[House Report 110-412]
[From the U.S. Government Publishing Office]
110th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 110-412
======================================================================
HARDROCK MINING AND RECLAMATION ACT OF 2007
_______
October 29, 2007.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Rahall, from the Committee on Natural Resources, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 2262]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred the
bill (H.R. 2262) 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, having considered the same, report favorably thereon
with an amendment and recommend that the bill as amended do
pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Hardrock Mining and
Reclamation Act of 2007''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Definitions and references.
Sec. 3. Application rules.
TITLE I--MINERAL EXPLORATION AND DEVELOPMENT
Sec. 101. Limitation on patents.
Sec. 102. Royalty.
Sec. 103. Hardrock mining claim maintenance fee.
Sec. 104. Effect of payments for use and occupancy of claims.
TITLE II--PROTECTION OF SPECIAL PLACES
Sec. 201. Lands open to location.
Sec. 202. Withdrawal petitions by States, political subdivisions, and
Indian tribes.
TITLE III--ENVIRONMENTAL CONSIDERATIONS OF MINERAL EXPLORATION AND
DEVELOPMENT
Sec. 301. General standard for hardrock mining on Federal land.
Sec. 302. Permits.
Sec. 303. Exploration permit.
Sec. 304. Operations permit.
Sec. 305. Persons ineligible for permits.
Sec. 306. Financial assurance.
Sec. 307. Operation and reclamation.
Sec. 308. State law and regulation.
Sec. 309. Limitation on the issuance of permits.
TITLE IV--MINING MITIGATION
Subtitle A--Locatable Minerals Fund
Sec. 401. Establishment of Fund.
Sec. 402. Contents of Fund.
Sec. 403. Subaccounts.
Subtitle B--Use of Hardrock Reclamation Account
Sec. 411. Use and objectives of the Account.
Sec. 412. Eligible lands and waters.
Sec. 413. Expenditures.
Sec. 414. Authorization of appropriations.
Subtitle C--Use of Hardrock Community Impact Assistance Account
Sec. 421. Use and objectives of the Account.
Sec. 422. Allocation of funds.
TITLE V--ADMINISTRATIVE AND MISCELLANEOUS PROVISIONS
Subtitle A--Administrative Provisions
Sec. 501. Policy functions.
Sec. 502. User fees.
Sec. 503. Inspection and monitoring.
Sec. 504. Citizens suits.
Sec. 505. Administrative and judicial review.
Sec. 506. Enforcement.
Sec. 507. Regulations.
Sec. 508. Effective date.
Subtitle B--Miscellaneous Provisions
Sec. 511. Oil shale claims subject to special rules.
Sec. 512. Purchasing power adjustment.
Sec. 513. Savings clause.
Sec. 514. Availability of public records.
Sec. 515. Miscellaneous powers.
Sec. 516. Multiple mineral development and surface resources.
Sec. 517. Mineral materials.
SEC. 2. DEFINITIONS AND REFERENCES.
(a) In General.--As used in this Act:
(1) The term ``affiliate'' means with respect to any person,
any of the following:
(A) Any person who controls, is controlled by, or is
under common control with such person.
(B) Any partner of such person.
(C) Any person owning at least 10 percent of the
voting shares of such person.
(2) The term ``applicant'' means any person applying for a
permit under this Act or a modification to or a renewal of a
permit under this Act.
(3) The term ``beneficiation'' means the crushing and
grinding of locatable mineral ore and such processes as are
employed to free the mineral from other constituents, including
but not necessarily limited to, physical and chemical
separation techniques.
(4) The term ``casual use''--
(A) subject to subparagraphs (B) and (C), means
mineral activities that do not ordinarily result in any
disturbance of public lands and resources;
(B) includes collection of geochemical, rock, soil,
or mineral specimens using handtools, hand panning, or
nonmotorized sluicing; and
(C) does not include--
(i) the use of mechanized earth-moving
equipment, suction dredging, or explosives;
(ii) the use of motor vehicles in areas
closed to off-road vehicles;
(iii) the construction of roads or drill
pads; and
(iv) the use of toxic or hazardous materials.
(5) The term ``claim holder'' means a person holding a mining
claim, millsite claim, or tunnel site claim located under the
general mining laws and maintained in compliance with such laws
and this Act. Such term may include an agent of a claim holder.
(6) The term ``control'' means having the ability, directly
or indirectly, to determine (without regard to whether
exercised through one or more corporate structures) the manner
in which an entity conducts mineral activities, through any
means, including without limitation, ownership interest,
authority to commit the entity's real or financial assets,
position as a director, officer, or partner of the entity, or
contractual arrangement.
(7) The term ``exploration''--
(A) subject to subparagraphs (B) and (C), means
creating surface disturbance other than casual use, to
evaluate the type, extent, quantity, or quality of
minerals present;
(B) includes mineral activities associated with
sampling, drilling, and analyzing locatable mineral
values; and
(C) does not include extraction of mineral material
for commercial use or sale.
(8) The term ``Federal land'' means any land, and any
interest in land, that is owned by the United States and open
to location of mining claims under the general mining laws and
title II of this Act.
(9) The term ``Indian lands'' means lands held in trust for
the benefit of an Indian tribe or individual or held by an
Indian tribe or individual subject to a restriction by the
United States against alienation.
(10) The term ``Indian tribe'' means any Indian tribe, band,
nation, pueblo, or other organized group or community,
including any Alaska Native village or regional corporation as
defined in or established pursuant to the Alaska Native Claims
Settlement Act (43 U.S.C. 1601 and following), that is
recognized as eligible for the special programs and services
provided by the United States to Indians because of their
status as Indians.
(11) The term ``locatable mineral''--
(A) subject to subparagraph (B), means any mineral,
the legal and beneficial title to which remains in the
United States and that is not subject to disposition
under any of--
(i) the Mineral Leasing Act (30 U.S.C. 181
and following);
(ii) the Geothermal Steam Act of 1970 (30
U.S.C. 1001 and following);
(iii) the Act of July 31, 1947, commonly
known as the Materials Act of 1947 (30 U.S.C.
601 and following); or
(iv) the Mineral Leasing for Acquired Lands
Act (30 U.S.C. 351 and following); and
(B) does not include any mineral that is subject to a
restriction against alienation imposed by the United
States and is--
(i) held in trust by the United States for
any Indian or Indian tribe, as defined in
section 2 of the Indian Mineral Development Act
of 1982 (25 U.S.C. 2101); or
(ii) owned by any Indian or Indian tribe, as
defined in that section.
(12) The term ``mineral activities'' means any activity on a
mining claim, millsite claim, or tunnel site claim for, related
to, or incidental to, mineral exploration, mining,
beneficiation, processing, or reclamation activities for any
locatable mineral.
(13) The term ``National Conservation System unit'' means any
unit of the National Park System, National Wildlife Refuge
System, National Wild and Scenic Rivers System, or National
Trails System, or a National Conservation Area, a National
Recreation Area, a National Monument, or any unit of the
National Wilderness Preservation System.
(14) The term ``operator'' means any person proposing or
authorized by a permit issued under this Act to conduct mineral
activities and any agent of such person.
(15) The term ``person'' means an individual, Indian tribe,
partnership, association, society, joint venture, joint stock
company, firm, company, corporation, cooperative, or other
organization and any instrumentality of State or local
government including any publicly owned utility or publicly
owned corporation of State or local government.
(16) The term ``processing'' means processes downstream of
beneficiation employed to prepare locatable mineral ore into
the final marketable product, including but not limited to
smelting and electrolytic refining.
(17) The term ``Secretary'' means the Secretary of the
Interior, unless otherwise specified.
(18) The term ``temporary cessation'' means a halt in mine-
related production activities for a continuous period of no
longer than 5 years.
(19) The term ``undue degradation'' means irreparable harm to
significant scientific, cultural, or environmental resources on
public lands that cannot be effectively mitigated.
(b) Title II.--
(1) Valid existing rights.--As used in title II, the term
``valid existing rights'' means a mining claim or millsite
claim located on lands described in section 201(b), that--
(A) was properly located and maintained under this
Act prior to and on the applicable date; or
(B)(i) was properly located and maintained under the
general mining laws prior to the applicable date;
(ii) was supported by a discovery of a valuable
mineral deposit within the meaning of the general
mining laws on the applicable date, or satisfied the
limitations under existing law for millsite claims; and
(iii) continues to be valid under this Act.
(2) Applicable date.--As used in paragraph (1), the term
``applicable date'' means one of the following:
(A) For lands described in paragraph (1) of section
201(b), the date of the recommendation referred to in
paragraph (1) of that section if such recommendation is
made on or after the date of the enactment of this Act.
(B) For lands described in paragraph (1) of section
201(b), if the recommendation referred to in paragraph
(1) of that section is made before the date of the
enactment of this Act, the earlier of--
(i) the date of the enactment of this Act; or
(ii) the date of any withdrawal of such lands
from mineral activities.
(C) For lands described in paragraph (3)(B) of
section 201(b), the date of the enactment of this Act.
(D) For lands described in paragraph (3)(A) or (3)(C)
of section 201(b), the date of the enactment of the
amendment to the Wild and Scenic Rivers Act (16 U.S.C.
1271 and following) listing the river segment for
study.
(E) For lands described in paragraph (3)(B) of
section 201(b), the date of the determination of
eligibility of such lands for inclusion in the Wild and
Scenic River System.
(F) For lands described in paragraph (4) of section
201(b), the date of the withdrawal under other law.
(c) References to Other Laws.--(1) Any reference in this Act to the
term general mining laws is a reference to those Acts that generally
comprise chapters 2, 12A, and 16, and sections 161 and 162, of title
30, United States Code.
(2) Any reference in this Act to the Act of July 23, 1955, is a
reference to the Act entitled ``An Act to amend the Act of July 31,
1947 (61 Stat. 681) and the mining laws to provide for multiple use of
the surface of the same tracts of the public lands, and for other
purposes'' (30 U.S.C. 601 and following).
SEC. 3. APPLICATION RULES.
(a) In General.--This Act applies to any mining claim, millsite
claim, or tunnel site claim located under the general mining laws,
before, on, or after the date of enactment of this Act, except as
provided in subsection (b).
(b) Preexisting Claims.--(1) Any unpatented mining claim or millsite
claim located under the general mining laws before the date of
enactment of this Act for which a plan of operation has not been
approved or a notice filed prior to the date of enactment shall, upon
the effective date of this Act, be subject to the requirements of this
Act, except as provided in paragraphs (2) and (3).
(2)(A) If a plan of operations is approved for mineral activities on
any claim or site referred to in paragraph (1) prior to the date of
enactment of this Act but such operations have not commenced prior to
the date of enactment of this Act--
(i) during the 10-year period beginning on the date of
enactment of this Act, mineral activities at such claim or site
shall be subject to such plan of operations;
(ii) during such 10-year period, modifications of any such
plan may be made in accordance with the provisions of law
applicable prior to the enactment of this Act if such
modifications are deemed minor by the Secretary concerned; and
(iii) the operator shall bring such mineral activities into
compliance with this Act by the end of such 10-year period.
(B) Where an application for modification of a plan of operations
referred to in subparagraph (A)(ii) has been timely submitted and an
approved plan expires prior to Secretarial action on the application,
mineral activities and reclamation may continue in accordance with the
terms of the expired plan until the Secretary makes an administrative
decision on the application.
(c) Federal Lands Subject to Existing Permit.--(1) Any Federal land
shall not be subject to the requirements of section 102 if the land
is--
(A) subject to an operations permit; and
(B) producing valuable locatable minerals in commercial
quantities prior to the date of enactment of this Act.
(2) Any Federal land added through a plan modification to an
operations permit on Federal land that is submitted after the date of
enactment of this Act shall be subject to the terms of section 102.
(d) Application of Act to Beneficiation and Processing of Non-Federal
Minerals on Federal Lands.--The provisions of this Act (including the
environmental protection requirements of title III) shall apply in the
same manner and to the same extent to mining claims, millsite claims,
and tunnel site claims used for beneficiation or processing activities
for any mineral without regard to whether or not the legal and
beneficial title to the mineral is held by the United States. This
subsection applies only to minerals that are locatable minerals or
minerals that would be locatable minerals if the legal and beneficial
title to such minerals were held by the United States.
TITLE I--MINERAL EXPLORATION AND DEVELOPMENT
SEC. 101. LIMITATION ON PATENTS.
(a) Mining Claims.--
(1) Determinations required.--After the date of enactment of
this Act, no patent shall be issued by the United States for
any mining claim located under the general mining laws unless
the Secretary determines that, for the claim concerned--
(A) a patent application was filed with the Secretary
on or before September 30, 1994; and
(B) all requirements established under sections 2325
and 2326 of the Revised Statutes (30 U.S.C. 29 and 30)
for vein or lode claims and sections 2329, 2330, 2331,
and 2333 of the Revised Statutes (30 U.S.C. 35, 36, and
37) for placer claims were fully complied with by that
date.
(2) Right to patent.--If the Secretary makes the
determinations referred to in subparagraphs (A) and (B) of
paragraph (1) for any mining claim, the holder of the claim
shall be entitled to the issuance of a patent in the same
manner and degree to which such claim holder would have been
entitled to prior to the enactment of this Act, unless and
until such determinations are withdrawn or invalidated by the
Secretary or by a court of the United States.
(b) Millsite Claims.--
(1) Determinations required.--After the date of enactment of
this Act, no patent shall be issued by the United States for
any millsite claim located under the general mining laws unless
the Secretary determines that for the millsite concerned--
(A) a patent application for such land was filed with
the Secretary on or before September 30, 1994; and
(B) all requirements applicable to such patent
application were fully complied with by that date.
(2) Right to patent.--If the Secretary makes the
determinations referred to in subparagraphs (A) and (B) of
paragraph (1) for any millsite claim, the holder of the claim
shall be entitled to the issuance of a patent in the same
manner and degree to which such claim holder would have been
entitled to prior to the enactment of this Act, unless and
until such determinations are withdrawn or invalidated by the
Secretary or by a court of the United States.
SEC. 102. ROYALTY.
(a) Reservation of Royalty.--
(1) In general.--Except as provided in paragraph (2) and
subject to paragraph (3), production of all locatable minerals
from any mining claim located under the general mining laws and
maintained in compliance with this Act, or mineral concentrates
or products derived from locatable minerals from any such
mining claim, as the case may be, shall be subject to a royalty
of 8 percent of the gross income from mining. The claim holder
or any operator to whom the claim holder has assigned the
obligation to make royalty payments under the claim and any
person who controls such claim holder or operator shall be
liable for payment of such royalties.
(2) Royalty for federal lands subject to existing permit.--
The royalty under paragraph (1) shall be 4 percent in the case
of any Federal land that--
(A) is subject to an operations permit on the date of
the enactment of this Act; and
(B) produces valuable locatable minerals in
commercial quantities on the date of enactment of this
Act.
(3) Federal land added to existing operations permit.--Any
Federal land added through a plan modification to an operations
permit on Federal land that is submitted after the date of
enactment of this Act shall be subject to the royalty that
applies to other Federal land that is subject to the operations
permit before that submission under paragraph (1) or (2), as
applicable.
(4) Other application provision not effective.--Section 3(c)
of this Act shall have no force or effect.
(5) Deposit.--Amounts received by the United States as
royalties under this subsection shall be deposited into the
account established under section 401.
(b) Duties of Claim Holders, Operators, and Transporters.--(1) A
person--
(A) who is required to make any royalty payment under this
section shall make such payments to the United States at such
times and in such manner as the Secretary may by rule
prescribe; and
(B) shall notify the Secretary, in the time and manner as may
be specified by the Secretary, of any assignment that such
person may have made of the obligation to make any royalty or
other payment under a mining claim.
(2) Any person paying royalties under this section shall file a
written instrument, together with the first royalty payment, affirming
that such person is responsible for making proper payments for all
amounts due for all time periods for which such person has a payment
responsibility. Such responsibility for the periods referred to in the
preceding sentence shall include any and all additional amounts billed
by the Secretary and determined to be due by final agency or judicial
action. Any person liable for royalty payments under this section who
assigns any payment obligation shall remain jointly and severally
liable for all royalty payments due for the claim for the period.
(3) A person conducting mineral activities shall--
(A) develop and comply with the site security provisions in
the operations permit designed to protect from theft the
locatable minerals, concentrates or products derived therefrom
which are produced or stored on a mining claim, and such
provisions shall conform with such minimum standards as the
Secretary may prescribe by rule, taking into account the
variety of circumstances on mining claims; and
(B) not later than the 5th business day after production
begins anywhere on a mining claim, or production resumes after
more than 90 days after production was suspended, notify the
Secretary, in the manner prescribed by the Secretary, of the
date on which such production has begun or resumed.
(4) The Secretary may by rule require any person engaged in
transporting a locatable mineral, concentrate, or product derived
therefrom to carry on his or her person, in his or her vehicle, or in
his or her immediate control, documentation showing, at a minimum, the
amount, origin, and intended destination of the locatable mineral,
concentrate, or product derived therefrom in such circumstances as the
Secretary determines is appropriate.
(c) Recordkeeping and Reporting Requirements.--(1) A claim holder,
operator, or other person directly involved in developing, producing,
processing, transporting, purchasing, or selling locatable minerals,
concentrates, or products derived therefrom, subject to this Act,
through the point of royalty computation shall establish and maintain
any records, make any reports, and provide any information that the
Secretary may reasonably require for the purposes of implementing this
section or determining compliance with rules or orders under this
section. Such records shall include, but not be limited to, periodic
reports, records, documents, and other data. Such reports may also
include, but not be limited to, pertinent technical and financial data
relating to the quantity, quality, composition volume, weight, and
assay of all minerals extracted from the mining claim. Upon the request
of any officer or employee duly designated by the Secretary conducting
an audit or investigation pursuant to this section, the appropriate
records, reports, or information that may be required by this section
shall be made available for inspection and duplication by such officer
or employee. Failure by a claim holder, operator, or other person
referred to in the first sentence to cooperate with such an audit,
provide data required by the Secretary, or grant access to information
may, at the discretion of the Secretary, result in involuntary
forfeiture of the claim.
(2) Records required by the Secretary under this section shall be
maintained for 7 years after release of financial assurance under
section 306 unless the Secretary notifies the operator that the
Secretary has initiated an audit or investigation involving such
records and that such records must be maintained for a longer period.
In any case when an audit or investigation is underway, records shall
be maintained until the Secretary releases the operator of the
obligation to maintain such records.
(d) Audits.--The Secretary is authorized to conduct such audits of
all claim holders, operators, transporters, purchasers, processors, or
other persons directly or indirectly involved in the production or
sales of minerals covered by this Act, as the Secretary deems necessary
for the purposes of ensuring compliance with the requirements of this
section. For purposes of performing such audits, the Secretary shall,
at reasonable times and upon request, have access to, and may copy, all
books, papers and other documents that relate to compliance with any
provision of this section by any person.
(e) Cooperative Agreements.--(1) The Secretary is authorized to enter
into cooperative agreements with the Secretary of Agriculture to share
information concerning the royalty management of locatable minerals,
concentrates, or products derived therefrom, to carry out inspection,
auditing, investigation, or enforcement (not including the collection
of royalties, civil or criminal penalties, or other payments)
activities under this section in cooperation with the Secretary, and to
carry out any other activity described in this section.
(2) Except as provided in paragraph (3)(A) of this subsection
(relating to trade secrets), and pursuant to a cooperative agreement,
the Secretary of Agriculture shall, upon request, have access to all
royalty accounting information in the possession of the Secretary
respecting the production, removal, or sale of locatable minerals,
concentrates, or products derived therefrom from claims on lands open
to location under this Act.
(3) Trade secrets, proprietary, and other confidential information
protected from disclosure under section 552 of title 5, United States
Code, popularly known as the Freedom of Information Act, shall be made
available by the Secretary to other Federal agencies as necessary to
assure compliance with this Act and other Federal laws. The Secretary,
the Secretary of Agriculture, the Administrator of the Environmental
Protection Agency, and other Federal officials shall ensure that such
information is provided protection in accordance with the requirements
of that section.
(f) Interest and Substantial Underreporting Assessments.--(1) In the
case of mining claims where royalty payments are not received by the
Secretary on the date that such payments are due, the Secretary shall
charge interest on such underpayments at the same interest rate as the
rate applicable under section 6621(a)(2) of the Internal Revenue Code
of 1986. In the case of an underpayment, interest shall be computed and
charged only on the amount of the deficiency and not on the total
amount.
(2) If there is any underreporting of royalty owed on production from
a claim for any production month by any person liable for royalty
payments under this section, the Secretary shall assess a penalty of
not greater than 25 percent of the amount of that underreporting.
(3) For the purposes of this subsection, the term ``underreporting''
means the difference between the royalty on the value of the production
that should have been reported and the royalty on the value of the
production which was reported, if the value that should have been
reported is greater than the value that was reported.
(4) The Secretary may waive or reduce the assessment provided in
paragraph (2) of this subsection if the person liable for royalty
payments under this section corrects the underreporting before the date
such person receives notice from the Secretary that an underreporting
may have occurred, or before 90 days after the date of the enactment of
this section, whichever is later.
(5) The Secretary shall waive any portion of an assessment under
paragraph (2) of this subsection attributable to that portion of the
underreporting for which the person responsible for paying the royalty
demonstrates that--
(A) such person had written authorization from the Secretary
to report royalty on the value of the production on basis on
which it was reported,
(B) such person had substantial authority for reporting
royalty on the value of the production on the basis on which it
was reported,
(C) such person previously had notified the Secretary, in
such manner as the Secretary may by rule prescribe, of relevant
reasons or facts affecting the royalty treatment of specific
production which led to the underreporting, or
(D) such person meets any other exception which the Secretary
may, by rule, establish.
(6) All penalties collected under this subsection shall be deposited
in the Locatable Minerals Fund established under title IV.
(g) Delegation.--For the purposes of this section, the term
``Secretary'' means the Secretary of the Interior acting through the
Director of the Minerals Management Service.
(h) Expanded Royalty Obligations.--Each person liable for royalty
payments under this section shall be jointly and severally liable for
royalty on all locatable minerals, concentrates, or products derived
therefrom lost or wasted from a mining claim located under the general
mining laws and maintained in compliance with this Act when such loss
or waste is due to negligence on the part of any person or due to the
failure to comply with any rule, regulation, or order issued under this
section.
(i) Gross Income From Mining Defined.--For the purposes of this
section, for any locatable mineral, the term ``gross income from
mining'' has the same meaning as the term ``gross income'' in section
613(c) of the Internal Revenue Code of 1986.
(j) Effective Date.--The royalty under this section shall take effect
with respect to the production of locatable minerals after the
enactment of this Act, but any royalty payments attributable to
production during the first 12 calendar months after the enactment of
this Act shall be payable at the expiration of such 12-month period.
(k) Failure To Comply With Royalty Requirements.--Any person who
fails to comply with the requirements of this section or any regulation
or order issued to implement this section shall be liable for a civil
penalty under section 109 of the Federal Oil and Gas Royalty Management
Act (30 U.S.C. 1719) to the same extent as if the claim located under
the general mining laws and maintained in compliance with this Act were
a lease under that Act.
SEC. 103. HARDROCK MINING CLAIM MAINTENANCE FEE.
(a) Fee.--
(1) Except as provided in section 2511(e)(2) of the Energy
Policy Act of 1992 (relating to oil shale claims), for each
unpatented mining claim, mill or tunnel site on federally owned
lands, whether located before, on, or after enactment of this
Act, each claimant shall pay to the Secretary, on or before
August 31 of each year, a claim maintenance fee of $150 per
claim to hold such unpatented mining claim, mill or tunnel site
for the assessment year beginning at noon on the next day,
September 1. Such claim maintenance fee shall be in lieu of the
assessment work requirement contained in the Mining Law of 1872
(30 U.S.C. 28 et seq.) and the related filing requirements
contained in section 314(a) and (c) of the Federal Land Policy
and Management Act of 1976 (43 U.S.C. 1744(a) and (c)).
(2)(A) The claim maintenance fee required under this
subsection shall be waived for a claimant who certifies in
writing to the Secretary that on the date the payment was due,
the claimant and all related parties--
(i) held not more than 10 mining claims, mill
sites, or tunnel sites, or any combination
thereof, on public lands; and
(ii) have performed assessment work required
under the Mining Law of 1872 (30 U.S.C. 28 et
seq.) to maintain the mining claims held by the
claimant and such related parties for the
assessment year ending on noon of September 1
of the calendar year in which payment of the
claim maintenance fee was due.
(B) For purposes of subparagraph (A), with respect to
any claimant, the term ``all related parties'' means--
(i) the spouse and dependent children (as
defined in section 152 of the Internal Revenue
Code of 1986), of the claimant; or
(ii) a person affiliated with the claimant,
including--
(I) a person controlled by,
controlling, or under common control
with the claimant; or
(II) a subsidiary or parent company
or corporation of the claimant.
(3)(A) The Secretary shall adjust the fees required by this
subsection to reflect changes in the Consumer Price Index
published by the Bureau of Labor Statistics of the Department
of Labor every 5 years after the date of enactment of this Act,
or more frequently if the Secretary determines an adjustment to
be reasonable.
(B) The Secretary shall provide claimants notice of any
adjustment made under this paragraph not later than July 1 of
any year in which the adjustment is made.
(C) A fee adjustment under this paragraph shall begin to
apply the calendar year following the calendar year in which it
is made.
(4) Monies received under this subsection shall be deposited
in the Locatable Minerals Fund established by this Act.
(b) Location.--
(1) Notwithstanding any provision of law, for every
unpatented mining claim, mill or tunnel site located after the
date of enactment of this Act and before September 30, 1998,
the locator shall, at the time the location notice is recorded
with the Bureau of Land Management, pay to the Secretary a
location fee, in addition to the fee required by subsection (a)
of $50 per claim.
(2) Moneys received under this subsection that are not
otherwise allocated for the administration of the mining laws
by the Department of the Interior shall be deposited in the
Locatable Minerals Fund established by this Act.
(c) Co-Ownership.--The co-ownership provisions of the Mining Law of
1872 (30 U.S.C. 28 et seq.) will remain in effect except that the
annual claim maintenance fee, where applicable, shall replace
applicable assessment requirements and expenditures.
(d) Failure to Pay.--Failure to pay the claim maintenance fee as
required by subsection (a) shall conclusively constitute a forfeiture
of the unpatented mining claim, mill or tunnel site by the claimant and
the claim shall be deemed null and void by operation of law.
(e) Other Requirements.--
(1) Nothing in this section shall change or modify the
requirements of section 314(b) of the Federal Land Policy and
Management Act of 1976 (43 U.S.C. 1744(b)), or the requirements
of section 314(c) of the Federal Land Policy and Management Act
of 1976 (43 U.S.C. 1744(c)) related to filings required by
section 314(b), which remain in effect.
(2) Section 2324 of the Revised Statutes of the United States
(30 U.S.C. 28) is amended by inserting ``or section 103(a) of
the Hardrock Mining and Reclamation Act of 2007'' after ``Act
of 1993,''.
SEC. 104. EFFECT OF PAYMENTS FOR USE AND OCCUPANCY OF CLAIMS.
Timely payment of the claim maintenance fee required by section 103
of this Act or any related law relating to the use of Federal land,
asserts the claimant's authority to use and occupy the Federal land
concerned for prospecting and exploration, consistent with the
requirements of this Act and other applicable law.
TITLE II--PROTECTION OF SPECIAL PLACES
SEC. 201. LANDS OPEN TO LOCATION.
(a) Lands Open to Location.--Except as provided in subsection (b),
mining claims may be located under the general mining laws only on such
lands and interests as were open to the location of mining claims under
the general mining laws immediately before the enactment of this Act.
(b) Lands Not Open to Location.--Notwithstanding any other provision
of law and subject to valid existing rights, each of the following
shall not be open to the location of mining claims under the general
mining laws on or after the date of enactment of this Act:
(1) Wilderness study areas.
(2) Areas of critical environmental concern.
(3) Areas designated for inclusion in the National Wild and
Scenic Rivers System pursuant to the Wild and Scenic Rivers Act
(16 U.S.C. 1271 et seq.), areas designated for potential
addition to such system pursuant to section 5(a) of that Act
(16 U.S.C. 1276(a)), and areas determined to be eligible for
inclusion in such system pursuant to section 5(d) of such Act
(16 U.S.C. 1276(d)).
(4) Any area identified in the set of inventoried roadless
areas maps contained in the Forest Service Roadless Area
Conservation Final Environmental Impact Statement, Volume 2,
dated November 2000.
(c) Existing Authority Not Affected.--Nothing in this Act limits the
authority granted the Secretary in section 204 of the Federal Land
Policy and Management Act of 1976 (43 U.S.C. 1714) to withdraw public
lands.
SEC. 202. WITHDRAWAL PETITIONS BY STATES, POLITICAL SUBDIVISIONS, AND
INDIAN TRIBES.
(a) In General.--Any State or political subdivision of a State or an
Indian tribe may submit a petition to the Secretary for the withdrawal
of a specific tract of Federal land from the operation of the general
mining laws, in order to protect specific values identified in the
petition that are important to the State or political subdivision or
Indian tribe. Such values may include the value of a watershed to
supply drinking water, wildlife habitat value, cultural or historic
resources, or value for scenic vistas important to the local economy,
and other similar values. In the case of an Indian tribe, the petition
may also identify religious or cultural values that are important to
the Indian tribe. The petition shall contain the information required
by section 204 of the Federal Land Policy and Management Act of 1976
(43 U.S.C. 1714).
(b) Consideration of Petition.--The Secretary--
(1) shall solicit public comment on the petition;
(2) shall make a final decision on the petition within 180
days after receiving it; and
(3) shall grant the petition unless the Secretary makes and
publishes in the Federal Register specific findings why a
decision to grant the petition would be against the national
interest.
TITLE III--ENVIRONMENTAL CONSIDERATIONS OF MINERAL EXPLORATION AND
DEVELOPMENT
SEC. 301. GENERAL STANDARD FOR HARDROCK MINING ON FEDERAL LAND.
Notwithstanding section 302(b) of the Federal Land Policy and
Management Act of 1976 (43 U.S.C. 1732(b)), the first section of the
Act of June 4, 1897 (chapter 2; 30 Stat. 36 16 U.S.C. 478), and the
National Forest Management Act of 1976 (16 U.S.C. 1600 et seq.), and in
accordance with this title and applicable law, unless expressly stated
otherwise in this Act, the Secretary--
(1) shall ensure that mineral activities on any Federal land
that is subject to a mining claim, millsite claim, or tunnel
site claim is carefully controlled to prevent undue degradation
of public lands and resources; and
(2) shall not grant permission to engage in mineral
activities if the Secretary, after considering the evidence,
makes and publishes in the Federal Register a determination
that undue degradation would result from such activities.
SEC. 302. PERMITS.
(a) Permits Required.--No person may engage in mineral activities on
Federal land that may cause a disturbance of surface resources,
including but not limited to land, air, ground water and surface water,
and fish and wildlife, unless--
(1) the claim was properly located under the general mining
laws and maintained in compliance with such laws and this Act;
and
(2) a permit was issued to such person under this title
authorizing such activities.
(b) Negligible Disturbance.--Notwithstanding subsection (a)(2), a
permit under this title shall not be required for mineral activities
that are a casual use of the Federal land.
(c) Coordination With NEPA Process.--To the extent practicable, the
Secretary and the Secretary of Agriculture shall conduct the permit
processes under this Act in coordination with the timing and other
requirements under section 102 of the National Environmental Policy Act
of 1969 (42 U.S.C. 4332).
SEC. 303. EXPLORATION PERMIT.
(a) Authorized Exploration Activity.--Any claim holder may apply for
an exploration permit for any mining claim authorizing the claim holder
to remove a reasonable amount of the locatable minerals from the claim
for analysis, study and testing. Such permit shall not authorize the
claim holder to remove any mineral for sale nor to conduct any
activities other than those required for exploration for locatable
minerals and reclamation.
(b) Permit Application Requirements.--An application for an
exploration permit under this section shall be submitted in a manner
satisfactory to the Secretary or, for National Forest System lands, the
Secretary of Agriculture, and shall contain an exploration plan, a
reclamation plan for the proposed exploration, and such documentation
as necessary to ensure compliance with applicable Federal and State
environmental laws and regulations.
(c) Reclamation Plan Requirements.--The reclamation plan required to
be included in a permit application under subsection (b) shall include
such provisions as may be jointly prescribed by the Secretary and the
Secretary of Agriculture.
(d) Permit Issuance or Denial.--The Secretary, or for National Forest
System lands, the Secretary of Agriculture, shall issue an exploration
permit pursuant to an application under this section unless such
Secretary makes any of the following determinations:
(1) The permit application, the exploration plan and
reclamation plan are not complete and accurate.
(2) The applicant has not demonstrated that proposed
reclamation can be accomplished.
(3) The proposed exploration activities and condition of the
land after the completion of exploration activities and final
reclamation would not conform with the land use plan applicable
to the area subject to mineral activities.
(4) The area subject to the proposed permit is included
within an area not open to location under section 201.
(5) The applicant has not demonstrated that the exploration
plan and reclamation plan will be in compliance with the
requirements of this Act and all other applicable Federal
requirements, and any State requirements agreed to by the
Secretary of the Interior (or Secretary of Agriculture, as
appropriate).
(6) The applicant has not demonstrated that the requirements
of section 306 (relating to financial assurance) will be met.
(7) The applicant is eligible to receive a permit under
section 305.
(e) Term of Permit.--An exploration permit shall be for a stated
term. The term shall be no greater than that necessary to accomplish
the proposed exploration, and in no case for more than 10 years.
(f) Permit Modification.--During the term of an exploration permit
the permit holder may submit an application to modify the permit. To
approve a proposed modification to the permit, the Secretary concerned
shall make the same determinations as are required in the case of an
original permit, except that the Secretary and the Secretary of
Agriculture may specify by joint rule the extent to which requirements
for initial exploration permits under this section shall apply to
applications to modify an exploration permit based on whether such
modifications are deemed significant or minor.
(g) Transfer, Assignment, or Sale of Rights.--(1) No transfer,
assignment, or sale of rights granted by a permit issued under this
section shall be made without the prior written approval of the
Secretary or for National Forest System lands, the Secretary of
Agriculture.
(2) Such Secretary shall allow a person holding a permit to transfer,
assign, or sell rights under the permit to a successor, if the
Secretary finds, in writing, that the successor--
(A) is eligible to receive a permit in accordance with
section 304(d);
(B) has submitted evidence of financial assurance
satisfactory under section 306; and
(C) meets any other requirements specified by the Secretary.
(3) The successor in interest shall assume the liability and
reclamation responsibilities established by the existing permit and
shall conduct the mineral activities in full compliance with this Act,
and the terms and conditions of the permit as in effect at the time of
transfer, assignment, or sale.
(4) Each application for approval of a permit transfer, assignment,
or sale pursuant to this subsection shall be accompanied by a fee
payable to the Secretary of the Interior in such amount as may be
established by such Secretary. Such amount shall be equal to the actual
or anticipated cost to the Secretary or the Secretary of Agriculture,
as appropriate, of reviewing and approving or disapproving such
transfer, assignment, or sale, as determined by the Secretary of the
Interior. All moneys received under this subsection shall be deposited
in the Locatable Minerals Fund established under title IV of this Act.
SEC. 304. OPERATIONS PERMIT.
(a) Operations Permit.--(1) Any claim holder that is in compliance
with the general mining laws and section 103 of this Act may apply to
the Secretary, or for National Forest System lands, the Secretary of
Agriculture, for an operations permit authorizing the claim holder to
carry out mineral activities, other than casual use, on--
(A) any valid mining claim, valid millsite claim, or valid
tunnel site claim; and
(B) such additional Federal land as the Secretary may
determine is necessary to conduct the proposed mineral
activities, if the operator obtains a right-of-way permit for
use of such additional lands under title V of the Federal Land
Policy and Management Act of 1976 (43 U.S.C. 1761 et seq.) and
agrees to pay all fees required under that title for the permit
under that title.
(2) If the Secretary decides to issue such permit, the permit shall
include such terms and conditions as prescribed by such Secretary to
carry out this title.
(b) Permit Application Requirements.--An application for an
operations permit under this section shall be submitted in a manner
satisfactory to the Secretary concerned and shall contain site
characterization data, an operations plan, a reclamation plan,
monitoring plans, long-term maintenance plans, to the extent necessary,
and such documentation as necessary to ensure compliance with
applicable Federal and State environmental laws and regulations. If the
proposed mineral activities will be carried out in conjunction with
mineral activities on adjacent non-Federal lands, information on the
location and nature of such operations may be required by the
Secretary.
(c) Permit Issuance or Denial.--(1) After providing for public
participation pursuant to subsection (i), the Secretary, or for
National Forest System lands the Secretary of Agriculture, shall issue
an operations permit if such Secretary makes each of the following
determinations in writing, and shall deny a permit if such Secretary
finds that the application and applicant do not fully meet the
following requirements:
(A) The permit application, including the site
characterization data, operations plan, and reclamation plan,
are complete and accurate and sufficient for developing a good
understanding of the anticipated impacts of the mineral
activities and the effectiveness of proposed mitigation and
control.
(B) The applicant has demonstrated that the proposed
reclamation in the operation and reclamation plan can be and is
likely to be accomplished by the applicant and will not cause
undue degradation.
(C) The condition of the land, including the fish and
wildlife resources and habitat contained thereon, after the
completion of mineral activities and final reclamation, will
conform to the land use plan applicable to the area subject to
mineral activities and are returned to a productive use.
(D) The area subject to the proposed plan is open to location
for the types of mineral activities proposed.
(E) The proposed operation has been designed to prevent
material damage to the hydrologic balance outside the permit
area.
(F) The applicant will fully comply with the requirements of
section 306 (relating to financial assurance) prior to the
initiation of operations.
(G) Neither the applicant nor operator, nor any subsidiary,
affiliate, or person controlled by or under common control with
the applicant or operator, is ineligible to receive a permit
under section 305.
(H) The reclamation plan demonstrates that 10 years following
mine closure, no treatment of surface or ground water for
carcinogens or toxins will be required to meet water quality
standards at the point of discharge.
(2) With respect to any activities specified in the reclamation plan
referred to in subsection (b) that constitutes a removal or remedial
action under section 101 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9601 and following),
the Secretary shall consult with the Administrator of the Environmental
Protection Agency prior to the issuance of an operations permit. The
Administrator shall ensure that the reclamation plan does not require
activities that would increase the costs or likelihood of removal or
remedial actions under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9601 and following)
or corrective actions under the Solid Waste Disposal Act (42 U.S.C.
6901 and following).
(d) Term of Permit; Renewal.--
(1) An operations permit--
(A) shall be for a term that is no longer than the
shorter of--
(i) the period necessary to accomplish the
proposed mineral activities subject to the
permit; and
(ii) 20 years; and
(B) shall be renewed for an additional 20-year period
if the operation is in compliance with the requirements
of this Act and other applicable law.
(2) Failure by the operator to commence mineral activities
within 2 years of the date scheduled in an operations permit
shall require a modification of the permit if the Secretary
concerned determines that modifications are necessary to comply
with section 201.
(e) Permit Modification.--
(1) During the term of an operations permit the operator may
submit an application to modify the permit (including the
operations plan or reclamation plan, or both).
(2) The Secretary, or for National Forest System lands the
Secretary of Agriculture, may, at any time, require reasonable
modification to any operations plan or reclamation plan upon a
determination that the requirements of this Act cannot be met
if the plan is followed as approved. Such determination shall
be based on a written finding and subject to public notice and
hearing requirements established by the Secretary concerned.
(3) A permit modification is required before changes are made
to the approved plan of operations, or if unanticipated events
or conditions exist on the mine site, including in the case
of--
(A) development of acid or toxic drainage;
(B) loss of springs or water supplies;
(C) water quantity, water quality, or other resulting
water impacts that are significantly different than
those predicted in the application;
(D) the need for long-term water treatment;
(E) significant reclamation difficulties or
reclamation failure;
(F) the discovery of significant scientific,
cultural, or biological resources that were not
addressed in the original plan; or
(G) the discovery of hazards to public safety.
(f) Temporary Cessation of Operations.--(1) An operator conducting
mineral activities under an operations permit in effect under this
title may not temporarily cease mineral activities for a period greater
than 180 days unless the Secretary concerned has approved such
temporary cessation or unless the temporary cessation is permitted
under the original permit. Any operator temporarily ceasing mineral
activities for a period greater than 90 days under an operations permit
issued before the date of the enactment of this Act shall submit,
before the expiration of such 90-day period, a complete application for
temporary cessation of operations to the Secretary concerned for
approval unless the temporary cessation is permitted under the original
permit.
(2) An application for approval of temporary cessation of operations
shall include such information required under subsection (b) and any
other provisions prescribed by the Secretary concerned to minimize
impacts on the environment. After receipt of a complete application for
temporary cessation of operations such Secretary shall conduct an
inspection of the area for which temporary cessation of operations has
been requested.
(3) To approve an application for temporary cessation of operations,
the Secretary concerned shall make each of the following
determinations:
(A) A determination that the methods for securing surface
facilities and restricting access to the permit area, or
relevant portions thereof, will effectively ensure against
hazards to the health and safety of the public and fish and
wildlife.
(B) A determination that reclamation is in compliance with
the approved reclamation plan, except in those areas
specifically designated in the application for temporary
cessation of operations for which a delay in meeting such
standards is necessary to facilitate the resumption of
operations.
(C) A determination that the amount of financial assurance
filed with the permit application is sufficient to assure
completion of the reclamation activities identified in the
approved reclamation plan in the event of forfeiture.
(D) A determination that any outstanding notices of violation
and cessation orders incurred in connection with the plan for
which temporary cessation is being requested are either stayed
pursuant to an administrative or judicial appeal proceeding or
are in the process of being abated to the satisfaction of the
Secretary concerned.
(g) Permit Reviews.--The Secretary, or for National Forest System
lands the Secretary of Agriculture, shall review each permit issued
under this section every 10 years during the term of such permit, shall
provide public notice of the permit review, and, based upon a written
finding, such Secretary shall require the operator to take such actions
as the Secretary deems necessary to assure that mineral activities
conform to the permit, including adjustment of financial assurance
requirements.
(h) Transfer, Assignment, or Sale of Rights.--(1) No transfer,
assignment, or sale of rights granted by a permit under this section
shall be made without the prior written approval of the Secretary, or
for National Forest System lands the Secretary of Agriculture.
(2) The Secretary, or for National Forest System lands, the Secretary
of Agriculture, may allow a person holding a permit to transfer,
assign, or sell rights under the permit to a successor, if such
Secretary finds, in writing, that the successor--
(A) has submitted information required and is eligible to
receive a permit in accordance with section 305;
(B) has submitted evidence of financial assurance
satisfactory under section 306; and
(C) meets any other requirements specified by such Secretary.
(3) The successor in interest shall assume the liability and
reclamation responsibilities established by the existing permit and
shall conduct the mineral activities in full compliance with this Act,
and the terms and conditions of the permit as in effect at the time of
transfer, assignment, or sale.
(4) Each application for approval of a permit transfer, assignment,
or sale pursuant to this subsection shall be accompanied by a fee
payable to the Secretary of the Interior, or for National Forest System
lands, the Secretary of Agriculture, in such amount as may be
established by such Secretary, or for National Forest System lands, by
the Secretary of Agriculture. Such amount shall be equal to the actual
or anticipated cost to the Secretary or, for National Forest System
lands, to the Secretary of Agriculture, of reviewing and approving or
disapproving such transfer, assignment, or sale, as determined by such
Secretary. All moneys received under this subsection shall be deposited
in the Locatable Minerals Fund established under title IV.
(i) Public Participation.--The Secretary of the Interior and the
Secretary of Agriculture shall jointly promulgate regulations to ensure
transparency and public participation in permit decisions required
under this Act, consistent with any requirements that apply to such
decisions under section 102 of the National Environmental Policy Act of
1969 (42 U.S.C. 4332).
SEC. 305. PERSONS INELIGIBLE FOR PERMITS.
(a) Current Violations.--Unless corrective action has been taken in
accordance with subsection (c), no permit under this title shall be
issued or transferred to an applicant if the applicant or any agent of
the applicant, the operator (if different than the applicant) of the
claim concerned, any claim holder (if different than the applicant) of
the claim concerned, or any affiliate or officer or director of the
applicant is currently in violation of any of the following:
(1) A provision of this Act or any regulation under this Act.
(2) An applicable State or Federal toxic substance, solid
waste, air, water quality, or fish and wildlife conservation
law or regulation at any site where mining, beneficiation, or
processing activities are occurring or have occurred.
(3) The Surface Mining Control and Reclamation Act of 1977
(30 U.S.C. 1201 and following) or any regulation implementing
that Act at any site where surface coal mining operations have
occurred or are occurring.
(b) Suspension.--The Secretary, or for National Forest System lands
the Secretary of Agriculture, shall suspend an operations permit, in
whole or in part, if such Secretary determines that any of the entities
described in subsection (a) were in violation of any requirement listed
in subsection (a) at the time the permit was issued.
(c) Correction.--(1) The Secretary, or for National Forest System
lands the Secretary of Agriculture, may issue or reinstate a permit
under this title if the applicant submits proof that the violation
referred to in subsection (a) or (b) has been corrected or is in the
process of being corrected to the satisfaction of such Secretary and
the regulatory authority involved or if the applicant submits proof
that the violator has filed and is presently pursuing, a direct
administrative or judicial appeal to contest the existence of the
violation. For purposes of this section, an appeal of any applicant's
relationship to an affiliate shall not constitute a direct
administrative or judicial appeal to contest the existence of the
violation.
(2) Any permit which is issued or reinstated based upon proof
submitted under this subsection shall be conditionally approved or
conditionally reinstated, as the case may be. If the violation is not
successfully abated or the violation is upheld on appeal, the permit
shall be suspended or revoked.
(d) Pattern of Willful Violations.--No permit under this Act may be
issued to any applicant if there is a demonstrated pattern of willful
violations of the environmental protection requirements of this Act by
the applicant, any affiliate of the applicant, or the operator or claim
holder if different than the applicant.
SEC. 306. FINANCIAL ASSURANCE.
(a) Financial Assurance Required.--(1) After a permit is issued under
this title and before any exploration or operations begin under the
permit, the operator shall file with the Secretary, or for National
Forest System lands the Secretary of Agriculture, evidence of financial
assurance payable to the United States. The financial assurance shall
be provided in the form of a surety bond, a trust fund, letters of
credits, government securities, certificates of deposit, cash, or an
equivalent form approved by such Secretary.
(2) The financial assurance shall cover all lands within the initial
permit area and all affected waters that may require restoration,
treatment, or other management as a result of mineral activities, and
shall be extended to cover all lands and waters added pursuant to any
permit modification made under section 303(f) (relating to exploration
permits) or section 304(e) (relating to operations permits), or
affected by mineral activities.
(b) Amount.--The amount of the financial assurance required under
this section shall be sufficient to assure the completion of
reclamation and restoration satisfying the requirements of this Act if
the work were to be performed by the Secretary concerned in the event
of forfeiture, including the construction and maintenance costs for any
treatment facilities necessary to meet Federal and State environmental
requirements. The calculation of such amount shall take into account
the maximum level of financial exposure which shall arise during the
mineral activity and administrative costs associated with a government
agency reclaiming the site.
(c) Duration.--The financial assurance required under this section
shall be held for the duration of the mineral activities and for an
additional period to cover the operator's responsibility for
reclamation, restoration, and long-term maintenance, and effluent
treatment as specified in subsection (g).
(d) Adjustments.--The amount of the financial assurance and the terms
of the acceptance of the assurance may be adjusted by the Secretary
concerned from time to time as the area requiring coverage is increased
or decreased, or where the costs of reclamation or treatment change, or
pursuant to section 304(f) (relating to temporary cessation of
operations), but the financial assurance shall otherwise be in
compliance with this section. The Secretary concerned shall review the
financial guarantee every 3 years and as part of the permit application
review under section 304(c).
(e) Release.--Upon request, and after notice and opportunity for
public comment, and after inspection by the Secretary, or for National
Forest System lands, the Secretary of Agriculture, such Secretary may,
after consultation with the Administrator of the Environmental
Protection Agency, release in whole or in part the financial assurance
required under this section if the Secretary makes both of the
following determinations:
(1) A determination that reclamation or restoration covered
by the financial assurance has been accomplished as required by
this Act.
(2) A determination that the terms and conditions of any
other applicable Federal requirements, and State requirements
applicable pursuant to cooperative agreements under section
308, have been fulfilled.
(f) Release Schedule.--The release referred to in subsection (e)
shall be according to the following schedule:
(1) After the operator has completed any required
backfilling, regrading, and drainage control of an area subject
to mineral activities and covered by the financial assurance,
and has commenced revegetation on the regraded areas subject to
mineral activities in accordance with the approved plan, that
portion of the total financial assurance secured for the area
subject to mineral activities attributable to the completed
activities may be released except that sufficient assurance
must be retained to address other required reclamation and
restoration needs and to assure the long-term success of the
revegetation.
(2) After the operator has completed successfully all
remaining mineral activities and reclamation activities and all
requirements of the operations plan and the reclamation plan,
and all other requirements of this Act have been fully met, the
remaining portion of the financial assurance may be released.
During the period following release of the financial assurance as
specified in paragraph (1), until the remaining portion of the
financial assurance is released as provided in paragraph (2), the
operator shall be required to comply with the permit issued under this
title.
(g) Effluent.--Notwithstanding section 307(b)(4), where any discharge
or other water-related condition resulting from the mineral activities
requires treatment in order to meet the applicable effluent limitations
and water quality standards, the financial assurance shall include the
estimated cost of maintaining such treatment for the projected period
that will be needed after the cessation of mineral activities. The
portion of the financial assurance attributable to such estimated cost
of treatment shall not be released until the discharge has ceased for a
period of 5 years, as determined by ongoing monitoring and testing, or,
if the discharge continues, until the operator has met all applicable
effluent limitations and water quality standards for 5 full years
without treatment.
(h) Environmental Hazards.--If the Secretary, or for National Forest
System lands, the Secretary of Agriculture, determines, after final
release of financial assurance, that an environmental hazard resulting
from the mineral activities exists, or the terms and conditions of the
explorations or operations permit of this Act were not fulfilled in
fact at the time of release, such Secretary shall issue an order under
section 506 requiring the claim holder or operator (or any person who
controls the claim holder or operator) to correct the condition such
that applicable laws and regulations and any conditions from the plan
of operations are met.
SEC. 307. OPERATION AND RECLAMATION.
(a) General Rule.--(1) The operator shall restore lands subject to
mineral activities carried out under a permit issued under this title
to a condition capable of supporting--
(A) the uses which such lands were capable of supporting
prior to surface disturbance by the operator, or
(B) other beneficial uses which conform to applicable land
use plans as determined by the Secretary, or for National
Forest System lands, the Secretary of Agriculture.
(2) Reclamation shall proceed as contemporaneously as practicable
with the conduct of mineral activities. In the case of a cessation of
mineral activities beyond that provided for as a temporary cessation
under this Act, reclamation activities shall begin immediately.
(b) Operation and Reclamation Standards.--The Secretary of the
Interior and the Secretary of Agriculture shall jointly promulgate
regulations that establish operation and reclamation standards for
mineral activities permitted under this Act. The Secretaries may
determine whether outcome-based performance standards or technology-
based design standards are most appropriate. The regulations shall
address the following:
(1) Segregation, protection, and replacement of topsoil or
other suitable growth medium, and the prevention, where
possible, of soil contamination.
(2) Maintenance of the stability of all surface areas.
(3) Control of sediments to prevent erosion and manage
drainage.
(4) Minimization of the formation and migration of acidic,
alkaline, metal-bearing, or other deleterious leachate.
(5) Reduction of the visual impact of mineral activities to
the surrounding topography, including as necessary pit
backfill.
(6) Establishment of a diverse, effective, and permanent
vegetative cover of the same seasonal variety native to the
area affected by mineral activities, and equal in extent of
cover to the natural vegetation of the area.
(7) Design and maintenance of leach operations, impoundments,
and excess waste according to standard engineering standards to
achieve and maintain stability and reclamation of the site.
(8) Removal of structures and roads and sealing of drill
holes.
(9) Restoration of, or mitigation for, fish and wildlife
habitat disturbed by mineral activities.
(10) Preservation of cultural, paleontological, and cave
resources.
(11) Prevention and suppression of fire in the area of
mineral activities.
(c) Surface or Groundwater Withdrawals.--The Secretary shall work
with State and local governments with authority over the allocation and
use of surface and groundwater in the area around the mine site as
necessary to ensure that any surface or groundwater withdrawals made as
a result of mining activities approved under this section do not cause
undue degradation.
(d) Special Rule.--Reclamation activities for a mining claim that has
been forfeited, relinquished, or lapsed, or a plan that has expired or
been revoked or suspended, shall continue subject to review and
approval by the Secretary, or for National Forest System lands the
Secretary of Agriculture.
SEC. 308. STATE LAW AND REGULATION.
(a) State Law.--(1) Any reclamation, land use, environmental, or
public health protection standard or requirement in State law or
regulation that meets or exceeds the requirements of this Act shall not
be construed to be inconsistent with any such standard.
(2) Any bonding standard or requirement in State law or regulation
that meets or exceeds the requirements of this Act shall not be
construed to be inconsistent with such requirements.
(3) Any inspection standard or requirement in State law or regulation
that meets or exceeds the requirements of this Act shall not be
construed to be inconsistent with such requirements.
(b) Applicability of Other State Requirements.--(1) Nothing in this
Act shall be construed as affecting any toxic substance, solid waste,
or air or water quality, standard or requirement of any State, county,
local, or tribal law or regulation, which may be applicable to mineral
activities on lands subject to this Act.
(2) Nothing in this Act shall be construed as affecting in any way
the right of any person to enforce or protect, under applicable law,
such person's interest in water resources affected by mineral
activities on lands subject to this Act.
(c) Cooperative Agreements.--(1) Any State may enter into a
cooperative agreement with the Secretary, or for National Forest System
lands the Secretary of Agriculture, for the purposes of such Secretary
applying such standards and requirements referred to in subsection (a)
and subsection (b) to mineral activities or reclamation on lands
subject to this Act.
(2) In such instances where the proposed mineral activities would
affect lands not subject to this Act in addition to lands subject to
this Act, in order to approve a plan of operations the Secretary
concerned shall enter into a cooperative agreement with the State that
sets forth a common regulatory framework consistent with the
requirements of this Act for the purposes of such plan of operations.
Any such common regulatory framework shall not negate the authority of
the Federal Government to independently inspect mines and operations
and bring enforcement actions for violations.
(3) The Secretary concerned shall not enter into a cooperative
agreement with any State under this section until after notice in the
Federal Register and opportunity for public comment and hearing.
(d) Prior Agreements.--Any cooperative agreement or such other
understanding between the Secretary concerned and any State, or
political subdivision thereof, relating to the management of mineral
activities on lands subject to this Act that was in existence on the
date of enactment of this Act may only continue in force until 1 year
after the date of enactment of this Act. During such 1-year period, the
State and the Secretary shall review the terms of the agreement and
make changes that are necessary to be consistent with this Act.
SEC. 309. LIMITATION ON THE ISSUANCE OF PERMITS.
No permit shall be issued under this title that authorizes mineral
activities that would impair the land or resources of the National Park
System or a National Monument. For purposes of this section, the term
``impair'' shall include any diminution of the affected land including
its scenic assets, its water resources, its air quality, and its
acoustic qualities, or other changes that would impair a citizen's
experience at the National Park or National Monument.
TITLE IV--MINING MITIGATION
Subtitle A--Locatable Minerals Fund
SEC. 401. ESTABLISHMENT OF FUND.
(a) Establishment.--There is established on the books of the Treasury
of the United States a separate account to be known as the Locatable
Minerals Fund (hereinafter in this subtitle referred to as the
``Fund'').
(b) Investment.--The Secretary shall notify the Secretary of the
Treasury as to what portion of the Fund is not, in the Secretary's
judgment, required to meet current withdrawals. The Secretary of the
Treasury shall invest such portion of the Fund in public debt
securities with maturities suitable for the needs of such Fund and
bearing interest at rates determined by the Secretary of the Treasury,
taking into consideration current market yields on outstanding
marketplace obligations of the United States of comparable maturities.
SEC. 402. CONTENTS OF FUND.
The following amounts shall be credited to the Fund:
(1) All moneys collected pursuant to section 506 (relating to
enforcement) and section 504 (relating to citizens suits).
(2) All permit fees and transfer fees received under section
304.
(3) All donations by persons, corporations, associations, and
foundations for the purposes of this subtitle.
(4) All amounts deposited in the Fund under section 102
(relating to royalties and penalties for underreporting).
(5) All amounts received by the United States pursuant to
section 101 from issuance of patents.
(6) All amounts received by the United States pursuant to
section 103 as claim maintenance and location fees.
(7) All income on investments under section 401(b).
SEC. 403. SUBACCOUNTS.
There shall be in the Fund 2 subaccounts, as follows:
(1) The Hardrock Reclamation Account, which shall consist of
\2/3\ of the amounts credited to the Fund under section 402 and
which shall be administered by the Secretary acting through the
Director of the Office of Surface Mining and Enforcement.
(2) The Hardrock Community Impact Assistance Account, which
shall consist of \1/3\ of the amounts credited to the Fund
under section 402 and which shall be administered by the
Secretary acting through the Director of the Bureau of Land
Management.
Subtitle B--Use of Hardrock Reclamation Account
SEC. 411. USE AND OBJECTIVES OF THE ACCOUNT.
(a) In General.--The Secretary is authorized, subject to
appropriations, to use moneys in the Hardrock Reclamation Account for
the reclamation and restoration of land and water resources adversely
affected by past mineral activities on lands the legal and beneficial
title to which resides in the United States, land within the exterior
boundary of any national forest system unit, or other lands described
in subsection (d) or section 412, including any of the following:
(1) Protecting public health and safety.
(2) Preventing, abating, treating, and controlling water
pollution created by abandoned mine drainage.
(3) Reclaiming and restoring abandoned surface and
underground mined areas.
(4) Reclaiming and restoring abandoned milling and processing
areas.
(5) Backfilling, sealing, or otherwise controlling, abandoned
underground mine entries.
(6) Revegetating land adversely affected by past mineral
activities in order to prevent erosion and sedimentation, to
enhance wildlife habitat, and for any other reclamation
purpose.
(7) Controlling of surface subsidence due to abandoned
underground mines.
(b) Priorities.--Expenditures of moneys from the Hardrock Reclamation
Account shall reflect the following priorities in the order stated:
(1) The protection of public health and safety, from extreme
danger from the adverse effects of past mineral activities,
especially as relates to surface water and groundwater
contaminants.
(2) The protection of public health and safety, from the
adverse effects of past mineral activities.
(3) The restoration of land, water, and fish and wildlife
resources previously degraded by the adverse effects of past
mineral activities.
(c) Habitat.--Reclamation and restoration activities under this
subtitle, particularly those identified under subsection (a)(4), shall
include appropriate mitigation measures to provide for the continuation
of any established habitat for wildlife in existence prior to the
commencement of such activities.
(d) Other Affected Lands.--Where mineral exploration, mining,
beneficiation, processing, or reclamation activities have been carried
out with respect to any mineral which would be a locatable mineral if
the legal and beneficial title to the mineral were in the United
States, if such activities directly affect lands managed by the Bureau
of Land Management as well as other lands and if the legal and
beneficial title to more than 50 percent of the affected lands resides
in the United States, the Secretary is authorized, subject to
appropriations, to use moneys in the Hardrock Reclamation Account for
reclamation and restoration under subsection (a) for all directly
affected lands.
(e) Response or Removal Actions.--Reclamation and restoration
activities under this subtitle which constitute a removal or remedial
action under section 101 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9601), shall be
conducted with the concurrence of the Administrator of the
Environmental Protection Agency. The Secretary and the Administrator
shall enter into a Memorandum of Understanding to establish procedures
for consultation, concurrence, training, exchange of technical
expertise and joint activities under the appropriate circumstances,
that provide assurances that reclamation or restoration activities
under this subtitle shall not be conducted in a manner that increases
the costs or likelihood of removal or remedial actions under the
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980 (42 U.S.C. 9601 and following), and that avoid oversight by
multiple agencies to the maximum extent practicable.
SEC. 412. ELIGIBLE LANDS AND WATERS.
(a) Eligibility.--Reclamation expenditures under this subtitle may
only be made with respect to Federal lands or Indian lands or water
resources that traverse or are contiguous to Federal lands or Indian
lands where such lands or water resources have been affected by past
mineral activities, including any of the following:
(1) Lands and water resources which were used for, or
affected by, mineral activities and abandoned or left in an
inadequate reclamation status before the effective date of this
Act.
(2) Lands for which the Secretary makes a determination that
there is no continuing reclamation responsibility of a claim
holder, operator, or other person who abandoned the site prior
to completion of required reclamation under State or other
Federal laws.
(3) Lands for which it can be established that such lands do
not contain locatable minerals which could economically be
extracted through the reprocessing or remining of such lands,
unless such considerations are in conflict with the priorities
set forth under paragraphs (1) and (2) of section 302(b).
(b) Specific Sites and Areas Not Eligible.--The provisions of section
411(d) of the Surface Mining Control and Reclamation Act of 1977 (30
U.S.C. 1240a(d)) shall apply to expenditures made from the Hardrock
Reclamation Account.
(c) Inventory.--The Secretary shall prepare and maintain a publicly
available inventory of abandoned locatable minerals mines on public
lands and any abandoned mine on Indian lands that may be eligible for
expenditures under this subtitle, and shall deliver a yearly report to
the Congress on the progress in cleanup of such sites.
SEC. 413. EXPENDITURES.
Moneys available from the Hardrock Reclamation Account may be
expended for the purposes specified in section 411 directly by the
Director of the Office of Surface Mining Reclamation and Enforcement.
The Director may also make such money available for such purposes to
the Director of the Bureau of Land Management, the Chief of the United
States Forest Service, the Director of the National Park Service, or
Director of the United States Fish and Wildlife Service, to any other
agency of the United States, to an Indian tribe, or to any public
entity that volunteers to develop and implement, and that has the
ability to carry out, all or a significant portion of a reclamation
program under this subtitle.
SEC. 414. AUTHORIZATION OF APPROPRIATIONS.
Amounts credited to the Hardrock Reclamation Account are authorized
to be appropriated for the purpose of this subtitle without fiscal year
limitation.
Subtitle C--Use of Hardrock Community Impact Assistance Account
SEC. 421. USE AND OBJECTIVES OF THE ACCOUNT.
Amounts in the Hardrock Community Impact Assistance Account shall be
available to the Secretary, subject to appropriations, to provide
assistance for the planning, construction, and maintenance of public
facilities and the provision of public services to States, political
subdivisions and Indian tribes that are socially or economically
impacted by mineral activities conducted under the general mining laws.
SEC. 422. ALLOCATION OF FUNDS.
Moneys deposited into the Hardrock Community Impact Assistance
Account shall be allocated by the Secretary for purposes of section 421
among the States within the boundaries of which occurs production of
locatable minerals from mining claims located under the general mining
laws and maintained in compliance with this Act, or mineral
concentrates or products derived from locatable minerals from mining
claims located under the general mining laws and maintained in
compliance with this Act, as the case may be, in proportion to the
amount of such production in each such State.
TITLE V--ADMINISTRATIVE AND MISCELLANEOUS PROVISIONS
Subtitle A--Administrative Provisions
SEC. 501. POLICY FUNCTIONS.
(a) Minerals Policy.--Section 101 of the Mining and Minerals Policy
Act of 1970 (30 U.S.C. 21a) is amended--
(1) in the first sentence by inserting before the period at
the end the following: ``and to ensure that mineral extraction
and processing not cause undue degradation of the natural and
cultural resources of the public lands''; and
(2) by adding at the end thereof the following: ``It shall
also be the responsibility of the Secretary of Agriculture to
carry out the policy provisions of paragraphs (1) and (2) of
this section.''.
(b) Mineral Data.--Section 5(e)(3) of the National Materials and
Minerals Policy, Research and Development Act of 1980 (30 U.S.C.
1604(e)(3)) is amended by inserting before the period the following:
``, except that for National Forest System lands the Secretary of
Agriculture shall promptly initiate actions to improve the availability
and analysis of mineral data in public land use decisionmaking''.
SEC. 502. USER FEES.
(a) In General.--The Secretary and the Secretary of Agriculture may
each establish and collect from persons subject to the requirements of
this Act such user fees as may be necessary to reimburse the United
States for the expenses incurred in administering such requirements.
Fees may be assessed and collected under this section only in such
manner as may reasonably be expected to result in an aggregate amount
of the fees collected during any fiscal year which does not exceed the
aggregate amount of administrative expenses referred to in this
section.
(b) Adjustment.--(1) The Secretary shall adjust the fees required by
this section to reflect changes in the Consumer Price Index published
by the Bureau of Labor Statistics of the Department of Labor every 5
years after the date of enactment of this Act, or more frequently if
the Secretary determines an adjustment to be reasonable.
(2) The Secretary shall provide claimants notice of any adjustment
made under this subsection not later than July 1 of any year in which
the adjustment is made.
(3) A fee adjustment under this subsection shall begin to apply the
calendar year following the calendar year in which it is made.
SEC. 503. INSPECTION AND MONITORING.
(a) Inspections.--(1) The Secretary, or for National Forest System
lands the Secretary of Agriculture, shall make inspections of mineral
activities so as to ensure compliance with the requirements of this
Act.
(2) The Secretary concerned shall establish a frequency of
inspections for mineral activities conducted under a permit issued
under title III, but in no event shall such inspection frequency be
less than one complete inspection per calendar quarter or, two per
calendar quarter in the case of a permit for which the Secretary
concerned approves an application under section 304(f) (relating to
temporary cessation of operations). After revegetation has been
established in accordance with a reclamation plan, such Secretary shall
conduct annually 2 complete inspections. Such Secretary shall have the
discretion to modify the inspection frequency for mineral activities
that are conducted on a seasonal basis. Inspections shall continue
under this subsection until final release of financial assurance.
(3)(A) Any person who has reason to believe he or she is or may be
adversely affected by mineral activities due to any violation of the
requirements of a permit approved under this Act may request an
inspection. The Secretary, or for National Forest System lands the
Secretary of Agriculture, shall determine within 10 working days of
receipt of the request whether the request states a reason to believe
that a violation exists. If the person alleges and provides reason to
believe that an imminent threat to the environment or danger to the
health or safety of the public exists, the 10-day period shall be
waived and the inspection shall be conducted immediately. When an
inspection is conducted under this paragraph, the Secretary concerned
shall notify the person requesting the inspection, and such person
shall be allowed to accompany the Secretary concerned or the
Secretary's authorized representative during the inspection. The
Secretary shall not incur any liability for allowing such person to
accompany an authorized representative. The identity of the person
supplying information to the Secretary relating to a possible violation
or imminent danger or harm shall remain confidential with the Secretary
if so requested by that person, unless that person elects to accompany
an authorized representative on the inspection.
(B) The Secretaries shall, by joint rule, establish procedures for
the review of (i) any decision by an authorized representative not to
inspect; or (ii) any refusal by such representative to ensure that
remedial actions are taken with respect to any alleged violation. The
Secretary concerned shall furnish such persons requesting the review a
written statement of the reasons for the Secretary's final disposition
of the case.
(b) Monitoring.--(1) The Secretary, or for National Forest System
lands the Secretary of Agriculture, shall require all operators to
develop and maintain a monitoring and evaluation system that shall
identify compliance with all requirements of a permit approved under
this Act. The Secretary concerned may require additional monitoring to
be conducted as necessary to assure compliance with the reclamation and
other environmental standards of this Act. Such plan must be reviewed
and approved by the Secretary and shall become a part of the
explorations or operations permit.
(2) The operator shall file reports with the Secretary, or for
National Forest System lands the Secretary of Agriculture, on a
frequency determined by the Secretary concerned, on the results of the
monitoring and evaluation process, except that if the monitoring and
evaluation show a violation of the requirements of a permit approved
under this Act, it shall be reported immediately to the Secretary
concerned. The Secretary shall evaluate the reports submitted pursuant
to this paragraph, and based on those reports and any necessary
inspection shall take enforcement action pursuant to this section. Such
reports shall be maintained by the operator and by the Secretary and
shall be made available to the public.
(3) The Secretary, or for National Forest System lands the Secretary
of Agriculture, shall determine what information shall be reported by
the operator pursuant to paragraph (3). A failure to report as required
by the Secretary concerned shall constitute a violation of this Act and
subject the operator to enforcement action pursuant to section 506.
SEC. 504. CITIZENS SUITS.
(a) In General.--Except as provided in subsection (b), any person may
commence a civil action on his or her own behalf to compel compliance--
(1) against any person (including the Secretary or the
Secretary of Agriculture) who is allged to be in violation of
any of the provisions of this Act or any regulation promulgated
pursuant to this Act or any term or condition of any permit
issued under this Act; or
(2) against the Secretary or the Secretary of Agriculture
where there is alleged a failure of such Secretary to perform
any act or duty under this Act, or to promulgate any regulation
under this Act, which is not within the discretion of the
Secretary concerned.
The United States district courts shall have jurisdiction over actions
brought under this section, without regard to the amount in controversy
or the citizenship of the parties, including actions brought to apply
any civil penalty under this Act. The district courts of the United
States shall have jurisdiction to compel agency action unreasonably
delayed, except that an action to compel agency action reviewable under
section 505 may only be filed in a United States district court within
the circuit in which such action would be reviewable under section 505.
(b) Exceptions.--(1) No action may be commenced under subsection (a)
before the end of the 60-day period beginning on the date the plaintiff
has given notice in writing of such alleged violation to the the
alleged violator and the Secretary, or for National Forest System lands
the Secretary of Agriculture, except that any such action may be
brought immediately after such notification if the violation complained
of constitutes an imminent threat to the environment or to the health
or safety of the public.
(2) No action may be brought against any person other than the
Secretary or the Secretary of Agriculture under subsection (a)(1) if
such Secretary has commenced and is diligently prosecuting a civil or
criminal action in a court of the United States to require compliance.
(3) No action may be commenced under paragraph (2) of subsection (a)
against either Secretary to review any rule promulgated by, or to any
permit issued or denied by such Secretary if such rule or permit
issuance or denial is judicially reviewable under section 505 or under
any other provision of law at any time after such promulgation,
issuance, or denial is final.
(c) Venue.--Venue of all actions brought under this section shall be
determined in accordance with section 1391 of title 28, United States
Code.
(d) Costs.--The court, in issuing any final order in any action
brought pursuant to this section may award costs of litigation
(including attorney and expert witness fees) to any party whenever the
court determines such award is appropriate. The court may, if a
temporary restraining order or preliminary injunction is sought,
require the filing of a bond or equivalent security in accordance with
the Federal Rules of Civil Procedure.
(e) Savings Clause.--Nothing in this section shall restrict any right
which any person (or class of persons) may have under chapter 7 of
title 5, United States Code, under this section, or under any other
statute or common law to bring an action to seek any relief against the
Secretary or the Secretary of Agriculture or against any other person,
including any action for any violation of this Act or of any regulation
or permit issued under this Act or for any failure to act as required
by law. Nothing in this section shall affect the jurisdiction of any
court under any provision of title 28, United States Code, including
any action for any violation of this Act or of any regulation or permit
issued under this Act or for any failure to act as required by law.
SEC. 505. ADMINISTRATIVE AND JUDICIAL REVIEW.
(a) Review by Secretary.--(1)(A) Any person issued a notice of
violation or cessation order under section 506, or any person having an
interest which is or may be adversely affected by such notice or order,
may apply to the Secretary, or for National Forest System lands the
Secretary of Agriculture, for review of the notice or order within 30
days after receipt thereof, or as the case may be, within 30 days after
such notice or order is modified, vacated, or terminated.
(B) Any person who is subject to a penalty assessed under section 506
may apply to the Secretary concerned for review of the assessment
within 45 days of notification of such penalty.
(C) Any person may apply to such Secretary for review of the decision
within 30 days after it is made.
(D) Pending a review by the Secretary or resolution of an
administrative appeal, final decisions (except enforcement actions
under section 506) shall be stayed.
(2) The Secretary concerned shall provide an opportunity for a public
hearing at the request of any party to the proceeding as specified in
paragraph (1). The filing of an application for review under this
subsection shall not operate as a stay of any order or notice issued
under section 506.
(3) For any review proceeding under this subsection, the Secretary
concerned shall make findings of fact and shall issue a written
decision incorporating therein an order vacating, affirming, modifying,
or terminating the notice, order, or decision, or with respect to an
assessment, the amount of penalty that is warranted. Where the
application for review concerns a cessation order issued under section
506 the Secretary concerned shall issue the written decision within 30
days of the receipt of the application for review or within 30 days
after the conclusion of any hearing referred to in paragraph (2),
whichever is later, unless temporary relief has been granted by the
Secretary concerned under paragraph (4).
(4) Pending completion of any review proceedings under this
subsection, the applicant may file with the Secretary, or for National
Forest System lands the Secretary of Agriculture, a written request
that the Secretary grant temporary relief from any order issued under
section 506 together with a detailed statement giving reasons for such
relief. The Secretary concerned shall expeditiously issue an order or
decision granting or denying such relief. The Secretary concerned may
grant such relief under such conditions as he or she may prescribe only
if such relief shall not adversely affect the health or safety of the
public or cause imminent environmental harm to land, air, or water
resources.
(5) The availability of review under this subsection shall not be
construed to limit the operation of rights under section 504 (relating
to citizen suits).
(b) Judicial Review.--(1) Any final action by the Secretaries of the
Interior and Agriculture in promulgating regulations to implement this
Act, or any other final actions constituting rulemaking to implement
this Act, shall be subject to judicial review only in the United States
Court of Appeals for the District of Columbia. Any action subject to
judicial review under this subsection shall be affirmed unless the
court concludes that such action is arbitrary, capricious, or otherwise
inconsistent with law. A petition for review of any action subject to
judicial review under this subsection shall be filed within 60 days
from the date of such action, or after such date if the petition is
based solely on grounds arising after the 60th day. Any such petition
may be made by any person who commented or otherwise participated in
the rulemaking or any person who may be adversely affected by the
action of the Secretaries.
(2) Final agency action under this subsection, including such final
action on those matters described under subsection (a), shall be
subject to judicial review in accordance with paragraph (4) and
pursuant to section 1391 of title 28, United States Code, on or before
60 days from the date of such final action. Any action subject to
judicial review under this subsection shall be affirmed unless the
court concludes that such action is arbitrary, capricious, or otherwise
inconsistent with law.
(3) The availability of judicial review established in this
subsection shall not be construed to limit the operations of rights
under section 504 (relating to citizens suits).
(4) The court shall hear any petition or complaint filed under this
subsection solely on the record made before the Secretary or
Secretaries concerned. The court may affirm or vacate any order or
decision or may remand the proceedings to the Secretary or Secretaries
for such further action as it may direct.
(5) The commencement of a proceeding under this section shall not,
unless specifically ordered by the court, operate as a stay of the
action, order, or decision of the Secretary or Secretaries concerned.
(c) Costs.--Whenever a proceeding occurs under subsection (a) or (b),
at the request of any person, a sum equal to the aggregate amount of
all costs and expenses (including attorney fees) as determined by the
Secretary or Secretaries concerned or the court to have been reasonably
incurred by such person for or in connection with participation in such
proceedings, including any judicial review of the proceeding, may be
assessed against either party as the court, in the case of judicial
review, or the Secretary or Secretaries concerned in the case of
administrative proceedings, deems proper if it is determined that such
party prevailed in whole or in part, achieving some success on the
merits, and that such party made a substantial contribution to a full
and fair determination of the issues.
SEC. 506. ENFORCEMENT.
(a) Orders.--(1) If the Secretary, or for National Forest System
lands the Secretary of Agriculture, or an authorized representative of
such Secretary, determines that any person is in violation of any
environmental protection requirement under title III or any regulation
issued by the Secretaries to implement this Act, such Secretary or
authorized representative shall issue to such person a notice of
violation describing the violation and the corrective measures to be
taken. The Secretary concerned, or the authorized representative of
such Secretary, shall provide such person with a period of time not to
exceed 30 days to abate the violation. Such period of time may be
extended by the Secretary concerned upon a showing of good cause by
such person. If, upon the expiration of time provided for such
abatement, the Secretary concerned, or the authorized representative of
such Secretary, finds that the violation has not been abated he or she
shall immediately order a cessation of all mineral activities or the
portion thereof relevant to the violation.
(2) If the Secretary concerned, or the authorized representative of
the Secretary concerned, determines that any condition or practice
exists, or that any person is in violation of any requirement under a
permit approved under this Act, and such condition, practice or
violation is causing, or can reasonably be expected to cause--
(A) an imminent danger to the health or safety of the public;
or
(B) significant, imminent environmental harm to land, air,
water, or fish or wildlife resources;
such Secretary or authorized representative shall immediately order a
cessation of mineral activities or the portion thereof relevant to the
condition, practice, or violation.
(3)(A) A cessation order pursuant to paragraphs (1) or (2) shall
remain in effect until such Secretary, or authorized representative,
determines that the condition, practice, or violation has been abated,
or until modified, vacated or terminated by the Secretary or authorized
representative. In any such order, the Secretary or authorized
representative shall determine the steps necessary to abate the
violation in the most expeditious manner possible and shall include the
necessary measures in the order. The Secretary concerned shall require
appropriate financial assurances to ensure that the abatement
obligations are met.
(B) Any notice or order issued pursuant to paragraphs (1) or (2) may
be modified, vacated, or terminated by the Secretary concerned or an
authorized representative of such Secretary. Any person to whom any
such notice or order is issued shall be entitled to a hearing on the
record.
(4) If, after 30 days of the date of the order referred to in
paragraph (3)(A) the required abatement has not occurred, the Secretary
concerned shall take such alternative enforcement action against the
claim holder or operator (or any person who controls the claim holder
or operator) as will most likely bring about abatement in the most
expeditious manner possible. Such alternative enforcement action may
include, but is not necessarily limited to, seeking appropriate
injunctive relief to bring about abatement. Nothing in this paragraph
shall preclude the Secretary, or for National Forest System lands the
Secretary of Agriculture, from taking alternative enforcement action
prior to the expiration of 30 days.
(5) If a claim holder or operator (or any person who controls the
claim holder or operator) fails to abate a violation or defaults on the
terms of the permit, the Secretary, or for National Forest System lands
the Secretary of Agriculture, shall forfeit the financial assurance for
the plan as necessary to ensure abatement and reclamation under this
Act. The Secretary concerned may prescribe conditions under which a
surety may perform reclamation in accordance with the approved plan in
lieu of forfeiture.
(6) The Secretary, or for National Forest System lands the Secretary
of Agriculture, shall not cause forfeiture of the financial assurance
while administrative or judicial review is pending.
(7) In the event of forfeiture, the claim holder, operator, or any
affiliate thereof, as appropriate as determined by the Secretary by
rule, shall be jointly and severally liable for any remaining
reclamation obligations under this Act.
(b) Compliance.--The Secretary, or for National Forest System lands
the Secretary of Agriculture, may request the Attorney General to
institute a civil action for relief, including a permanent or temporary
injunction or restraining order, or any other appropriate enforcement
order, including the imposition of civil penalties, in the district
court of the United States for the district in which the mineral
activities are located whenever a person--
(1) violates, fails, or refuses to comply with any order
issued by the Secretary concerned under subsection (a); or
(2) interferes with, hinders, or delays the Secretary
concerned in carrying out an inspection under section 503.
Such court shall have jurisdiction to provide such relief as may be
appropriate. Any relief granted by the court to enforce an order under
paragraph (1) shall continue in effect until the completion or final
termination of all proceedings for review of such order unless the
district court granting such relief sets it aside.
(c) Delegation.--Notwithstanding any other provision of law, the
Secretary may utilize personnel of the Office of Surface Mining
Reclamation and Enforcement to ensure compliance with the requirements
of this Act.
(d) Penalties.--(1) Any person who fails to comply with any
requirement of a permit approved under this Act or any regulation
issued by the Secretaries to implement this Act shall be liable for a
penalty of not more than $25,000 per violation. Each day of violation
may be deemed a separate violation for purposes of penalty assessments.
(2) A person who fails to correct a violation for which a cessation
order has been issued under subsection (a) within the period permitted
for its correction shall be assessed a civil penalty of not less than
$1,000 per violation for each day during which such failure continues.
(3) Whenever a corporation is in violation of a requirement of a
permit approved under this Act or any regulation issued by the
Secretaries to implement this Act or fails or refuses to comply with an
order issued under subsection (a), any director, officer, or agent of
such corporation who knowingly authorized, ordered, or carried out such
violation, failure, or refusal shall be subject to the same penalties
as may be imposed upon the person referred to in paragraph (1).
(e) Suspensions or Revocations.--The Secretary, or for National
Forest System lands the Secretary of Agriculture, shall suspend or
revoke a permit issued under title III, in whole or in part, if the
operator--
(1) knowingly made or knowingly makes any false, inaccurate,
or misleading material statement in any mining claim, notice of
location, application, record, report, plan, or other document
filed or required to be maintained under this Act;
(2) fails to abate a violation covered by a cessation order
issued under subsection (a);
(3) fails to comply with an order of the Secretary concerned;
(4) refuses to permit an audit pursuant to this Act;
(5) fails to maintain an adequate financial assurance under
section 306;
(6) fails to pay claim maintenance fees or other moneys due
and owing under this Act; or
(7) with regard to plans conditionally approved under section
305(c)(2), fails to abate a violation to the satisfaction of
the Secretary concerned, or if the validity of the violation is
upheld on the appeal which formed the basis for the conditional
approval.
(f) False Statements; Tampering.--Any person who knowingly--
(1) makes any false material statement, representation, or
certification in, or omits or conceals material information
from, or unlawfully alters, any mining claim, notice of
location, application, record, report, plan, or other documents
filed or required to be maintained under this Act; or
(2) falsifies, tampers with, renders inaccurate, or fails to
install any monitoring device or method required to be
maintained under this Act,
shall upon conviction, be punished by a fine of not more than $10,000,
or by imprisonment for not more than 2 years, or by both. If a
conviction of a person is for a violation committed after a first
conviction of such person under this subsection, punishment shall be by
a fine of not more than $20,000 per day of violation, or by
imprisonment of not more than 4 years, or both. Each day of continuing
violation may be deemed a separate violation for purposes of penalty
assessments.
(g) Knowing Violations.--Any person who knowingly--
(1) engages in mineral activities without a permit required
under title III, or
(2) violates any other requirement of a permit issued under
this Act, or any condition or limitation thereof,
shall upon conviction be punished by a fine of not less than $5,000 nor
more than $50,000 per day of violation, or by imprisonment for not more
than 3 years, or both. If a conviction of a person is for a violation
committed after the first conviction of such person under this
subsection, punishment shall be a fine of not less than $10,000 per day
of violation, or by imprisonment of not more than 6 years, or both.
(h) Knowing and Willful Violations.--Any person who knowingly and
willfully commits an act for which a civil penalty is provided in
paragraph (1) of subsection (g) shall, upon conviction, be punished by
a fine of not more than $50,000, or by imprisonment for not more than 2
years, or both.
(i) Definition.--For purposes of this section, the term ``person''
includes any officer, agent, or employee of a person.
SEC. 507. REGULATIONS.
The Secretary and the Secretary of Agriculture shall issue such
regulations as are necessary to implement this Act. The regulations
implementing title II, title III, title IV, and title V that affect the
Forest Service shall be joint regulations issued by both Secretaries,
and shall be issued no later than 180 days after the date of enactment
of this Act.
SEC. 508. EFFECTIVE DATE.
This Act shall take effect on the date of enactment of this Act,
except as otherwise provided in this Act.
Subtitle B--Miscellaneous Provisions
SEC. 511. OIL SHALE CLAIMS SUBJECT TO SPECIAL RULES.
(a) Application of Section 511.--Section 511 shall apply to oil shale
claims referred to in section 2511(e)(2) of the Energy Policy Act of
1992 (Public Law 102-486).
(b) Amendment.--Section 2511(f) of the Energy Policy Act of 1992
(Public Law 102-486) is amended as follows:
(1) By striking ``as prescribed by the Secretary''.
(2) By inserting before the period the following: ``in the
same manner as if such claim was subject to title II and title
III of the Hardrock Mining and Reclamation Act of 2007''.
SEC. 512. PURCHASING POWER ADJUSTMENT.
The Secretary shall adjust all location fees, claim maintenance
rates, penalty amounts, and other dollar amounts established in this
Act for changes in the purchasing power of the dollar no less
frequently than every 5 years following the date of enactment of this
Act, employing the Consumer Price Index for All-Urban Consumers
published by the Department of Labor as the basis for adjustment, and
rounding according to the adjustment process of conditions of the
Federal Civil Penalties Inflation Adjustment Act of 1990 (104 Stat.
890).
SEC. 513. SAVINGS CLAUSE.
(a) Special Application of Mining Laws.--Nothing in this Act shall be
construed as repealing or modifying any Federal law, regulation, order,
or land use plan, in effect prior to the date of enactment of this Act
that prohibits or restricts the application of the general mining laws,
including laws that provide for special management criteria for
operations under the general mining laws as in effect prior to the date
of enactment of this Act, to the extent such laws provide for
protection of natural and cultural resources and the environment
greater than required under this Act, and any such prior law shall
remain in force and effect with respect to claims located (or proposed
to be located) or converted under this Act. Nothing in this Act shall
be construed as applying to or limiting mineral investigations,
studies, or other mineral activities conducted by any Federal or State
agency acting in its governmental capacity pursuant to other authority.
Nothing in this Act shall affect or limit any assessment,
investigation, evaluation, or listing pursuant to the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 (42
U.S.C. 9601 and following), or the Solid Waste Disposal Act (42 U.S.C.
3251 and following).
(b) Effect on Other Federal Laws.--The provisions of this Act shall
supersede the general mining laws, except for those parts of the
general mining laws respecting location of mining claims that are not
expressly modified by this Act. Except for the general mining laws,
nothing in this Act shall be construed as superseding, modifying,
amending, or repealing any provision of Federal law not expressly
superseded, modified, amended, or repealed by this Act. Nothing in this
Act shall be construed as altering, affecting, amending, modifying, or
changing, directly or indirectly, any law which refers to and provides
authorities or responsibilities for, or is administered by, the
Environmental Protection Agency or the Administrator of the
Environmental Protection Agency, including the Federal Water Pollution
Control Act, title XIV of the Public Health Service Act (the Safe
Drinking Water Act), the Clean Air Act, the Pollution Prevention Act of
1990, the Toxic Substances Control Act, the Federal Insecticide,
Fungicide, and Rodenticide Act, the Federal Food, Drug, and Cosmetic
Act, the Motor Vehicle Information and Cost Savings Act, the Federal
Hazardous Substances Act, the Endangered Species Act of 1973, the
Atomic Energy Act, the Noise Control Act of 1972, the Solid Waste
Disposal Act, the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, the Superfund Amendments and Reauthorization
Act of 1986, the Ocean Dumping Act, the Environmental Research,
Development, and Demonstration Authorization Act, the Pollution
Prosecution Act of 1990, and the Federal Facilities Compliance Act of
1992, or any statute containing an amendment to any of such Acts.
Nothing in this Act shall be construed as modifying or affecting any
provision of the Native American Graves Protection and Repatriation Act
(Public Law 101-601) or any provision of the American Indian Religious
Freedom Act (42 U.S.C. 1996), the National Historic Preservation Act
(16 U.S.C. 470 et seq.), and the Religious Freedom Restoration Act of
1993 (42 U.S.C. 2000bb et seq.).
(c) Protection of Conservation Areas.--In order to protect the
resources and values of National Conservation System units, the
Secretary, as appropriate, shall utilize authority under this Act and
other applicable law to the fullest extent necessary to prevent mineral
activities that could have an adverse impact on the resources or values
for which such units were established.
SEC. 514. AVAILABILITY OF PUBLIC RECORDS.
Copies of records, reports, inspection materials, or information
obtained by the Secretary or the Secretary of Agriculture under this
Act shall be made immediately available to the public, consistent with
section 552 of title 5, United States Code, in central and sufficient
locations in the county, multicounty, and State area of mineral
activity or reclamation so that such items are conveniently available
to residents in the area proposed or approved for mineral activities
and on the Internet.
SEC. 515. MISCELLANEOUS POWERS.
(a) In General.--In carrying out his or her duties under this Act,
the Secretary, or for National Forest System lands the Secretary of
Agriculture, may conduct any investigation, inspection, or other
inquiry necessary and appropriate and may conduct, after notice, any
hearing or audit, necessary and appropriate to carrying out his or her
duties.
(b) Ancillary Powers.--In connection with any hearing, inquiry,
investigation, or audit under this Act, the Secretary, or for National
Forest System lands the Secretary of Agriculture, is authorized to take
any of the following actions:
(1) Require, by special or general order, any person to
submit in writing such affidavits and answers to questions as
the Secretary concerned may reasonably prescribe, which
submission shall be made within such reasonable period and
under oath or otherwise, as may be necessary.
(2) Administer oaths.
(3) Require by subpoena the attendance and testimony of
witnesses and the production of all books, papers, records,
documents, matter, and materials, as such Secretary may
request.
(4) Order testimony to be taken by deposition before any
person who is designated by such Secretary and who has the
power to administer oaths, and to compel testimony and the
production of evidence in the same manner as authorized under
paragraph (3) of this subsection.
(5) Pay witnesses the same fees and mileage as are paid in
like circumstances in the courts of the United States.
(c) Enforcement.--In cases of refusal to obey a subpoena served upon
any person under this section, the district court of the United States
for any district in which such person is found, resides, or transacts
business, upon application by the Attorney General at the request of
the Secretary concerned and after notice to such person, shall have
jurisdiction to issue an order requiring such person to appear and
produce documents before the Secretary concerned. Any failure to obey
such order of the court may be punished by such court as contempt
thereof and subject to a penalty of up to $10,000 a day.
(d) Entry and Access.--Without advance notice and upon presentation
of appropriate credentials, the Secretary, or for National Forest
System lands the Secretary of Agriculture, or any authorized
representative thereof--
(1) shall have the right of entry to, upon, or through the
site of any claim, mineral activities, or any premises in which
any records required to be maintained under this Act are
located;
(2) may at reasonable times, and without delay, have access
to records, inspect any monitoring equipment, or review any
method of operation required under this Act;
(3) may engage in any work and do all things necessary or
expedient to implement and administer the provisions of this
Act;
(4) may, on any mining claim located under the general mining
laws and maintained in compliance with this Act, and without
advance notice, stop and inspect any motorized form of
transportation that such Secretary has probable cause to
believe is carrying locatable minerals, concentrates, or
products derived therefrom from a claim site for the purpose of
determining whether the operator of such vehicle has
documentation related to such locatable minerals, concentrates,
or products derived therefrom as required by law, if such
documentation is required under this Act; and
(5) may, if accompanied by any appropriate law enforcement
officer, or an appropriate law enforcement officer alone, stop
and inspect any motorized form of transportation which is not
on a claim site if he or she has probable cause to believe such
vehicle is carrying locatable minerals, concentrates, or
products derived therefrom from a claim site on Federal lands
or allocated to such claim site. Such inspection shall be for
the purpose of determining whether the operator of such vehicle
has the documentation required by law, if such documentation is
required under this Act.
SEC. 516. MULTIPLE MINERAL DEVELOPMENT AND SURFACE RESOURCES.
The provisions of sections 4 and 6 of the Act of August 13, 1954 (30
U.S.C. 524 and 526), commonly known as the Multiple Minerals
Development Act, and the provisions of section 4 of the Act of July 23,
1955 (30 U.S.C. 612), shall apply to all mining claims located under
the general mining laws and maintained in compliance with such laws and
this Act.
SEC. 517. MINERAL MATERIALS.
(a) Determinations.--Section 3 of the Act of July 23, 1955 (30 U.S.C.
611), is amended as follows:
(1) By inserting ``(a)'' before the first sentence.
(2) By inserting ``mineral materials, including but not
limited to'' after ``varieties of'' in the first sentence.
(3) By striking ``or cinders'' and inserting in lieu thereof
``cinders, and clay''.
(4) By adding the following new subsection at the end
thereof:
``(b)(1) Subject to valid existing rights, after the date of
enactment of the Hardrock Mining and Reclamation Act of 2007,
notwithstanding the reference to common varieties in subsection (a) and
to the exception to such term relating to a deposit of materials with
some property giving it distinct and special value, all deposits of
mineral materials referred to in such subsection, including the block
pumice referred to in such subsection, shall be subject to disposal
only under the terms and conditions of the Materials Act of 1947.
``(2) For purposes of paragraph (1), the term `valid existing rights'
means that a mining claim located for any such mineral material--
``(A) had and still has some property giving it the distinct
and special value referred to in subsection (a), or as the case
may be, met the definition of block pumice referred to in such
subsection;
``(B) was properly located and maintained under the general
mining laws prior to the date of enactment of the Hardrock
Mining and Reclamation Act of 2007;
``(C) was supported by a discovery of a valuable mineral
deposit within the meaning of the general mining laws as in
effect immediately prior to the date of enactment of the
Hardrock Mining and Reclamation Act of 2007; and
``(D) that such claim continues to be valid under this
Act.''.
(b) Mineral Materials Disposal Clarification.--Section 4 of the Act
of July 23, 1955 (30 U.S.C. 612), is amended as follows:
(1) In subsection (b) by inserting ``and mineral material''
after ``vegetative''.
(2) In subsection (c) by inserting ``and mineral material''
after ``vegetative''.
(c) Conforming Amendment.--Section 1 of the Act of July 31, 1947,
entitled ``An Act to provide for the disposal of materials on the
public lands of the United States'' (30 U.S.C. 601 and following) is
amended by striking ``common varieties of'' in the first sentence.
(d) Short Titles.--
(1) Surface resources.--The Act of July 23, 1955, is amended
by inserting after section 7 the following new section:
``Sec. 8. This Act may be cited as the `Surface Resources Act of
1955'.''.
(2) Mineral materials.--The Act of July 31, 1947, entitled
``An Act to provide for the disposal of materials on the public
lands of the United States'' (30 U.S.C. 601 and following) is
amended by inserting after section 4 the following new section:
``Sec. 5. This Act may be cited as the `Materials Act of 1947'.''.
(e) Repeals.--(1) Subject to valid existing rights, the Act of August
4, 1892 (27 Stat. 348, 30 U.S.C. 161), commonly known as the Building
Stone Act, is hereby repealed.
(2) Subject to valid existing rights, the Act of January 31, 1901 (30
U.S.C. 162), commonly known as the Saline Placer Act, is hereby
repealed.
Purpose of the Bill
The purpose of H.R. 2262, the Hardrock Mining and
Reclamation Act of 2007, is 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.
Background
For 135 years, the mining of hardrock minerals on public
lands in the United States has been carried out under the
Mining Law of 1872.
The Mining Law was written to promote mineral development
in the age of the pick and shovel prospector. The Law permits
citizens and businesses to freely prospect for hardrock
minerals on those federal lands not withdrawn from mining. A
prospector can file a claim (covering 20 acres) which gives him
the right to explore, develop, mine, and sell minerals from the
claim without paying the federal government royalties. A claim
holder can obtain a patent (title) for the land and mineral
rights after proving that an economically mineable
``discovery'' exists. The holder can also claim and patent non-
mineral, non-contiguous lands to mill and process ore. Under
the 1872 Mining Law, a claim can be acquired for $2.50 or $5.00
an acre depending on whether it is a lode or placer claim.
After the patent has been granted, the claim becomes private
property. Patenting is not required for operations on a mining
claim or millsite.
While the 1872 Law originally applied to all minerals, over
time many have been removed from its purview. Production of
energy minerals such as oil, gas, and coal on federal lands is
now managed under the Mineral Leasing Act of 1920, while
``common variety'' materials such as sand and gravel are sold
under the authority of the Mineral Materials Act of 1955.
Today, the 1872 Mining Law applies to a limited set of
``locatable'' or ``hardrock'' minerals such as gold, silver,
copper, and uranium.
The Mining Law is administered by the Bureau of Land
Management (BLM) within the Department of the Interior.
Although reliable, current estimates of total acreage open and
closed to mining claim location are not available, a 2004
Environmental Protection Agency report estimated that
approximately 90% of the BLM's 264 million acres are open to
mining as well as 80% of the 163 million acres managed by the
Forest Service in the West.\1\ (Legislation has closed or
withdrawn some types of federal lands from new mining claims,
including wilderness areas totaling approximately 108 million
acres, as well as National Parks.) The number of claims on
public lands typically fluctuates with mineral prices; in light
of recent record highs for gold, uranium, and other minerals,
in 2007 claims on public lands jumped 80% from 2003. As of
July, there were 376,493 claims on public lands, according to
the BLM. Nine of the top ten claimholders are companies, and
the top ten claimholders own more than one-sixth of all
claims.\2\ ``Small miners''--those holding 10 claims or fewer,
total 27,600.\3\
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\1\EPA 2004. ``Cleaning Up the Nation's Waste Sites: Markets and
Technology Trends,'' p. 11-7.
\2\Bureau of Land Management (BLM). 2007. Environmental Working
Group analysis of Bureau of Land Management's LR2000 Database, July
2007 download.
\3\D. Lyons, BLM, Personal Communication (email); October 4, 2007.
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The estimated value of U.S. metal mine production
(excluding uranium) in 2006 was more than $23.5 billion, about
51% more than in 2005.\4\ No data is available to determine how
much of that mineral production occurs on private vs. public
lands, though the majority likely occurs on private. Most mines
are on a combination of public and private lands, and are large
in scale: according to U.S. Geological Survey (USGS), more than
99% of U.S. gold production comes from ``major'' operations
mines that disturb more than 100 acres.\5\
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\4\DOI/USGS 2007. Mineral Commodity Summaries 2007, p.7
\5\USGS staff communication, 10/29/07.
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Total production puts the United States among the world's
largest producers of many important metals and minerals,
including 10% of the world's gold, 8% of its copper, and 12.5%
of its lead.\6\ Nonetheless, the United States is net importer
of some minerals mined under the 1872 Mining Law. For example,
in 2006, 40% of copper consumed was imported, though the United
States is a net exporter of gold. A 2007 National Research
Council study on critical minerals emphasized that dependence
on foreign sources of certain minerals is not in itself a cause
for concern. The study further notes that specific minerals
such as copper are essential to the economy in certain
applications but should not be considered ``critical'' because
there are ready substitutes and the risk of supply restrictions
is low.\7\
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\6\DOI/USGS 2007. Mineral Commodity Summaries 2007.
\7\National Research Council of the National Academies, 2007.
Minerals, Critical Minerals, and the U.S. Economy. October.
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After a lull in new mining and exploration in the 1990s
(due to market conditions, more favorable operating
possibilities, and discovery of higher grade ore prospects
overseas), hardrock mining in the U.S. is on the upswing in
response to some of the highest metal prices in the past 25
years--more than $700 an ounce for gold in 2007. Demand for
newly mined minerals and uranium is fast-growing worldwide. The
U.S. is a favorite place to mine on a global scale thanks to
its policy and geological climate, according to the annual
Frasier Institute survey of metals mining companies.\8\
However, because of automation and other efficiency
improvements, the U.S. produces more minerals with fewer people
than it used to--about 35,000-40,000 are directly employed in
metals mining, and perhaps another 131,000 indirectly
employed.\9\
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\8\McMahon, F. and Melhem, A. 2007. ``Fraser Institute Annual
Survey of Mining Companies 2006/2007.''
\9\National Mining Association 2006. See: http://www.nma.org/pdf/
e_trends.pdf. Also, ``The Economic Contributions of the Mining Industry
in 2005,'' Analysis by Moore Economics/NMA, January 2007.
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Need for Legislation
H.R. 2262 would substantially reform the governance of
hardrock mining on public lands. Mounting concerns about
giveaways of public lands and minerals, environmental
protection, competing resource uses (such as recreation and
wildlife habitat), and a legacy of 100,000 or more abandoned
mines make a compelling case for comprehensive reform of the
Mining Law of 1872.\10\ The Mining Law has not changed to
reflect modern mining technologies and processes or newer
social values that question whether mineral extraction is the
best use of the land. Six key economic and environmental issues
require attention through reform:
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\10\The need for comprehensive Mining Law Reform twice led the
House of Representatives to consider bills (introduced by
Representative Rahall) in the 1990s; H.R. 322 passed the House 316-108
in November 1993.
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PATENTS
The 1872 Mining Law allows claim holders on public land to
obtain all the rights and interests to both the land and
minerals by patenting the claims for $2.50 to $5.00 per acre,
regardless of the location, the property's market value or
other public uses. The federal government has patented more
than 3.2 million acres of mining claims under the Hardrock
Mining Act of 1872. The Act's patenting provision became an
attractive means of acquiring title to land for a pittance for
purposes other than mining--and reaping huge profits through
private commercial development. The Government Accountability
Office (GAO) recommended elimination of the patenting
requirement in a 1989 analysis, in keeping with the Federal
Land Management Policy Act's directives that public lands
remain in federal ownership unless disposal is in the national
interest, and that the government obtain a fair return for its
resources.\11\
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\11\GAO. ``Federal Land Management: The Mining Law of 1872 Needs
Revision,'' March, 1989.
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In response to concern about this multi-billion dollar
``giveaway'' of public land, beginning in 1994 and carried
forward every year, Congress in annual appropriations bills has
prohibited the Department from expending funds to accept new
patent applications. Four hundred and five patents at a defined
point in the application process were ``grandfathered'' in
1994. Since then, 198 patents covering 27,000 acres have been
issued, with a total return to the government of approximately
$112,000. There are still 32 grandfathered applications for
patents remaining to be processed (the balance were withdrawn
or contested).\12\
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\12\BLM responses to Questions for the Record, Subcommittee on
Energy and Mineral Resources hearing on October 2, 2007 entitled:
``Royalties and Abandoned Mine Reclamation.'' Also, status report on
patenting from the Department of the Interior, June 27, 2007.
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H.R. 2262 as amended permanently ends patenting, except for
those valid claims pre-dating the 1994 moratorium. Proponents
of the current ``location patent'' system argue that the
security of tenure gained through patenting is a necessary
incentive in light of the significant financial risks,
substantial capital, and long timeframe involved in mineral
development. However, there are other means of providing secure
property rights to claimants, including assurance that those
who pay required fees have the ability to use the claimed lands
for mining and related purposes (see Section 104 of H.R. 2262
as amended).
FAIR RETURN FOR MINERAL RESOURCES ON PUBLIC LANDS
Under current law, the mining industry pays no royalty for
public minerals. By comparison, virtually all other users of
the public lands pay the government something for the resources
they use or remove, and almost every other nation which allows
mining on public lands imposes some form of royalty.
A well-designed royalty provides a reasonable return to the
Treasury for minerals extracted from public lands and, in the
case of H.R. 2262, will also fund abandoned mine reclamation.
At the same time, a royalty must also allow a country's mining
sector to be globally competitive. ``Government take'' is one
of the most important criteria (along with geological potential
and security of tenure) in the decision to mine in a country or
region. Unlike many other forms of investment, mines represent
captive capital; they are long-lived and not portable, making
them highly vulnerable to changes in national economic policy.
H.R. 2262 as amended would establish an 8% gross income
royalty on new mining on public lands, and a 4% gross income
royalty on mining from current operations. A gross income
royalty is commonly called a ``value based'' royalty because it
is based on a percentage of the value of the mineral commodity
being extracted or sold. (A similar value-based royalty is the
``net smelter return'' royalty, which is levied on the amount
of money which the smelter or refinery pays the mining operator
for the mineral product, usually based on a spot or current
price of the mineral, with deductions for costs associated with
further processing, but no deductions for operating costs.)
Another form of royalty considered for hardrock minerals is a
``profit based'' royalty, in which a measure of sales revenue
is reduced by the deduction of certain production and costs to
determine a ``net profit'' or ``net income'' subject to the
royalty rate.
Under H.R. 2262, the royalty would be calculated based
Section 613(c) of the Internal Revenue Code, which defines
gross income as ``the actual price for which the ore or mineral
is sold where the taxpayer sells the ore or mineral as it
emerges from the mine before application of any processes other
than a mining process or any transportation, or after
application of only mining processes, including mining
transportation.'' Used for decades to calculate the depletion
allowance (see below), this definition of gross income allows
deductions for any costs of non-mining processes but does not
allow for deductions for the costs of mining processes, to
arrive at a price or value of the mineral as close to the mine
mouth as possible.
Value based royalties such as a gross income royalty are
used by the majority of states, private parties, and nations.
Onshore oil and gas operations pay gross income royalties of
12.5%; coal produced from public lands is charged a royalty of
8% for underground operations and 12.5% for surface mining.
Most states impose gross income or net smelter royalties on
hardrock mining on state lands ranging from 2-10%. For hardrock
minerals on acquired lands, Congress has established an ad-
valorem royalty rate of 5%. In private arrangements between
parties, rates range from 2-8% with an average of 5% based on
value. Most countries impose a rate of 2-5% of gross income on
hardrock minerals, though some are as high as 12%.\13\ Those
countries that do employ a profit based royalty usually set a
rate higher than they would for a net smelter or gross value
royalty; jurisdictions with a profit based system typically
will assess at a rate in excess of 5%.\14\
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\13\Testimony of Salvatore Lazzari before the Subcommittee on
Energy and Mineral Resources, October 2, 2007. Also, Otto, J. et al
2006. Mining Royalties, World Bank.
\14\Otto, J et al. 2006. Mining Royalties, World Bank.
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Gross income royalties are relatively simple to calculate
and easy to administer. They also are appropriate to the
economic concept of a royalty as a factor payment, which
implies that the payment should be based on the market value of
the producer's output, rather than on market value minus the
costs of maintaining it. A disadvantage of the gross income
royalty is that the cost it imposes will be incurred regardless
of profitability, and minerals prices are notoriously cyclical.
By comparison, however, a royalty based on profit or net
income would allow a range of deductions, and, accordingly,
more opportunities to ``game the system.'' Nevada, for example,
utilizes a ``Net Proceeds of Mine Tax'' (NPOMT), a form of net
income royalty which is levied on all hardrock mining in the
state. The NPOMT is based on the value of the mineral extracted
minus the cost of extracting, processing, transporting and
marketing the minerals, maintenance and repairs of all
equipment and mining facilities, depreciation of capital costs,
some insurance, ``developmental work,'' and so forth.\15\ Mines
are then taxed on a sliding scale of 2-5% depending on the
ratio of net proceeds to gross proceeds. In 2006, Nevada gold
and silver mines paid a net proceeds tax of about $61 million
on total mineral production worth about $5.1 billion.\16\
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\15\See Nevada Revised Statutes Chapter 362.120 and Nevada
Administrative Code 362.030-362.070.
\16\Dobra, J. 2007. ``Economic Overview of the Nevada Mining
Industry,'' p. 1 and p. 21.
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Profit based forms of royalties require a taxing authority
with strong administrative capability. For such relatively
complicated royalties, government regulatory departments must
carry out labor-intensive audits of royalty returns, resulting
in a significant number of often intractable disputes. ``In
general . . . governments tend to give too few resources to
their royalty administration and collection functions,'' warned
the World Bank's report on royalties in 2006. Legal costs from
royalty audit disputes can be significant, and ``this
represents a further incentive for governments to select the
less ambiguous unit-based and ad valorem [value based] royalty
systems in preference to the more litigation-prone profit-based
systems.''\17\
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\17\Otto, J. et al 2006, p. 70.
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Another drawback of such a net royalty includes potentially
low return to the Treasury after ``creative accounting'' and
multiple deductions. Past Congresses have faced this
`deductions' problem: in 1996, Republican legislators
introduced a bill which would have implemented a 5% royalty on
mineral ``net proceeds,'' but the royalty provision was
essentially nullified by a catalog of exemptions and deductions
for both existing and prospective mines. The bill passed both
the House and Senate, but the Congressional Budget Office
concluded that the royalty provision would generate only
diminutive returns to the public, and President Clinton
ultimately vetoed an omnibus bill which included the reform
legislation. An added problem with a net income or net profit
royalty is that the revenue stream can vary widely from year to
year, making it harder to guarantee a predictable revenue
stream for reclamation.
Arguments that the gross income royalty of 8% proposed in
H.R. 2262, as amended, would be among the highest royalty rates
in the world ignore the offsetting special tax preferences
which benefit the hardrock mining industry in the United
States. Key among those preferences is the depletion allowance
for mineral production. The depletion allowance allows a mining
company to remove a set percentage of income from the amount
that is taxed. Gold, silver, copper and iron ore, for example,
qualify for a 15% depletion allowance, and sulfur, uranium, and
lead for a 22% depletion allowance. Accordingly, the depletion
allowance works like a ``negative royalty'' and will offset in
part the royalty imposed by H.R. 2262. Very few nations have a
depletion allowance for mineral production; in a survey of
about 30, including most major mining nations, the U.S. was one
of only four countries to offer some type of depletion
allowance.\18\ (Most countries have rejected the idea of
compensating industry for depleting the nation's ore resource,
and realize that the allowance may ultimately subsidize
exploration in a competing nation.)\19\ The mining industry
also is permitted to deduct rather than capitalize certain
exploration and development costs, and can deduct the costs of
mine closing and land reclamation in advance of actual closing
and reclamation.
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\18\James Otto, responses to Questions for the Record from the
Subcommittee on Energy and Mineral Resources hearing on October 2, 2007
(provided October 9, 2007).
\19\James Otto, Testimony before the Subcommittee on Energy and
Mineral Resources, October 2, 2007 hearing, and Questions for the
Record (provided October 9, 2007).
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BALANCING MINERAL AND NON-MINERAL VALUES
The provisions of 1872 Mining Law which give preferential
treatment (a ``right to mine'') over other uses, has made it
very difficult to balance mineral and nonmineral values on
public lands as required by the Federal Land Policy and
Management Act (FLPMA) (43 USC 1701 et seq.). Section
1701(a)(8) of that law, for example, states that: ``the public
lands [shall] be managed in a manner that will protect the
quality of scientific, scenic, historical, ecological,
environmental, air and atmospheric, water resource, and
archaeological values; that where appropriate, will preserve
and protect certain lands in their natural condition; that will
provide food and habitat for fish and wildlife and domestic
animals; and that will provide for outdoor recreation and human
occupancy and use.''\20\
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\20\43 U.S.C Sec. 1701(a)(8).
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Despite these directives, agency managers have limited
authorities to disapprove of mining operations in sensitive
areas or place strong conditions on such operations.
Historically, mining has been considered a dominant use of the
public domain lands which under all but the most extraordinary
of circumstances was to be favored over competing uses, such as
water supplies, in the event of a conflict. Due to the ``right
to mine'' feature of the 1872 Mining Law, federal land managers
have steadfastly maintained that unless an area is
``withdrawn'' from (closed to) mining under FLPMA, they cannot
deny a claim holder's desire to develop a mine regardless of
its potential impacts on other resources and values.
The impacts of 21st century mining on other resources and
values can be substantial. Sportsmen have raised concerns that
hardrock mining on public lands threatens fish and wildlife
habitat; public lands contain more than 50% of the nation's
blue-ribbon trout streams and 80% of the most critical habitat
for elk, antelope, sage grouse, mule deer, salmon, steelhead,
and countless other fish and wildlife species.\21\ Like mining,
hunting and angling is economically important in western
states--generating $280 million in 2006 in Nevada alone, for
example. Similarly, outdoor equipment manufacturers and
recreation enthusiasts, from mountain bikers to skiers to
hikers, have called for better balancing of mining and other
public lands values. They note that Moab, Utah and the Alpine
Loop area of Colorado typify places which are epicenters of
human-powered recreation and generate millions in recreation
and tourism dollars, but are also experiencing explosions in
new mining claims.\22\ Water is yet another area of growing
conflict with mining: hardrock mining uses substantial
quantities of water, lowers water tables, and creates effluent
that can require treatment for a decade or more--threatening
ground and surface water supplies for agriculture, wildlife,
and communities in the West.
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\21\National Wildlife Federation, Theodore Roosevelt Conservation
Partnership, and Trout Unlimited letter to Members of Congress, October
15, 2007; data from ``Gas and Oil Development on Public Lands by Trout
Unlimited (2004), and U.S. Fish and Wildlife Service (http://
www.fs.fed.us/biology/wildlife/elk.html)
\22\Outdoor Alliance letter to Representative Rahall and
Representative Costa, October 12, 2007.
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Sometimes the federal government has taken the costly step
of protecting land and water by buying out claims; another
avenue is to withdraw areas from mining. In light of the impact
of mining on sensitive resources and the growing competition
among resource values, there is evident need to protect
additional critical areas from mining. Wilderness Study Areas,
several categories of Wild and Scenic Rivers, areas designated
under the Roadless Area Conservation Rule of 2001, and Areas of
Critical Environmental Concern are among those areas with well-
established non-mineral values which are still open to mining
claims under current law. Withdrawing these additional areas to
new mining claims is unlikely to have significant impact on the
mining industry. Closing all categories of Wild and Scenic
Rivers to mining will likely withdraw less than 2,000
additional acres.\23\ Inventoried Roadless Areas cover 54
million acres, but in practice 37% are already de facto closed
to, or managed as areas where mining is discouraged under land
use plans. Nor does exploration and mining to date suggest that
inventoried roadless areas are among the western lands still
likely to harbor future mineral discoveries. A Library of
Congress Congressional Cartography mapping project for
Subcommittee on Energy and Mineral Resources staff overlaid
major deposits of gold, silver, copper, molybdenum, and uranium
with inventoried roadless areas and found that of the 55,140
deposits they mapped, only 5.6% overlapped with inventoried
roadless areas.\24\
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\23\Personal communication, American Rivers, October 2007.
\24\``Deposits of Minerals Subject to 1872 Mining Law and
Inventoried Roadless Areas on National Forest System Lands.'' Map and
analysis: Ginny Mason, Congressional Cartography, Library of Congress,
2007, based on data from Mineral Resources Data System, USGS and USDA,
Forest Service.
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The Committee also identified the need to give government
entities the ability to proactively request that federal lands
near their communities be withdrawn from new mining claims.
Under current law, state, local, and tribal governments have
few avenues outside the land use planning process under the
Federal Land Policy and Management Act of 1976 to protect lands
and waters of high local value, such as those critical to
drinking water supplies or tourism-based economies. For
example, in Pima County, Arizona, the Board of Supervisors
voted unanimously to oppose a copper mine in the Santa Rita
Mountains, and the Board passed a resolution for all public
land in the county to be withdrawn from mineral exploration.
Concerns include the values of the mountains as a world
biodiversity hotspot, scenic viewshed, important recreation
area, and water source for the Cienega watershed, including
high quality water for the fast-growing Tucson basin. Yet
county opposition, under the current 1872 Mining Law, is not
adequate to challenge a mine or limit new claim exploration.
The advantage of a stronger local government role in putting
areas off-limits to new claims, even for mining claimants who
hold valid existing rights, would be early awareness of likely
state or local community opposition to a mine, and the ability
to make (or avoid) investments accordingly--to minimize
confrontation, avoid litigation or a protracted permitting
process, or consider appropriate mitigation measures from early
stages of development.
Perhaps the most fundamental reform needed to the Mining
Law is clarification of the federal government's ``right to say
no'' to proposed hardrock mines that threaten ``irreparable
damage'' to the natural and cultural resources of the public
lands. For all other uses of public lands--hunting, oil
development, forest product proposals--the government has a
responsibility to say no to reject such use if it would have
devastating impacts, but the government lacks authority to
exercise this responsibility for proposed mining operations.
The Clinton Administration issued regulations including
such a provision (65 Fed. Reg. 69,998 (2000)) which were
contested and upheld in court, but removed from mining
regulations written by the Bush Administration (2001). H.R.
2262, as amended, includes that standard, using the well-
established definition of ``undue degradation'' (see Sec. 3 and
Sec. 301, below) to create a clear, non-discretionary means of
saying no to mining in extraordinary situations.
ENVIRONMENTAL AND RECLAMATION STANDARDS
The 1872 Mining Law contains no environmental or public
health and safety provisions. Pursuant to the Federal Land
Management Policy Act (FLPMA), the BLM has developed
regulations and policies to address degradation of BLM land
from hardrock operations (43 CFR 3809); the Forest Service has
its own regulations (largely considered to be weaker) governing
mining operations (36 CFR Part 228). Miners also are required
to comply with a variety of other federal laws such as the
Clean Water Act, the Comprehensive Environmental Response,
Compensation, and Liability Act (Superfund), and the National
Environmental Policy Act (NEPA). However, there is no
comprehensive federal law as is the case with coal, oil and gas
development. Even with a slate of federal laws and state
hardrock mining laws, there are major regulatory gaps. For
example, these laws do not address adequacy of mine location,
evaluate mining plans, set comprehensive environmental
standards for mining and reclamation requirements, or protect
groundwater from mining operations.
In the current vacuum of coherent environmental standards
for permitting and oversight of mining, seemingly arbitrary
regulatory decisions--and court cases--ensue. Different
executive administrations have chosen to enforce regulations
differently, making it difficult for companies to invest in
exploration of an area with certainty that mining will be
permitted. Statute-based environmental and reclamation
standards should make the process of getting a mining permit
more straightforward, with clarity and specificity in the
process of reviewing the scope of the planned mine,
contingencies which might be encountered, and, importantly,
criteria that a land manager must review in order to grant a
permit.
Yet Committee staff research also confirmed the progress
that has been made in recent years in regard to federal and
state regulation of mining. Consequently, the task is to set an
overall federal standard for hardrock mining on federal lands
and a framework from which federal regulations would flow,
without being redundant or overly prescriptive.
A key issue is whether national mining standards should be
technology-based ``design standards'' or outcome-based
``performance standards.'' To resolve the question, the
Committee initially looked to the BLM's hardrock manual, which
includes the following definitions:
A ``design standard'' is a standard that
``prescribes a specific technology of precise procedure to be
followed for compliance.''
A ``performance standard'' is one that
``prescribes the final results that must be achieved to obtain
regulatory compliance.''
Further research showed that the Clinton Administration
initially proposed ``3809'' regulations which included a
technology standard that would have applied to all the
performance standards (e.g., the operator will achieve these
performance standards using ``most appropriate technology and
practices'') but Secretary Babbitt's final 2000 rule did not
include the technology standard.
Most of the existing federal standards are performance
standards and not technology-based. Therefore, the rules do not
specify what equipment or practices an operator must use to
move earth or plant seeds to achieve revegetation of the area,
as long as it is accomplished and reaches the performance
standard (including such details as seed mix, coverage, slope,
etc.). As another example, in order to meet a dust control
standard, BLM does not specify whether an operation should use
large water trucks or small water trucks.
Additionally, several federal directives discourage the use
of technology standards. According to a Executive Order 12866
on drafting effective regulations, ``performance standards are
generally preferred to a command-and-control design standard
because they give regulated entities the flexibility to achieve
the desired regulatory outcome in a most cost-effective
way.''\25\ Another Clinton era review concluded: ``Policymakers
should reconsider the way `best available technology'-based
regulations are now developed and applied. Such regulations use
agency established technology-based limits and use a technology
to demonstrate that the limits are achievable. Even though
these are performance-based requirements, they have a strong
tendency to lock in the technology that is used to demonstrate
achievability. To some extent, reliance on ``best available
technology''-based regulations impedes the development and
introduction of innovative technologies.''\26\
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\25\OMB 1996. More Benefits, Fewer Burdens. (December).
\26\US EPA 1991. Permitting and Compliance Policy: Barriers to U.S.
Environmental Technology Innovation, p. 39.
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In some instances, technology standards are already
required by Clean Water Act or Clean Air Act provisions. These
standards have been further developed through a rulemaking
process and are then applied by EPA or states with delegated
programs under these laws. BLM should not be asked to second-
guess the technology determinations in those permits and
potentially come to a different conclusion about the
appropriate technology for a particular site or facility.
For those aspects of operations that do require specific
technologies (i.e. acid rock drainage or cyanide management),
BLM has promulgated regulations that are a combination of
design and performance standards.\27\ There are also guidance
documents that provide additional details for implementing
those design standards.
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\27\See Federal Register Volume 66, 2001 (3809.420(b)(11) and
(12)).
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Finally, in hardrock mining, each mine differs greatly from
one operation to the next so that reclamation plans must be
done on a case-by-case basis; for example, the best technology
that works for the large open pit at Nevada will not
necessarily apply to a series of small beryllium mines in Utah,
or to the big copper mines in Arizona. Therefore, the federal
statute should provide a framework from which federal
regulations and decisions will flow without micromanaging
future site-specific land-based decisions.
Accordingly, to address the concerns and debate regarding
the prescriptive operations and reclamation standards in H.R.
2262 as introduced, the bill, as amended, instead sets out a
minimum list of environmental concerns which the Secretary must
address with standards. These can be technology-based ``design
standards'' or outcome-based ``performance standards''
depending on which may be appropriate to the environmental
concern and goal. This revision conforms to the goal as stated
above to provide a framework without micromanaging the agency's
future site-specific decisions.
BONDING
Modern mines disturb thousands of acres and typically
require water treatment for years, due to acid drainage and the
use of toxic processing chemicals such as cyanide. In the past,
companies might complete some limited reclamation, then walk
away from the site, leaving the state or federal government to
cope with long-term management challenges, particularly water
contamination.
In response, many states and the federal government have
enacted regulations that in some form require reclamation and
closure plans to address problems associated with modern
mining. For example, regulations established pursuant to FLPMA
direct agencies to require financial assurances for reclaiming
land disturbed by mining, if operators fail to do so. Under
current hardrock mining regulations (Part 3809, January 20,
2001), all operations exceeding casual use conducted under a
Notice or Plan of Operations are required to provide an
acceptable financial guarantee to BLM prior to commencing
operations.
However, a 2005 GAO report found that the BLM did not have
a process for ensuring that adequate assurances are in place.
In Arizona and California, for example, the GAO found that 15-
74% of hardrock operations lacked adequate financial
assurances. The results of a shortfall in assurances, cost
estimates, and weak reclamation plans are significant: GAO
found that since the BLM began requiring financial assurances,
48 operations had ceased and not been reclaimed, leaving a $136
million bill for the taxpayer.\28\ Similarly, a 2003 report
found that American taxpayers are today potentially liable for
$1-12 billion in cleanup costs for hardrock mining sites.\29\
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\28\GAO 2005. ``Hardrock Mining: BLM Needs to Better Manage
Financial Assurances to Guarantee Coverage of Reclamation Costs.''
(GAO-05-377)
\29\Kuipers, J. 2003. Putting a Price on Pollution. Mineral Policy
Center and Center for Science in Public Participation. March.
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The Subcommittee on Energy and Minerals heard testimony on
October 2, 2007 that the Bureau of Land Management has improved
its financial assurances management in response to the GAO's
report. However, there remains a need to guarantee that at the
federal level, there is clear guidance for financial
assurances, particularly those for long-term water treatment,
and impetus for agencies to make oversight of assurances
(including regular updates to address changing conditions) a
priority.
An associated problem requiring policy attention relates to
mine owners who have defaulted on environmental cleanup
responsibilities multiple times, but are still eligible to
carry out mine operations on public land under current law.
Further, companies sometimes structure their assets through
corporate subsidiaries, thwarting recovery of corporate
guarantees after bankruptcy. Accordingly, H.R. 2262 does not
include corporate guarantees as acceptable assurances, and the
bill requires disclosure of operator's prior bond forfeitures
and environmental compliance history. In keeping with the
Surface Mining Control and Reclamation Act, H.R. 2262 as
amended makes those operators with outstanding violations
ineligible for permits.
ABANDONED MINE LANDS
The 1872 Mining Law includes no reclamation requirements.
Despite regulations issued pursuant to the Federal Land
Management Policy Act of 1976, which require operators to
reclaim BLM land disturbed by their hardrock operations, some
operators--often due to bankruptcy and inadequate bonding (see
above)--have abandoned mines without reclamation.
The extent of the nation's hardrock abandoned mine land
(AML) problem is clearly significant, though estimates vary by
state and agency. As of 2007, the Bureau of Land Management and
the U.S. Forest Service have identified (largely via field
surveys) 47,000 abandoned mine sites on lands they manage.
However, the total number of sites on federal land could be
much higher, especially depending on how mine sites and
features are defined and counted. Based on mineral records and
partial inventories, estimates in 2004 ranged from 100,000-
500,000 BLM sites and 25,000-35,000 Forest Service sites.\30\
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\30\DOI/Forest Service. Abandoned Mine Lands: A Decade of Progress
Reclaiming Hardrock Mines, September 2007 and EPA 2004: ``Cleaning Up
the Nation's Waste Sites: Markets and Technology Trends.''
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Some AML sites are serious public safety hazards. At least
eleven people have died and six people have been injured in
abandoned mines in California in the past decade.\31\ Nevada
has more than 50,000 sites likely to pose physical safety
hazards including shafts and adits at AML sites within a mile
of population centers, campgrounds, backcountry byways, other
recreation areas, historic sites, and off road vehicle use
areas. Many western states are finding that rapid population
growth and recreational use of public lands juxtapose
increasing numbers of people in areas with high densities of
AML sites, elevating safety risks.
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\31\CA Department of Conservation/Office of Mine Reclamation 2007.
Letter to Senator Feinstein. March.
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Other abandoned sites pose environmental hazards. The
government estimates that old mines have contaminated 40% of
all western river headwaters. Colorado, for example, has
approximately 2,751 abandoned mine sites that have possible
impacts on water quality in twenty watersheds. Common problems
are acidic, metal-laden drainage from mine openings and dumps,
mine wastes and mill tailings in stream channels, and erosion
of mine wastes and mill tailings into waterways.
The EPA's Superfund list currently includes more than 80
hardrock abandoned mines or mine-related sites. Estimates in
the late 1990s suggested that about 5% of the 25,000-35,000
abandoned mines on Forest Service lands will require cleanup
under Superfund authorities. The BLM and Forest Service
estimated that another 10% of the identified sites on federal
lands will require water related cleanup under authorities
other than Superfund.\32\
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\32\US EPA 2004 (Chapter 11) and BLM/FS report, Abandoned Mine
Lands: A Decade of Progress Reclaiming Hardrock Mines. September 2007,
p. 2.
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Some solutions are relatively simple, others complex,
expensive, and impermanent. In some instances, the highest
priority problems may be open shafts and adits that pose
physical hazards to people and wildlife. These must be plugged,
filled, secured or closed off. For environmental hazards,
remediation can range from removing small piles of waste rock
or tailings from a floodplain or reseeding a disturbed area, to
removing transformers, machinery and buildings, stabilizing
large waste piles, rerouting water flows, building new
retention ponds, reinforcing old dams, managing toxic lagoons,
removing or covering contaminated soils.
Reclamation is a problem with no cheap fix; hardrock
abandoned mine cleanup could range from $20-54 billion,
estimated the EPA's Superfund office in 2004, with about $3.5
billion related to Superfund designated sites. Nearly 60% of
the mining sites listed on the Superfund National Priorities
List are expected to require from 40 years to ``perpetuity''
for cleanup operations.
Expenditures fall far short of the need. Unlike coal
mining, there is no single source of funding for the
reclamation of abandoned hardrock mining lands. To remedy a
particular site, the BLM and Forest Service may work with
Federal, State, and private partners to apply for funding from
programs including AML grants through SMCRA, CERCLA, and the
Clean Water Act Grant Program. Nevada funds some of its program
from industry fees of $1.50 per mining claim filing, and $20
per acre of permitted disturbance on public lands, generating
about $315,000 a year. According to EPA, the total federal,
state and private party outlays for mining site remediation
have been averaging about $100-$150 million per year. At this
rate, only 8-20% of all the cleanup work will be completed over
the next 30 years.\33\ Similarly, the Forest Service, with an
annual budget of $15 million, projects it would take 370 years
to complete an estimated $5.5 billion dollars of cleanup and
safety mitigation work.\34\ Some state reclamation cost
estimates include just remediation, not restoration.
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\33\U.S. EPA. ``Cleaning Up the Nation's Waste Sites: Markets and
Technology Trends,'' 2004 edition, p. 11-12.
\34\U.S. Forest Service responses to Questions for the Record from
the Subcommittee on Energy and Mineral Resources hearing on ``Royalties
and Abandoned Mine Reclamation,'' October 2, 2007.
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National and state inventories of sites require continued
effort. The DOI Inspector General's Office has identified the
need for the BLM to undertake some additional inventory work in
high-population and high-use areas; the Forest Service, too,
acknowledges the merits of continuing inventory. Some states
have more thorough abandoned site inventories than others.
Arizona, for example, has an inventory described as a
``patchwork'' of data of varying accuracy, and Alaska's and
Washington's inventories are not complete.\35\ California's
Department of Conservation acknowledges that ``the
prioritization of AML sites for remediation will ultimately
require a statewide inventory . . . at this time, state and
federal agency staff have inventoried only about 2,500 of
California's estimated 47,000 AML sites (5%).''\36\
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\35\BLM 2006. ``The Cooperative Conservation Based Strategic Plan
for Abandoned Mine Lands Program,'' March, and ``Cleaning Up Abandoned
Mines: A Western Partnership,'' Western Governors' Association and
National Mining Association.
\36\California Department of Conservation, Office of Mine
Reclamation 2007. Letter to Senator Feinstein. March 30.
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One obstacle to clean up progress at some abandoned mine
sites is the perception that, under the Clean Water Act or
Superfund, if one acts to remediate a site, that person or
entity will become financially liable for cleanup of all
pollution associated with the site. Several bills introduced in
the 109th Congress proposed different ``Good Samaritan''
exemptions from liability--some broad, others allowing various
(and controversial) provisions for reprocessing of tailings and
waste piles--but none have yet been introduced in the 110th
Congress. ``Good Samaritan'' provisions are outside the
jurisdiction of the Committee on Natural Resources;
accordingly, they are not included in H.R. 2262 as amended.
Committee Action
H.R. 2262 was introduced by Natural Resources Committee
Chairman Nick J. Rahall, II (D-WV) and Energy and Mineral
Resources Subcommittee Chairman Jim Costa (D-CA) on May 10,
2007. The bill was referred to the Committee on Natural
Resources, and within the Committee to the Subcommittee on
Energy and Mineral Resources. Three Subcommittee hearings were
held on H.R. 2262 on July 26, 2007, August 21, 2007, and
October 2, 2007. Preceding introduction of H.R. 2262, the
Subcommittee on Energy and Mineral Resources and Subcommittee
on National Parks, Forests, and Public Lands held a joint
oversight hearing on the 1872 Mining Law and its impacts on
national forests in Tucson, Arizona. Details of the hearings
are as follows:
February 24, 2007, Subcommittee on Energy and
Mineral Resources and Subcommittee on National Parks, Forests
and Public Lands field hearing: ``Our National Forests at Risk:
The 1872 Mining Law and its Impact on the Santa Rita Mountains
of Arizona.'' This hearing highlighted the inability of the
1872 Mining Law to respond to a modern-day problem: metals
mineral values compete with community concerns for other
increasingly important values that Western public lands
provide, including tourism and recreation. Witnesses focused on
the case of Augusta Resource Corporation, which is seeking a
permit for an 800 acre open pit copper mine on private lands on
the Rosemont Ranch with disposal of the mining waste on 3000
acres of the Coronado National Forest adjacent to the ranch, on
claims issued pursuant to the 1872 Mining Law.
July 26, 2007, Subcommittee on Energy and Mineral
Resources legislative hearing on ``H.R. 2262: The Hardrock
Mining and Reclamation Act of 2007.'' This hearing provided an
overview on the ways in which the 1872 Mining Law is overdue
for reform. Witnesses from the tribal, environmental, taxpayer
advocate, and sportsmen communities outlined the Law's economic
and environmental shortcomings.
August 21, 2007, Subcommittee on Energy and
Mineral Resources legislative field hearing on ``Nevada and
H.R. 2262: Opportunities and Challenges in Reform of the 1872
Mining Law.'' Held in Elko, NV, this hearing focused on the
importance of hardrock mining to communities and economies.
Witnesses emphasized the need for a fair royalty, drew
distinctions between the impact and processes entailed in
mining exploration versus operations, and underscored the need
for a strong national standard for mining that recognizes
(rather than duplicates) existing law and regulations.
October 2, 2007, Subcommittee on Energy and
Mineral Resources legislative hearing on ``H.R. 2262 Royalties
and Abandoned Mine Reclamation.'' One panel, consisting of
experts with extensive knowledge of royalties in the United
States and internationally, focused on how to determine a fair
and appropriate royalty, including: the advantages and
disadvantages of gross income, net smelter, and net proceeds or
profit types of royalties; royalty rates in other nations; and
special tax preferences in the United States, including the
depletion allowance. A second panel focused on the need for a
royalty to address the hardrock abandoned mine problem in the
Western United States. Witnesses from the EPA and Forest
Service provided a sense of scope, status of agency inventory
efforts, and reclamation costs.
On Thursday, October 18, 2007 and Tuesday, October 23,
2007, the Committee on Natural Resources met in open session to
consider the bill. The Subcommittee on Energy and Mineral
Resources was discharged from further consideration of H.R.
2262.
Natural Resources Committee Chairman Nick J. Rahall II (D-
WV) offered an amendment in the nature of a substitute to H.R.
2262. The following amendments were then offered to the
amendment in the nature of a substitute:
Mr. DeFazio offered an amendment to amend Section 3(c) and
Section 102, exempting from the royalty those who receive less
than $250,000 in gross income from mining and imposing an 8%
royalty on existing mining operations, which failed by voice
vote.
Mr. Pearce offered an amendment to create a Minerals
Reclamation Foundation, which was withdrawn.
Mr. Inslee offered an amendment to Section 104, clarifying
the ability of mining claimants to use lands for mining and
related purposes on the basis of the payment of the required
maintenance fee, which was agreed to by voice vote.
Mr. Heller offered an amendment to Section 102, replacing
the 8% gross income royalty with a 5% net proceeds royalty,
which failed by a roll call vote of 10 yeas and 16 nays, as
follows:
Mr. Sali offered an amendment to Section 102 to sunset the
royalty after two years based on several economic indicators,
which failed by a roll call vote of 9 yeas and 20 nays, as
follows:
Mr. Hinchey offered an amendment to Section 102 to impose a
4% gross income royalty on Federal lands producing minerals as
of the Act's enactment, which was agreed to by voice vote.
Mr. Gohmert offered an amendment to Section 304 to change
the term of an operations permit, which failed by a roll call
vote of 14 yeas and 16 nays, as follows:
Mr. Sali offered an amendment to Section 102 to exempt from
the royalty any minerals used for alternative energy
production, which failed by a roll call vote of 14 yeas and 20
nays, as follows:
Mr. Grijalva offered an amendment to Section 202 to include
Indian tribes, which was agreed to by a roll call vote of 37
yeas and 0 nays, as follows:
Mr. Pearce offered an amendment to requiring the Secretary
of the Interior to make certain certifications before the Act
can take effect, which failed by a roll call vote of 17 yeas
and 21 nays, as follows:
Mr. Heller offered an amendment to Section 411 to allocate
50% of the funds in the Hardrock Reclamation Account to states
in proportion to production in each state, which failed by
voice vote.
Mr. Sali offered an amendment to Section 102 exempting from
the royalty any mineral used to prevent global warming, which
failed by roll call vote of 17 yeas and 22 nays, as follows:
Mrs. McMorris-Rodgers offered an amendment to strike
Section 301 and other provisions in Title III, which failed by
a roll call vote of 16 yeas and 23 nays, as follows:
Mr. Lamborn offered an amendment to sections on permit and
user fees, which failed by voice vote.
Mr. Holt and Mr. Inslee offered an amendment to Title III
to deny permits which would impair the lands or resources of
National Parks, which was agreed to by a roll call vote of 21
yeas and 18 nays, as follows:
Mr. Pearce offered an amendment to create a Mineral
Commodity Information Administration, which failed by a roll
call vote of 16 yeas and 23 nays, as follows:
Mr. Heller offered an amendment to facilitate sustainable
development projects on former mining sites, which was
withdrawn.
Mr. Sali offered an amendment to Title V to impose a 2%
royalty on non-metallic minerals, which failed by a roll call
vote of 17 yeas and 22 nays, as follows:
Mr. Pearce offered an amendment tying the continuation in
effect of the Act to U.S. gross domestic product, which failed
by a voice vote.
Mr. Pearce offered an amendment to strike Section 505(b)(6)
which was agreed to by voice vote.
Mr. Pearce offered an amendment to strike Title III which
failed by a roll call vote of 12 yeas and 23 nays, as follows:
Mr. Sali offered an amendment to Section 201 to give states
the ability to opt in or out of making certain categories of
Federal lands off limits to mining, which failed by a roll call
vote of 13 yeas and 24 nays, as follows:
Mr. Pearce offered an amendment to encourage cleanup of
inactive and abandoned mines through protections for ``Good
Samaritans'' which was ruled out of order.
Mr. Cannon offered an amendment en bloc to Sections 304,
504, and 517 which failed by voice vote.
The Rahall amendment in the nature of a substitute, as
amended, was adopted by a voice vote.
H.R. 2262, as amended, was then ordered favorably reported
to the House of Representatives by a roll call vote of 23 yeas
and 15 nays, as follows:
Section-by-Section Analysis of the Legislation
Section 1. Short title
This section provides the short title of the legislation,
the ``Hardrock Mining and Reclamation Act of 2007.''
Section 2. Definitions and references
This section defines affiliate, applicant, beneficiation,
casual use, claim holder, control, exploration, Federal land,
Indian lands, Indian tribe, locatable mineral, mineral
activities, National Conservation System unit, operator,
person, processing, Secretary, temporary cessation, undue
degradation, valid existing rights, applicable date.
The Committee has included in the bill as amended, a
definition of ``undue degradation:'' ``undue degradation means
irreparable harm to significant scientific, cultural or
environmental resources on public lands that cannot be
effectively mitigated.'' This definition is critical to the
general standard for mineral activities established in Section
301, and uses the definition of ``undue degradation''
established in the 43 CFR Part 3809 (2000).
Section 3. Application rules
This section details when and how the Act applies to mining
claims, millsite and tunnel site claims and operations. Section
3 declares that the Act's requirements apply immediately to
unpatented mining, millsite and tunnel site claims for which no
plan of operations has been approved or notice filed. Where
plans of operations have been approved but mining has not
commenced, operations have ten years to come into compliance
with the Act (unlike the bill as introduced, which allowed five
years). Where claims are used for beneficiation and processing
of any locatable mineral--regardless of whether mined from
public or private lands--the provisions of the Act apply.
TITLE I--MINERAL EXPLORATION AND DEVELOPMENT
Sec. 101. Limitation on patents
This section prohibits issuance of patents for vein, lode,
placer, and millsite and tunnel site claims unless the
application for a patent was filed with the Secretary on or
before September 30, 1994 and other administrative requirements
are met.
Sec. 102. Royalty
This section imposes a 8% gross income royalty on the
production of hardrock minerals from mining claims on federal
lands and dedicates the royalties to abandoned mine reclamation
and community assistance. The Committee amended this section
from the bill as introduced, to refer to the royalty as a
``gross income'' royalty rather than a ``net smelter return''
royalty. However, the royalty is still calculated on the value-
based definition of ``mining income'' found in the Internal
Revenue Code 613(c). This form of royalty keeps administration
relatively simple. By comparison, the Committee rejected a
``net profit'' royalty because it would result in negligible
returns to the taxpayer and would likely reduce royalty
payments and would be susceptible to ``creative accounting.''
The Committee accepted an amendment on a voice vote to impose a
4% gross income royalty on all operations producing locatable
minerals on Federal lands prior to and on the date of enactment
of this Act. This section also sets forth administrative
provisions for the payment of royalties, including record
keeping and reporting. It gives the Secretary of the Interior
the authority to conduct audits and investigations, and share
information with other agencies. Penalties are imposed for
underreporting.
Sec. 103. Claim maintenance fee and location fee
Currently the BLM collects a one-time $30 location fee and
an annual $125 maintenance fee per claim through annual
appropriations authority. The Committee amended the bill as
introduced to provide a permanent authorization for collection
of these fees in this section. In addition, the Committee
increased the fees to $50 and $150 respectively. Exempted from
the maintenance fee are those claimants who hold ten or fewer
claims and meet specific mineral production, exploration, and
surface disturbance requirements (a ``small miner'' fee
exemption is current practice under 43 CFR Part 3835).
Section 104. Effect of payment or use and occupancy of claims
The Committee amended the bill as introduced to provide
security of tenure to those who invest in mining exploration on
public lands and discover valuable minerals. Specifically, H.R.
2262 would authorize claimants who pay annual maintenance fees
to use and occupy claimed lands for prospecting and mineral
exploration activities, subject to compliance with the
requirements of the Act and applicable provisions of law. The
Committee intends that timely payment of the annual claim
maintenance fee will not convey property rights nor secure a
right to mine. To the contrary, the provision requires such use
and occupancy to comply with the requirements of the Act and
applicable provisions of law. The Committee amended this
section to clarify that the filing of the claim maintenance fee
and compliance with the other claiming and filing requirements
do not in any way mean that the subject claims are valid or
that the claimant has a right to conduct mineral activities on
the claims. Any authority to conduct mineral activities accrues
only upon the claimant's receipt of an approved permit under
Title III and compliance with all other applicable law.
Therefore, while granting the claimants some security, the
Committee intends that claimants will be required to meet the
provisions of the Act, specifically the environmental and
permitting requirements of Title III.
TITLE II--PROTECTION OF SPECIAL PLACES
Section 201. Lands open to location
This section identifies categories of Federal lands that
will be closed to hardrock mining as of the enactment of the
Act, including: lands recommended for wilderness designation or
being managed as roadless areas; BLM Wilderness Study Areas and
National Monuments; lands designated, eligible, or under study
for inclusion in the Wild and Scenic River System; lands
previously withdrawn under other law; Areas of Critical
Environmental Concern; and areas identified in the Roadless
Area Conservation Rule of 2001. The Committee amended the bill
to delete inclusion of sacred sites among lands closed to
mineral entry, reflecting the concerns that the lack of a
publicly-available list of sacred sites would make such a
provision impossible to administer.
Section 202. State and county government withdrawal petitions
The Committee added this section in order to enable state,
tribal and county governments the ability to petition for
withdrawal from the general mining laws specific tracts of
public lands which have high value to the state or county for
reasons such as water supply, scenic vistas, fish and wildlife
habitat or cultural resources. It provides a tool for balancing
resource values and mineral development before industry makes a
major investment in mine development. The Secretary is required
to act on the petition within 180 days and must approve the
petition unless it would not be in the national interest to do
so.
TITLE III--ENVIRONMENTAL CONSIDERATIONS OF MINERAL EXPLORATION AND
DEVELOPMENT
Sec. 301. General standard for hardrock mining on public lands
This Section establishes a general standard for hardrock
mining on public lands that requires mineral activities on
Federal lands to be carefully controlled to prevent undue
degradation of public lands and resources. It enables the
Secretary to deny permission to mine if the activities will
result in undue degradation that cannot be effectively
mitigated. Compared to the bill as introduced, this is a
simpler, though similar and equally strong, standard. The
Committee intends that this section be read and applied within
the context of the Clinton Administration's 43 CFR Part 3809
regulations, published in the Federal Register on November 21,
2000, which clearly defined ``undue'' degradation and asserted
the Department of Interior's authority to say ``no'' to a
proposed hardrock mine that would cause undue degradation that
could not be effectively mitigated.
Section 301 overrides Section 302(b) of the Federal Land
Policy and Management Act of 1976 (43 U.S.C. 1732(b)) and the
first section of the Act of June 4, 1897 (chapter 2; 30 Stat.
36 16 U.S.C. 478) and the National Forest Management Act of
1976 (16 U.S.C. 1600 et seq.) and replaces the standards
contained therein with the new standard that mineral activities
must prevent undue degradation of public lands and resources.
The Committee intends that the new standard replace former
policies that relied on interpretations of terms such as
``unnecessary or undue degradation'' that resulted in confusion
and ambiguity. For example, the 2000 43 CFR 3809 final rule
stated: ``it is clear from the use of the conjunction `or' that
the Secretary has the authority to prevent `degradation' that
is necessary to mining, but undue or excessive. This policy was
revoked by the Bush Administration on October 30, 2001 (Federal
Register, Vol. 66, No. 210) on the argument that the word `or'
in this case should be read as `and.' The Committee adoption of
the phrase `undue degradation' in this section eliminates any
ambiguity.''
The selection of the term ``undue degradation'' is not
random. The Committee intends that mineral activities under the
Act will conform to the description of ``undue degradation''
set forth in the 2000 rules, which require that operations not
result in substantial irreparable harm to significant resource
values that cannot be effectively mitigated. The Committee
anticipates the Secretary will deny a permit that cannot meet
the ``undue degradation'' standard. The Committee intends that
this provision be applied on a site-specific basis and that it
would not necessarily preclude development of a large open pit
mine. As such, a permit to mine could be denied only when:
The public land resource values are significant at
a particular location.
Mining would cause substantial irreparable harm to
the specific public land resource values that are significant
at a particular location; i.e., a small amount of irreparable
harm to a portion of the resource will not trigger the
protection. The harm must be substantial.
The harm cannot be effectively mitigated. If the
harm can be mitigated, the permit would be approved.
The Committee intends that the Secretaries shall rely on
the Council on Environmental Quality's government-wide
definition of ``mitigation'' as it appears in 40 CFR 1508.20.
An operator who must ``mitigate'' damage to wetlands or
riparian areas, or who must take appropriate mitigation
measures for a pit or other disturbance, would have to take
mitigation measures, which includes the measures listed in the
definition found in the above-referenced subpart.
Sec. 302. Permits
This section requires a permit for any mineral activity
that will disturb surface resources. Mineral activities that
cause only negligible disturbance or are a casual use of public
lands (as defined in Sec. 1) are exempted from permit
requirements. The Committee added language to this section to
clarify that the Secretary should conduct the permitting
process in coordination with the requirements of the National
Environmental Policy Act (NEPA).
Sec. 303. Exploration permits
The Committee added this section in order to set forth a
separate permitting process and requirements for exploration,
recognizing that exploration does not disturb resources on the
scale of a full mining operation and therefore should not
require the same permitting process--a burden to agencies and
industry and counterproductive to ensuring a strong domestic
minerals program. Exploration permits may be approved if all
the requirements of this Act and applicable law are met,
including the duty to prevent undue degradation in Section 301.
Specifically, H.R. 2262, as amended, authorizes the
Secretary to approve permits for exploration as long as
specific application, reclamation, and financial assurance
criteria are met. Permits are to be issued for terms no longer
than 10 years. Proposed modifications of exploration permits
require another review process. This section also sets forth
requirements for transfer and sale of exploration permits.
Section 304. Operations permit
This section establishes that claimholders with valid
claims can apply for operations permits for mining on mining,
millsite, and tunnel site claims. This section also proscribes
required elements of an application for an operations permit
including plans for operations, reclamation, monitoring, and
long-term maintenance. H.R. 2262, as amended, does not include
a detailed list of information to be included in the permit
application, because the Committee found that such information
is required and will be provided during the NEPA process which
will be conducted in concert with the consideration of the
permit application.
Importantly, the Committee has given the Secretary the
right to deny a permit if requirements of the Act cannot be
met. Requirements include: demonstration that reclamation will
meet the Act's ``no undue degradation'' standard (see Section
301) and the land, including fish and wildlife resources, can
be returned to productive use; an assessment that the
operations impacts (including cumulative impacts of mining on
hydrology) will not cause undue degradation; compliance with
financial assurance requirements; and a reclamation plan that
demonstrates that 10 years after mine closure, discharge or
effluent will not need treatment to meet water quality
standards. The Committee extended the length of the operations
permits from one 10-year term, with possible renewal, to a firm
20-year limit with opportunity for an automatic additional 20-
year renewal assuming the operation is in compliance with the
permit. The Secretaries are granted the authority to establish
requirements for permit modification applications, and permit
modification is required if changes are made to approved plans,
or if unanticipated events occur, particularly those which
jeopardize water quality and quantity. This section establishes
a process for applications for temporary cessation of
operations.
The Committee included a requirement in the bill as amended
that the federal land manager conduct a general review of each
operations permit every 10 years, as opposed to every 3 years
in the bill as introduced. The purpose of this review is to
ensure that the overall conduct of operations has not diverted
in any significant way from the original plan of operations as
approved by the Secretary. This review should ensure that as
operations proceed, the operator's predictions regarding the
nature of the ore and other minerals or impurities encountered,
type of processing that works with ore, groundwater flow rates,
directions and quality, and methods for heap leaching, design
of drainage and impoundments have not changed significantly.
This section also sets forth requirements for transfer and sale
of permits. Secretaries are required to fully comply with
public participation requirements under NEPA.
Unlike the bill as introduced, H.R. 2262, as amended,
authorizes the Secretary to make additional Federal land
available as necessary to permit mineral activities on mining
claims. This new authority is necessary because the archaic
terminology of the 1872 law requires that millsites, or lands
used for processing or milling locatable minerals, shall be on
non-mineral land and noncontiguous to the lode or placer on
which a regular mining claim is located. The law, therefore, by
implication requires that mining claims only be used for
extracting ore, not processing; otherwise, they are vulnerable
to a challenge on the lack of discovery of a valuable mineral.
In practice these restrictions are routinely ignored. In fact,
the BLM regulations expressly allow a mine permit to cover a
specified area whether or not it is on or includes valid mining
claims. Section 304 rectifies this situation by requiring that
an operations permit may only be approved on federal land
containing a valid mining claim, millsite claim, tunnel site
claim, and such additional Federal lands that the Secretary
grants a right-of-way permit under title V of FLPMA. In this
way, the mining operator will be able to secure the additional
space needed to conduct mineral activities while also ensuring
that Federal lands are used in accordance with Federal law.
Sec. 305. Persons ineligible for permits
This section declares persons in violation of this Act,
state or Federal conservation laws or regulations, or the
Surface Mining Control and Reclamation Act and associated
regulations to be ineligible for permits. This section mirrors
comparable provisions of the Surface Mining Control and
Reclamation Act (30 U.S.C. 1231).
Sec. 306. Financial assurances
This section seeks to prevent the already substantial
problem of abandoned hardrock mines from growing when companies
go bankrupt. A 2005 report by the General Accounting Office\37\
(GAO) found that the BLM did not have a process for ensuring
that adequate assurances, like bonds, are in place to cover
reclamation costs for mines on public lands. This section
requires operators to provide evidence of financial assurances
sufficient to cover mine reclamation and restoration. The
Secretary is authorized to adjust the amounts of the bonds or
other assurances as size of area mined changes, or based on new
information on reclamation or treatment costs. Financial
assurances must be sufficient to assure reclamation by the
Secretary in the event of forfeiture. A two-part release
schedule for financial assurances is established: first, part
of the assurances can be released after determination that
operators have successfully regraded and revegetated the mine
area. The second part can be released after confirmation that
mine discharge has ceased for at least five years, or met water
quality standards for five years without treatment.
---------------------------------------------------------------------------
\37\GAO, 2005. ``Hardrock Mining: BLM Needs to Better Manage
Financial Assurances to Guarantee Coverage of Reclamation Costs.''
(GAO-05-377)
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The administration and several witnesses testified that BLM
has substantially improved its financial assurance requirements
and oversight since the GAO report was released. However,
others--including a former BLM State Director--testified to the
value of this section to ensure that financial assurance
oversight remains an agency priority, and improvements
continue, especially with regard to assurances that take into
account the costs of long-term water treatment.
Sec. 307. Operation and reclamation
This section mandates that lands used for mining must be
restored to a condition capable of supporting their prior uses,
or to other beneficial uses which conform to applicable land
use plans, such as fish and wildlife habitat, hunting, fishing
and other forms of recreation. The Committee amended the bill
as introduced to delete the more prescriptive operations and
reclamation standards included in the bill as introduced and
instead directs Secretaries to jointly issue performance or
technology-based standards to address eleven environmental
concerns, such as (but not limited to) erosion control,
vegetation cover, acid mine drainage, and restoration of fish
and wildlife habitat. The Committee also added a provision to
require the Secretary to work with state and local governments
to minimize impacts on surface and ground water from mineral
activities. Ongoing review of reclamation activities on
forfeited claims and suspended operations permits is required.
The Committee adopted this less prescriptive approach in
response to the 1999 National Research Council's report on
hardrock mining which endorsed performance standards over
technology standards.\38\ Specifically, the National Research
Council found that ``Federal land management agencies''
regulatory standards for mining should continue to focus on a
clear statement of management goals rather than on defining
inflexible, technically prescriptive `standards.'' Simple `one-
size-fits-all' solutions are impractical because mining
confronts too great an assortment of site specific technical,
environmental, and social conditions. The requirements in H.R.
2262, as amended will provide the necessary and strong
framework for regulating hardrock mining while also providing
enough flexibility to ensure the appropriate outcomes.
---------------------------------------------------------------------------
\38\National Research Council, ``Hardrock Mining on Federal
Lands'', National Academy Press, 1999.
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Sec. 308. State law and regulation
This section declares that state standards for reclamation,
bonding, inspection, and water or air quality which either meet
or exceed federal standards are not inconsistent with this Act.
The states and the Secretary can use cooperative agreements to
govern surface management activities, but the federal
government reserves the authority to inspect and enforce those
mines which include private as well as public lands.
Sec. 309. Limitation on the issuance of permits
H.R. 2262, as amended, requires that no exploration or
operations permit shall be issued under this Act if the mineral
activities would impair the lands or resources of a National
Park or National Monument. The bill, as amended, defines the
term ``impair'' as including any diminution of the affected
lands or resources including but not limited to scenic assets,
water resources, air quality, acoustic qualities or other
changes that would damage the lands or resources of a National
Park or a National Monument.
TITLE IV--MINING MITIGATION
The substance of this title is unchanged in H.R. 2262, as
amended; however, it has been reformatted for purposes of
clarity.
SUBTITLE A--LOCATABLE MINERALS FUND
Sec. 401. Establishment of fund
This section establishes a ``Locatable Minerals Fund.''
Sec. 402. Contents of fund
This section directs to the Locatable Minerals Fund the
following: royalties collected under Section 102, monies
resulting from enforcement and citizen suits, donations,
penalties, funds from issuance of remaining grandfathered
permits, and any balance in the annual claim maintenance fees
not otherwise applied to administration of the mining law
program in the Department of the Interior.
Sec. 403. Subaccounts
This section directs 2/3 of the funding to the ``Hardrock
Reclamation Account'' and 1/3 to the ``Hardrock Community
Impact Assistance Account.''
SUBTITLE B--USE OF HARDROCK RECLAMATION ACCOUNT
Sec. 411--Use and objectives of the account
This section establishes that funds can be spent for
reclamation on public lands used for mining, and on areas with
mixed federal-nonfederal ownership, as long as half the lands
are federal. The Secretary is directed to prioritize
reclamation projects which protect public health and safety,
particularly from water pollution, and for projects which
restore wildlife habitat. Reclamation that is a removal or
remedial action under Superfund must be conducted with the
concurrence of the EPA.
Section 412. Eligible lands and waters
This Section mandates use of funds for reclamation of
federal lands, Indian lands, or water resources that cross
those lands, which have been affected by mining activities
prior to this Act, for which there is no responsible party, and
on which minerals cannot further be extracted economically by
mining or reprocessing beyond negligible disturbance. The
Secretary is directed to maintain an inventory of abandoned
mines on Federal and Indian Lands and provide an annual report
to Congress on status of cleanup.
Sec. 413. Expenditures
This section authorizes the Director of the Office of
Surface Mining and Reclamation to make funds available to
agency directors, tribes, or other public entities that are
capable of undertaking reclamation programs.
Sec. 414. Authorization of appropriations
This section authorizes appropriation of funds without
fiscal year limitation.
SUBTITLE C--USE OF HARDROCK COMMUNITY IMPACT ASSISTANCE ACCOUNT
Sec. 412. Use and objectives of the account
This Section directs fund to be used for planning,
construction, and maintenance of public facilities and public
services in states, political subdivisions, and tribes negative
impacted by hardrock mining on public lands.
Sec. 422. Allocation of funds
This section allocates funds in proportion to the amount of
mineral production under the general mining act in each state.
TITLE V--ADMINISTRATIVE AND MISCELLANEOUS PROVISIONS
SUBTITLE A--ADMINISTRATIVE PROVISIONS
Sec. 501. Policy functions
This section adds to the purposes of Mining and Minerals
Policy Act of 1970 ``to ensure that mineral extraction and
processing not cause undue degradation of the natural and
cultural resources of the Federal lands.'' It also adds
language to the National Materials and Minerals Policy,
Research and Development Act of 1980 to ``improve the
availability of mineral data in Federal land use decisions.''
Sec. 502. User fees
This section authorizes the Secretaries to establish and
collect user fees to cover administrative costs of the
requirements of the Act.
Sec. 503. Inspection and monitoring
This section establishes a minimum number of inspections of
mineral activities per year, based on phase of operation. It
gives citizens adversely affected by mineral activity
violations the right to confidentially request inspections of
sites. Operators are required to monitor compliance with their
permit requirements, file reports with the Secretary, and make
monitoring and evaluation reports available to the public.
Sec. 504. Citizen suits
This section authorizes citizen suits against any person,
including the Secretaries, to enforce compliance. Plaintiffs
must give operators notice in writing of the alleged violation
and 60 days before civil actions can begin. The bill, as
amended, mirrors comparable provisions of the Surface Mining
Control and Reclamation Act (30 U.S.C. 1231).
Sec. 505. Administrative and judicial review
This section proscribes procedural guidelines for
administrative review of agency actions. It provides for review
of notice of violation within 30 days, review of penalties
assessed within 45 days, and review of a decision within 30
days. It further provides for public hearings on violations,
requires written decisions by the Secretary on findings within
30 days of review, and allows the Secretary to grant temporary
relief from penalties or corrective measures.
Sec. 506. Enforcement
This section sets forth enforcement guidelines. 30 days are
allowed for abatement of violations, unless there is an
imminent threat to public heath or safety of the environment,
in which case the operation is shut down and financial
assurances forfeited pending judicial or administrative review.
Civil and criminal penalties are set for non-compliance, with
caps for penalties at $25,000 per violation per day for failure
to comply with environmental protection requirements. This
section sets the minimum penalty for failing to cease
operations when ordered at $1,000. Any agent of a corporation
who knowingly facilitates a violation or refusal to cease
operations is made culpable. The Secretary is empowered to
suspend permits if mine operators [or owners] lie or violate
terms of the Act or their permit. Fines are imposed for
violations of monitoring agreements or falsifying monitoring
information, for mining without a permit, or violating
environmental protection requirements.
Sec. 507. Enforcement
This section requires Secretaries of Interior and
Agriculture to promulgate regulations to implement the Act
within 180 days of enactment of the Act.
Sec. 508. Effective date
This section establishes that the Act is effective on the
date of enactment unless otherwise provided.
SUBTITLE B--MISCELLANEOUS PROVISIONS
Sec. 511. Oil shale claims subject to special rules
This section amends the reclamation requirement for certain
oil shale claims and limited patents in the Energy Policy Act
of 1992 to be consistent with the provisions in this Act.
Sec. 512. Purchasing power adjustment
This section requires Secretary to adjust all fees,
penalties, and other charges at least every five years based on
the Consumer Price Index.
Sec. 513. Savings clause
This section declares that laws, regulations, and land use
plans with stronger requirements to protect natural and
cultural resources than those in this Act remain in effect.
This section also declares that no other Federal law is
affected by this Act, except the general mining laws.
Sec. 514. Availability of public records
This section declares that all records, materials, and
information must be made available to the public physically and
via the Internet.
Sec. 515. Miscellaneous powers
This section authorizes the Secretaries of Interior and
Agriculture to conduct investigations, inspections, and other
inquiries. Secretaries have authority to issue subpoenas and
order written testimony and depositions. District courts are
authorized to require witness appearance and production of
documents. Entry and access to facilities and records is
authorized.
Sec. 516. Multiple mineral development and surface resources
This section applies the provisions of the Multiple
Minerals Development Act (30 U.S.C. 524 and 526).
Sec. 517. Mineral materials
This section clarifies that all common minerals, such as
clay, stone, pumice, and rock, are covered under the leasing
and sale laws and are not to be treated as locatable minerals.
This section removes the ability to claim mineral deposits of
such minerals as locatable minerals under the mining laws if
the mineral deposit had some property giving it a ``distinct
and special value'' that had existed under the Surface
Resources Act of 1955 (30 U.S.C. 611).
Committee Oversight Findings and Recommendations
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Natural Resources' oversight findings and
recommendations are reflected in the body of this report.
Federal Advisory Committee Statement
The functions of the proposed advisory committee authorized
in the bill are not currently being nor could they be performed
by one or more agencies, an advisory committee already in
existence or by enlarging the mandate of an existing advisory
committee.
Constitutional Authority Statement
Article I, section 8 of the Constitution of the United
States grants Congress the authority to enact this bill.
Compliance With House Rule XIII
1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the
Rules of the House of Representatives requires an estimate and
a comparison by the Committee of the costs which would be
incurred in carrying out this bill. However, clause 3(d)(3)(B)
of that Rule provides that this requirement does not apply when
the Committee has included in its report a timely submitted
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974.
2. Congressional Budget Act. As required by clause 3(c)(2)
of rule XIII of the Rules of the House of Representatives and
section 308(a) of the Congressional Budget Act of 1974, this
bill does not contain any new budget authority, spending
authority, credit authority, or an increase or decrease in
revenues or tax expenditures.
3. General Performance Goals and Objectives. As required by
clause 3(c)(4) of Rule XIII, the general performance goal or
objective of this bill is to modify the requirements applicable
to locatable minerals on public domain land, consistent with
the principles of self-initiation of mining claims, and for
other purposes.
4. Congressional Budget Office Cost Estimate. Under clause
3(c)(3) of Rule XIII of the Rules of the House of
Representatives and section 403 of the Congressional Budget Act
of 1974, the Committee has received the following cost estimate
for this bill from the Director of the Congressional Budget
Office:
H.R. 2262--Hardrock Mining and Reclamation Act of 2007
Summary: H.R. 2262 would reform programs related to mining
hardrock minerals, such as gold, copper, and uranium, on
federal land. CBO estimates that implementing the bill would
increase discretionary spending by $16 million in 2008 and $267
million over the 2008-2012 period, assuming appropriation of
the necessary amounts. We also estimate that enacting H.R. 2262
would reduce direct spending by $10 million in 2008, $206
million over the 2008-2012 period, and $382 million over the
2008-2017 period. Finally, we estimate that the bill would have
no impact on revenues in 2008, but would increase them by $160
million over the 2009-2012 period, and $310 million over the
2009-2017 period.
H.R. 2262 contains no intergovernmental mandates as defined
in the Unfunded Mandates Reform Act (UMRA) and would impose no
costs on state, local, or tribal governments.
H.R. 2262 contains private-sector mandates, as defined in
UMRA, that would affect certain holders or operators of mining
claims on public land. The bill would impose a royalty on the
production of hardrock minerals from those claims. The bill
also would require persons paying royalties to comply with
certain administrative procedures. CBO estimates that the cost
of those mandates would fall below the annual threshold
established in UMRA for private-sector mandates ($131 million
in 2007, adjusted annually for inflation).
Estimated cost to the Federal Government: For this
estimate, CBO assumes that H.R. 2262 will be enacted early in
2008. The estimated budgetary impact of H.R. 2262 is shown in
the following table. The costs of this legislation fall within
budget function 300 (natural resources and environment).
TABLE 1.--ESTIMATED BUDGETARY EFFECTS OF H.R. 2262
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
-----------------------------------------------------------------------
2008 2009 2010 2011 2012 2008-2012 2008-2017
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level........... 25 151 94 88 83 441 n.a.
Estimated Outlays....................... 16 46 52 69 84 267 n.a.
CHANGES IN DIRECT SPENDING
Estimated Budget Authority.............. -10 -55 -51 -47 -43 -206 -382
Estimated Outlays....................... -10 -55 -51 -47 -43 -206 -382
CHANGES IN REVENUES
Estimated Revenues...................... 0 70 30 30 30 160 310
----------------------------------------------------------------------------------------------------------------
Note.--n.a. = not available.
Basis of estimate: H.R. 2262 would reform programs related
to mining hardrock minerals on federal land. The bill would
establish a new regulatory framework for administering permits
to develop hardrock minerals. Key features of that framework
would require miners to seek additional permits to explore for
and develop mineral resources and meet certain standards
related to reclamation of mined lands. The bill also would
reauthorize and increase certain mining-related fees and impose
a royalty on gross income from hardrock mining on federal land.
Under current law, hardrock miners pay no royalties to the
federal government. Under the bill, income from hardrock mining
fees and royalties would be available, subject to
appropriation, to support reclamation programs and to provide
assistance to certain state, local, and tribal governments.
Finally, H.R. 2262 would modify procedures related to
administrative and judicial review of mining activities,
withdraw certain federal land from such activities, and
establish procedures to allow local governments to petition for
further withdrawals of federal land within their jurisdiction.
CBO estimates that implementing the bill would increase
spending subject to appropriation, offsetting receipts (a
credit against direct spending), and revenues. Effects of
provisions estimated to have significant budgetary effects are
described in the following sections.
Spending subject to appropriation
H.R. 2262 would authorize the appropriation of federal
proceeds (including fees and royalties) from hardrock mining to
restore public land where mining has occurred and to provide
assistance to certain state, local, and tribal governments.
(Estimates of such proceeds, which would affect direct spending
and revenues, are described later in this estimate.) The bill
also would make several changes to mining permits and the
review of those permits that CBO expects would significantly
increase federal costs to administer programs related to
hardrock mining on federal land. In total, CBO estimates that
implementing the legislation would increase discretionary
spending by $16 million in 2008 and $267 million over the 2008-
2012 period, assuming appropriation of the necessary amounts.
Spending of Proceeds from Hardrock Mining. As discussed in
more detail in the following sections, H.R. 2262 would increase
federal proceeds from hardrock mining. The bill also would
establish the Locatable Minerals Fund, into which such proceeds
would be deposited along with certain other mining-related fees
and charges. Subject to appropriation, the bill would authorize
the Secretary of the Interior to spend two-thirds of amounts in
the proposed fund, including interest, to restore public land
where mining has occurred. The bill would authorize
appropriations of the remaining one-third of such funds for
financial assistance to state, local, and tribal governments
with federal mining lands within their jurisdictions.
Based on information from the Department of the Interior
(DOI) and industry experts, CBO estimates that deposits to the
proposed fund, including intragovernmental transfers of
interest credited to unspent balances in the fund, would total
$25 million in 2008 and $441 million over the 2008-2012 period.
Assuming appropriation of the necessary amounts, we estimate
that resulting spending would total $3 million in 2008 and $252
million over the 2008-2012 period. That estimate is based on
historical spending patterns for similar activities.
Administrative Costs. Based on information from DOI
regarding the department's costs to administer hardrock mining
activities under current law, CBO estimates that implementing
H.R. 2262 would increase the department's costs by about $15
million annually starting in 2008, particularly for costs
related to new permitting requirements established under the
bill.
H.R. 2262 would authorize the Secretary of the Interior to
charge fees to offset those increased administrative costs. CBO
expects, however, that it would take about one year for DOI to
begin to collect such fees; therefore, we estimate that
increased costs incurred during 2008 would not be offset, and
we estimate that the agency would require additional net
appropriations of $15 million to administer hardrock mining
programs in that year. Starting in 2009, however, we estimate
that DOI would collect fees sufficient to fully offset
additional administrative costs incurred under H.R. 2262,
requiring no further net appropriations beyond 2008. As a
result, we estimate that administering proposed changes to
hardrock mining programs under H.R. 2262 would increase net
discretionary spending by $13 million in 2008 and $15 million
over the 2008-2012 period, assuming appropriation of the
necessary amounts.
Direct spending and revenues
CBO estimates that enacting H.R. 2262 would increase
offsetting receipts from certain fees, thereby reducing direct
spending. We also estimate that the bill would increase
revenues by imposing a royalty on income generated from mining
for hardrock minerals on federal land. Direct spending and
revenue effects are presented in Table 2 and described in the
following sections.
TABLE 2.--ESTIMATED DIRECT SPENDING AND REVENUE EFFECTS UNDER H.R. 2262
--------------------------------------------------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
-----------------------------------------------------------------------------------------------------
2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2008-2012 2008-2017
--------------------------------------------------------------------------------------------------------------------------------------------------------
CHANGES IN DIRECT SPENDING
Estimated Budget Authority........................ -10 -55 -51 -47 -43 -40 -37 -35 -33 -31 -206 -382
Estimated Outlays................................. -10 -55 -51 -47 -43 -40 -37 -35 -33 -31 -206 -382
CHANGES IN REVENUES
Estimated Revenues................................ 0 70 30 30 30 30 30 30 30 30 160 310
--------------------------------------------------------------------------------------------------------------------------------------------------------
Offsetting Receipts from Location and Maintenance Fees.
Under current law, hardrock miners pay certain fees to the
Bureau of Land Management (BLM): a one-time location fee of $30
when recording a hardrock claim and annual maintenance fees of
$125 per claim. According to BLM, location and maintenance
fees--which are scheduled to expire after 2008--totaled roughly
$50 million in 2007. Those fees are currently recorded in the
budget as offsets to federal spending.
H.R. 2262 would permanently reauthorize location and
maintenance fees. The bill also would increase those fees,
respectively, to $50 and $150 per claim. Based on information
from BLM about anticipated trends in the number of hardrock
claims located and maintained each year, CBO estimates that the
proposed higher fees would generate additional offsetting
receipts totaling $10 million in 2008, $206 million over the
2009-2012 period, and $382 million over the 2009-2017 period.
(As discussed previously, under H.R. 2262, those amounts would
be deposited in the Locatable Minerals Fund, and any spending
would be subject to appropriation.)
Revenues from Royalties: Under current law, hardrock miners
do not pay royalties to the federal government. H.R. 2262 would
establish a royalty on future production of hardrock minerals.
In general, the royalty rate on production from existing claims
would be 4 percent of gross income; the rate for new claims
established pursuant to H.R. 2262 would be 8 percent.
Budgetary Treatment of Royalties. CBO believes that
imposing royalties on miners with existing claims is an
exercise of the government's sovereign power to levy compulsory
fees. Governmental receipts from such fees are recorded in the
budget as revenues. Royalties generated from new claims,
however, would be considered voluntary, resulting from
business-like transactions, and would be recorded in the budget
as offsetting receipts.
Royalties from Existing Claims. CBO expects that, under
H.R. 2262, royalties from existing claims would generate new
revenues. Although general data on the value of hardrock
minerals produced throughout the United States are available,
estimates of the portion attributable to federal land--and
gross income to firms with federal mining claims--are
uncertain, particularly because companies are not currently
required to report data related to production from federal
land. However, based on information from BLM, the U.S.
Geological Survey, and industry experts, CBO estimates that
total income subject to the proposed royalty would average
roughly $1 billion a year, with most of that income earned by
gold producers, We further estimate that increased revenues
under H.R. 2262, net of reductions to income and payroll taxes,
would total $160 million over the 2009-2012 period and $310
million over the 2009-2017 period. Under H.R. 2262, royalties
due on minerals produced during the first 12 months following
enactment of the bill could be deferred until after that 12-
month period; therefore, we anticipate that no royalties would
be paid in 2008.
Royalties from New Claims. According to BLM and industry
experts, after locating a mining claim, it typically takes at
least 10 years to explore, develop, and produce commercial
quantities of minerals that would generate federal royalties.
Therefore, CBO expects that any new claims established over the
2008-2017 period are unlikely to generate any significant
federal royalties until after 2017.
Estimated impact on state, local, and tribal governments:
H.R. 2262 contains no intergovernmental mandates as defined in
UMRA. The bill would authorize assistance for planning,
construction, and maintenance of public facilities and public
services to state, local, and tribal governments in areas that
have been affected by mineral activities.
It also would allow those governments to file petitions
that would lead to limiting or ending mining activities on
specific tracts of federal land. Petitions would have to
outline specific resources and values that the jurisdiction
intends to protect by limiting mining activities, including
watersheds and drinking water supplies, wildlife habitats,
cultural or historic resources, scenic areas, and, in the case
of Indian tribes, religious and cultural values. Such petitions
would have to be approved by the Secretary unless, within 180
days, the Secretary publishes findings that identify why
complying with the petition would be contrary to the national
interest.
Finally, the bill would authorize cooperative agreements
between the federal government and states for implementing and
enforcing mining regulations, particularly in cases where
mineral activities would affect lands where federal and state
jurisdiction overlap.
Estimated impact on the private sector: H.R. 2262 contains
private-sector mandates, as defined in UMRA, that would affect
certain holders or operators of mining claims on public land.
The bill would impose a royalty on the production of hardrock
minerals from mining claims that are on the date of enactment
(1) subject to an operations permit and (2) producing hardrock
minerals in commercial quantities. The royalty would be set at
4 percent of gross income from mining. Based on information
from BLM, USGS, and industry experts, CBO estimates that the
cost of that mandate would total about $200 million over the
2008-2012 period. In addition, the bill would require persons
paying royalties to comply with certain administrative
procedures. The cost of complying with the procedures would be
minimal. Consequently, the aggregate cost to the private sector
of the mandates in the bill would fall below the annual
threshold established in UMRA ($131 million in 2007, adjusted
annually for inflation).
Estimate prepared by: Federal Costs: Megan Carroll and
Tyler Kruzich; Impact on State, Local, and Tribal Governments:
Leo Lex; Impact on the Private Sector: Amy Petz.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Compliance With Public Law 104-4
This bill contains no unfunded mandates.
Earmark Statement
H.R. 2262 does not contain any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9(d), 9(e) or 9(f) of rule XXI.
Preemption of State, Local or Tribal Law
This bill is not intended to preempt any State, local or
tribal law.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
SECTION 2324 OF THE REVISED STATUTES OF THE UNITED STATES
SEC. 2324. MINING DISTRICT REGULATIONS BY MINERS: LOCATION,
RECORDATION, AND AMOUNT OF WORK; MARKING OF
LOCATION ON GROUND; RECORDS; ANNUAL LABOR OR
IMPROVEMENTS ON CLAIMS PENDING ISSUE OF PATENT; CO-
OWNER'S SUCCESSION IN INTEREST UPON DELINQUENCY IN
CONTRIBUTING PROPORTION OF EXPENDITURES; TUNNEL AS
LODE EXPENDITURE.
The miners of each mining district may make regulations not
in conflict with the laws of the United States, or with the
laws of the State or Territory in which the district is
situated, governing the location, manner of recording, amount
of work necessary to hold possession of a mining claim, subject
to the following requirements: The location must be distinctly
marked on the ground so that its boundaries can be readily
traced. All records of mining claims made after May 10, 1872,
shall contain the name or names of the locators, the date of
the location, and such a description of the claim or claims
located by reference to some natural object or permanent
monument as will identify the claim. On each claim located
after the 10th day of May 1872, that is granted a waiver under
section 10101 of the Omnibus Budget Reconciliation Act of 1993,
or section 103(a) of the Hardrock Mining and Reclamation Act of
2007 and until a patent has been issued therefor, not less than
$100 worth of labor shall be performed or improvements made
during each year. On all claims located prior to the 10th day
of May 1872, $10 worth of labor shall be performed or
improvements made each year, for each one hundred feet in
length along the vein until a patent has been issued therefor;
but where such claims are held in common, such expenditure may
be made upon any one claim; and upon a failure to comply with
these conditions, the claim or mine upon which such failure
occurred shall be open to relocation in the same manner as if
no location of the same had ever been made, provided that the
original locators, their heirs, assigns, or legal
representatives, have not resumed work upon the claim after
failure and before such location. Upon the failure of any one
of several coowners to contribute his proportion of the
expenditures required hereby, the coowners who have performed
the labor or made the improvements may, at the expiration of
the year, give such delinquent co-owner personal notice in
writing or notice by publication in the newspaper published
nearest the claim, for at least once a week for ninety days,
and if at the expiration of ninety days after such notice in
writing or by publication such delinquent should fail or refuse
to contribute his proportion of the expenditure required by
this section, his interest in the claim shall become the
property of his co-owners who have made the required
expenditures. The period within which the work required to be
done annually on all unpatented mineral claims located since
May 10, 1872, including such claims in the Territory of Alaska,
shall commence at 12 o'clock meridian on the 1st day of
September succeeding the date of location of such claim.
* * * * * * *
----------
MINING AND MINERALS POLICY ACT OF 1970
* * * * * * *
TITLE I--MINING POLICY
Sec. 101. The Congress declares that it is the continuing
policy of the Federal Government in the national interest to
foster and encourage private enterprise in (1) the development
of economically sound and stable domestic mining, minerals,
metal and mineral reclamation industries, (2) the orderly and
economic development of domestic mineral resources, reserves,
and reclamation of metals and minerals to help assure
satisfaction of industrial, security and environmental needs,
(3) mining, mineral, and metallurgical research, including the
use and recycling of scrap to promote the wise and efficient
use of our natural and reclaimable mineral resources, and (4)
the study and development of methods for the disposal, control,
and reclamation of mineral waste products, and the reclamation
of mined land, so as to lessen any adverse impact of mineral
extraction and processing upon the physical environment that
may result from mining or mineral activities and to ensure that
mineral extraction and processing not cause undue degradation
of the natural and cultural resources of the public lands.
For the purpose of this Act ``minerals'' shall include all
minerals and mineral fuels including oil, gas, coal, oil shale
and uranium.
It shall be the responsibility of the Secretary of the
Interior to carry out this policy when exercising his authority
under such programs as may be authorized by law other than this
Act. It shall also be the responsibility of the Secretary of
Agriculture to carry out the policy provisions of paragraphs
(1) and (2) of this section.
* * * * * * *
----------
SECTION 5 OF THE NATIONAL MATERIALS AND MINERALS POLICY, RESEARCH AND
DEVELOPMENT ACT OF 1980
PROGRAM PLAN AND REPORT TO CONGRESS
Sec. 5. (a) * * *
* * * * * * *
(e) The Secretary of the Interior shall promptly initiate
actions to--
(1) * * *
* * * * * * *
(3) improve the availability and analysis of mineral
data in Federal land use decisionmaking, except that
for National Forest System lands the Secretary of
Agriculture shall promptly initiate actions to improve
the availability and analysis of mineral data in public
land use decisionmaking.
* * * * * * *
----------
SECTION 2511 OF THE ENERGY POLICY ACT OF 1992
SEC. 2511. OIL SHALE CLAIMS.
(a) * * *
* * * * * * *
(f) Reclamation.--In addition to other applicable
requirements, any person who holds a limited patent or
maintains a claim pursuant to this section shall be required to
carry out reclamation [as prescribed by the Secretary] and to
furnish a bond or other appropriate financial guarantee in an
amount sufficient to ensure adequate reclamation of the lands
to be disturbed by any aspect of the proposed mining activities
in the same manner as if such claim was subject to title II and
title III of the Hardrock Mining and Reclamation Act of 2007.
* * * * * * *
----------
ACT OF JULY 23, 1955
AN ACT To amend the Act of July 31, 1947 (61 Stat. 681) and the mining
laws to provide for multiple use of the surface of the same tracts of
the public lands, and for other purposes.
* * * * * * *
Sec. 3. (a) No deposit of common varieties of mineral
materials, including but not limited to sand, stone, gravel,
pumice, pumicite, [or cinders] cinders, and clay and no deposit
of petrified wood shall be deemed a valuable mineral deposit
within the meaning of the mining laws of the United States so
as to give effective validity to any mining claim hereafter
located under such mining laws: Provided, however, That nothing
herein shall affect the validity of any mining location based
upon discovery of some other mineral occurring in or in
association with such a deposit. ``Common varieties'' as used
in this Act does not include deposits of such materials which
are valuable because the deposit has some property giving it
distinct and special value and does not include so-called
``block pumice'' which occurs in nature in pieces having one
dimension of two inches or more. ``Petrified wood'' as used in
this Act means agatized, opalized, petrified, or silicified
wood, or any material formed by the replacement of wood by
silica or other matter.
(b)(1) Subject to valid existing rights, after the date of
enactment of the Hardrock Mining and Reclamation Act of 2007,
notwithstanding the reference to common varieties in subsection
(a) and to the exception to such term relating to a deposit of
materials with some property giving it distinct and special
value, all deposits of mineral materials referred to in such
subsection, including the block pumice referred to in such
subsection, shall be subject to disposal only under the terms
and conditions of the Materials Act of 1947.
(2) For purposes of paragraph (1), the term ``valid existing
rights'' means that a mining claim located for any such mineral
material--
(A) had and still has some property giving it the
distinct and special value referred to in subsection
(a), or as the case may be, met the definition of block
pumice referred to in such subsection;
(B) was properly located and maintained under the
general mining laws prior to the date of enactment of
the Hardrock Mining and Reclamation Act of 2007;
(C) was supported by a discovery of a valuable
mineral deposit within the meaning of the general
mining laws as in effect immediately prior to the date
of enactment of the Hardrock Mining and Reclamation Act
of 2007; and
(D) that such claim continues to be valid under this
Act.
Sec. 4. (a) * * *
(b) Rights under any mining claim hereafter located under the
mining laws of the United States shall be subject, prior to
issuance of patent therefore, to the right of the United States
to manage and dispose of the vegetative and mineral material
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: Provided further, That if at any time the locator
requires more timber for his mining operations than is
available to him from the claim after disposition of timber
therefrom by the United States, subsequent to the location of
the claim, he shall be entitled, free of charge, to be supplied
with timber for such requirements from the nearest timber
administered by the disposing agency which is ready for
harvesting under the rules and regulations of that agency and
which is substantially equivalent in kind and quantity to the
timber estimated by the disposing agency to have been disposed
of from the claim: Provided further, That nothing in this Act
shall be construed as affecting or intended to affect or in any
way interfere with or modify the laws of the States which lie
wholly or in part westward of the ninety-eight meridian
relating to the ownership, control, appropriation, use, and
distribution of ground or surface waters within any unpatented
mining claim.
(c) Except to the extent required for the mining claimant's
prospecting, mining or processing operations and uses
reasonably incident thereto, or for the construction of
buildings or structures in connection therewith, or to provide
clearance for such operations or uses, or to the extent
authorized by the United States, no claimant of any mining
claim hereafter located under the mining laws of the United
States shall, prior to issuance of patent therefore, sever,
remove, or use any vegetative and mineral material or other
surface resources thereof which are subject to management or
disposition by the United States under the preceding subsection
(b). Any severance or removal of timber which is permitted
under the exceptions of the preceding sentence, other than
severance or removal to provide clearance, shall be in
accordance with sound principles of forest management.
* * * * * * *
Sec. 8. This Act may be cited as the ``Surface Resources Act
of 1955''.
----------
ACT OF JULY 31, 1947
(Public Law 80-291)
AN ACT To provide for the disposal of materials on the public lands of
the United States.
Section 1. The Secretary, under such rules and regulations as
he may prescribe, may dispose of mineral materials (including
but not limited to [common varieties of] the following: sand,
stone, gravel, pumice, pumicite, cinders, and clay) and
vegetative materials (including but not limited to yucca,
manzanita, mesquite, cactus, and timber or other forest
products) on public lands of the United States, including, for
the purposes of this Act, land described in the Acts of August
28, 1937 (50 Stat. 874), and of June 24, 1954 (68 Stat. 270),
if the disposal of such mineral or vegetative materials (1) is
not otherwise expressly authorized by law, including, but not
limited to, the Act of June 28, 1934 (48 Stat. 1269), as
amended, and the United States mining laws, and (2) is not
expressly prohibited by laws of the United States, and (3)
would not be detrimental to the public interest. Such materials
may be disposed of only in accordance with the provisions of
this Act and upon the payment of adequate compensation
therefore, to be determined by the Secretary: Provided,
however, That, to the extent not otherwise authorized by law,
the Secretary is authorized in his discretion to permit any
Federal, State, or Territorial agency, unit or subdivision,
including municipalities, or any association or corporation not
organized for profit, to take and remove, without charge,
materials and resources subject to this Act, for use other than
for commercial or industrial purposes or resale. Where the
lands have been withdrawn in aid of a function of a Federal
department or agency other than the department headed by the
Secretary or of a State, Territory, county, municipality, water
district or other local governmental subdivision or agency, the
Secretary may make disposals under this Act only with the
consent of such other Federal department or agency or of such
State, Territory, or local governmental unit. Nothing in this
Act shall be construed to apply to lands in any national park,
or national monument or to any Indian lands, or lands set aside
or held for the use or benefit of Indians, including lands over
which jurisdiction has been transferred to the Department of
the Interior by Executive order for the use of Indians. As used
in this Act, the word ``Secretary'' means the Secretary of the
Interior except that it means the Secretary of Agriculture
where the lands involved are administered by him for national
forest purposes or for the purposes of title III of the
Bankhead-Jones Farm Tenant Act or where withdrawn for the
purpose of any other function of the Department of Agriculture.
* * * * * * *
Sec. 5. This Act may be cited as the ``Materials Act of
1947''.
----------
ACT OF AUGUST 4, 1892
AN ACT To authorize the entry of lands chiefly valuable for building
stone under the placer mining laws.
[Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That any
person authorized to enter lands under the mining laws of the
United States may enter lands that are chiefly valuable for
building stone under the provisions of the law in relation to
placer mineral claims: Provided, That lands reserved for the
benefit of the public schools or donated to any State shall not
be subject to entry under this act.
[Sec. 2. That an act entitled ``An act for the sale of timber
lands in the State of California, Oregon, Nevada, and
Washington Territory,'' approved June third, eighteen hundred
and seventy-eight, be, and the same is hereby, amended by
striking out the words ``States of California, Oregon, Nevada,
and Washington Territory'' where the same occur in the second
and third lines of said act, and insert in lieu thereof the
words, ``public-land States,'' the purpose of this act being to
make said act of June third, eighteen hundred and seventy-
eight, applicable to all the public-land States.
[Sec. 3. That nothing in this act shall be construed to
repeal section twenty-four of the act entitled ``An act to
repeal timber-culture laws, and for other purposes,'' approved
March third, eighteen hundred and ninety-one.]
----------
ACT OF JANUARY 31, 1901
AN ACT Extending the mining laws to saline lands.
[Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That all
unoccupied public lands of the United States containing salt
springs, or deposits of salt in any form, and chiefly valuable
therefor, are hereby declared to be subject to location and
purchase under the provisions of the law relating to placer-
mining claims: Provided, That the same person shall not locate
or enter more than one claim hereunder.]
DISSENTING VIEWS
We strongly oppose H.R. 2262, the ``Hardrock Mining and
Reclamation Act of 2007'' because we believe it will decimate
the remnants of an already sadly diminished domestic mining
industry. It will export American jobs, good American jobs, to
other nations, and make us more dependent on others for the
materials necessary for our high tech future. H.R. 2262 leaves
a grave legacy that threatens our long term economic and
national security.
While the Committee Majority may be content to allow our
mineral import deficit to grow\1\, we believe that a domestic
mining industry is one of the foundations of our economy and
our military security. Indeed, China and India agree with us,
as they are consuming huge amounts of energy and minerals which
they are willing to secure from parts around the globe and with
which they are fueling unprecedented economic growth. At
current rates of relative economic growth, one or both of them
will surpass the United States in economic output within two
decades. Data from the World Trade Organization shows that
China vaulted past America at the beginning of this year as an
exporter and has since moved at lightning speed to eclipse
Germany's once indomitable export machine. However, according
to the Majority there is ``no reason, no reason whatsoever, why
`good public land law' should be linked to the gross national
product.''\2\
---------------------------------------------------------------------------
\1\See Attachment 1.
\2\Response of Chairman Rahall, Full Committee Markup of H.R. 2262,
Tuesday, October 23, 2007 to an amendment offered by Congressman Pearce
stating that H.R. 2262 would expire if and when the United States does
not have the number one gross domestic product in the world.
---------------------------------------------------------------------------
The Majority's irreverence to establishing a balanced
minerals policy that will help our country compete with these
booming rivals became quite apparent during the legislative
process. The legislative process was perfunctory at best. H.R.
2262 was drafted without any input from the Minority side of
the aisle. Numerous requests from Members for additional
hearings were denied. Regular order with a Subcommittee level
markup was bypassed. The only opportunity for Minority input
was at the Full Committee markup where almost all amendments
from the Minority were rejected and deemed ``dilatory'' by the
Committee Chairman. Those amendments may seem ``dilatory'' to
the Committee Majority because they do not have hardrock mining
in their Districts; however, many of us do. Those amendments
were the only voice we had to protect the jobs and tax base in
our Districts. If this is the ``new direction'' that was
promised to America last November, America was misled.
We are unaware of any witness in the three legislative
hearings held by the Subcommittee on Energy and Mineral
Resources who testified that H.R. 2262 will increase domestic
mining activity. Rather, several witnesses testified that H.R.
2262 will be devastating to our domestic production of
minerals, will be crippling to our economy and will send more
jobs overseas. We agree.
The problems with H.R. 2262 are extensive and pervasive;
however, we wish to highlight in these Dissenting Views three
of the most significant concerns raised during the hearings:
Title I, 8% Gross Royalty;
Title II, Land Withdrawal; and
Title III, Mine Veto.
I. Title I, 8% Gross Royalty
Under H.R. 2262, as reported, existing hardrock mines will
be subject to a new 4% gross royalty. We are extremely
concerned that this 4% royalty on existing mines constitutes a
``taking'' of private property rights under the Fifth Amendment
of the Constitution and a breach of contract. The lands
affected by this provision are in many cases, private. In many
cases in the Western Government Land States, private mining
lands adjoin government lands, but under this provision, the
government would be extracting a royalty if government lands
adjacent to the mine were necessary for any use by the mine.
For those who understand agriculture, the analogy would be a
proposal of a 4% gross royalty on all crops raised on lands
that had been conveyed under the Homestead Act, under the false
premise that the government was due such royalty because a
farmer used public roads to get the crops to market. A
``royalty'' by definition is a payment made to an owner for the
use of land or property belonging to the owner, assessed on the
value of the produce derived. It has never been associated with
ancillary uses. Under this bill, the Majority demands that an
owner pay a royalty to the government for something the
government does not own. While the Majority may feel that the
government owns, or should own, everything, we do not. We
believe our Founding Fathers did not intend for the government
to own, or claim ownership of everything.
In addition, all new hardrock mines will be subject to an 8
percent gross royalty. The hearing record seems irrelevant to
the Majority, as the objection to this extremely high tax was
overwhelming. The following were statements made during the
Subcommittee on Energy and Mineral Resources hearings, that
appear to have fallen on deaf ears:
``8% is excessive.''--James Otto, Author of World
Bank Mining Royalties publication (Washington, DC hearing 10/
02/07).
``I am only aware of a single royalty that is as
high as the royalty proposed in the bill, just one in my 20
years of practice. An 8% royalty would really be ruinous. . .
.''--James Cress, Attorney, Holme Roberts & Owen LLP
(Washington, DC hearing 10/02/07).
``I am particularly concerned about the potential
impacts of the eight percent net smelter return royalty called
for in the last legislation. . . . All the royalty costs will
be absorbed by the mining companies, and this will be a direct
adverse impact on the amount of mining tax revenues that flows
to the State and to the Counties.''--Elaine Burkdull Spencer,
Elko County Economic Diversification Authority (Elko, Nevada
field hearing 8/21/07).
``We do not believe that this type of royalty
fairly addresses the needs of the public or of the mining
industry. To a large extent, as you've heard, we have no
control over price; therefore, it is impossible to pass on any
additional cost. I bring to you for your consideration Nevada's
model of the Nevada net proceeds of mine tax. This is a tax
that has served the State and the industry very well since
statehood, and we would be delighted to work with the Committee
on how this Nevada model might be used to become, in a sense,
essentially a production royalty or a production payment
fee.''--Russ Fields, Nevada Mining Association (Elko, Nevada
field hearing 8/21/07).
``What I would suggest is that if you are going to
implement a royalty that actually you look to the states who
are going to be impacted by the loss of their revenues. They're
the one's that are going to come back to you and ask you to
help them replace their industries that they've lost.''--Walter
Martin (Elko, Nevada field hearing 8/21/07).
H.R. 2262 was moved through the Committee with such haste
that an economic analysis on the impact of an 8 percent gross
royalty by any stakeholder, the Administration or Congress was
not performed. Perhaps it was for good reason, as the three
economic analyses performed on similar mining legislation in
1993 are instructive. Those economic analyses showed that there
would be a huge loss of revenue to the government and a
dramatic loss of jobs in the mining sector.
One hearing witness described a real world example that
occurred in British Columbia in the 1970's when the province
imposed a 2.5 percent gross royalty that increased to 5 percent
in the second year. The witness stated that revenues collected
from royalties on metal mines declined from $28.4 million in
1974 to $15 million in 1975. Exploration expenditures also
decreased from $38 million in 1972 to $15.3 million in 1975.
Ultimately, the royalty had a devastating impact on the mining
industry, and British Columbia repealed the royalty in 1976.
Moreover, it has been intimated by proponents of this bill
that they acknowledge the proposed royalty is so high that it
would stop mining in the US, but that it will be ``subject to
negotiation'' with the Senate. In other words, the proponents
cynically admit that the legislation they are asking Members of
Congress to vote for would kill a vitally important industry
for our nation's future, but they are ``gambling'' with the
Senate. Not only does this show a markedly callous and cynical
disregard for the well-being of Americans dependent on mining
for their livelihoods, it also represents an affront to the
House of Representatives by asking elected Members to vote for
a bill that they acknowledge will destroy an entire industry in
order to improve their ``bargaining power'' with the Senate.
The proponents are in sum, arguing that Members go on record to
destroy an industry so that they can bargain for some changes.
We strongly believe this Inside-the-Beltway cynicism and
gamesmanship contributes to the current congressional approval
ratings which have sunk to their lowest level. A bill should be
able to pass the ``red face test.'' The proponents admit theirs
does not, yet ask other Members to trust them that they do not
mean to destroy mining in America, even though the Committee
record clearly shows that their bill will do just that.
The Majority is wrong when they say that the industry does
not contribute to state and federal treasuries. The current
taxation system on hardrock mining in the U.S. is similar to
Canada's where special taxes or royalties are levied by the
State and shared with the Counties where the mines are located.
The Federal government receives revenues from the claim
maintenance fees ($55 million in FY 2006), document processing
fees, cost recovery rules and corporate and personal income
taxes. These revenues from the claim maintenance fees, claim
location fees and other monies collected through the cost
recovery rule are not shared with the States or Counties where
the mine is located.Compare this to the zero revenue received
by the federal government from lands that produce nothing.
If a royalty were imposed, a more reasonable approach would
be that advocated for by Congressman Heller, whose district
encompasses roughly 99% of Nevada. Representative Heller
offered an amendment outlining a royalty paradigm modeled after
Nevada's successful state model. Nevada serves as a premiere
laboratory for what royalty would work and what royalty would
not. The Majority summarily dismissed Rep. Heller's tested-and-
proven approach for their own 8 percent unprecedented and
untested gross royalty.
II. Title II, Land Withdrawal
H.R. 2262 withdraws vast new categories of federal lands
from mineral entry and development including roadless areas.
Prohibiting economic activity on federal lands is detrimental
to Western States. Federally held public lands account for as
much as 86 percent of the land in certain Western states. These
same states account for 75 percent of our nation's metals
production. As such, access to federal lands for mineral
exploration and development is critical to maintain a strong
domestic mining industry.
In addition, H.R. 2262 places a presumption in favor of
withdrawing land unless the Secretary of the Interior can prove
that it is in the ``national interest'' not to. While an
individual mine may or may not rise to the level of a
``national interest,'' domestic mining does. The minerals are
where Mother Nature has placed them, and to have a presumption
against developing them is bad mineral policy.
H.R. 2262's withdrawal language does not require a mineral
survey to determine if any areas are prospective for mineral
discovery. Even the Wilderness Act requires a mineral
assessment prior to Congressional Wilderness Designation. As a
result of these surveys, some areas were not included in
Wilderness because of their mineral potential.
More than 400 million acres of federal land have already
been withdrawn from mineral entry and set aside for either
military or conservation purposes. To put this in perspective,
only 6 million acres nationwide have been or are being mined.
Approximately half of those 6 million acres have been
reclaimed. This includes locatable minerals (the subject of
H.R. 2262) coal, sand and gravel, and industrial minerals such
as potash and trona.
Following are statements from the hearing that appear to
have fallen on deaf ears.
``Title II of the bill, protection of special
places, renders millions of acres off limits to exploration and
mining on which exploration and development are not currently
prohibited. At the very least, no withdrawal should be made
until an appropriate and careful study of the mineral resource
potential has been completed. But really, better yet, these
lands should remain open to exploration and mining. Please keep
in mind that substantial land withdrawals have already occurred
over the past decades, putting many millions of acres off
limits to exploration and mining, including here in Nevada.''--
Ronald Parraat President, AuEx Ventures, Inc (Elko, Nevada
field hearing 8/21/07).
``The provision's closing enormous tracts of land
to mining. Mining towns are traditionally against wholesale
withdrawal from mineral entry. And traditionally, Congress has
looked at those lands with high esthetic or environmental
values on a case-by-case basis. I think that's a good policy,
and I think that this Committee should take a good hard look at
what may happen by withdrawing some 58 million acres of land
from mineral entry.''--John Hutchings, Eureka County Department
of Natural Resources (Elko, Nevada field hearing 8/21/07).
III. Title III, Mine Veto
Several provisions in H.R. 2262 grant the Secretary the
power to deny or ``veto'' proposed mining operations that will
be in full compliance with all applicable environmental and
reclamation standards. The veto can be done at anytime in the
process even after significant investment has been made in
construction of mine infrastructure. Such a veto is
unprecedented for projects on federal lands.
A mine veto provision singles out the mining industry by
preventing owners of mining claims the ability to exercise
their rights secured by law. Other users of the public lands
(i.e., timber industry, coal, oil and gas or other lessees) are
not subject to such arbitrary denials. For these other industry
lessees, once their right to be on the land has been acquired
and all environmental requirements are met, projects move
forward and are not subject to a veto.
An example of this mine veto authority is seen in the
definition of ``irreparable harm.'' H.R. 2262's new
``irreparable harm'' standard authorizes a mine veto nearly
identical to the one rejected in 2001 due to the Bureau of Land
Management's (BLM) projections of thousands of job losses and
substantial adverse economic impacts. After a thorough public
process, the BLM found ``the requirement to avoid . . .
irreparable harm to significant resource values which cannot be
effectively mitigated has the greatest potential for affecting
mining activities (both large and small). In some cases, this
provision could preclude operations altogether.'' This new
standard is a lawyer's dream of ambiguity leading to fighting
about whether we mine instead of how we mine. Not one witness
over the course of the three hearings held asked for this
definition change and so it is not backed by any record.
Uncertainty created by the mine veto provisions will deter
investment in domestic mining projects. Investors need to know
that a mining project in the United States can obtain approval
and proceed unimpeded as long as the operator complies with all
relevant laws and regulations.
Ronald Parrat, President, AuEx Ventures, Inc., testifying
at the Elko Field hearing summarized it best:
H.R. 2262 eliminates the right under the current mining law
to use and occupy public lands for mineral exploration and
development. Instead, the bill empowers federal land managers
with discretionary veto power to reject current applications
for exploration and mining where mineral development is already
allowed under current multiple use guidelines. The
discretionary permitting process proposed in H.R. 2262 ignores
the fundamental geological fact that commercial mineral
deposits are rare occurrences. Mineral deposits cannot be
moved. They need to be developed where they're found. And laws
and regulations covering exploration and mining really must
recognize and acknowledge this unique aspect.
Beyond the mine veto, the list of onerous provisions in
Title III goes on. It should also be noted that Title III
creates a whole new environmental permitting system for
hardrock mines even though a comprehensive framework of state
and federal laws and regulations governing this type of mining
is already in place. Title III even puts in new ``acoustic
quality'' buffers to prohibit mining near the National Park
System or National Monuments. Under the definition of impair
they include ``scenic assets'' and ``acoustic qualities.''
There are existing operations within and close to National
Parks and National Monuments that may be adversely affected by
this provision.
IV. Conclusions
We firmly believe more hearings were necessary before H.R.
2262 was marked-up at the Natural Resources Committee, our
request for additional hearings and citizens guidance was
denied by the Majority. Our efforts to further evaluate H.R.
2262, its impact on our constituents and the security of our
nation was expressed in a letter to the Committee Chairman on
October 16, 2007. Western residents, local industry and the
Republican Members who largely represent the mining region of
our country, were left out of the drafting process of the bill
and were relegated to bystander status as this bill was pushed
through Committee.
We very strongly believe that H.R. 2262 will harm domestic
mining investment and will cause mines to close prematurely. We
do not believe it will generate the expected revenues. Rather,
it will force taxpayers to bare the burden of the increased
federal bureaucracies needed to implement and administer the
Act without an industry to monitor.
We believe that this Act will increase the United States'
dependency on foreign sources of mined materials impacting our
economy, balance of trade and national security. It will
certainly adversely impact the rural mining communities in the
West whose citizens working in the mines earn the best non-
supervisory wages in the country. We believe that maintaining
an industrial base in America--from raw materials to finished
product is vitally important to our economic survival and our
national security. This bill fails to secure our national
supply of minerals and leaves us vulnerable and dependent on
unstable nations with little or no regard for their own
environmental concerns and certainly no regard for the
importance of protecting America's economy.
Don Young.
Mary Fallin.
Stevan Pearce.
Cathy McMorris Rodgers.
Dean Heller.
Jeff Flake.
John J. Duncan, Jr.
Elton Gallegly.
Chris Cannon.
Rob Bishop.
Bill Shuster.
Bill Sali.
Louie Gohmert.
Tom Tancredo.
Henry E. Brown, Jr.
Doug Lamborn.