[Congressional Record Volume 146, Number 126 (Wednesday, October 11, 2000)]
[Senate]
[Pages S10239-S10240]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             TIME TO STRENGTHEN HARDROCK MINING REGULATIONS

  Mr. DURBIN. Mr. President, I have strongly advocated strengthening 
so-called 3809 regulations, which governs hardrock mining on public 
lands. However, attempts to update these regulations have been subject 
to much debate.
  I am pleased to see that the Interior conference report included a 
compromise provision related to the regulations, which should allow the 
BLM to move forward with their efforts to better protect taxpayers and 
the environment from the impacts of the hardrock mining industry.
  However, I am concerned about recent statements made by my 
colleagues, Senators Reid and Gorton, which I feel distort the intent 
of the provision and would weaken the 3809 regulations. I would like to 
take this opportunity to clarify my understanding of the meaning of 
this provision.
  To paraphrase the language of the bill text included in the 
conference report, the mining provision permits the BLM to prevent 
undue degradation of public lands with a new and stronger rule 
governing hardrock mining on public lands. The only requirement is that 
the rule be ``not inconsistent with'' the recommendations contained in 
a study completed by the National Research Council, or NRC.
  I agree with the Department of the Interior's interpretation that the 
key phrase ``not inconsistent with'' means that so long as the final 
mining rule does not contradict the recommendations of the NRC report, 
the rule can address whatever subject areas the BLM finds necessary to 
improve environmental oversight of the hardrock mining industry.
  For example, one of the recommendations made in the NRC report would 
clarify the BLM's authority to protect valuable natural resources not 
protected by other laws. Given that recommendation, it would be ``not 
inconsistent with'' the report to issue a rule that would allow the 
disapproval of a mine proposal if it would cause undue degradation of 
public lands, even if the proposal complied with all other statutes and 
regulations. The final mining provision included in the report would 
permit such a rule.
  However, during earlier negotiations of the hardrock mining 
provision, mining proponents attempted to include language that would 
have effectively undermined the ability of the BLM to strengthen the 
3809 regulations. This original language would have bound any final 
rule published by the BLM to the recommendations of the NRC report. 
This means that a final rule could only address those recommendations 
made by the report and nothing else, regardless of what actions the BLM 
identified as necessary. The original language is as follows:


                               bill text

       None of the funds in this Act or any other Act shall be 
     used by the Secretary of the Interior to promulgate final 
     rules to revise 43 CFR subpart 3809, except that the 
     Secretary, following the public comment period required by 
     section 3002 of Public Law 106-31, may issue final rules to 
     amend 43 CFR Subpart 3809 which are not inconsistent with the 
     recommendations contained in the National Research Council 
     report entitled ``Hardrock Mining on Federal Lands'' so long 
     as these regulations are also not inconsistent with existing 
     statutory authorities. Nothing in this section shall be 
     construed to expand the existing statutory authority of the 
     Secretary.


                            report language

       Section xxx allows the Bureau of Land Management to 
     promulgate new hardrock mining regulations that are not 
     inconsistent with the National Research Council Report 
     entitled ``Hardrock Mining on Federal Lands.'' This provision 
     reinstates a requirement that was included in Public Law 106-
     113. In that Act, Congress authorized changes to the hardrock 
     mining regulations that are ``not inconsistent with'' the 
     Report. The statutory requirement was based on a consensus 
     reached among Committee Members and the Administration. On 
     December 8, 1999, the Interior Solicitor wrote an opinion 
     concluding that this requirement applies only to a few lines 
     of the Report, and that it imposes no significant 
     restrictions on the Bureau's final rulemaking authority. This 
     opinion is contrary to the intentions of the Committee and to 
     the understanding reached among the parties in FY2000. The 
     Committee clearly intended Interior to be guided and bound by 
     the findings and recommendations of the Report. Accordingly, 
     the statutory language is included again in this Report and 
     this action

[[Page S10240]]

     should not be interpreted as a ratification of the 
     Solicitor's opinion. The Committee emphasizes that it intends 
     for the Bureau to adopt changes to its rules at 43 CFR part 
     3809 only if those changes are called for in the NRC report.

  Fortunately, this original language did not stand because it was so 
limiting. In fact, President Clinton threatened to veto the entire 
Interior Appropriations bill if the mining provision unduly restricted 
the ability of the BLM to update the regulations. The improved, final 
language indicates that the intent is not to limit the BLM's authority 
to strengthen the hardrock mining regulations.
  The Interior Department has been working for years to update the 3809 
regulations after numerous review and comments from BLM task forces, 
congressional committee hearings, public meetings, consultation with 
the states and interest groups, and public review of drafts of the 
proposed regulations. There is no longer any reason to delay improving 
these regulations.

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