibility to a
particular company. It is assessing the need to share that
responsibility with everybody that is profiting from the
extraction of minerals from our public lands.
Thank you very much. It is a tough topic, given the times,
and given the pressure to deregulate, speed up, and ignore the
collateral damage of the past. And it is my intent not to
ignore that collateral damage, and not to seek retribution, but
to seek a path forward that is going to make us a full part of
this next century. Thank you very much.
With that, the meeting is adjourned----
Mr. Stiffarm. Mr. Chair, can I make one quick comment?
I would just like to add that this law was made in 1872,
prior to a lot of our Native American treaties that put us on
reservations, that took all our land.
So, what I am saying is when the tribes got put on
reservations and had to sign treaties with the Federal
Government, we had to change as life changed. But this mining
law has not changed since 1872. That is all we are asking, is
update and change and protect our people and our land. Thank
you.
Mr. Grijalva. Thank you very much. The meeting is
adjourned.
[Whereupon, at 12:32 p.m., the Subcommittee was adjourned.]
[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]
Submissions for the Record by Rep. Grijalva
NATIONAL PARKS CONSERVATION ASSOCIATION
Headquarters
Washington, DC
May 11, 2022
Hon. Raul Grijalva,
Chairman Hon. Alan Lowenthal, Chairman
Committee on Natural
Resources Subcommittee on Energy and
Mineral Resources
U.S. House of
Representatives U.S. House of Representatives
Washington, DC 20515 Washington, DC 20515
Dear Chairman Grijalva and Chairman Lowenthal:
On behalf of the National Parks Conservation Association (NPCA) and
our nearly 1.6 million members and supporters, thank you for
introducing H.R. 7580, the Clean Energy Minerals Reform Act of 2022.
This timely legislation protects national parks, public lands, nearby
communities and critical water supplies from the increased threat of
hardrock mining as the United States continues a clean energy
transition. Thank you as well to Chairman Lowenthal and the
Subcommittee on Energy and Mineral Resources for holding a hearing on
the Clean Energy Minerals Reform Act of 2022 on Thursday, May 12, 2022.
Since 1919, NPCA has been the leading voice of the American people
in protecting our National Park System. Hardrock mining has long posed
threats to national park landscapes across the country. Over the past
several decades, NPCA has successfully advocated for protecting parks
from various mining proposals that would have irreparably harmed them
and nearby communities.
The General Mining Law of 1872, which governs more than 350 million
acres of public lands, offers little to no environmental protection to
these lands, adjacent national park units, vulnerable water resources
and nearby communities. According to the U.S. Environmental Protection
Agency (EPA), 40% of the headwaters of all western watersheds are
polluted by mining with hardrock mining being the largest toxic
polluter. Additionally, current law does not require the hardrock
mining industry to pay any royalties, unlike the oil and gas
industries. This allows companies to stake claim of public lands and
then reap the benefits of public resources for private gain without
paying anything to the American taxpayer. There is also no incentive or
requirement for these private companies to clean up their mines when
they are finished leaving governments and communities to live with the
impacts of mining's toxic legacy.
The Clean Energy Minerals Reform Act of 2022 would fix these issues
and many more, working to make the industry cleaner and more responsive
to environmental protections and requiring a fair royalty for the
extraction of resources on public lands. Of particular importance to
NPCA is Section 111--Protection of Special Places. This language
explicitly protects national parks, monuments and other conservation
areas from hardrock mining. The section acknowledges that parks are not
islands but are interconnected with the areas around them. It protects
the waterways that flow into and through parks, the wildlife that do
not know the boundaries created by humans, scenic vistas that have
endured for ages and the air that gives life to human, animal and plant
alike.
With the protections this legislation will add to our national
parks and public lands while helping America achieve our renewable
energy goals, NPCA is happy to support this legislation. We look
forward to working with Congress to help this legislation become law.
Please feel free to reach out to me with any questions.
Sincerely,
Chad W. Lord,
Senior Director
Environment and Climate Policy
______
Statement for the Record
U.S. DEPARTMENT OF AGRICULTURE
Chairman Lowenthal, Ranking Member Stauber, and Members of the
Subcommittee, thank you for the opportunity to present the views of the
U.S. Department of Agriculture (USDA) on H.R. 7580, the ``Clean Energy
Minerals Reform Act of 2022.'' USDA appreciates the work the Sponsor
and the Committee have done to propose reforms to the Mining Law
through H.R. 7580 and look forward to continuing to work with Congress
as the Administration undergoes its review of the Federal mining
program and considers proposals for potential mining reforms.
Energy and Mineral Production on National Forest System Land
The Minerals and Geology Management program at the U.S. Department
of Agriculture (USDA) Forest Service administers mineral and geologic
resources, overseeing mineral exploration, development and reclamation
activities related to federal and non-federal mineral estates according
to specific authorities, legislation, rules, and regulations. The
Forest Service interacts with DOI's Bureau of Land Management and state
agencies to manage minerals on National Forest System (NFS) lands and
also investigates and remediates abandoned mine lands from historic
mining.
The NFS plays a significant role in delivering critical and other
minerals to the nation and provide a large land base for industry
interest to explore and develop critical minerals. There are nearly
105,000 active mining claims encumbering over 2.3 million acres of
National Forests in western states as well as other hardrock mineral
potential areas in eastern forests, representing a significant land
base for potential critical mineral activity. There are 344 authorized
mines on NFS land that provide significant contribution to the national
production of several important minerals, including copper, lead, zinc,
silver, gold, and platinum and palladium (both critical minerals).
Minerals and energy production from NFS land contributed about
38,700 jobs and nearly $5.6 billion to the Nation's Gross Domestic
Product in 2020, while providing substantial economic benefits to rural
areas where consistent employment and economic growth may be limited.
The Forest Service processes, on average, 198 proposals/year to
explore/develop hardrock minerals. A recent analysis of 2,500 hardrock-
related approvals over a 5-year period found that 52% were approved
within 2 years of submittal.
Management and Regulation of Mining on NFS Land
Lands within national forests are subject to location and entry
under the general mining and mineral leasing laws pursuant to the
Organic Administration Act of 1897. Specifically, National Forest
System lands reserved from the public domain are ``open to mineral
entry'' unless they have been withdrawn from entry and appropriation
under the mining laws, subject to valid existing rights. There are
exceptions to this. Hardrock minerals on acquired NFS lands and on NFS
lands in Michigan, Wisconsin, Minnesota, Missouri, and Kansas are
excluded from the operation of the mining laws. Therefore, mineral
resources on those lands may only be leased, with surface use and
occupancy for the purposes of exploring for or developing mineral
resources permitted under vastly different authorities in close
coordination with the Bureau of Land Management.
The Organic Administration Act authorized the Secretary of
Agriculture to make rules to regulate occupancy and use of the land and
preserve the forests from destruction. The Act also specifically
declared it does not prohibit prospecting, locating, and developing
mineral resources within the national forests. However, the Act
requires that everyone must comply with the rules and regulations
governing the surface occupancy and use of the national forests,
including people engaging in activities covered by the mining laws.
The USDA Forest Service regulations governing operations under the
mining laws conducted on NFS lands were first promulgated in 1974 and
are found at 36 CFR Part 228 Subpart A. Aside from two minor rule
changes in 1981 and 2005, the Forest Service mining regulations have
not seen significant revision since 1974.
Part 228 subpart A regulates occupancy and use authorized by the
mining laws conducted on NFS lands, whether within or outside the
boundaries of a mining or millsite claim, including the prospecting,
exploration, development, mining, and processing of locatable minerals
(operations). This subpart also regulates other activities, such as the
subsequent reclamation and long-term post-closure resource management
of such operations. Although 228 subpart A does not provide for issuing
a permit for activities covered under the 1872 general mining law, it
does require notices of intent to conduct most mining activities, and
submission and approval of a plan of operations for activities that
will likely cause or are causing significant disturbance of surface
resources. It also mandates that those activities be conducted so as to
minimize adverse environmental impacts on NFS lands. While the Forest
Service has the authority to minimize surface impacts, it has little
authority to categorically deny any plan of operations that complies
with the regulations.
Each proposed operating plan submitted under the Part 228 subpart A
undergoes an environmental analysis and must comply with all applicable
surface resource protection laws including the Clean Air Act, the Clean
Water Act, the Endangered Species Act, and the National Historic
Preservation Act. The Forest Service also engages in Tribal
consultation with federally recognized Tribes to ensure their concerns
are considered in processing operating plans.
In alignment with the Administration's ``Fundamental Principles for
Domestic Mining Reform,'' the USDA Forest Service will coordinate with
the Department of the Interior's Bureau of Land Management on any
necessary updates to 36 CFR Part 228 Subpart A.
Modernizing Domestic Mining
In February, the Administration released its ``Fundamental
Principles for Domestic Mining Reform'' to identify the key values that
will drive the efforts to review the country's mining regulations,
laws, and permitting processes. These principles include:
Establishing Strong Mining Standards
Securing a Sustainable Domestic Supply of Critical
Minerals
Prioritizing Recycling, Reuse, and Efficient Use of
Critical Minerals
Providing Permitting Certainty
Adopt Fair Royalties
Establishing a Fully Funded Hardrock Mine Reclamation
Program
Conducting Comprehensive Planning
Protecting Special Places
Soliciting Community Input and Conducting Tribal
Consultation
Utilizing Best Available Science and Data
Building Civil Service Expertise in Mining
We concur with the Department of the Interior's testimony that
provides additional detail on these principles and the Administration's
agenda.
Consistent with direction in the Infrastructure Investment and Jobs
Act (P.L. 117-58), USDA and DOI are leading an Interagency Working
Group (IWG) with experts from across the Federal government to identify
measures that would increase the timeliness of permitting for the
exploration and development of domestic critical minerals. The IWG will
also consider options for cost recovery to ensure adequate staffing and
training to ensure efficient processing of applications, operating
plans, leases, and permits.
Conclusion
Our national forests and grasslands play an important role in
contributing to an adequate and stable supply of mineral and energy
resources. USDA looks forward to working with Congress and this
Committee to continue to pursue necessary reforms to the nation's
mining laws. We recognize the need for environmentally responsible and
sustainably mined domestic production of mineral resources to help
transition the country to a clean energy economy and to meet national
security objectives, while ensuring the long-term protection of natural
and cultural resources.
______
Submissions for the Record by Rep. Herrell
CONGRESS OF THE UNITED STATES
HOUSE OF REPRESENTATIVES
WASHINGTON, D.C. 20515
May 16, 2022
Hon. Raul Grijalva,
Chairman Hon. Alan Lowenthal, Chairman
House Natural Resources
Committee Subcommittee on Energy and
Mineral Resources
1324 Longworth House Office
Bldg. 108 Cannon House Office Bldg.
Washington, DC 20515 Washington, DC 20515
Dear Chairman Grijalva and Subcommittee Chairman Lowenthal:
I write to you to discuss my deep concern with the Clean Energy
Minerals Reform Act (H.R. 7580). This legislation would have a
devastating effect in Nevada's 4th Congressional District that would
lead to job losses, maintain our reliance on foreign countries for
critical minerals, and have an adverse and negative effect on rural
communities in my district.
Nevada mining produces more than 20 minerals and metals that
Americans use every day. Nevada is one of the largest gold producers in
the world and is responsible for nearly 80% of all U.S. annual
production. In addition, it has the only operating lithium mine in
North America with several proposed lithium mines currently under
review. These minerals will be critical moving forward to provide clean
energy, produce batteries for electric vehicles, and new technologies.
Mining is also a major economic driver in Nevada, providing workers
with some of the highest wages, with an average salary nearly double
that of the state average. In fact, in 2018, the industry paid over
$2.4 billion in wages. At a time of rising inflation and my State still
recovering from the impacts of COVID-19, now is especially not the time
to introduce more taxes that may lead to job loss in one of the most
important sectors of Nevada's economy.
In addition, with Russia illegally invading Ukraine and China
seeking a larger and larger hegemonic role in global affairs, it is
clear that we must work at ensuring a robust domestic supply of
critical minerals to ensure our national security. As a member of the
Critical Minerals Caucus, I understand how important it is to ensure we
have these minerals which are found in our homes, smartphones, and
transportation methods. Our hardrock mining industry is a solution to
address these issues, not the problem.
Since the founding of the Comstock Lode in the 1850s, mining has
been a rich part of Nevada's economy and culture, making us known
worldwide as the Silver State. I will continue fighting for this
important industry that is critical to my constituents in Nevada's 4th
Congressional District.
I appreciate you reviewing my concerns. Should you have any
questions, please do not hesitate to contact Kevin Herzik of my staff
at [email protected].
Sincerely,
Steven Horsford,
Member of Congress
4th District, Nevada
______
NATIONAL MINING ASSOCIATION
Washington, DC
May 12, 2022
Hon. Raul Grijalva,
Chairman Hon. Bruce Westerman, Ranking
Member
House Natural Resources
Committee House Natural Resources Committee
1324 Longworth House Office
Bldg. 1329 Longworth House Office Bldg.
Washington, DC 20515 Washington, DC 20515
Hon. Alan Lowenthal,
Chairman Hon. Pete Stauber, Ranking Member
Subcommittee on Energy and
Mineral Resources Subcommittee on Energy and
Mineral Resources
1324 Longworth House Office
Bldg. 1329 Longworth House Office Bldg.
Washington, DC 20515 Washington, DC 20515
Dear Chairman Grijalva, Ranking Member Westerman, Chairman
Lowenthal and Ranking Member Stauber:
The National Mining Association's (NMA) mineral producers strongly
oppose H.R. 7580, the ``Clean Energy Minerals Reform Act of 2022.'' If
enacted, this legislation will jeopardize the viability of the U.S.
mining industry at a time when the metals and minerals we produce
domestically are, according to the White House, ``essential to our
national security and economic prosperity.'' \1\ This bill is in direct
conflict with President Biden's call for a reliable domestic mineral
supply chain. It is more apparent than ever that the growth of our
economy is contingent on increased and reliable access to the metals
and minerals necessary for manufacturing, advanced energy technologies,
defense readiness and technological innovation.
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\1\ https://www.whitehouse.gov/briefing-room/statements-releases/
2022/02/22/fact-sheet-securing-a-made-in-america-supply-chain-for-
critical-minerals/.
---------------------------------------------------------------------------
Whether you consider rising inflation, increasing energy costs,
Russia's invasion of Ukraine, COVID-19 supply chain issues or trade
tensions with China, it is clear that America's growing reliance on
foreign sources of metals and minerals is unsustainable and puts our
nation at a strategic disadvantage, further jeopardizing our post-
pandemic recovery and global competitiveness.
Voters are increasingly concerned about these alarming trends. A
recent poll conducted by Morning Consult showed that 74 percent of
Americans support U.S. action to encourage the use of domestically-
mined minerals to decrease reliance on imported minerals. Rather than
promoting policies to reduce our mineral import reliance, this bill's
punitive and unrealistic measures create barriers to domestic mining.
Even the Biden administration's supply chain assessment, found that
``the United States must secure reliable and sustainable supplies of
critical minerals and metals to ensure resilience across U.S.
manufacturing and defense needs . . .'' \2\ Unfortunately, less than
half of the mineral needs of U.S. manufacturing are currently met by
domestically mined minerals.
---------------------------------------------------------------------------
\2\ https://www.whitehouse.gov/wp-content/uploads/2021/06/100-day-
supply-chain-review-report.pdf.
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According to the U.S. Geological Survey's 2022 Mineral Commodity
Summaries, imports made up more than one-half of the U.S. consumption
for 47 nonfuel mineral commodities--up from 46 last year--and the U.S.
was 100 percent net import reliant for 17 of those, and that China was
a primary source of imports for 25 minerals.
The harmful provisions found in H.R. 7580--including new, punitive
royalties and fees, duplicative environmental regulations, a wholesale
conversion from a locatable to a leasing system, and limitations on
land access--represent not only a dangerous threat the U.S. mining
industry but threatens U.S. competitiveness with the rest of the world
to meet the ever-increasing demand for minerals.
Like its predecessors, H.R. 7580 continues to embrace anti-mining
rhetoric based on false assumptions of how modern mining is regulated
and the economic benefits it provides. Currently, domestic mining
operations pay nearly half of their earnings in federal, state and
local royalties, taxes and other fees to benefit the communities in
which it works and the U.S. federal government. In 2018, domestic
mining activity generated an estimated $18 billion in federal, state
and local taxes that supported direct, indirect and induced taxes of
$41 billion. Punitive federal royalties that have been discussed would
push the U.S. beyond the upper limit of the range in effect in other
countries, significantly impairing our global competitiveness and
making investments in the U.S. far less attractive.
Additionally, U.S. mining is one of the most heavily regulated
industries in the world. This bill's duplicative environmental
provisions ignore the more than three dozen comprehensive federal and
state environmental, ecological, and reclamation laws and regulations
applicable to the industry that have been continually amended to keep
pace with modern mining practices.
The mining industry has repeatedly indicated a willingness--to this
committee and others--to engage in conversations about reasonable
amendments to the General Mining Law, and it continues to be our
guiding principle to work with the committee and the Biden
administration to find a compromise that supports and maintains the
competitiveness of the domestic mining industry.
Any changes, however, must promote a viable domestic mining
industry, support investment in domestic mineral projects, address the
nation's reliance on foreign minerals, and provide a fair return to the
American public. In contrast, H.R. 7580 represents a deliberate intent
to make hardrock mining uneconomic in the U.S.
We urge you to oppose the Clean Energy Minerals Reform Act, and
instead prioritize policies, including modernization of the minerals
permitting process, to enable development of the metals and minerals
that will allow our nation to achieve greater innovation, supply chain
security and economic growth.
Sincerely,
Rich Nolan,
President & CEO
______
[LIST OF DOCUMENTS SUBMITTED FOR THE RECORD RETAINED IN THE COMMITTEE'S
OFFICIAL FILES]
Submissions for the Record by Rep. Herrell
-- American Exploration & Mining Association, Letter dated
May 11, 2022 from Mark Compton, Executive Director,
opposing H.R. 7580
-- AMIGOS, Letter dated May 12, 2022 from Sydney Hay,
President, opposing H.R. 7580
-- Arizona Chamber of Commerce & Industry, Letter dated May
9, 2022 from Danny Seiden, President and CEO,
opposing H.R. 7580
-- Arizona Mining Association, Letter dated May 5, 2022 from
Steve Trussell, Executive Director, opposing H.R.
7580
-- Coeur Mining, Letter dated May 5, 2022 from Mitchell J.
Krebs, opposing H.R. 7580
-- Elko County Board of Commissioners, Letter opposing H.R.
7580
-- Eureka County Board of Commissioners, Letter dated May
10, 2022 from J.J. Goicoechea, DVM, Chairman,
opposing H.R. 7580
-- Humboldt County, Nevada Board of Commissioners, Letter
dated May 2, 2022 from Jim French, Chairman,
opposing H.R. 7580
-- Pershing County Board of County Commissioners, Letter
dated May 4, 2022 from Shayla Hudson, Chair,
opposing H.R. 7580
-- Western Governors Association, Letter dated May 9, 2022
from James D. Ogsbury, Executive Director,
submitting Policy Resolution 2018-09, Policy
Resolution 2020-02, and Policy Resolution 2021-09
[all]