SPEAKERS CONTENTS INSERTS
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45–477 CC
1997
HARDROCK MINING ISSUES
HEARING
before the
SUBCOMMITTEE ON ENERGY
AND MINERAL RESOURCES
of the
COMMITTEE ON RESOURCES
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
FIRST SESSION
SEPTEMBER 22, 1997, ELKO, NEVADA
Serial No. 105–53
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Printed for the use of the Committee on Resources
COMMITTEE ON RESOURCES
DON YOUNG, Alaska, Chairman
W.J. (BILLY) TAUZIN, Louisiana
JAMES V. HANSEN, Utah
JIM SAXTON, New Jersey
ELTON GALLEGLY, California
JOHN J. DUNCAN, Jr., Tennessee
JOEL HEFLEY, Colorado
JOHN T. DOOLITTLE, California
WAYNE T. GILCHREST, Maryland
KEN CALVERT, California
RICHARD W. POMBO, California
BARBARA CUBIN, Wyoming
HELEN CHENOWETH, Idaho
LINDA SMITH, Washington
GEORGE P. RADANOVICH, California
WALTER B. JONES, Jr., North Carolina
WILLIAM M. (MAC) THORNBERRY, Texas
JOHN SHADEGG, Arizona
JOHN E. ENSIGN, Nevada
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ROBERT F. SMITH, Oregon
CHRIS CANNON, Utah
KEVIN BRADY, Texas
JOHN PETERSON, Pennsylvania
RICK HILL, Montana
BOB SCHAFFER, Colorado
JIM GIBBONS, Nevada
MICHAEL D. CRAPO, Idaho
GEORGE MILLER, California
EDWARD J. MARKEY, Massachusetts
NICK J. RAHALL II, West Virginia
BRUCE F. VENTO, Minnesota
DALE E. KILDEE, Michigan
PETER A. DeFAZIO, Oregon
ENI F.H. FALEOMAVAEGA, American Samoa
NEIL ABERCROMBIE, Hawaii
SOLOMON P. ORTIZ, Texas
OWEN B. PICKETT, Virginia
FRANK PALLONE, Jr., New Jersey
CALVIN M. DOOLEY, California
CARLOS A. ROMERO-BARCELÓ, Puerto Rico
MAURICE D. HINCHEY, New York
ROBERT A. UNDERWOOD, Guam
SAM FARR, California
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PATRICK J. KENNEDY, Rhode Island
ADAM SMITH, Washington
WILLIAM D. DELAHUNT, Massachusetts
CHRIS JOHN, Louisiana
DONNA CHRISTIAN-GREEN, Virgin Islands
RON KIND, Wisconsin
LLOYD DOGGETT, Texas
LLOYD A. JONES, Chief of Staff
ELIZABETH MEGGINSON, Chief Counsel
CHRISTINE KENNEDY, Chief Clerk/Administrator
JOHN LAWRENCE, Democratic Staff Director
Subcommittee on Energy and Mineral Resources
BARBARA CUBIN, Wyoming, CHAIRMAN
W.J. (BILLY) TAUZIN, Louisiana
JOHN L. DUNCAN, Jr., Tennessee
KEN CALVERT, California
WILLIAM M. (MAC) THORNBERRY, Texas
CHRIS CANNON, Utah
KEVIN BRADY, Texas
JIM GIBBONS, Nevada
CARLOS ROMERO-BARCELÓ, Puerto Rico
NICK J. RAHALL II, West Virginia
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SOLOMON P. ORTIZ, Texas
CALVIN M. DOOLEY, California
CHRIS JOHN, Louisiana
DONNA CHRISTIAN-GREEN, Virgin Islands
——— ———
BILL CONDIT, Professional Staff
SHARLA BICKLEY, Professional Staff
DEBORAH LANZONE, Legislative Staff
C O N T E N T S
Hearing held September 22, 1997
Statements of Members:
Cubin, Hon. Barbara, a Representative in Congress from the State of Wyoming
Gibbons, Hon. Jim, a Representative in Congress from the State of Nevada
Statements of witnesses:
Blackwell, Jack, Deputy Regional Forester, Intermountain Region, U.S. Forest Service, U.S. Department of Agriculture
Prepared statement of
Carpenter, John, Assemblyman, Nevada Legislature
Prepared statement of
Drozdoff, Leo, Bureau Chief, Mining Regulation & Reclamation, Nevada Division of Environmental Protection, Nevada Department of Conservation and Natural Resources
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Prepared statement of
Espell, Ron A., Environmental Superintendent, Barrick Goldstrike Mines, Inc.
Franzoia, Michael J., Mayor, City of Elko
Prepared statement of
Gadt, Larry O., Director, Minerals and Geology Management, U.S. Forest Service
Gustin, Gene, Public Land Use Advisory Council to the Elko County Commission
Prepared statement of
Hackworth, Royce, Chairman, Elko County Commission
Prepared statement of
Jones, Martin R., Senior Manager, NV Environmental Compliance, Newmont Gold Co.
Prepared statement of
Lesperance, Anthony L., Elko County Commissioner
Prepared statement of
Miles, Zane, Deputy District Attorney, Eureka County
Prepared statement of
Myers, Tom, Consultant to Great Basin Mine Watch
Prepared statement of
Presley, Edward L., National Director, County Alliance to Restore the Economy & Environment (CAREE)
Prepared statement of
Reid, Hon. Harry, a Senator in Congress from the State of Nevada
Rivers-Council, Jean, Associate State Director, Nevada State Office, Bureau of Land Management, U.S. Department of the Interior
Prepared statement of
Upton, Bill W., Manager, Environmental Affairs, Placer Dome U.S., Inc.
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Prepared statement of
Additional material supplied:
Blaylock, Gregory A., Joseph, Oregon, prepared statement of
Women's Mining Coalition, Elko, Nevada, prepared statement of
Nevada Gold Cyanide Mill Tailings Regulation
Newmont Gold Company, Comments of
HARDROCK MINING ISSUES
MONDAY, september 22, 1997
House of Representatives, Subcommittee on Energy and Mineral Resources, Committee on Resources, Elko, Nevada.
The Subcommittee met, pursuant to notice, at 9:10 a.m. at the Stockman Hotel, 340 Commercial Street, Elko, Nevada; Hon. Barbara Cubin (chairman of the Subcommittee) presiding.
Mrs. CUBIN. I am not used to holding this. I could get carried away here. So if we break out in song, you will know why, and we have the right setting for it as well.
I would like to call the Subcommittee on Minerals and Energy hearing to order. I want to thank all of you for being here today and it is an honor for me to be here.
We are a Subcommittee of the Committee on Resources, from the Congress, and thank you for your hospitality and thank all of you for attending. Let me begin today's hearing by thanking Congressman Jim Gibbons. He is a valued member of this Subcommittee and we are happy to have him as our host here today in Elko, Nevada, in the heart of gold mining country. My brother is a gold miner down at Misquite mine, so I sort of have a sensitive spot for gold mining.
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Although I came from a small town, Casper, Wyoming, it is seldom that we can take time out from our busy schedule in Congress to be able to hold these field hearings, especially in remote areas like Elko, but it is an honor for us to do that and, of course, this is where the folks that are most affected by the government decisions regarding the use of the public lands live, so it is good for us to be able to come back and hear from the very people that are affected by the decisions that we make, just how those decisions turn out in real life when you have to practice what we bring forward.
Unfortunately, as is the case with many field hearings, we do have a schedule to meet, and we have a 1:55 flight, so we have to adjourn promptly at 1 o'clock. I think we will have time, but I would like to ask everyone to keep their comments to the 5-minute period. We have lights here, and if you could do that, that would be greatly appreciated.
STATEMENT OF HON. BARBARA CUBIN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WYOMING
Mrs. CUBIN. This Subcommittee has held two field hearings in Congress already on the subject that we will be talking about today, and concerning the Secretary of Interior's decision to publish, on February 28 of this year, a final rulemaking bonding of hardrock mining operations on public lands, administered by the Bureau of Land Management. After having to resort to a subpoena, issued by Chairman Young of the full Resources Committee, we finally have all of the documents that we requested in our inquiry from the Secretary, and what we want to know, as of course do you, why the Secretary has allowed this rulemaking to become final after such a long lapse without new public input.
He did this despite requests from me, from Congressman Gibbons, from your Governor and the senior Senator for your State and others to re-propose the rule for new comments. A lawsuit filed by the Northwest Mining Association against the Secretary, alleging abuse of discretion and failure to follow proper rulemaking procedures is in progress in the U.S. District Court, where a ruling on cross-motions for summary judgment is possible by the end of this month. But whatever the outcome of the lawsuit, I believe the Secretary's actions are a strong indicator that we in Congress, as well as in the regulated industry and indeed the public at large, must remain vigilant and insist upon strict adherence to the Administrative Procedures Act and the Regulatory Flexibility Act as well, which mandates analysis of impacts of rulemaking upon small businesses.
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I view the role of Congress to protect the system, while I don't always agree with the decisions that are made by those decisionmakers in the executive branch, and, therefore, I can't always—or really can't intervene on those decisions once they have followed the correct procedure. But my job, and I think the job of the Congress, and this oversight hearing, is to make sure that we protect the procedure, that we protect the policy because if we don't do that, there are several things that can be guaranteed.
No. 1, when the procedure is violated, even if you are on the winning side this time, the procedure will be violated again and you may be on the losing side the next time. Another thing that can be guaranteed, especially in areas where the environment is being debated, that degradation of the environment will occur at some point when the process is abused and violation of private property rights will occur. Therefore, it is my sworn duty to protect the policy and make sure that the agencies abide by those two laws.
Another thing happening in Congress, this time in the Senate, which also bodes poorly for full participation by the States in the full 3809 regulations rewrite, which Secretary Babbitt announced last winter, last week the appropriations bill for fiscal year 1998 for the Interior Department was debated. In the version from the Committee was language to require the establishment of a committee of Western Governors' representatives to report to Congress on the proper roles of States in mining, permitting and reclamation matters.
The report would ensure the Governors a place at the 3809 table, so to speak, but incredibly, the administration threatened to veto if such a provision were to remain. It is astounding to me that the agency should think that the Governors of the States affected should not have a place at the table. The senior Senator from Arkansas led the charge and there was no choice for Western Senators, they said, except to bargain away that requirement in return for not allowing the BLM to publish the proposed 3809 rule until after December 31, 1998, and the truth is, the House of Representatives, in which Mr. Gibbons and I serve, would very likely have balked at a conference committee report, which included the Governor's report requirement as another attempt by the quote, ''subsidized public land miners to stall off necessary reform,'' but not because we haven't tried to set our colleagues from the East straight or from the East on this and other Western issues, but because the folks who want to see the industry leave the U.S. altogether are winning the public relations wars, so the mail to the Eastern representatives and Midwestern Members of Congress is routinely against efforts to restore the multiple use concepts and multiple use for public lands.
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A trip in August, in which the Speaker of the House, the Majority Leader, the Majority Whip, all total about 14 Members of Congress, came back and were educated on Western issues, and the folks from the East and from the industrial Midwest were amazed at what they saw when they compared what they actually saw to what they thought was happening out here on the public lands.
As you in the mining industry well know, increasingly, it is a Superfund or the Clean Water or the Clean Air Act tail wagging the 1872 mining law dog. In other words, so what if irresponsible efforts to reform the 1872 mining law is staved off for another Congress, if air, water or other environmental thresholds are adopted in statute or regulation, which effectively deny permit issuance.
Unfortunately, the Federal laws which the EPA administers and delegates to the States, which demonstrate willingness and ability to implement them, by the way, are not generally within the jurisdiction of the Committee on Resources. A notable exception is the Endangered Species Act. Nevertheless, the genesis of the 3809 regulations is clearly the Federal land policy management—excuse me—FLPMA, I just will quit stuttering. We all know what FLPMA is, but FLPMA does reside in the jurisdiction of our Committee and therefore we can have this hearing.
The Secretary of the Interior does, indeed, have a mandate to prevent unnecessary and undue degradation of public lands. We all agree with that. I don't believe there is a single person in this audience who would deliberately degrade the environment. The 104th Congress voted to establish a 5 percent net proceeds royalty, require payment of fair market value for the services stated within a claim to be patented and establish a trust fund for reclamation of land abandoned by miners, prior to the modern reclamation requirements.
This was called sham reform by the administration, and others. Apparently the sham reform was not enough of a good faith showing by the Congress to warrant further dialog. Instead, in a move that a Washington Post reporter even labeled as stealth mining law reform, Secretary Babbitt has shifted the debate to a forum in which he has the most broad control, but I do pledge to use this chairmanship to see to it that meaningful public input is brought out, that it is received properly and dealt with properly, before the 3809 mining rules or the Forest Service parallel rules at 36 CFR 228 R, revised. So I do thank you for your attendance today and I am going to call on your representative, Jim Gibbons, for an opening statement.
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STATEMENT OF HON. JIM GIBBONS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEVADA
Mr. GIBBONS. Thank you very much, and on behalf of all of Nevada, I want to welcome Representative Cubin to Elko, Nevada. As Chairman of the Energy and Mineral Resource Committee, this is an important opportunity for all of Nevada to have a chance to understand just exactly what it is that Congress can do, and should do when it comes to protecting this industry, so I would like to welcome you to Elko, Nevada, and I would like to express my sincere gratitude to you for holding this hearing on the precious—in fact, in the precious metal capital of the world, here in Elko, the silver State, and I applaud your efforts to preserve and protect a vital interest to Nevada and to this country. And I know you, as a chemist, and I as a former geologist, have a deep appreciation and understanding of all of our Nation's mining and mineral industries and it is the reason why we feel this is such an important part of our job as representatives in Congress.
By way of introduction, let me say that Nevada, the Nation's leader in gold production, has 30 operating gold-producing companies here and they employ more than 14,000 people. These people mined an estimated $2.9 billion worth of metals in 1995 in Nevada alone. Nevada alone provides an annual direct contribution to the Federal Government of more than $113 million.
As the second largest employer in the State, mining provides $1.5 billion in personal, business, State, and local government revenues. That is $1.5 billion. Now, these numbers make it easy to realize why mining is such an important part of Nevada and why any change in the laws or regulations governing mining or mining operations must be closely monitored to ensure that the mineral industry is not crippled or endangered by personal agendas of special interest groups or individuals whose only goal is to eliminate all mining activity on public land.
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In a memo from Secretary of the Interior, Bruce Babbitt, to the Assistant Secretary of Lands and Minerals, dated January 6, 1997, Mr. Babbitt stated clearly, quote, ''It is plainly no longer in the public interest to wait for Congress to enact legislation that corrects the remaining shortcomings of the 3809 regulations. To that end, I direct you to restart this role-making process by preparing and publishing proposed regulations,'' end quote.
Well, to Mr. Babbitt, I would say that Article I, Section 1 of the Constitution states that all legislative powers herein granted shall be vested in a Congress. Democracy and our Constitution require that the people be bound only by those policies enacted by our elected lawmakers, not appointed bureaucrats. Since the New Deal, however, Congress has routinely lost the power to make laws and it has lost that power to unelected and unaccountable bureaucrats. This must stop and the legislative powers must be returned back to Congress allowing decisionmakers to be held accountable to their constituency.
If we want to find recent administrative actions doing great harm to our political process and to the people of Nevada, we do not have to look very far. Clearly, evidence of this loss of power and administrative lawmaking were recently felt by this great State when the Secretary published new rules on BLM hardrock bonding requirements.
I submit to this Committee that the public was not allowed to voice their opposition or their concerns about the substance of the final version of the rule. Five-and-one-half years before the administration's final enactment of the rule, the intention of the Department of Interior was to create legislative policy. I believe their actions violated the Administrative Procedures Act and were a disservice to the people of America.
Does anyone in the Department of Interior remember the preamble to our Constitution which states, ''of the people, by the people and for the people.'' The purpose of this hearing, of course, will be to explore the Department of Interior's effort to revise the hardrock mining surface management regulations, 43 CFR 3809, or simply put, the 3809 regulations.
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It is my intention today with your support to hear from the people of Nevada, the citizens of this country, the industry, the State and then the Federal Government on why we need to change 3809 regulations. And if indeed we do, then how best to go about changing and implementing the new regulations. It is my intention as a Member of Congress not to be caught off guard when the Department of Interior makes their changes.
I encourage public comments on this regulation so that I can use every power available to me to ensure that the adage, quote, ''for the people,'' end quote, is held true in its spirit.
Madam Chairman, I look forward to this hearing today and I would like to thank you and everyone for taking time out of their busy schedules to participate in our government process. Thank you and I would yield back any balance of time that I have.
Mrs. CUBIN. Thank you, Mr. Gibbons. Now that the light is on, I could even read his statement. I have just reached the age when I have learned that I can't see very close anymore so forgive me for my bit of stuttered speech.
Now we will begin with the testimony on the first panel and first I will call on Ron Espell—oh, excuse me, no. We are honored today to have a representative from Senator Reid's office with us for a brief statement, and so I will ask Karen Denio if she will please give the Senator's testimony for us.
STATEMENT OF HON. HARRY REID, A SENATOR IN THE CONGRESS FROM THE STATE OF NEVADA
Ms. DENIO. Thank you very much. My name is Karen Denio. I am rural coordinator for U.S. Senator Harry Reid, senior Senator from the State of Nevada. Senator Reid has asked that I read his statement into the record and his personal statement is as follows:
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Last Thursday, with the assistance of other Western Senators, I fought off a major challenge to Nevada miners as the interior appropriations bill came to the floor by fending off attempts by perennial foe Dale Bumpers to attach legislative riders to the bill calling for a net royalty and severance tax on mining operations.
Additionally, we successfully negotiated a 1-year moratorium on any new 3809 regulations. My amendment will require the Secretary of the Interior to wait until at least November 15, 1998, to publish proposed regulations on the 3809 hardrock mining regulations. After that, we can use the Reid-Nickles Regulatory Reform Act to stop anything particularly offensive or dangerous for Nevada miners.
This past February, Secretary Babbitt stated in an interview on National Public Radio that he was going to rewrite the current mining laws. His most recent attempt at revising 3809 regulations is another back-door approach to mining law reform. This effort illustrates the Secretary's frustration with not getting mining law reform done his way.
The administration just does not understand the process that Congress has undertaken to reform the 1872 mining law. Reasonable mining law reform must come through cooperation with Congress and Western States, not through covert actions by Federal bureaucrats. I fear a negative impact on mining operations on public lands. The Secretary's prescription for mining law reform is a one-size-fits-all approach. He wants to direct uniform Federal standards for a goal placer operation in Alaska, surface copper mines in Arizona and underground gold mines in Nevada. As any miner knows, this will not work.
In many ways this proposal is a direct attack on the economy of Western States, since the vast majority of Federal lands are located in the West. As you know, Nevada has 87 percent of its land under Federal control.
According to the Interior Department, the mining law revision process has been on hold since 1993 because Congress has failed to act on the matter. I resent the implication that Congress has not considered mining law reform. Maybe it was not to the liking of those who would like to destroy the industry. I have written several bills since I have been in the Senate, including a 1994 measure that passed both the House and Senate. Additionally, the 104th Congress passed legislation amending the mining law, however, it was vetoed as part of a larger action.
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When mining law reform takes place, Congress should do it with the cooperation of the Western State governments. The issue of mining reform has been one of the most hotly debated subjects in Congress for the past 7 years. Congress has considered many controversial amendments, and after debate, close votes have occurred. The Secretary continues to push his agenda on this Congress and I am proud of the role I played in ensuring that no amendments, bills, or bureaucratic shenanigans that would have been disastrous to hardrock mining succeeded.
What is of most concern to me is the Secretary's efforts to bypass the Congress on this most important matter. In the past, the Secretary has called for collaborative resource management, yet he leaves the Western Governors out of the process. It is the Western State economies that are most affected by the Department's actions. The Department of the Interior wants to create new and onerous regulatory requirements that may conflict with rules already in place in States where mining occurs.
Since the BLM first wrote the 3809 regulations back in 1980, States have made vast improvements to their laws governing mining, reclamation, and environmental remediation on Federal land. Nevada's laws serve as a model for the rest of the world. I fail to understand why we need another set of burdensome regulations from the Federal Government when our State laws already protect our resources and promote our economy. Thank you.
Mrs. CUBIN. Thank you, Karen, and will you please send our regards and our thanks to the Senator for his testimony?
Ms. DENIO. I will.
Mrs. CUBIN. Now we are back on track. So the first witness we will call on today is Ron Espell, Environmental Superintendent for Barrick Goldstrike Mines, Inc.
Mr. ESPELL. Thank you very much, Madam Chair.
Mrs. CUBIN. I would like to call your attention to the traffic signal down here.
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Mr. ESPELL. I will have to do this without a mike.
Mrs. CUBIN. We will get you a mike. Is that working?
We will start your 5 minutes over. You will know when your time is up because the red light will be flashing in your eyes.
STATEMENT OF RON A. ESPELL, ENVIRONMENTAL SUPERINTENDENT, BARRICK GOLDSTRIKE MINES, INC.
Mr. ESPELL. Thank you very much for the opportunity to appear at this hearing of the House Subcommittee on Energy and Mineral Resources today to discuss the regulatory framework that governs hardrock mining on Federal lands. My name is Ron Espell. I am currently the Environmental Superintendent for Barrick Goldstrike Mines, which is the owner and operator of the Goldstrike Mine on the Carlin Trend in Eureka County, Nevada. I have worked at Goldstrike since 1994.
My responsibilities include assuring that Goldstrike has the proper environmental permits, including approvals from the Federal Bureau of Land Management and the State of Nevada. Before coming to Goldstrike, I worked for other mining companies, consultants to the mining industry and Nevada's Bureau of Mining Regulation and Reclamation, so I have many years of experience with mine regulation and permitting.
Mining activities on Federal lands at the Goldstrike Mine are regulated by BLM, through a plan of operations that was initially approved in 1987. Mining on public and private lands is subject to a mining permit from the State of Nevada that was initially issued in 1991, after Nevada adopted new mining regulations in 1989. Our BLM plan of operations has been amended several times and our Nevada mining permit will be renewed this year.
At Goldstrike, we have a significant amount of experience with the existing process for permitting mining operations. I want to focus my testimony on several key points about the current regulations and explain why, from my perspective, changes are not necessary.
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One, cooperation between Federal and State regulators is essential. An essential element of any effective system for mine regulation is cooperation and respect between BLM and State mining regulators. Because a mine that operates on public lands must be permitted by both agencies, the possibility exists for conflicting or inconsistent requirements. We have been fortunate that both the State of Nevada and the local BLM district recognize the importance of cooperation. It has been our experience that the Nevada State agencies work closely with BLM and the mine operator, to assure that requirements are consistent and to avoid duplicative requirements, including inspections.
BLM's existing 3809 regulations encourage Federal/State cooperation through cooperative agreements and by provisions which explicitly incorporate State reclamation and environmental standards into BLM's process for reviewing and approving plans of operations. Most importantly, by requiring compliance with State standards, the present 3809 regulations provide an evolving standard which automatically incorporates changes in State laws and regulations.
Two, BLM should not develop independent performance standards. The second point that I would like to make is related to my first concern about Federal/State cooperation in permitting. BLM should not develop separate environmental or reclamation performance standards. As I understand it, Secretary Babbitt has asked the BLM task force that is looking at 3809 regulations to consider whether BLM should develop additional environmental or reclamation performance standards.
We believe that BLM should not develop additional performance standards for two reasons. First, reclamation standards must be tailored to the site where mining occurs and the type of mining that is proposed. Reclamation on the Carlin Trend will require different methods and different standards from reclamation in the Arizona desert or the Montana mountains. Reclamation at an open pit copper mine is different from reclamation at an underground gold mine. A one-size-fits-all standard imposed from BLM in Washington simply cannot accommodate the many different environments where mining will occur. Instead, BLM should look to the reclamation standards developed by State and local governments who are much more familiar with local conditions and land uses.
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Second, separate performance standards developed by BLM will likely lead to inconsistent requirements. Every mining operation is subject to a long list of permitting requirements to prevent pollution of air and water and protect the environment. For example, water quality standards are developed by States under the authority of the Federal Clean Water Act and implemented through permits. There is no reason for BLM to second guess existing water quality standards or permits. This is particularly important in the area of ground water, where Congress firmly stated its intent to leave groundwater protection to the States. Rather than create new requirements, BLM should simply incorporate State water quality standards or permit requirements into its approval of a plan of operations. Similarly, every Western State has a modern mining reclamation law.
BLM should not attempt to duplicate those requirements. I do not believe that the Interior Department can demonstrate that any changes are needed to BLM's current 3809 regulations. I hope that these oversight hearings will add to the record and encourage the Department to avoid major changes. Thank you very much for the opportunity to give this testimony.
Mrs. CUBIN. Thank you very much. Our next witness will be Bill Upton of Placer Dome U.S. Inc.
STATEMENT OF BILL W. UPTON, MANAGER, ENVIRONMENTAL AFFAIRS, PLACER DOME U.S., INC.
Mr. UPTON. Madam Chair, Congressman Gibbons, my name is Bill Upton. I am the Manager of Environmental Affairs for Placer Dome U.S. Incorporated. In this capacity I have direct and oversight permitting responsibilities for PDUS. Placer Dome U.S. Inc. operates three large gold mines in the United States, two in Nevada and one in Montana, and conducts extensive mineral exploration throughout the West, including Alaska.
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Our United States operations employ a total of 955 people. We employ people in Nevada, Montana, Alaska and Kentucky. Placer Dome U.S. has a long history of permitting and operating on public land in Nevada and Montana. Our most recent permitting experience is the expansion of our existing mining operations. In Nevada, Cortez Gold Mines began operations in 1969 and is located primarily on public land administered by the BLM and Bald Mountain Mine began operations in 1981 and is primarily located on private land but also operates on some BLM administered land.
All of our operations are permitted under the requirements of 43 CFR 3809 and have undergone extensive environmental reviews pursuant to the National Environmental Policy Act. Permitting under 3809 and NEPA has been ongoing at Cortez Gold Mines since 1990. The BLM completed their first Environmental Impact Statement for Cortez in 1993. Subsequent discoveries led to the permitting of our Crescent Pit and preparation of another EIS for our pipeline pit and number 2 mill expansion. The BLM is currently completing an Environmental Impact Statement for the most recent Cortez Plan of Operations.
The BLM completed an EIS for the expansion of Bald Mountain Mine in 1995 and most recently permitted Bald Mountain's LJ Ridge expansion. At Golden Sunlight in Montana initial mine development was permitted in 1981 under the Montana Mining and Mineral Policy Act. In 1995 the mine submitted an application to expand operations and the Montana Department of Environmental Quality, as the lead agency, and the BLM as cooperating agency are completing an EIS for the expansion. The remainder of my testimony will center on the BLM's review of possible changes to 3809 regulations. PDUS had the opportunity to tour several members of the BLM task force conducting this review at our pipeline project in April and at Golden Sunlight in early September. The task force saw firsthand how many of the issues they are concerned with in 3809 are being managed effectively under the current regulations in strong State and Federal regulatory programs in these States.
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At Cortez, they saw the notice level exploration drilling operations and the controls incorporated in these operations to prevent unnecessary and undue degradation. They walked over areas where similar activities had been conducted the season before and which had already been reclaimed and which were nearly indistinguishable from the adjacent undistributed land. They saw the comparatively low density and intensity of disturbance typical of this activity. We explained to them how important Notice Level exploration is to our long-term planning and survival, how it provides the opportunity to gain timely access to prospective areas to further assess their mineral potential before investing the enormous amount of time and money required to permit plan level disturbance.
At Golden Sunlight, the task force observed the importance of incorporating site-specific conditions into the reclamation plan and how this had been accomplished through the existing State and Federal permitting program in Montana. They also saw the distinct differences in site conditions between Golden Sunlight and Cortez. Unlike many other industries, mining can only occur where the resource is located.
The contrast in site conditions between Golden Sunlight and Cortez and the resulting differences in their reclamation plans are a good example of why one-size-fits-all performance standards would be inappropriate for hardrock mining given the wide variety of site conditions within which it can occur.
Pit backfilling, including the enormous expense in dollars and resources to accomplish it, the potential adverse environmental impacts associated with it, and the loss in potential mineable resources it would result in were discussed at both operations with the task force. The task force learned first hand how this issue was included in the alternative analysis during the permitting of both operations and therefore is already receiving detailed evaluation as part of an existing State and Federal permitting requirements.
Most importantly the task force saw how permitting and regulation of hardrock mining is being effectively coordinated with State government both in Nevada and Montana. They saw how the permitting role of these States on issues concerning air quality and water quality and quantity is being coordinated with BLM and effectively carried out in a manner protective of public lands.
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In summary, PDUS believes the regulations are working to protect public lands. The current 3809 complemented by strong State regulatory programs have provided for and will continue to provide for the adequate protection of public lands. We have not seen any evidence to show additional regulations is warranted. The examples I've provided from our operations in Nevada and Montana are testimony to the fact that current regulations are comprehensive and when properly implemented in coordination with State programs adequately protect the public, as well as private lands. Thank you and I will do my best to answer any questions.
[The statement of Mr. Upton may be found at end of hearing.]
Mrs. CUBIN. Thank you very much. Can you folks in the back hear the testimony? Hold it, if you will, please, Mr. Jones, hold the microphone closer to your mouth.
Mr. JONES. How is that? Is that better? OK. That is better.
Mrs. CUBIN. Thank you. Do you want to use the stand there, or hold it, it doesn't matter, whatever you are most comfortable with.
Mr. JONES. I will hold it, that is fine.
Mrs. CUBIN. Our next witness is Martin Jones, Senior Manager of Nevada Environmental Compliance with Newmont Gold Company.
STATEMENT OF MARTIN R. JONES, SENIOR MANAGER, NV ENVIRONMENTAL COMPLIANCE, NEWMONT GOLD CO.
Mr. JONES. Good morning, Madam Chair, Congressman Gibbons, my name is Martin Jones, Senior Manager of Nevada Environmental Compliance for Newmont Gold Company. I am responsible for overseeing compliance for Newmont's Nevada operations with all Federal, State and local environmental laws, including laws relating to exploration, operation and closure. Newmont is the largest gold producer in North America.
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Since 1965, Newmont has engaged in mining and processing on the Carlin Trend in north central Nevada. Today, Newmont Gold's domestic operations remain centered in northern Nevada. In the last 15 years, the U.S. gold mining industry has emerged as an internationally competitive industry and has accomplished this without the need for government loans, subsidies, bailouts or tax breaks. In fact, gold mining companies in most cases themselves have paid for the community and other infrastructure needs necessary to support their operations during a time when environmental regulations have been ever increasing, and it has done this while paying its employees wages that are higher than any other segment of American workers.
Over two-thirds of our nation's gold production takes place in Nevada. Gold mining generates over 51,000 jobs in Nevada, and precious metal producers paid over $141 million in Nevada State and local taxes in 1995. Newmont and other mining companies work hard to ensure that their operations on public and private lands are conducted in an environmentally responsible manner and in accord with all applicable State and Federal regulatory programs. These programs are numerous and are scrutinized by many agencies, including the Nevada Divisions of Environmental Protection, Water Resources, and Wildlife, the U.S. EPA, Fish and Wildlife Service, Army Corps of Engineers and the Bureau of Land Management.
We recognize and accept our obligation to properly close and reclaim mining sites after their useful life. In the late 1980's, Newmont worked closely with the Nevada Mining Association, Nevada Division of Environmental Protection and the Sierra Club to develop a State reclamation program that would ensure reclamation of public and private lands.
Today, we will focus on the BLM regulations applicable to hardrock mining on public lands, known as the 3809 regulations, the basic substance of which has been in place since 1980 and has proven more than adequate to protect public lands. Despite the rhetoric of mining industry critics, we have not seen evidence indicating that these regulations have led to significant problems or that regulatory changes are necessary. This is especially true for States like Nevada, that have comprehensive environmental mining and reclamation and regulatory programs.
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In 1992, BLM conducted a comprehensive review of the 3809 regulations and concluded that the centerpiece of the program, a rule that prohibits unnecessary or undue degradation of public lands, was fully adequate. As the Committee is no doubt aware, Secretary of the Interior Babbitt last spring appointed a task force to review the 3809 regulations and proposed revisions, including revisions that would impose prescriptive and inflexible nationwide standards.
In connection with the task force efforts, Newmont submitted extensive comments. I ask that these comments be made a part of the record for this proceeding and will very briefly summarize them for you. Under the existing 3809 program, persons wishing to engage in mining on public land must submit a plan of operation for approval by BLM. Before approving the plan, BLM undertakes a comprehensive assessment of all potential environmental impacts and if any are found, the plan of operation is modified as appropriate.
In addition, operations in Nevada must comply with standards imposed by the State: Mining, reclamation and wildlife protection regulatory programs. These programs ensure that the design and operation of each facility is appropriate for the physical, geological and hydro geological condition at each site. Tailoring operation and reclamation plans to site-specific conditions is essential.
Hardrock mining involves many different minerals in mining and processing techniques and occur in a widely varying environmental setting. Unlike other industries, operators of mines cannot locate their mining sites in settings where compliance with national design standards might be feasible. Mining can only take place where the minerals are located. For these reasons, a host of authorities, including the National Academy of Science, EPA, the Western Governors Association, have recognized that site-specific flexibility is an absolute necessity for regulations affecting hardrock mining.
In conclusion, Newmont believes the 3809 program has worked well to protect public health and the environment and public lands, a conclusion shared by the Western Governors Association. Despite their assertions to the contrary, environmental groups have failed to identify any but a small number of isolated instances where modern mining operations on public lands subject to modern environmental programs have led to significant environmental problems that could have been avoided by more prescriptive national standards.
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Instead, critics of industry focus on environmental problems existing at historic sites, while mining occurred long before the advent of 3809 regulations. In Newmont's view, the current regulatory scheme should not be altered unless BLM can show that significant real world problems exist that cannot be addressed under the existing program. Certainly no such showing has been or in our view could be made with respect to public lands located in Nevada. Thank you.
[The statement of Mr. Jones may be found at end of hearing.]
Mrs. CUBIN. Thank you, Mr. Jones, and now if you don't mind, we would like to just ask each one of you a few questions and we will start with Representative Gibbons.
Mr. GIBBONS. Thank you, Madam Chair. First, let me ask for all of you, maybe, a brief comment on industry standards in terms of reclamation, environmental practices, et cetera. Do you feel that the industry standards today with regard to those issues, whether it is environmental protection, reclamation, habitat protection, have been met and are constantly being reviewed within the industry itself to step forward at the proper time to advance both the industry and the environment within your operations?
Mr. UPTON. Yes, I believe they do. I know through our trade associations, the Nevada Mining Association in particular, we share a great deal in terms of our own individual standards within companies and between companies, and share that work that we are doing collectively, and I think, yes, the standard, the industry standard, is at a level that challenges or at least represents well the regulatory standards.
Mr. ESPELL. Just to respond to that a little bit differently, I am also, aside from my duties at Barrick, I am the Reclamation Subcommittee Chairman for the Nevada Mining Association. We have both, through the NMA and through the individual companies, under the current regulatory framework, there is enough flexibility that we have a very cooperative agreement and a working relationship between the Federal regulators that the BLM—and the State agencies, where we work together to identify reclamation needs and objectives, and in a very cooperative spirit come up with advancing techniques to be able to meet those needs and under the current system, those sorts of things are possible and are being done.
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Mr. JONES. To give you the short answer, yes. Newmont endorses the Nevada standard. We apply that standard worldwide. It doesn't matter if we are in Peru or Uzbekistan or Indonesia. We find the Nevada standard for our industry provides a balance between economic factors and protection of the environment.
With respect to 3809, the definition of undue and unnecessary degradation allows for changes without having to rewrite it, I think this is the keystone of 3809, and so allows for an evolution of techniques and technical problems, resolution of technical problems. As we get better at reclamation and get better at operating, then those standards become commonplace in the industry and the 3809 is then updated by applying the unnecessary and undue degradation rule.
Mr. GIBBONS. Thank you. Now, if the industry itself has certain standards that are met, and perhaps, as you have indicated, they are uniform throughout most companies that operate mining operations here in Nevada to meet those permit requirements. Let me ask you just a two-part question. One, if they do have, and they do meet, and this is not something like re-inventing the wheel, as we have done on these standards, why does it take so long for a mine to get permitted here in Nevada and how can we, as a State, and you as an industry, work with the BLM to actually expedite that process, because, after all, we also want to hear solutions, not just complaints. We want to hope that through this process, you can help us communicate with the bureaucracy in its reevaluation of 3809 to make better, but better for everybody, not just for one group or one special interest. So my question would be, if you didn't understand it, I would repeat it, but I hope you understood it.
Mr. JONES. I think I do. I would like to think that we hold ourselves to a higher standard than other mining companies, but I am sure I would get disagreement here. Permitting takes long, and that is probably some of our frustration with the process. It does take long lead times to permit. We found at Newmont that working with the BLM district to let them know our upcoming schedules, what we have on the agenda, so that they can clear their schedules to work on the documents, and then we hold meetings when we finish, to discuss what went right, what went wrong, where can we streamline the process to make it more efficient.
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I don't think, including the BLM review of notice level activities, that is now being required, has helped because we have now taken people who are overworked and don't have enough resources, and we have burdened them with more work. I think that we should consider giving BLM more resources to help us with the permitting process.
Mr. ESPELL. To add to that a little bit differently, some of the things we have seen that add to the overall timing of the permitting process is any time there is a duplication in the Federal permitting process, duplication of things which are already permitted and evaluated under the current State programs, we have been working very closely with the Nevada State office of the BLM to identify the sources of duplication and develop MOUs between the State and the BLM in order to be able to try to avoid those duplications. The changes that are proposed in the 3809 regulations actually go countercurrent to that philosophy and incite more duplication as opposed to trying to encourage a lack of duplication of the programs.
Mr. UPTON. Well, yes, sir, our permitting process has been lengthy, and for many reasons, understandably so. I think our biggest concern is the 3809 rules being contemplated would only increase that. The bonding regulations that were adopted have again added to staff time at the agencies to where they are now required to spend much more time reviewing notice level activities and the bonding requirements now in place for those and so it is just a plethora of additional review and requirements and time on the part of the staff that in turn builds time for us on the other hand, too, to get them the information they need, so it is both, yes, we have had lengthy processes, but we see what is being talked about as only aggravating that and exasperating an already overload situation with agencies.
Mrs. CUBIN. Thank you very much. I just have a couple questions. Mr. Upton, I will start with you. You mentioned in your testimony that one size-fits-all site requirements won't work for hardrock mining. And there will be testimony later on today from people who think that the Federal Government shouldn't own any lands, but since they do right now, what I want to ask you is what should the Federal role actually be?
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I think that most of the people that I know, that I work with, think that the States can do, will do, and do a good job of protecting the environment. In Wyoming I know environmental standards are higher, many times, than Federal standards, and their own State legislature has imposed that level. So what should the Federal role be, and what should the State role be and what should the role of the industry be?
Mr. UPTON. Well, we support a strong oversight role by the Federal agencies, but we think that the site-specific conditions that occur within a State, and the complexity to those clearly lie with the State agencies, and even the local government agencies to have a strong role in determining the permit requirements and the compliance requirements for those operations, and that, yes, the Federal Government has a role in providing oversight and consistency between States, but on the same hand, it is important to have those site-specific conditions recognized in the permitting process and compliance aspects of an operation, so that we are dealing with the proper aspects out there in that sense.
Mrs. CUBIN. So you said, and I don't want to be putting words in your mouth, I want your opinion. You said that they should coordinate and see that there is consistency among the States, and did you say set standards?
Mr. UPTON. No, I said the States should be in the standard setting role.
Mrs. CUBIN. In a couple words again, what should the Federal role be?
Mr. UPTON. Oversight in the context of looking at the standards between States, and applying and assuring some reasonable level of consistency between States.
Mrs. CUBIN. So is it your opinion, and maybe you don't know, because I don't, I have to vote on all the States issues, but is it your opinion that the State standards are adequate to protect the environment in land, water and air?
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Mr. UPTON. In the States we operate in, yes.
Mrs. CUBIN. OK. Thank you very much.
Mr. Espell, you mentioned in your testimony that you have had pretty decent experiences in dealing with public land managers who you work with and so a lot of times I think when I am saying things that are critical of the Federal agencies, I don't make it clear that generally I am speaking of the Washington bureaucracy and how their decisions negatively impact people on the land.
My experience has been uniformly, when I am dealing with local land managers, that generally they do a good job, they care about the land, they are our neighbors and they are our friends and family, and I think you referred to that somewhat. I mentioned also in my opening statement the leadership trip to the West and how the things we had learned there, there were three things that we wanted, three messages we wanted them to go home with. That was the States can, will, and do a good job of regulating and enforcing environmental statutes; that resources can be developed on the public lands as well as the private, of course, and still allow us to be good stewards of the land and that multiple use is good land management policy.
Could you just go into a little bit more for me, what sort of problems you have had with—maybe just give a couple examples, of Federal dictates that aren't good for the economy, good for the resource, good for anything, where there may have been a little bit of disagreement at the local level.
Mr. ESPELL. Sure. I think Nevada is probably the best example, although my experience has been completely in Nevada. From what I have seen of other programs, Nevada has an excellent working relationship between the State agencies and the BLM, and other Federal agencies, which, you know, reside here, the State offices of those agencies. That working relationship and that cooperation actually extends all the way to the initial development of the State programs, which were based on consistency between the State programs and the Federal programs.
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In Nevada, for example, a reclamation permit application for the State and the BLM's plan of operations is the same application. It is a one-stop shopping kind of an idea. That cooperative agreement, which reduces the permitting time and the burden on the companies, is effectively destroyed by changes in the Federal regulations, which then drive inconsistencies between the Federal programs and the State programs, so, therefore, what I see is where the model should be what we have developed here in Nevada, for a cooperative agreement between the Federal and State programs, where the differences in requirements are transparent to the operator, the program is developed in accordance between State and Federal programs. Anything that is done on the Federal level, seems to be trying to do just the opposite to separate and provide inconsistencies between the programs.
Mrs. CUBIN. Thank you. Mr. Jones, does your company go beyond what is required in the permits on reclamation and repairing maybe old damage? I think Mr. Upton's company has just recently gotten an award for that and I guess what I am trying to find out is do other companies do that as well, do they invest money, really beyond what is required of them, to try to be good neighbors or do they not?
Mr. JONES. Yes, ma'am. We also received an award in 1995, the Governors Award for reclamation excellence for riparian habitat upgrading. We worked with local ranchers and our TS ranch to improve the habitat. Last year, we were involved in a cooperative effort to reseed fire-burned, fire-damaged acres, and the benefit is to wildlife and to the ranchers, and to us as a landowner, in that it made the land more valuable. We in mining recognize that we have impacts on the Earth, and that is the nature of our business, and we accept responsibility for this. And in order to compensate for those impacts, it is necessary to do certain things, and we take that on and we do those things.
Mrs. CUBIN. Well, thank you. I gave a pitch for Barrick and I didn't know you had won an award. Congratulations, I am glad you have, but I guess I can't leave Placer out—excuse me, I can't leave out Barrick, right.
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Mr. ESPELL. Yes, we have several different programs going on in the State. The one we are currently involved in is a restoration project at the Marys River, slightly east and north of Elko, in improving riparian habitat, actually reestablishing the cutthroat trout habitat in the upper regions of the area of the drainage, which actually, the head water is up in the Jarbidge mountains. Previously, there has been culverts and different things that have been put in the river that we are working with with the BLM and Trout Unlimited to actually engineer stream restoration.
Mrs. CUBIN. I didn't know there were cutthroat trout out there. I thought Wyoming was one of the last places, beautiful places on Earth that had cutthroat trout.
Well, Bill, since I goofed up on you twice, would you like to tell us about your award?
Mr. UPTON. The award that Placer received was for reclamation in our Alligator Ridge mine where we stepped out, and because of the long history of mineral exploration at that site by a number of different operators, and the need to bring up current reclamation in that area for a lot of the past exploration areas, that many of them were even pre-3809 areas.
Our Bald Mountain operation went ahead and reclaimed a number of areas that were not necessarily our responsibility, but brought them up to date and that was in essence the foundation for the award. They did an excellent job with reclamation with it, but primarily the stepping out and recognizing there was a need there. I think our best successes have been where we began working with local agencies, Federal and State, one on one, even outside the permitting process where we can collaborate on whether it is wildlife habitat enhancement or reclamation. That has been our real big success story, where it is not something that is written in the permit, it is something that, on the grounds, needs to be done. It is the right thing to do and that is where our real successes have been for our company, and I think the industry in Nevada.
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Mrs. CUBIN. This might not be a fair question and if you don't have an opinion, that is fine. But since hardrock mines don't pay royalties yet, I understand, and that might be why you don't have an opinion on this, but the resource advisory councils that were established in land use and planning and so on, recommended, among other things, eco credits. Do you have an opinion on how eco credits would work in your own industry?
Mr. UPTON. Well, I think the best example we have would be in wetland litigation where we deal with no doubt loss issues and mitigation. I think there is an example of some sort for eco credits where we do, if we are going to effect wetlands and water in the U.S., we can mitigate those impacts by going out into adjacent areas and enhancing wetlands or creating new wetlands and we do get credit there, so I am sure there will be opportunities to work with a system like that. I am not real familiar with how it would be applied in hardrock industry, but I am sure the experiences we have had on working with offsite wild habitat work and so forth would work well in those situations.
Mrs. CUBIN. And the bottom line would be to improve the environment, so do you think that there is a potential for that, through the use of the eco credit system.
Mr. UPTON. There seems to be, yes. I think we are well versed at working with ecosystem management and looking at the whole picture, so I would think, yes, hardrock mining could work with something like that.
Mrs. CUBIN. And I have exceeded my questioning time but I would appreciate a brief response from the other two.
Mr. ESPELL. I guess to followup on what Bill said, the only current system that we work under that is similar to that is under the Corps of Engineers 404 permit for wetlands mitigation. I think most of the mining companies right now are already doing something like that, without any sort of benefit of some sort of eco-credits or something, that the companies on their own are performing that right now without a push.
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Mr. JONES. First, let me correct a fact? We don't currently pay royalties to the U.S. Government, but we pay royalties. We pay royalties to private landowners, where we have operations and we pay a net proceeds tax to the State of Nevada.
Mrs. CUBIN. Thank you.
Mr. JONES. I know you are aware of that and I wanted to set the record straight.
I am not very well versed in coal and coal regulation and so on and I am not able to comment knowledgeably on ecosystem credits. I think there is room to talk about them and I think probably we are doing a lot of the things now, but I can't give you an intelligent answer whether I support that or not. Thank you.
Mrs. CUBIN. Thank you very much. I do appreciate your testimony, and the answers to the questions and now you should go back and make some more net proceeds for Nevada. I would like to call the next panel forward, Dr. Tom Myers, Gene Gustin and Edward Presley.
I will remind the witnesses that you are allowed 5 minutes for your testimony. The traffic light will be right there in front of you. You can't miss it, and I will try to hold my questioning to 5 minutes next time, too. We will begin the testimony with Dr. Tom Myers, Consultant to Great Basin Mine Watch.
STATEMENT OF TOM MYERS, CONSULTANT TO GREAT BASIN MINE WATCH
Mr. MYERS. Madam Chairman, Congressman Gibbons, on behalf of the Sierra Club and Great Basin Mine Watch, thank you for this opportunity to testify this morning. My expertise and research on this issue primarily concerns water quantity and the impacts of mining on groundwater hydrology and the surface expression of groundwater, primarily springs, streams, rivers, streams and riparian areas.
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My invitation to speak specified this and asked me to address water resources and the regulations regarding water resources. For my research, I have used public information obtained from the Nevada State Engineers Office, the U.S. Geological Survey, Nevada Division of Environmental Protection and the Bureau of Land Management, as well as data published in environmental impact statements.
I will focus my oral discussion on the hydrologic impacts and needed mitigation. My written testimony includes many specific examples and specifies many changes in 3809 regulations that we believe would help. I have also attached copies of a couple of articles and abstracts I have recently published to my written testimony.
Pit dewater imposed four primary hydrologic impacts: First, groundwater levels lower in the vicinity of the mine, which impacts spring and surface water, by changing the flow gradient in the vicinity of the mine. For example, there has been a spring about 7 miles from the Lone Tree Mine, which went dry, presumably due to dewatering. Second, the open pit and drawdown cone around the pit are a deficit to be made up after mining and dewatering ceases.
The pit was originally all rock and pore spaces filled with water would have made up only about 1 percent of the pit and up to 20 percent of the pit that was in alluvium. After mining ceases, pit lakes will form with water that must come from somewhere. In this regard, the two most impactful mines on local groundwater deficits are the Twin Creeks Mine, northeast of Winnemucca and the Lone Tree Mine, between Battle Mountain and Winnemucca. Twin Creeks will create a 460,000-acre-foot pit lake, which will be the second largest man-made lake in Nevada, if we include Lake Mead.
The Lone Tree Mine deficit of almost 1.1 million acre feet sits just 2 miles from the Humboldt River. Third, quality of water in the pit lakes depends on the source of water refilling them. BLM predicts this water quality using complicated geochemistry models. However, the models depend on the quality of the hydrologic data, including predictions of the inflow to the pit.
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I presented a paper 2 weeks ago at American Chemical Society which shows the very reasonable assumptions of the geology into the pit led to estimates of inflow at the pipeline deposit pit for the refill to vary from 8 to over 100 years. Fourth, pit lakes will evaporate water in perpetuity. This represents a permanent loss of water from the flow in local basins.
The pipeline pit at full development after the several piecemeal expansions are complete will evaporate well over 10 percent of the total recharge. Cumulative impacts of mining are rarely considered although NEPA requires such consideration. For example, the Humboldt River watershed contains 18 mines that are either currently or soon to go below the water table and require dewatering. Total deficits from these mines represent 62 percent of the water stored in the surface aquifer of the Humboldt River.
Total deficits in the Humboldt River Basin equal more than 25 years of the entire river flow at the city of Winnemucca. Fortunately, I do not own water rights or property I want to develop downstream on the Humboldt River. It cannot be overemphasized that these impacts are unprecedented in the history of mining anywhere in the world.
While mining companies return large profits from underregulated mining, society is allowing a massive uncontrolled experiment on the environment of northern Nevada. It is not too late to do anything about it, but we are reaching that point. The rest of this testimony includes discussion about what the BLM could currently be doing and needed changes in the regulatory framework. Many of the impacts discussed above could be avoided or mitigated by reclamation of the pits, including complete or partial backfilling or through adequate bonding to either remedy or compensate individuals adversely impacted in the future.
Section 3809 provides BLM's regulations to govern hardrock mining permitting. Currently, BLM is attempting to modify or reform these regulations. First, I emphasize that the BLM, under current regualtions, has the authority to adequately regulate and mitigate these impacts. They are reluctant to assert the authority so regulatory reform will help them in this process, as I will elaborate below or actually in my written testimony. BLM is required to prevent unnecessary and undue degradation.
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Unfortunately, we focus on surface-to-surface, while ignoring the long distance impacts of drawdown and water contamination, impacts which may not occur until after mining ceases are even more difficult for the agency to consider. However, the impacts of drawdown caused by dewatering and pit refill clearly impact surface water and land.
For example, drawdown has already caused sink holes to form in Maggie Creek. It has caused springs to dry. When stream flow was substantially reduced, the riparian vegetation may dry, which is also a surface impact. This type of impact clearly reduces the ability of land, far from the site, to support multiple use, including grazing and recreation. I see I am out of time and I have a couple pages to go, but I am going to jump to the end to finish up then.
The Sierra Club and Great Basin Mine Watch strongly support needed changes in Section 3809 regulations. We also support enactment of the Rahall bill, which is H.R. 253, which I believe is currently in front of this Subcommittee. Many of our concerns will be remedied. Many of the suggested regulatory changes would be codified. It specifically refers to the protection of water resources. It establishes a fund to clean up degradation to surface and importantly water resources caused by previous mining.
The gold mining industry has expanded from a million ounces in 1980 to 13 million ounces today. This is a remarkable expansion and has led to rapid growth in rural Nevada and other States. It is a very important part of the economy of Nevada and should remain so. But future citizens of northern Nevada, ranchers, farmers, Native Americans and cities should not be paying the debts created by present day mining. We request baseline standards to protect the environment of northern Nevada and the Western United States. Thank you for this opportunity to testify.
[The statement of Mr. Myers may be found at end of hearing.]
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Mrs. CUBIN. Thank you, Dr. Myers, and I regret that we don't have time for your entire testimony to be given verbally, but it will be in the record.
And the next witness we will call on now is Gene Gustin, Public Land Use Advisory Council to the Elko County Commission.
STATEMENT OF GENE GUSTIN, PUBLIC LAND USE ADVISORY COUNCIL TO THE ELKO COUNTY COMMISSION
Mr. GUSTIN. Well, Madam Chairman and Congressman Gibbons, welcome to Elko. I sincerely appreciate your willingness to conduct this oversight hearing on this most vital issue to this area. More importantly, that you are reaching out for constituent input is very encouraging, and I am also encouraged by your opening remarks on this subject. Having been involved in the mining industry in the Western United States for some 27 years, in several different capacities ranging from tramp miner, to superintendent of mining of two large operations, to mining claim holder, to owner of an independent contracting business serving mining. I have been afforded many different perspectives on the evolution of the regulatory regime and the political and populist perceptions of the value of mining in a modern day life to this country. But how these perceptions and attitudes interface with reality and legality is the subject at hand today.
I believe the current efforts to rewrite, through administrative fiat, mining rules and regulations that have taken over 130 years to evolve and be refined is at best the height of bureaucratic arrogance and at worst, a crude misdirected illegal power play that simply cannot be tolerated by Congress, the States, the courts or the people of this country.
Why are we bringing forth words here today to our duly elected representatives asking them to rein in the activities of a government employee to run wild? An appointee, within whose purported purview it is to write the regulations, implement the rules, review and adjudicate the systems concerning basic individual rights which violate the separation of powers doctrine. This Western United States subject of this medieval realm who thought he owned the possessory title in mining, grazing, water or agriculture rights and the rights to make improvements on such is then dragged through a kangaroo gathering called the Court of Administrative Appeals where the legislative, executive and judicial branches have been rolled into one easy instrument of rule without recourse.
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And what is the alleged mechanism justifying this complete bypass of our system of checks and balances and separation of powers, the purported proprietary interest of the Federal Government in 87 percent of the State of Nevada. Where did we go wrong? A series of Supreme Court decisions, most recently, the decision of Printz vs. United States, on June 27, 1997, where Justice Scalia instructed us, ''The separation of two sovereign spheres is one of the Constitution's structural protections of liberty. Just as the separation and independence of the coordinated branches of the Federal Government serve to prevent the accumulation of excessive power and in one branch the healthy balance of power between States and Federal Government will reduce the risk of tyranny and abuse from either front.''
They even commented in that decision on what a novel phenomenon this was, as they hadn't started seeing this type of overregulation until the 1970's. Finally, and I quote, we held in New York that Congress cannot compel the States to enact or enforce a Federal regulatory program. Today, we hold that Congress cannot circumvent that prohibition by constricting the States officers directly. The Federal Government may neither issue directives requiring the States to investigate particular problems nor command the States officers or those of their political subdivisions to administer and enforce a Federal regulatory program.
It matters not whether policymaking is involved and no case-by-case weighing of the burdens of benefits is necessary. Such commands are fundamentally incompatible with our constitutional system of dual sovereignty. Accordingly, the judgment of the Court of Appeals for the Ninth Circuit is reversed.
Now, I know the Honorable Members here today are familiar with and understand the intent of the court's instruction, so I ask you today, are Members of Congress ready to tackle this issue politically and legally or will the burden fall to the directly affected parties yet again? Mining is America's financial backbone. The mining laws are the last great vestige of acquiring proprietary interests by common law principle, mixing sweat with soil to earn equity. Mining has made America strong without subsidy.
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I have witnessed 70 percent of the mining claims be regulated and taxed out of the business in the last several years. I have experienced a 40 percent reduction in my personal business this year because of an illegal bonding rule implementation. Mining has been under an escalating P.R. Assault for the past several years. We try to respond with reason and logic and compliance and what does it get us, more assault and more restrictions.
The current attempt to rewrite through 3809, through the administrator, I believe, is a misdirected effort and I think that the Congress ought to challenge, legally, in the Supreme Court, to assure that its role in the legislative process is properly assured. And I see my time is out, but, again, I thank you for the opportunity to present my views on this. Thank you.
[The statement of Mr. Gustin may be found at end of hearing.]
Mrs. CUBIN. Thank you, Mr. Gustin. Our next witness will be Edward Presley, National Director of County Alliance to restore the economy and environment.
STATEMENT OF EDWARD L. PRESLEY, NATIONAL DIRECTOR, COUNTY ALLIANCE TO RESTORE THE ECONOMY & ENVIRONMENT (CAREE)
Mr. PRESLEY. Good morning, Madam Chair and members. I would like to also welcome you to Elko, and I thank you for the opportunity to give testimony here today before your Committee. I am just going to make reference, Madam Chair, to my written statement and request unanimous consent it be submitted for the record then.
Mrs. CUBIN. Without objection.
Mr. PRESLEY. I will give a little different view than what you have heard from the industry. Obviously, I am one of those working in research and working on legal defense teams and plaintiff teams, suing the Federal Government, being sued by the Federal Government. I am that one that brings that unorthodox position that the Federal Government does not own the land out here. And we have that position and that question before the Supreme Court of the United States now in a petition for writ of cert for the October term in a case called United States vs. Gardner.
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What I want to provoke you into realizing here today is that we can talk all about what has gone on with Mr. Babbitt violating the Administrative Procedures Act. We see that the mining companies up here who have billions of dollars invested out here are held at bay and under extortive measures by the Federal agencies and the local managers, and, Madam Chair, I would respectfully take some issue with you on your statement that the local land managers for the Federal Government are doing a good job and it is the bureaucrats back in Washington. I somewhat find out there is a bit of a roll reversal that occurs there, simply because I was the plaintiff in a case called Barton v. Babbitt where we had to bring a civil rights lawsuit because of our activist measures that we took out here in the public lands issues that the United States Attorney's Office was the nest for the Federal agencies and the local people going in there trying to get criminal indictments on us to commit a chill factor on our activism out here, and we successfully brought that, which then shifted from a criminal investigation against us and then brought about the United States vs. Nye County lawsuit, that was nationally known out here.
Now, I don't want to brand all Federal agents out here and all Federal employees, but I do want to tell you that I would have not known about that had a Federal agent not supplied me with the minutes of the meetings that occurred inside the United States Attorneys Office when they were trying to indict us, and Mr. Gustin was one of these plaintiffs here, too. What we have and what I have given with the visual up here is that you see a map of Nevada. Now Federal agencies will color the Western United States in various different colors out here to commit an optical illusion out here, but that is the truth, that 87 percent of black up there puts us under a quasi type of military occupation out here, and I will tell you why it makes such a bold statement.
As long as the Federal agencies are in charge of that much of the State, there is no common law, there is no State law that is applicable, because they operate under only admiralty and equity jurisdiction. A lot of people do not understand this, that the Federal agencies have no authority to protect rights out there on the public lands. Only you at Congress, and I would direct your attention to the very last page of what I submitted for the record. The courts have told us this, and on page 19 of our brief to the Supreme Court, listen to what the Court said back in 1850, and it is still good law today, under Downes and Midwell. The Constitution deals with the States, their people and their representatives.
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The sole object of the territorial clause was to transfer to the new government the Northwest territory and to give the power to apply that territory to the objects and dictates by the States. The Constitution—now listen to this very clearly. The Constitution does not extend to the territories of its own force. We are not under any constitutional protections and that is the problem that is out here, and if you don't quit claim the land over to the States, and if you do keep control of it, you have to remove all rulemaking from the Federal agencies. You cannot have any police power that is vested in these Federal agencies. It must be invested in the State.
You must also statutorily remove all types of litigation that go on in public land matters and remove that from the Federal judiciary and the administrative law judiciary that has been set up. You have it under your power under Article 1, that is the only way we will be able to keep our rights intact out here and I thank you very much for your time and attention.
[The statement of Mr. Presley may be found at end of hearing.]
Mrs. CUBIN. Thank you for your time. And we will start the questioning with Representative Gibbons.
Mr. GIBBONS. Thank you, Madam Chairman, and first, let me address a brief question to Mr. Presley, who has just recently finished his testimony, and I would ask a very brief analysis of how you came about the conclusion that the Federal Government does not own the land here in Nevada, if you could do that very briefly for us.
Mr. PRESLEY. Thank you, Congressman, good question. It was in 1993, I had a client that had a problem with the Bureau of Land Management on grazing, and, also, there was some mining problems in Clark County, dealing with the desert tortoise issue down there, of which there was a full force and final decision that came out, full force and effect decision that came out to remove grazing from the desert tortoise habitat.
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Now, they are under the Endangered Species Act, and the first thing I noticed, since we had come through the Nevada legislature in dealing with AB–77, the so-called sage brush rebellion 2, was that it didn't appear that the Federal Government owned any property out here, I will say, except Nellis Air Force Base and that is within Article 1, Section 8, Clause 17. So my forte is in the Freedom of Information Act and I performed a Freedom of Information Act request to the Department of Interior, BLM, and their Solicitor took charge of my request and came back and said they had no documents responsive to my request when I asked them for the deed to this land.
But since then, what has happened out here is that they have claimed ownership under the Treaty of Guadalupe Hidalgo of 1848 when we had the conquest against Mexico. They are claiming that as their jurisdiction here today, which clearly makes that black encampment there of Nevada a territory and enclave of Mr. Babbitt, and there is no State there. The only place that there is State, members of the Committee, the only place that is the State of Nevada are those white spots up there and they are noncontiguous and we are beholding to these Federal agencies to get from point A to point B, so we are not a complete State.
And Madam Chairman, you have the same thing in Wyoming, Mr. Hansen would have it over in Utah, and in Alaska, Mr. Young certainly deals with that. That is what brought the question about they didn't have it and I tried to zero all of my research and for the arguments and for the Nye County case and now the Gardner case, I zeroed it in that they do not own the land because they couldn't produce title and that is the question we have before the Supreme Court of the United States, which I am here to say, unequivocally has never been before the Supreme Court of the United States in the 200 plus years of its existence. Thank you.
Mr. GIBBONS. Thank you. Dr. Myers. I presume your Ph.D. is in science of some sort.
Mr. MYERS. My Ph.D. is in hydrology.
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Mr. GIBBONS. Hydrology. How would you abate or stop the water table drawdown due to an open pit mine? How would you stop that, in a surrounding area?
Mr. MYERS. During mining, the water table has to drawdown.
Mr. GIBBONS. We understand that, how would you stop that.
Mr. MYERS. Through recharge in the local basin. Part of what I had to leave out was testimony that, in fact, there are a few mines that are recharging the local basin. It is not working as well as it is supposed to. There are other mines that should be recharging better. We have argued, in environmental documents, certain mines should be recharging. We will argue it is only done where it is a very inexpensive thing to do.
Mr. GIBBONS. Let me move on, and understanding that issue, you talked about some mines that are not recharging and suppose, for example, let's take the Lone Tree Mine, which takes its water, cleans it, puts it into the Humboldt River and sends it down to Rye Patch Reservoir for farmers and ranchers to use. Is there a problem with the water quality in that water they are putting in the Humboldt?
Mr. MYERS. I don't recall constituent problems, I mean, specifics. I know there were temperature problems, the temperature in the Humboldt River increases rather substantially from just above their discharge point to just below and that is because the water is geothermally heated that they are dewatering.
Mr. GIBBONS. Let me ask another quick question. If water rights, in probably 16 of the 17 Western States are State prerogative, I mean a State jurisdictional area, why should the Federal Government step in and deal with water, water rights?
Mr. MYERS. Well, for one, the 3809 regulations specifically state the BLM is required to enforce State law and we would argue that if the State is not adequately doing it, then the BLM is required to do that.
Mr. GIBBONS. And you have a complaint with Nevada's environmental treatment of its water within a State then?
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Mr. MYERS. We do.
Mr. GIBBONS. Then it would be better, I presume, under your testimony to go tell the State of Nevada to change its water quality laws.
Mr. MYERS. But since we are focusing on 3809 today, it specifically states, in several different locations in those regulations that the BLM is required—excuse me, is required to enforce State regulations. It doesn't say where the State fails to do so, but it says the BLM is responsible for seeing to it that that is enforced, and that would be a BLM oversight. I mean, previous speakers have talked about the BLM having a responsibility for oversight.
Mr. GIBBONS. You also mentioned that due to the drawdown on some of these areas, the water table has lowered, and some people should be compensated for that. Who is not now compensated for the drawdown of the water table that should be compensated for?
Mr. GIBBONS. We would suggest that most of the impacts will occur, actually, after mining has ceased, after the pits have refilled, when you draw the water table down a thousand feet, 1,300 feet at a couple of places, that that drawdown cone continues to expand after mining ceases. The pit refills, I mean, for example, you mentioned Lone Tree, there is 1.1 million acre feet of deficit being created around that mine. The Twin Creeks Mine has 660,000 acre feet of deficit. That water is going to come from somewhere and we don't know—I am not going to say it is all coming from the Humboldt River.
What I am saying is we don't know where it is coming from and for those reasons we would suggest adequate mitigation, bonding and escrow account would be set-aside so 30 years from now the people who are affected could be compensated or the situation could be remedied.
Mr. GIBBONS. Mr. Gustin, let me turn to you now briefly in the time I have remaining. What suggestions would you have as to how to better resolve the conflicts that you stated in your testimony, in terms of regulatory authority, State powers, Federal powers, what would you suggest?
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Mr. GUSTIN. Well, to me, the only way this is going to be resolved successfully is that the people who live in the areas that are affected have a lot more authority to say how things are done. I realize that in general, that might create a little fear in the hearts of mining industries, but I am pretty sure that when the State assumes a much larger role, that you will see consistency from States.
The State of Nevada has been a leader in mining regulation, and it works well. We have the most experience with that, and as has been previously testified, I believe that the experience that is gained in places like Nevada can be transferred anywhere else and a lot of States look to Nevada for leadership on this issue.
Mr. GIBBONS. You mentioned also in your testimony that your business has been specifically impaired or harmed by current regulation changes, and maybe you could help this Committee a little by explaining how the new bonding requirements or the changes in 3809 have specifically impacted your business and as you see it, how has it specifically impacted mining operations on public land in the State of Nevada.
Mr. GUSTIN. In early March, while I have been in business for roughly 18, 19 years in the exploratory end of things, in early March, it looked like another routine year as near we could tell. We were getting our level of inquiries as to drilling on projects on public lands.
Once it was announced that there were proposed changes on a 30-day comment period on the bonding, for almost 6 months, nobody knew what to do, nobody could get drilling permits. I am sure that our businesses suffered 50 percent as well as many other people I am aware of in the industry. Many times, the regulatory agencies failed to consider not only the direct but the indirect impacts, I mean, all the way down to the mom-and-pop grocery stores and gas stations and everybody in the State of Nevada had become very dependent upon the expenditure of exploration dollars in this State, which are currently off, probably 70 percent, from where they were 3 to 4 years ago.
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I don't know how 1997 is going to shape up, but I am sure it is going to be a significant decrease, even the major mining companies had difficulties going outside their operations plan area to even get a small permit for any level of disturbance, so myself, we have seen our business off 40 percent, cutting salaries and having to lay people off and that kind of thing. I don't see any resolve until the States have more of an ability to affect this process and it is not controlled out of Washington, DC, or at least if it is controlled out of Washington, DC, it is through our duly elected representatives here today, and, you know, we have about compromised ourself out of existence here, trying to get through this, and I don't follow the industry closely per se, but, you know, when you have large capital investments, and you have to project over long periods of time, these kinds of attack through the regulatory process, like on bonding, it is just devastating, just devastating, and we can't tolerate much more of that kind of activity.
Mr. GIBBONS. Thank you, Madam Chairman.
Mrs. CUBIN. Thank you. I think I will start with Dr. Myers. I am not trained in hydrology, as Representative Gibbons said earlier. I am a chemist, so I do know, or at least have an opinion on, I guess, as every other scientist would have to say, on what is good science and what is not good science, and that is one of the key areas of conflict over a lot of environmental things. People who don't know much about science and scientific models don't know how to judge whether they are getting good science or not, and I find today I am sort of placed in that position because I don't know much about hydrology. So I guess I just should ask, does the State—I am sure the State engineer has seen your opinion and testimony today. And does he give credence to your analysis or are you at odds.
Mr. MYERS. Well, I hesitate to speak for the State engineer. He acknowledges that there could be impacts in the Humboldt River Basin, but he has not—he, of course, does not—well, basically, about 15 years ago, the State of Nevada made a decision that it was going to support the mining industry and I believe we are reluctant to really strongly enforce it.
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I mean, there is a policy of the State engineer to not allow groundwater withdrawals to exceed the recharge in a basin, unless it is on a temporary basis, and that is what we are doing, you know, some of these withdrawals exceed the recharge, but only temporarily. We, of course, have a concern then. I mean, our mine is projected to last to the year 2036. That begins to stretch the definition of temporary, I think.
Mrs. CUBIN. I don't want to put words in your mouth, just as I didn't before, but you seem to be saying to me that if the State engineer won't enforce Nevada's ground water laws, then the BLM ought to step in and do that; is that right.
Mr. MYERS. I believe they have the authority—well, the State engineer is required to interpret the laws, and to enforce them as he sees fit, and he is doing so, we would argue about that interpretation, I think is the best way I should characterize that.
Mrs. CUBIN. OK, then, question. Do you think the BLM ought to come in then and enforce or interpret Nevada's environmental laws?
Mr. MYERS. I think they have a requirement to, at least with regard to, for example, the Clean Water Act, them and the EPA together. They need to protect the public lands of Nevada. Their job is to prevent unnecessary and undue degradation. If contaminated water or drawn-down springs is causing unnecessary and undue degradation, and we would argue that it does, then I believe the BLM has the authority and needs to do more about that, and the problem is that some of these impacts may be 7 miles offsite. How do we argue the current regulations specify or imply surface disturbance and it implies, due to the mine, right at the mine, but a dry spring, 5 miles away, is also an impact on the surface.
Mrs. CUBIN. But Nevada does, in fact, have primacy on the Clean Water Act, and the Federal Government granted that primacy, so for me, it is hard to get the balance there. I mean, I just—well, go ahead.
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Mr. MYERS. The EPA also would have oversight on that primacy, though, I believe, and I will give one specific example. On the Jerritt Canyon Mine, we got from the Division of Environmental Protection, about an inch of water quality reports. All throughout them, there are specifics where water quality standards were not met. There has been nothing done about these particular——
Mrs. CUBIN. Who is that from?
Mr. MYERS. The Nevada Division of Environmental Protection. That is why we will argue that the BLM does need to look, you know, they have an authority there that they really should help encourage better enforcement.
Mrs. CUBIN. But Jerritt Canyon is Forest Services isn't it.
Mr. MYERS. I'm sorry, Jerritt Canyon is Forest Service, that is correct. But the point deals with, you are asking about the State enforcing the Clean Water Act. That is the instance I have on top of my mind at the moment. There are others. There are instances, I believe at pipeline and others that we have collected the data, we look at it, and we are just building a large pile of that evidence right now.
Mrs. CUBIN. And surely you can sympathize with those of us who aren't experts in hydrology trying to figure out who to believe.
Mr. MYERS. Yes, and I would like to emphasize, what we emphasize with regard to water quantity and hydrology, I am not the water quality expert here. I tend to focus on water quantity. We try to emphasize the uncertainty of the problem. We think we are permitting with a great deal of uncertainty and one of the only ways to get around an uncertainty is through bonding and through mitigation.
Mrs. CUBIN. And I don't know of anyone that questions whether or not bonding is necessary. I think everyone believes it is. I guess it is how we go about deciding what that bonding should be that is in question—no, not what the bonding should be, how the bonding should be derived and whether or not there ought to be public input and apparently the BLM thinks there should not, and I certainly think there should but that will be decided in court.
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You mentioned our colleague on the Subcommittee, Mr. Rahall of West Virginia and the mining law reform bill that he introduced in this Congress again, which has been referred to this Subcommittee. What you didn't mention, so I will, and it is not your obligation to mention it, is the fact the last Congress did pass several reforms to the 1872 Act and that the 1872 Act has been amended many times throughout the years, and I mentioned in my opening statement that the bill, H.R. 2491, among other things, established a trust fund for abandoned mine land reclamation, which we were careful to put in the hands of the State, by the way.
What that bill did not do, and what the Rahall–Bumpers bill wants to do, is to create incredible disincentives for investment in public lands, because that bill requires so-called suitability reviews. And I would say that no prudent miner or prospector would invest the huge sums of money that are necessary to develop a new mine if they are really subject to anyone claiming the faintest harm to things like impairment of view shed aesthetics, any kind of lawsuit that could come forward.
I think what the Rahall–Bumpers bill would essentially eliminate is any new mining period, and while I certainly agree and respect that you have every right to hold your opinion about that bill, I hope that—well, no, I don't hope that, but I certainly have my right to that bill and the authority whether or not to bring that bill in and mark it up. I think we offered some good amendments to that 1872 bill. And to Mr. Gustin and Mr. Presley, both of you presented very thought-provoking testimony, and, frankly, Mr. Presley, I really, really hope you win, but that is in the Supreme Court right now, and so I don't think I or anyone on the Committee really can take any sort of a professional stand on that.
As a duly elected Member of Congress, I am mindful of the property clause, Article 4, Section 3, Clause 2, which does, indeed, state that Congress shall have the authority to make all the meaningful rules and regulations concerning disposal of public property and the territories, but, unfortunately, previous Congresses have allowed the executive branch to encroach on what truly ought to be our jurisdiction, and we are trying, we are working every day, to try to get that authority back because I believe constitutionally it was granted to the Congress and not to the executive branch. Would you like to comment on that?
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Mr. PRESLEY. Yes, Madam Chair. You raise the Achilles heel point to this whole problem we have out here with 3809 atrocities that occur. The property clause has been misapplied inside the States, inside our State and inside your State. However—and I fully appreciate the fact that through the political process, that Congress has to nibble back at this, when you have got, you know, Representatives in Congress like Mr. Rahall, who are coming from clearly the opposite end of the envelope. But you may want to have your legislative counsel back there really delve into the Administrative Procedures Act and what it actually applies to.
You see, there is a misconception out here that it applies to the Code of Federal Regulations and gives autonomy to the Federal agencies and promulgating rules to implement the statutes of Congress and that simply is not the case. As a researcher, when I go in, I don't only look at the Code of Federal Regulations, of which 3809 came from, I will look at their handbooks and their manuals and the Administrative Procedures Act mainly applies to those handbooks and manuals and that Congress still has the regulatory power over these agencies.
And here is my specific suggestion to you, and an introduction of legislation, that when you have something involving the public lands out here, until the ownership issue is addressed, or you are able to muster enough to get a quit claim deed to the State of Nevada and the rest of them, what you do do is you put something in the legislation that says, ''and we really mean this.''
In other words, if there are water rights out there on the public lands and the Federal agencies are going to manage, you must say that you cannot make those attacks on those decries and those adjudications that have happened at State Court, specifically, rights acquired under common law of the State shall be supreme in the implementation and management of Federal land managers under the public lands. That would go a long way with us. I have been in the administrative courts. I have brought an Administrative Procedures Act case. The Federal judiciary of administrative courts just simply say you don't have any rights out there.
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So you see there is no remedy at law for us when we are in the adjudicating process and that costs the client hundreds of thousands of dollars. Just one little thing like that in legislation that says the common law of the State that has brought about the recognition of those rights on public lands, grazing and whatever, mining, especially, would go a long way in curing everything. Thank you.
Mrs. CUBIN. Thank you. And thank all of you for your testimony. We will be calling the next panel forward at this time. Royce Hackworth, Dr. Anthony Lesperance, Zane Miles, Michael, because I am not even going to try your last name. You can tell me how you, how to say it when you get here, and John Carpenter, please come forward.
Thank you. We will begin this panel with Royce Hackworth, of the Elko County Commission.
STATEMENT OF ROYCE HACKWORTH, CHAIRMAN, ELKO COUNTY COMMISSION
Mr. HACKWORTH. Madam Chairman Cubin and Congresswoman Gibbons, I am Royce Hackworth, Chairman of the Elko County Commission and owner of Hackworth Drilling, Inc. I want to welcome you to Elko, and I appreciate the Subcommittee coming to the people and the area where the revision of 3809 regulations will effect. It shows the mining industry and the residents of Elko County and the United States the willingness and the concern we have had with getting the facts, and whether the BLM needs to rewrite the 3809 regulations.
Elko County is 10.9 million acres in size and yet only 28 percent of it is under private ownership. The other approximately 72 percent of the county is public lands under Federal Management. On public lands in Elko County, the mining industry does explore for and find many valuable mineral deposits, such as gold, silver, copper, barite bentonite and gypsum, just to name a few.
The mining industry creates many good paying jobs in exploration and development of these resources. On average, industry pays in excess of $38,000 a year plus benefits in the jobs it creates. Jobs that are created employ people with Ph.D.s, all the way down to those who did not complete high school. The mining industry creates good-paying jobs for men and women alike. These high-paying jobs are at the level where their employees do not depend upon State and Federal subsidized housing, food programs, health care programs, to live the American dream.
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In fact, the industry and their employees pay taxes to support those who depend upon State and Federal programs just to live. And with the current change in legislation coming about, we see a shift moving back to the States and from the States back to the county to help pay for these programs. My concern is the change in attitude toward the mining industry by the Federal agencies, by the implementation of undue and excessive regulation.
What troubles me is the method and the reasoning the BLM has used in deciding to change the 3809 regulations. I do not believe, nor will I accept the Secretary of the Interior having the power to circumvent the NEPA process and Congress in changing 3809 regulations. The BLM does not clearly define a purpose and need along with a definitive and specific proposed action for public scoping as NEPA regulations require that EIS briefly specify the underlying purpose and needs to which the agency is responding in proposing the alternatives, including the proposed actions.
When the Secretary makes a statement, it is plainly no longer in the public interest to wait for Congress to enact legislation. I fear for the future of our country. For the framers of our Constitution or you as duly elected Members of Congress should or would believe that any Federal agency could obtain or try to circumvent the powers given to Congress. 3809 regulations are not an impending emergency or a national security, so why should the Secretary be permitted not to follow the normal NEPA process or circumvent congressional wisdom.
The Federal public land agencies cannot, nor should not be given unlimited ability to create regulations without congressional oversight. Let me give you a couple of examples of regulations run amuck by the Federal land agencies in our county. Here in Elko County, U.S. Forest Service employees of the Humboldt Toiyabe National Forest are protected by agency regulations that prohibit them from being subpoenaed to testify before a grand jury, a classic example of a Federal employee being immune from the laws that every citizen of the United States has to abide by.
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Where logic doesn't work when it comes to Federal land managers, just following the regulations they are in charge of, we have Jarbidge Community Cemetery. Elko County is trying to obtain a 1-acre addition to expand the current cemetery. The U.S. Forest Service comes back to the county with a 20-year lease for the 1-acre parcel.
The county is in a dilemma. We do not know whether to rename the cemetery the Jarbidge Community Time Share Cemetery or the Jarbidge Lazarus Cemetery. With the current boldness of the Federal land agencies in creating new regulations, I feel they believe they have been granted a higher power of authority. However, I do not believe they will be able to raise the dead every 20 years to renew their cemetery lease. This year the BLM enacted new bonding requirements for claim holders on public lands, without following the NEPA process correctly. This is just putting more nails in the coffin for the mining industry in the United States.
We have already seen a 70 percent reduction to claim holders when the hundred dollar holding fee per claim was enacted. By not encouraging people and companies to look for mineral discovery here at home, we are driving the mining industry outside our country of good paying jobs. I am here today as a county commissioner asking you to please stop the BLM from enacting undue regulations on the mining industry. Current regulations are being handled by the States and current Federal law. Please use whatever power you have to curtail the Secretary of the Interior for not following the true NEPA process in creating regulations.
Also, I am asking you to invoke newly enacted bonding regulations and have the bonding regulations go through the true NEPA process that defines the purpose and needs in a way the law intended it to be enacted. In the State of Nevada, we have a comprehensive, regulatory environment to protect the citizens and the lands in our State and I thank you for the opportunity to make this testimony.
[The statement of Mr. Hackworth may be found at end of hearing.]
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Mrs. CUBIN. Thank you, Mr. Hackworth.
Next, we will call on Dr. Anthony Lesperance. You tell me how to say your name.
STATEMENT OF ANTHONY L. LESPERANCE, ELKO COUNTY COMMISSIONER
Mr. LESPERANCE. You did pretty good. I can't even spell it yet. Madam Chairman and Congressman Gibbons, I request unanimous consent that my statement and the attached exhibits, which are two lawsuits, be made part of the record. I consider these lawsuits very, very important.
Mrs. CUBIN. Without objection.
Mr. LESPERANCE. Thank you. Today, you are hearing much about the 3809 regulations and impact that the actions of this nature have upon the economy. Our business, Great Basin Agriculture, has been a major player in mine and exploration reclamation. Consequently, we are in a unique position to engage the impacts of regulation, such as 3809.
Without belaboring the point, it is sufficient for me to say those impacts are very significant. Perhaps it might be more important—more appropriate to analyze why regulations like 3809 occur to begin with and what actions of this nature might really represent. Every single department of the Federal Government is a bureaucracy. Bureaucracies must either grow or stagnate.
How do bureaucrats make a bureaucracy grow? Very simple. They either increase the mass their agency regulates or increase the complexity with which it regulates. Either action, if successful, increases job security, promotion, and all the benefits associated with bureaucratic growth. That is how regulations like 3809 come into being. The 3809 is only the tip of the iceberg.
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Growth of bureaucracy is difficult enough for those of us who produce weather to contend with, but when the bureaucracy becomes unethical, it presents a set of problems that at best are almost impossible to deal with and at worse, could well lead to total anarchy. It seems to be a given that bureaucracies must grow. Only you in Congress can control that with fiscal restraint, a fact which despite all the rhetoric, Congress has failed to do, but what about the ethics of the bureaucracy.
Let's examine the ethics of agencies we here in Nevada most frequently deal with, the land management agencies. I will briefly mention a few events central to ongoing litigations. The cutting of fences or opening of gates so that legitimate reasons can be found to trespass livestock permittees; the mechanical covering of springs with dirt to disallow further use of water from those springs for irrigation; the movement or hiding of historical survey markers to confuse issues on location; the hiding or destruction of the historical documents absolutely necessary for settling of disputes; the physical changing of monitoring data to make livestock grazing look damaging; the hiring of so-called experts to present distorted historical and factual data to support agency position.
The elimination of years of outstanding research, because it no longer supports philosophy and, yes, even the threat of death if one dares to oppose the government action including the taking of personal property, and 3809 is simple. Just compound the bureaucratic red tape until complying becomes physically and financially impossible. Agencies that control the public domain want full control and that includes water.
I am aware of no less than six litigations between private individuals, political bodies, water districts and others and the United States, concerning water rights here in Nevada. The United States Forest Service leads a parade, close behind is the Department of Interior, including BLM and the BIA. Control of water in the West is control of all that occurs in the landscape, including mining.
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I will call your attention to two of these litigations. I am providing you copies of both the suits, the first involving the Truckee–Carson Irrigation District, requests repayment of 1,057,000 acre feet of water, including interest, for water allegedly stolen from Pyramid Indian Reservation between 1973 and 1988.
I will not go into the details of the ramifications, but loss of this suit would bring upon the water users of the district, as well as the towns of Fallon and Fernley, but it is sufficient to say the results of losing that suit will be catastrophic. Worth more concern, however, is the case known as the Walker River suit.
The United States is laying claim to all water of the Walker River watershed from the crest of the Sierra Nevada Mountains in California, to and around Walker Lake in Nevada. Their claim includes all surface water, as well as under groundwater within the entire basin. Theoretically, if won, the water would be transferred to the Walker River Indian Reservation for beneficial use. However, what seems to go unnoticed is much of the land being claimed by the government for the reservation, includes mountains totally capable of being irrigated.
Further, the reservation does not want the water, although again that doesn't seem to be very important in the eyes of the government. The distasteful part of the Walker River case is the fact every water user for the reservation will lose their water. That includes 1,200 active claims, resolving certainly what must be the single largest takings case in the history of this country.
Finally, I would call your attention that you must never forget that all wealth, by its very definition, ultimately comes from the land of the associated waters. When you regulate the ability to create wealth out of existence, it will be but a few short years before our national economy is in shambles. Add to that the ever-increasing takings of private property rights and anarchy will surely follow. Thank you.
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[The statement of Mr. Lesperance may be found at end of hearing.]
Mrs. CUBIN. Thank you very much.
I21The next witness will be Zane Miles, Deputy District Attorney for Eureka County.
STATEMENT OF ZANE MILES, DEPUTY DISTRICT ATTORNEY, EUREKA COUNTY
Mr. MILES. Thank you, Madam Chairman, Congressman Gibbons. I convey the regrets of Pete Chiny, our County Commissioner Chairman, that he can't be here today. Pete is back in Washington to testify today before another committee on another interior matter, and you have me as a substitute.
Mrs. CUBIN. We are glad to have you.
Mr. MILES. I again would ask that our written remarks be incorporated in the record and we will excerpt them very briefly today.
Mrs. CUBIN. Without objection.
Mr. MILES. You know, perhaps the most disturbing current trend in the Department of Interior is apparently, it is believed, that the bureaucracy in Washington, DC knows what is best. The bureaucrats regularly ignore local government, just as they regularly ignore the Congress of the United States. It is appalling to me that Secretary Babbitt can declare that since Congress has chosen not to act on some of his pet projects, that he will impose his beliefs anyhow by adoption of bureaucratic rules and regulations.
I would suggest to you that Secretary Babbitt take the same oath you did and that I did and protect and defend the Constitution of the United States, and what he is doing is such an egregious violation of the concept of separation of powers that I find it appalling that Congress has not found some way to draw rein upon such a headstrong approach.
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On a State and local level, the State of Nevada and Nevada's mining counties have an excellent record of common sense of environmental and other controls of the mining industry. Our enforcement is thorough, thoughtful, unbiased, complete, effective, and accomplished with due regard for the benefits resulting from mineral development.
If Congress, in its wisdom, is to decree that environmental rules are to be applied to small sites, like the new 5-acre rule, the Nevada Division of Minerals and NDEP, Department of Environmental Protection, and the local district attorneys will enforce those laws. We have done so in the past, and in other contexts.
Ironically, when I got into Elko yesterday, I picked up Saturday's edition of the Elko Free Press, and on the front page is a rather lengthy story, headlined, ''State Fines Newmont $23,500.'' Newmont mining is a very environmentally responsible organization.
Our county is the largest coal-mining county in the world, and we work closely with Newmont, Barrick, Homestake, Placer Dome, the others, and Newmont does a good job, but they can have problems just like anyone else; mistakes can occur. And when the mistake did occur in this case, the State stepped in and took administrative action. Had the administrative action not been sufficient, the State would have come to the local District Attorney's Office and asked us to take criminal action, which we would have been authorized to do. That hasn't been necessary at this point, it has occurred in others.
I will give you another example. In Lander County, the county to the West of us, a few years ago, there was a very small migratory bird kill where some birds got through netting and managed to get into a cyanide-laden pool. As I recall, the fine in that, for the death of two migratory birds, two ducks, was $50,000, $25,000 a bird, and that matter was handled by the State Department of Wildlife and the local District Attorney there in Lander. There is no need that we can see to bring in Federal regulations and Federal agents to enforce what the State of Nevada is already doing and doing very well. If there are two things I can leave with you today as thoughts, it would be these.
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First, I feel that Congress must take its lawmaking powers more seriously, take back the rules, and sharply limit the power of unelected bureaucrats to make rules and regulations with the force of law, and, second, where Federal laws, rules and regulations are needed, Congress should mandate that its laws be enforced in the State and local governments if the States and local governments are willing to do so. Direct Federal enforcement is unnecessary unless States and counties refuse to act. That has certainly not been the case in Nevada. Again, thank you very much for coming to gold country to hear what we have to say.
[The statement of Mr. Miles may be found at end of hearing.]
Mrs. CUBIN. Thank you very much, Mr. Miles, and we are glad to have you here, even though your boss had to be some place else. We might have even picked you, you don't know.
Next, I will ask Mayor Michael Franzoia.
Mr. FRANZOIA. That is exactly right, good pronouncing.
Mrs. CUBIN. Thank you.
STATEMENT OF MICHAEL J. FRANZOIA, MAYOR, CITY OF ELKO
Mr. FRANZOIA. Thank you, Madam Chairman and Congressman Gibbons for allowing me to have the opportunity to address you today. I personally welcome you to the great city of Elko. You are here today to listen to testimony regarding the mining industry. As a citizen of this city for the past 17 years, I would like to share with you the impact we have experienced for mining. All of this I have witnessed firsthand.
Elko continues to be a growing, thriving community. In 1980, our population was less than 10,000 people. We now have a population that approximates 19,000 and we are projected to reach a population of nearly 31,000 in the next 15 years. Initially, this growth represented impact challenges to our high quality of life, but to these challenges, the community began receiving many things we otherwise may have waited for and perhaps would never have realized.
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Growth has been good for Elko and the mining industry has played an important role in our success. Let me give you a few examples. To bring new families into the area, the mining industry invested in permit quality housing developments. This moved Elko away from being a boom town in a traditional sense, a traditional boom town is one that grows temporarily, then upon industry downturn, literally moves out. Permanent investment into Elko by the mining industry ensures long-term community sustainability.
Another one, investment by the mining industry into our recreational facilities enables us to offer activities to citizens and visitors of all ages. Donations in cash and services to recreational projects include equipment, parks, sports fields and a ski facility. Access to cultural activities and events have improved for all of us.
Our museum is in the middle of a major expansion, the Western Folk Life Center, which is a major attraction for citizens and visitors alike, and the Great Basin College now has a theater where we can enjoy a variety of entertaining performances. All of these are benefactors of the generosity of the mining industry.
Education has been enhanced in Elko. What was once known as Northern Nevada Community College is now Great Basin College. This fine institution offers education and training in a wide variety of fields, including mining technology, and we are all watching for this institution to become a 4-year college in the near future.
The mining industry and its employees have been great supporters of our college, as well as our public school system. A new junior high is now in use in the Spring Creek area thanks to the mining industry's major contribution to the project. We are glad this industry has impacted our community. It has been a positive impact on our quality of life.
Any legislation regulations that harm mining is certainly not in the best interest of this community and any impact should be considered on the impact that it has with our community. I would like to thank you for providing me the time to share this excitement I feel about the city of Elko and our growth and the things we have to celebrate in our community, much as a result of our mining industry neighbors. Thank you again.
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Mrs. CUBIN. Thank you, Mayor.
Our next witness will be Assemblyman John Carpenter, but before he testifies, I would like to let everyone know that Senator D. Rhoads was invited to this hearing to testify as well, but he did have a prior commitment and he is submitting his testimony for the record. I understand he is on a cattle call and coming from Wyoming, I know how important that is. Assemblyman Carpenter.
STATEMENT OF JOHN CARPENTER, ASSEMBLYMAN, NEVADA LEGISLATURE
Mr. CARPENTER. Thank you, Madam Chairman and Congressman Jim Gibbons, my fellow assemblyman a few years back. I would like to put a little different spin on the situation of mine dewatering Dr. Myers told you about. I think that our big problem with mine dewatering is going to come when the mines want to quit dewatering. At that time, there are going to be many agricultural interests that have come to depend upon the mine dewatering and they are not going to like to see those pumps shut off.
The great wetlands that have been created by mine dewatering, people are not going to want to see them dry up, but I do think one thing will happen and that is Nevada is going to have some of the best fishing holes in the world.
In regard to the Nevada legislature's concern about the hardrock mining regulations, their changes, after joint hearings, the legislature adopted Assembly Joint Resolution Number 7, which expresses outrage over the procedures followed by the United States Bureau of Land Management in adopting the new rules. The resolution outlines procedural issues and urges the Secretary of the Interior to suspend or withdraw the rules.
In the packet that has been handed to you is an actual copy of the resolution. It goes on to state many of the problems that have been expressed here today. I think that you can read the resolution and see for yourself that the legislature of the State of Nevada was very concerned about this kind of rulemaking. I would like to remind you that the Nevada legislature that passed this resolution comes from the most urban State in the Nation. You would not think that with our open spaces that we would be the most urban State in the Nation, but with the majority of the population in Las Vegas and Reno, that is the situation. So I think it goes to show that the urban people are concerned about rural Nevada, and so that when people from Washington, the bureaucrats, start taking pot shots at us, everybody gets up in arms.
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As you are aware, the rule was not withdrawn and it took effect on March 31, 1997. Not having been successful in getting the rule modified, the legislature recognized the need to assist miners in complying with its requirements. The Senate bill 440 was enacted. The measure expands Nevada's existing program through which mining operations and exploration projects can obtain performance bonds to ensure reclamation of their mine sites.
Under existing law, operations that disturb 5 acres of land or more in a calendar year are eligible to request a bond through the State bond pool. Senate bill 440 expands the eligibility to include operations that disturb less than 5 acres per year as required by the Federal regulations, as well as projects of any size that must post a reclamation bond pursuant to county requirements.
I believe that the new bonding regulations are just a continuation of Secretary Babbitt's war on the West. In regard to mining, without small miners on the ground doing prospecting, much of our large mines would not exist. I think that if Secretary Babbitt feels that if we could shut off this exploration as Chairman Hackworth said, we will drive another nail in the coffin of the miners. These regulations are having a very adverse effect on our livestock industry here. Utilization standards on riparian areas are driving our ranchers off the land, there is no question about it.
Mrs. CUBIN. Feel free to give your entire testimony if you want to.
Mr. CARPENTER. It is too long, I don't want to do that. I would just like to say, though, that Congress must exercise veto power over agency regulations. It seems no one can control the bureaucracies, even cutting the budgets does not seem to help. And so the agencies are forced to comply with laws. No citizen is safe from the tentacles of unnecessary regulation.
In Nevada, we now have—the legislature has the authority to veto any agency regulations. As Jim will remember, the legislature passed a statute to give us that authority. The Governor did not like that and he filed suit, and the Supreme Court ruled that the legislature did not have oversight of agency regulations so that was the last time we had a constitutional resolution that gave the legislature veto power over the regulations that the bureaucracy was trying to propose. So I think that it is necessary that the Federal Government, the Congress, also gets that authority back. Thank you very much for being here and listening to us.
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[The statement of Mr. Carpenter may be found at end of hearing.]
Mrs. CUBIN. Thank you very much for being here. Questions, Mr. Gibbons.
Mr. GIBBONS. Thank you, Madam Chairman. Perhaps one. John Carpenter, very early on, since he and I shared a great deal of our life together in a State legislature, especially on national resources. Do you feel that by the resolution that the State of Nevada has, AJR Number 7 here, that there was a concern by the State legislature that new bonding regulations were not needed; that the laws and provisions of the State with regard to the protection of the environment, the water quality, air quality, et cetera, were adequately covered by existing laws, regulations, and was that the reason why you decided to pass this resolution, in light of the changes of the proposed changes in 3809?
Mr. CARPENTER. Thank you, Jim. I don't think there is any question but that the regulations that Nevada has in place are adequate. They are a model for, as we heard here today, for the industry, not only in the United States, but throughout the world. And we really didn't see any reason to have these changes.
For instance, one of those changes is that you have to have an outside consultant come in and look at your reclamation projects. That doesn't make any sense at all. That is just like saying that the people that you—people you choose for your staff, that they ought to have somebody looking over their shoulder all the time. It is absurd to do those kinds of things and Nevada is a leader. I think that, Jim, you were in the legislature with myself when we promulgated the statutes, and they are very thorough. They provide for more than adequate protection for the environment, and I believe that the legislature felt that, you know, we are doing our job and we just don't need all that direction from Secretary Babbitt.
Mr. GIBBONS. Thank you. Zane, in your job as the Assistant District Attorney, do you feel that your office, as well as the State of Nevada, are adequately enforcing the laws with regard to environmental issues and reclamation as permitted through State requirements.
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Mr. MILES. We enforce the law so that we agree with them or not, and often we don't. Eureka County is in the fortunate situation, since we do have the largest gold production county in the world, we have the resources for local government to do its job, and we are certainly capable of doing whatever enforcement is necessary. I have no qualms at all about—and neither does my boss, about filing a criminal action, if, in fact, the circumstances would justify it.
On the other hand, we have what is called prosecutorial discretion, and in its best sense, that means that we can look at a situation and determine whether the offense is accidental, deliberate or whatever, and that happens throughout the State. This Newmont fine, administrative fine, is a perfect example. The fine was reduced slightly because Newmont cooperated and bent over backward to cooperate with the State Department of environmental protection, and consequently, the NDEP never came to us for any sort of a criminal prosecution, and none is needed. If one were needed, yes, we would do it, we certainly would.
Mr. GIBBONS. OK. Mike, let me turn to some of the comments that you made with regard to infrastructure, development, and support for the mining industry toward the city of Elko and its needs, assuming that we understand that Elko has been, for a long time, the sort of bedroom community for many of the mine workers who work in Eureka County or outside of the area.
Do you feel that with your position as Mayor, that you will experience a less or degraded interest by the mining companies in helping with infrastructure needs in future development if 3809 regulations impose new and more burdensome costs upon the mining companies?
Mr. FRANZOIA. Oh, yes, I would definitely say that would be a detriment to the city. Right now we get a lot of support on recreational facilities. Like I said, anything involving new, but if there is a downturn on the requirements, obviously it is going to be a cost factor for the mines, with less funding sources available for those improvements to the city and, yes, I think we would suffer greatly in a lot of areas, not only in city infrastructures, but support that the mines have with other organizations in the community, such as soccer, little league and those kinds of functions, which we have a great situation here where we have a lot of volunteers that are out there and the same token would be—on a nonfinancial basis, would be the support of the employees in those same activities as volunteering goes.
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A lot of these things that happen in our community make it the way it is, and we support, even with the Western Folk Life, putting that on, our results of the activities and people getting involved, donating their time, aside from donating money from the mines, so we have a lot of mining employees that participate in these things and it is crucial, and any downgrade to the situation we have, being that we are the community for the mines and we are impacted greatly more than any other city on the corridor, at least in the county, it is a detriment to us, no question about it.
Mr. GIBBONS. Let me ask a followup question. Do you notice the deterioration in the quality of life, whether it is air quality, particulate matter in the air or something because of the current operations of mines in and around the Elko community?
Mr. FRANZOIA. Not at all. The only thing I see that is a detriment is increased traffic, but we work on that. As long as the community grows either 4 percent a year or 2 percent a year, eventually you are going to deal with additional traffic problems, but actually I have a tendency to pride myself when I travel out of town to tell everybody how good Elko is and how blue the skies are and we may have 3 or 4 days a year with fog, and it usually breaks up by 10 in the morning. Otherwise, the only particulate matter we see coming through is when the winds blow up and we get dust all the way from Lovelock that is airborne for hundreds and hundreds of miles, so otherwise we don't see at all an impact from air quality or standards of life in the city.
Mr. GIBBONS. Wasn't, 1994, Elko named one of the most desirable communities to live in in the United States?
Mr. FRANZOIA. Nineteen ninety four, Elko was considered one of the best small towns in America, the quality of life being a major focus and also the economic values of the community and cultural activities we have in the community, all played a part in that recognition.
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Mr. GIBBONS. Let me turn my attention over to Royce Hackworth, who talked earlier about mining industry and 3809 regulations. Do you feel, in your position as a county commissioner, that the citizens of Nevada, in general, will see a marked improvement in the quality of their life, on a county-wide basis with a major overhaul of the 3809 regulations pertaining to mining.
Mr. HACKWORTH. I don't see where you would see a major improvement, but what we see is currently the rules and the regulations that are out there that the mining district has to follow seem adequate. There may be some areas they want to look at, but at the same time, a major overhaul of it, I don't see it as a benefit to the assistance of Elko. What I see is, and we are seen in the industry as mining companies today that have properties all on private land taking 28 months just to get a permit through, to go through all the permitting agencies they have to.
You add the tier of the Federal Government on top of it, and it extends that period of time. Some of the permitting goes in conjunction, but the issue of it is the major overhaul that comes in. It delays the potential of that mine opening, and they will look at the economic impacts it has for the regulation to become so severe. It will change the economics of that mine working.
But the other thing that really changes a lot and I don't think a lot of people recognize this is if those regulations become very severe or unduly in their implementation, what it does is it affects the future of anybody living in Elko County. We have big mines today that could show production going on until the year 2030, but at the same time, who is looking for the next mine off of their main site that they have right today. The grass roots exploration is a thing that even in my own business, and Mr. Gustin stated, were indicator species for the industry. And I am going to tell you, it is off, this year we are at 50 percent of where we were approximately 7 years ago. And this is where I get really concerned.
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It is not—the Barrick and Newmont have good land positions, are finding things on their own property, but who is looking for the next one, and everybody says, oh, you will never find a Barrick, Newmont. I think Placer Dome is an example of what they have done on that trend and that is real close to their own block right at this point in time, but somebody looking outside of those trend areas, those are the things we are seeing happen, those are the areas I have a concern with is because nobody is looking, as they did 10 years ago, for the next one.
Mr. GIBBONS. So you see with the new changes, there will be a dramatic downturn in the exploration of new mines, based on the burden of proposed changes to the 3809 regulations, so that exploration will not be out there to the degree where we will find major bodies that will be both economically advantageous to not only the State of Nevada and the people of Elko, but the United States as well.
Mr. HACKWORTH. It reduces that potential dramatically is what it does.
Mr. GIBBONS. Dr. Lesperance, you talked in some detail about some of the occurrences that took place, that you have great concern with over the actions of some of the Federal agents. Have you any personal knowledge of any of these activities, like the destruction or covering of springs, the destruction or covering of survey monuments, et cetera, that you brought up.
Mr. LESPERANCE. Yes, I am somewhat knowledgeable about surface water rights. I am somewhat knowledgeable about the history of Nevada, having worked with land issues for over 40 years now. Consequently, I am frequently used as an expert witness in land issues. In particular, during the last, you know, about the last 5 years, I have been intimately involved in two major takings cases in central Nevada against the Forest Service and a case here in Elko County in which the county was involved in the Forest Service, in a lawsuit, and still is. And most of what I referred to come directly out of those litigations.
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All three are still in process, although one is closely being settled out of court, with basically the cave-in by the Forest Service, so one, I think, we are going to do pretty good in. But all of those things I mentioned come directly from the various litigations. They were also the reason, I feel, it was absolutely necessary that this county enact a grand jury and they did call for that grand jury in 1994 to look more thoroughly into these matters of some of the problems between private industry, even county government, State agencies, and the Federal Government, and that is why I called for that. As you will recall, we had a successful petition, and somewhat over a year ago, we did enact a grand jury.
Mr. GIBBONS. Some of your information came directly from employees in the Federal Government who were witness to this themselves?
Mr. LESPERANCE. No, we don't get too much information from the Federal Government. They refuse to participate in the grand jury proceedings. Obviously, they do participate in the lawsuits. Most of my knowledge has come from investigative efforts that have resulted in uncovering of the various facts and are part of the litigation at this point in time.
Mr. GIBBONS. Perhaps, Doctor, I should also ask you what your Ph.D. is in.
Mr. LESPERANCE. Various sciences, biochemistry, nutrition and ecology.
Mr. GIBBONS. Now, let me ask the final question here and I will turn it back over to the Chairman. Have you been financially impacted by 3809 regulations since their inception?
Mr. LESPERANCE. From a practical standpoint, no, it has had very little impact upon us because we are basically out of the reclamation business at this point in time. Our firm was, I am quite sure, would have been considered in the late 1980's, early 1990's, to be basically the reclamation leader. From the practical standpoint, we were involved in reclamation projects throughout the West, final reclamation, primarily writing of reclamation plans and actual final reclamation, which includes the seating process, so forth and so on.
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Because of my involvement in these lawsuits and as well as my involvement in the grand jury, there has been significant pressures brought to bear on our firm and at this point in time we are essentially out of the reclamation business. From a practical standpoint, therefore, 3809 has not got much impact on me because our businesses are nonexistent. I am quite sure it would have if we were still at the level of reclamation as we were 5 years ago. It would have a significant impact.
Mr. GIBBONS. Thank you.
Mrs. CUBIN. Thank you. I don't know exactly who to ask this question of so I think I will start with you, Assemblyman Carpenter. You have identified one of the biggest problems that we have at the Federal level and you indicated you also have at the State level and that is that due to separation of powers, we don't have the ability to do very much about regulations that are passed by the executive branch. And I have been trying to figure out a way that we could do this and I have had several ideas and I would like your opinion on this one. What would you think about every Federal law that was passed, and the regulations that accompany it, being sunsetted after 10, 15, 20 years. I don't know the amount of time, but if we—well, I am not going to try to sell you on it. You just give me your impression on it. Would you think that would be workable?
Mr. CARPENTER. Well, thank you, Madam Chairman. I would like to think it would be workable. I would think, though, that the—if you could sunset them every few years, why couldn't you review them and if they were not following the intent of Congress, then amend that original law to take care of the situation that you saw that had placed too much of a burden.
It would seem to me that, you know, there are a few things that make sense, even coming out of Congress and the State legislature. Most people don't want to believe that, but sometimes they do, that we probably wouldn't want to get rid of, but I sure think you ought to be able to review them, and if the agencies are going counter to the thoughts of Congress, then you should be able to change that statute.
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Mrs. CUBIN. Well, I would suggest that sunsetting them would have that exact effect, because if the law no longer applied, then it would be sunsetted. If it did, but needed changes, those adjustments could be made, and if it didn't, then you would just reenact the same thing, but that would not put us always on the defensive.
At that point, we would have a chance to have our—you know, to be at the table and to update even those laws. I know that that is sort of a radical-sounding idea, but I think, really, when it comes right down to it, that will work better than trying to figure out how we can have oversight or how we can really have much affect on regulatory reform.
As you probably know, the Congress passed a law that said that within 60 days after a rule was made final, that they could overturn it with a two-thirds vote in each House. Well, essentially, especially with the Congress that is as politically divided as we are today. That is essentially like having no oversight at all. So that is a problem and that brings me back to Mr. Miles.
Mr. Miles, certainly I couldn't agree with you more. You talked about the separation of powers. And I am going to make a statement which probably comes as a big surprise because I have been doing more talking than you have, and then I would like you to comment on this.
I agree with you that the Congress has given up its responsibility to the executive branch, and I also agree with you that it is appalling that Congress hasn't been able to reign in this administration, but I would suggest that this is a lawless administration, and that very separation of powers that you were talking about, Mr. Babbitt, having said, since the Congress won't pass the mining law, I will, and he has done that on many things. It is that very separation of powers that if we uphold our constitutionally sworn obligation, we can't tread on that either.
Really, the only vehicle the Congress has is asking for a special prosecutor from the Attorney General. In this case, we have a lawless administration, who is using the Justice Department to protect them from public scrutiny, to protect them and refusing to, in certain circumstances that are not in the purview of this Committee, but refusing to even appoint a special prosecutor. What do you recommend we do?
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Mr. MILES. I think the problem, Madam Chairman, goes to the very basis of legislation enacted by the Congress. I spend about half of my life struggling through the Code of Federal Regulations, and when I do that, each time I read a bureaucratic rule of regulation, I go back and I try to look at the law from which that regulation is supposed to have been adopted, and the authority that is cited by the bureaucrats and in many, many cases, I can't find in the law.
What happens is that Congress naturally, because that is how the system is supposed to work, enacts legislation in broad strokes, and in order to get through the political process in Congress, the strokes are made even broader as the various sides make their input, and pretty soon you end up with a statute which is so broad that it can be interpreted to mean almost anything that a bureaucrat wants it to mean and that is exactly what is happening to us.
And I think the only way that we are ever going to rein this in and get back to the division of powers that the Founders envisioned is for Congress to be more specific in its legislation, and perhaps even to the point of Congress, when it enacts a law, adding a clause to the effect that this law shall not be interpreted as, and listing the things that you might fear that the bureaucrats might do that you definitely want to say that they shouldn't do.
Mrs. CUBIN. I think that is good advice. And, also, I want to support your statement about your research, having looked into how they get rules and regulations, based on the statutes and you wonder where they ever came from. On the law enforcement regulations that the BLM proposed and subsequently withdrew, our investigations indicated that not only did they base it on really obscure things in the statute, but then they based some of those authorities on regulations that they themselves had passed.
In the case of the bonding requirements, this Subcommittee asked for documents as to how that—they said that they had taken public input and we wanted to know every detail about how they actually arrived at that final rule, so we asked for documents, and they refused to provide them. The Chairman finally had to subpoena them, but in their refusal, basically, they said that they would give us the documents they wanted us to see so that they would have oversight of what documents we would see to have oversight of them. Isn't that them having oversight of themselves?
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Mr. MILES. That is pretty circular reasoning, isn't it?
Mrs. CUBIN. Well, I have to move on. Mr. Lesperance, you sound like my husband. Sometimes people think he is a little bit radical, but I am going to tell you what. I think that you are exactly right where it is.
While I don't condone, and I doubt that you do, people taking the law into their own hands, as is happening around the Western States with the militias and so on, when we look at Waco and Ruby Ridge, we have to see how desperate people are and how far the Government has pushed on them to get them to be that desperate. What kind of a government has such desperation when people only want the rights that they have been guaranteed? What reception do you get around when you talk about the things that you discussed here today and submitted in your written testimony?
Mr. LESPERANCE. Madam Chairman, I would like to call your attention to my statement and the attached lawsuits. There are two attached lawsuits. The first is the Truckee–Carson lawsuit and the second, which is about one-third of the way through the total document, is called United States District Court for the District of Nevada, United States of America, and Walker River Paiute Tribe versus Walker River Irrigation District, and if you will look on page 2 of that document, and for the next eight pages, you will see a list of names. I hope you see that.
Mrs. CUBIN. I noticed that last night.
Mr. LESPERANCE. There are 1,200 plus names in there and the list is not complete. I happen to have spent a number of years in the area and I know many of the people in both California and Nevada, and I have talked with some of these people very recently. These are honest people. These are people that have been born on these ranches, third, fourth, fifth and even sixth-generation people, and they are not going to leave real easy. But when you take the water away from those people, if they lose this suit, which is inconceivable to me, but if you do take the water away from those people, I cannot predict what they will do.
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I know them, I know how they live, I know how they got to where they are at today, and they are not going to go down real easy. But it is interesting, I will throw another little wrinkle in here so you have a better understanding of how devious the bureaucracy is. I do not believe that the Justice Department and/or the Department of Interior really believes they can win this lawsuit, this fight, with the effort they are putting into it.
Coincidentally, last week, the Bureau of Land Management started a program in the Eureka Walker River offering to buy everybody's water rights. Now, that is after they have been subjected to this lawsuit, have already had to come up with their legal counsel, which is costing millions of dollars, and now the BLM is saying, well, you know, we will buy your water rights. That is a corrupt government, that is a corrupt bureaucracy and that is what has to be straightened out if this country is going to survive.
Mrs. CUBIN. It has been reported that Bruce Babbitt has stated, and I don't recall the convention, but that all of the water within the borders of the United States of America should belong to the Government of the United States of America.
Mr. LESPERANCE. He has made that statement. We here in Nevada still operate under the State and perhaps we are mistaken, feeling we still own the water.
Mrs. CUBIN. We do.
Mr. LESPERANCE. I am quite sure constitutionally, that is correct. But the other factor that you really need to understand is even though the Department of Interior may initiate a lawsuit, what happens next, the Department of Justice steps in. I have had the privilege of looking at eight Federal lawyers at one time. How possibly can anybody in this State survive an onslaught of that nature? We don't have the money. Nobody has that kind of money. The Department of Justice has as much money as they want.
Mrs. CUBIN. And as much time as you can pay them while you are paying your own attorney at the same time.
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Mr. LESPERANCE. That is correct. It becomes very, very frustrating.
Mrs. CUBIN. Back to Assemblyman Carpenter. You talked about the constitutional resolution that was passed, I think you said it was passed by the legislature. What is the procedure on that? In Wyoming it has to be passed by two-thirds of the House and Senate and then in the next general election it has to be put on the ballot. What is the procedure in Nevada and where is that resolution?
Mr. CARPENTER. Thank you, Madam Chairman. The procedure in Nevada is it passes the legislature twice. It does not have to be two-thirds majority, just a simple majority passes the legislature twice and then it is put on the ballot, and the people vote on it. And as far as this constitutional amendment that I was talking about that gives the legislature the oversight or veto power over agency rulemaking, it did pass the people, was passed by the people in the last general election, and so now the State legislature does have that oversight power.
Mrs. CUBIN. And more States should do exactly what Nevada has done, I think. After the resolution you passed about the bonding regulations, did you hear from the Secretary or did you hear from any representatives of the Department of Interior?
Mr. CARPENTER. The only thing we heard was they were not going to change it, and they confided in our committee chairman that they were not going to change these regulations, and so that was the extent of their response, that, you know, so what, try to change them when you really don't have the authority to do it.
Mrs. CUBIN. In your face.
Mr. CARPENTER. That is right. And I think, though, that what these hearings bring out, in my mind, is that a number of years ago, we didn't think that the government was our enemy. We thought that the government was going to do right for us, that they were going to protect our properties and our right to make a living; that they really weren't our enemies. But we have seen, through the last number of years that there are other people out there that want to take our way of life away from us, for what reason, I don't know. But I think that we are finally, hopefully getting the message to the politicians who have it in their power to change these things, and I think with yourself and Congressman Gibbons and other people that we are finally making some headway and we are going to see, I hope in the next 15 years, a big rollback of what has happened in the last number of years.
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Mrs. CUBIN. I can tell you firsthand that I have seen that in the Congress, and I know that it is hard, when the only news from Washington you get is the Eastern liberal media. A lot of times people out here in the country don't even know what we are talking about and the debates we are having and there are more than just Representative Gibbons and I that care about this and care about it very, very deeply and it is all of our obligation. We can't stop and we can't shut up. We have to keep talking about it and bringing this out into the light of day so that everyone can see it because I am going to tell you, people in the East do not believe it. They don't believe it when we tell them these things happen. We have to prove it to them over and over. But that is why we are here and that is what we need to do.
You were right when you said, I think you were the one that said that even cutting the money at the Federal level doesn't work, and that is right. It doesn't work because we did that. We did that in the 104th Congress and you know what happened, we can't—well, we appropriated money to the BLM, Park Service, Forest Service, on and on and on, and where we said that they should spend money, they didn't. They spent it where they wanted to spend it. They moved it to programs that we didn't want to fund. Again, we are back to this lawless administration, when you have an administration that doesn't care about the law, and I am convinced the Clinton Administration, through and through, doesn't care about the law. Then they just spend the money where they want and you know what they did, they took money away from the services.
I am not certain about this, but like in permitting, and in areas that directly hurt our constituency, they even targeted at us, but nonetheless, we have to keep up the good fight. I had one last thing.
Mayor, this isn't a question, but I wanted to congratulate you on the activities that are going on in Elko. It was an all-American city or one of the best small towns to live in.
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Mr. FRANZOIA. It was the best small town in America. It was based on a population criteria, so we have outgrown that now. I think it was under 17,000 or 15,000, population.
Mrs. CUBIN. Wyoming and Nevada have an awful lot in common. We have a city, Lander, Wyoming, that has been awarded one of the most livable cities in the country as well, and Assemblyman Carpenter said, which shocked me, Nevada is the most urban State in the Union. Wyoming is the most rural. We don't have one single metropolitan area in Wyoming, I am proud to say.
Back to the mayor, your cowboy poetry week is my favorite thing. I was not able to come for that, but Baxter Black is one of my favorite guys and if you all had time I could recite some cowboy poetry for you, but we have to check out of the hotel, so congratulations on what you do. Thank you for your testimony.
We are going to take a 10-minute break. We need to check out of our rooms and get packed up so we can leave so you can all go have a cup of coffee or whatever and we will reconvene in, let's make it 15 minutes.
[Recess.]
Mrs. CUBIN. The Subcommittee will please come to order. I would like to ask that the fourth and final panel come forward. Mr. Leo Drozdoff, Jack Blackwell and Jean Rivers-Council. Mr. Drozdoff—is that it?
Mr. DROZDOFF. Perfect.
Mrs. CUBIN. I am getting better—is a Bureau Chief of Mining, Regulation and Reclamation for the Nevada Division of Environmental Protection. And we will ask him to lead off with the testimony.
STATEMENT OF LEO DROZDOFF, BUREAU CHIEF, MINING REGULATION & RECLAMATION, NEVADA DIVISION OF ENVIRONMENTAL PROTECTION, NEVADA DEPARTMENT OF CONSERVATION AND NATURAL RESOURCES
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Mr. DROZDOFF. OK. Thank you very much. We have provided written testimony and what I would like to do in the interest of time, and to also be able to talk about some things that may have been raised in previous testimony, is just briefly summarize the written remarks, and go on from there.
One point I did want to make at the outset is the State of Nevada, Division of Environmental Protection, is a fully delegated State; that is, we have delegation agreements from the EPA on clean water, clean air, across the board. And others, we do a very good job. We have a very good relationship with EPA in administering those programs. We also administer programs pursuant to State law, as Representative Gibbons is aware and as Assemblyman Carpenter is aware.
We have very comprehensive State laws in the areas of groundwater protection, and in reclamation, that are not—do not replicate any Federal activity, but are purely State laws, and those laws then were used by agencies to craft what we consider to be very well-thought-out regulations, and the comment has been made a couple times today that Nevada is the leader in groundwater protection and reclamation and we are proud of that, as being part of that.
I also wanted to talk a little bit about our existing relationship with some of the Federal land management agencies that I am sitting here with today. Because of all of the negative activities that perhaps have gone on recently with the Bureau of Land Management, that sort of casts a dark light on what has been and still is what I consider to be a good relationship with the Federal land management agencies in the State of Nevada, both the State office and the district offices in Nevada, as well as the U.S. Forest Service.
We have lots of things that we work on, it is not a perfect system. You have heard some of the testimony today that there are areas that need to be improved, and we continue to work on that, but the fact is, the programs are in place, the communication is in place to get that done. We have good memorandums of agreement with both the BLM and with the Forest Service. We continually work to improve in those areas. We have worked on various initiatives with the BLM and the Forest Service in many areas, including a revegetation issue that, again, is timely.
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We don't always agree, but we do communicate and I think the final product, when it is put together, is a good product. We work well with environmental groups and with industry, and just to show the States level of interest in that regard, we, we, being the State, actually will fund a BLM employee to act as a liaison. This is money that is paid to the State, which we then contract with the BLM, so that we can further improve communications in the areas of long-range issues as well as day-to-day activities as they come up, and, again, that is a concept that has been embraced by environmental groups and by industry.
And while all those are good things, I did want to quickly touch on two areas we do have some concerns with. You have heard lots of new testimony on the bonding rule and you would agree with a fair amount of that. We think the manner in which the bonding rule was passed was inappropriate and we believe some of the provisions contained therein were not well-conceived. Now, it must be said that the State of Nevada supports bonding on all public lands, but what we don't agree with is some of the areas, such as third-party engineering reviews and this water quality criteria.
Again, Nevada is a fully delegated State and has its own State programs for groundwater protection and we don't believe that is an appropriate area and we don't believe it was a well-conceived rule. And last, I wanted to touch on the overall 3809 regulation review. We have taken that matter very seriously. You have touched on that.
Our Governor has written a letter to the BLM, being quite candid on Nevada's concerns about that 3809 process. That is included in my testimony, and I think it speaks well to the issues that the NDEP and the Department of Minerals, as well as the administrative branch of government in Nevada believes. Now with that, I guess my time is up and I will close. I did want to touch on some things that were raised in testimony. If you would like me to wait, I can do that or I can briefly touch on some of them.
Mrs. CUBIN. Go ahead.
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Mr. DROZDOFF. There was a great deal of talk, some talk, I suppose, on water quantity, and now we are the water quality folks at NDEP. The State engineer and the Division of Water Resources are the water quantity folks. I did have the opportunity to briefly speak with the State engineer, who was not able to attend, but did want me to mention a couple issues.
He wanted me to note in the Humboldt River Basin, 90 percent of the water discharged is either put back into the ground, beneficially used in the basin or substituted for other uses in the basins. One such notable example would be in the case of Lone Tree Mine; a pipeline was built to supply water to a power company and that enabled water, then, not to be pumped to supply the power company. He also wanted me to offer to provide his testimony, if you felt it was appropriate. He can do that, or if there were specific questions we can relate to him, I would be glad to do that for him.
I wanted to touch briefly, there was some mention about Jerritt Canyon and a Clean Water Act issue and I must say that I am not aware of a Clean Water Act issue at Jerritt Canyon. I will say this. We do periodically routinely meet with all members that—all members of the community. We also meet with various environmental groups routinely, and that issue has—a lot of issues have been raised, but that issue in terms of a Clean Water Act violation have not been raised yet. That is something that we will look into.
We do have some groundwater issues out at Jerritt Canyon that again we are managing. We have a remediation activity, and that is, again, what we consider to be a groundwater issue, and we are dealing with it. And I would like to just stress this point about Nevada's regulations. The good State regulations, coupled with good enforcement of Federal regulations has really, in our opinion, resulted in some of the tightest Clean Water Act regulations that exist. We incorporate all Federal water quality standards, where appropriate, and we incorporate State standards for specific streams when they are necessary, and our permits are reflective of that, our permits—our operating permits that we issue can contain these same limitations, so I think they are very tight, but we would like to believe they are well-run, well-administered and we take pride in that. So with that, I will close.
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[The statement of Mr. Drozdoff may be found at end of hearing.]
Mrs. CUBIN. Thank you very much. Next, I will call on Jack Blackwell, the Deputy Regional Forester, Intermountain Region, U.S. Forest Service. Mr. Blackwell.
STATEMENT OF JACK BLACKWELL, DEPUTY REGIONAL FORESTER, INTERMOUNTAIN REGION, U.S. FOREST SERVICE, U.S. DEPARTMENT OF AGRICULTURE
Mr. BLACKWELL. Madam Chairman, Congressman Gibbons, my name is Jack Blackwell. I am Deputy Regional Forester for the Intermountain Region of the Forest Service. I am accompanied by Larry Gadt, the Forest Service National Director of Minerals. A summary of our statement is as follows.
For over 125 years, the mining industry has explored and developed locatable minerals underlying Federal lands, under provisions of the 1872 mining law. That mining law, and legislation since 1872, make public land available for mineral development. Under Forest Service regulations, operators are required to reclaim land to prevent or control damage to the environment so that existing problems with abandoned mines are not compounded. Before operations commenced, the Forest Service, in conjunction with operators, must establish and document in the plan of operations the reclamation standards for each site-specific activity.
When we receive a mining proposal, it is analyzed to determine if a plan of operations is necessary. If one is necessary, the plan is reviewed to determine if it contains the required information and what level of environmental analysis is needed. Within 30 days of receipt of a plan of operations, the district ranger informs the operator of the status of the plan. Once the plan is completed and a bond has been submitted for reclamation, the plan is approved. The Forest Service strives to process mining operation applications quickly, to accommodate the company schedule. For example, here in Elko County, the Jerritt Canyon mine expansion and the Dash project were permitted in less than 16 months.
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Field units with the heaviest hardrock mining workloads have also been encouraging a regulatory review and update for a number of other issues. We are examining possible modification of the surface use regulations and have included this effort in the fiscal 1997 plan of work and that will be extended into fiscal 1998. The Forest Service is examining changes to address shortcomings in the areas of occupancy, notices of intent, plans of operation, reclamation, and bonding. This effort is being coordinated with the BLM, review of its surface management regulations. The joint agency goal is to have regulations as consistent as possible.
In managing the surface resource effects of operations, much work remains to remediate the effects of historical operations which have been abandoned. The Forest Service is working with other agencies to identify and correct these problems. That completes the summary of our statement and we would be glad to answer any questions.
[The statement of Mr. Blackwell may be found at end of hearing.]
Mrs. CUBIN. Thank you very much. Next, we will call on Jean Rivers–Council, Associate State Director of the Nevada State Office of the Bureau of Land Management.
STATEMENT OF JEAN RIVERS-COUNCIL, ASSOCIATE STATE DIRECTOR, NEVADA STATE OFFICE, BUREAU OF LAND MANAGEMENT, U.S. DEPARTMENT OF THE INTERIOR
Ms. RIVERS–COUNCIL. Madam Chairwoman, Congressman Gibbons, I appreciate the opportunity to appear here today to discuss the status of permitting hardrock mining operations on the public lands managed by the Bureau of Land Management. The BLM regulates these operations pursuant to the general mining laws of the United States and the Federal Land Policy and Management Act. I provided the Subcommittee with copies of my full statement.
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In the interest of time, I will deliver a summary statement. It is important to note that minerals production is only one of many resource issues for the BLM in Nevada. About 67 percent of the total land in Nevada is managed by the BLM. In addition, BLM Nevada has recorded over 756,000 mining claims, of which 135,000 are still active. More than half of all new claims filed annually are recorded in Nevada. About 67 percent of gold production in the Nation is from Nevada. That amounts to over 7 million ounces per year.
To meet the needs of industry, BLM and other regulatory agencies have worked intensively to reduce the time required to process notices and plans of operations. In the 1980's, BLM recognized the pace of processing these plans was unacceptable. We addressed our process and improved it. In the last 2 years, the BLM has developed more consistent and predictable technical guidelines. Even with the more complex plans of operation today, we have decreased review time. The basic Federal regulations under which we operate are found in 43 CFR 3800. One provision of these regulations relates to smaller exploration and mining operations on public lands. These are operations with cumulative surface disturbance of 5 acres or less. These operators are required to notify the BLM at least 15 calendar days prior to commencing operations. Operators that exceed 5 acres on BLM public land must have a plan of operation analyzed and approved by the BLM.
When the BLM processes exploration and mine plans and notices of operations, it must follow all of the numerous Federal laws. In recent years, Nevada production has escalated from about a half million ounces of gold per year in 1981 to over 7 million ounces in 1997. New production activity has shifted away from mining and shallow pits. The ores produced today are more expensive and challenging to process than those mined in the past. In many of the valleys of Nevada, the ore lies below the water table. To keep today's mines dry, water must be pumped at rates exceeding 30 to 50 gallons per minute.
This agency works hard to be a good neighbor. One way we do that is to work with the State and the Mineral Exploration and Mine Permitting Program. The BLM has reached major agreements with the State of Nevada, including two with the Nevada Department of Conservation and Natural Resources. The first involved development of a program with the Department's Division of Environmental Protection for review of exploration and mining plans, reclamation bonding, inspections and reclamation requirements. Today, there is a joint review process in Nevada.
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Under the second agreement, the BLM and the Nevada Division of Wildlife are cooperating in developing wildlife protection requirements, especially for tailings ponds and other mine ponds which contain chemicals used in mining operations. The BLM also works closely with the Nevada Division of Minerals regarding remediation of abandoned mine hazards.
Mining has occurred in Nevada for more than 140 years. During that time, many prospectors and miners abandoned sites without cleaning them up. The State is helping us with this problem. Last year more than 100 hazardous mine sites were identified and secured by the State. The Division of Minerals works with the mineral industry and the counties to make lands managed by the BLM safe once more.
The BLM does and will continue to, practice and use the best science to address any new emerging issues. This can be achieved only through cooperation with the State and with industry. The mutual goal is to provide more consistency and better predictability in the process. BLM's hardrock mining surface regulations date back to 1981.
Recent updates have included use and occupancy rules and acid mine drainage policy and hardrock mining regulations. Secretary Babbitt in January of this year directed the BLM to form a 3809 task force which would address shortcomings in the current surface regulations, incorporate BLM policies which were developed to supplement existing regulations and meet BLM's strategic plan of incorporating standards.
The task force has embarked on a scheduled 2-year effort to update the 3809 regulations. Issues to be addressed include eliminating or modifying the 5-acre threshold for notices, revising the definition of unnecessary and undue degradation, expanding environmental and reclamation requirements and clarifying casual use. Scoping meetings were held this spring throughout the country. We have made public our summaries of the comments at the scoping meetings.
I will conclude here. I believe I mentioned earlier I have submitted my full written statement for the record and I am prepared to answer any questions that you might have. I will try not to exceed my 5 minutes since I have a red light.
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[The statement of Ms. Rivers–Council may be found at end of hearing.]
Mrs. CUBIN. Thank you very much. I appreciate that. Now, the Committee would like to welcome Larry Gadt. I had no idea that you would be here. I am delighted that you are. I don't want to put you on the spot, but you have heard bashing, including from me, not at you, but at the system and how it works with Washington making a one-size-fits-all policy. If you would like to just say anything to the Committee for the record, I would certainly love to have you do that.
STATEMENT OF LARRY O. GADT, DIRECTOR, MINERALS AND GEOLOGY MANAGEMENT, U.S. FOREST SERVICE
Mr. GADT. Thank you, Madam Chairman.
Mrs. CUBIN. And bashing is way too strong.
Mr. GADT. That's all right. I guess that I view the—not as much bashing, I guess, I didn't feel this morning. I heard a lot of good comments and I really appreciate that. In my visits to the field, I ask very simple questions of folks, be they local industry or our own employees of how are we doing and how are we working together and how are we getting our job done. With few exceptions, and there are very few, I hear nothing but glowing comments about our ability to work together with the industry to do the environmental job we are responsible for and at the same time facilitate removal of these resources.
To be perfectly honest with you, if I knew what the size was, if I had all that wisdom, I would not have a clue to know how to go about doing that and I don't know if I am answering your question, but I don't know what the right size is. In our case, we got input from our field to ask what different sizes they feel they need and we are still working with that, so I am not smart enough or wise enough in my professional background to determine that and that is the best I can do on answering that one.
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Mrs. CUBIN. We are certainly glad that you came and it always helps to have people get outside the beltway and hear what happens out here.
Mr. GADT. Thank you.
Mrs. CUBIN. Representative Gibbons, would you like to begin questioning?
Mr. GIBBONS. Thank you. I would be happy to. Let me start with Mr. Blackwell, if I may. You mentioned in your testimony, Mr. Blackwell, that there is a historical trend over the years, up to 1981 regulations that are now in effect, that many abandoned mines have gone unreclaimed, or pose a serious health or safety hazard to the public. Who bears the responsibility today for the reclamation of those mined areas and those mines, as you foresee that?
Mr. BLACKWELL. Well, I am not an expert in the area and I will give a brief answer and perhaps Larry can elaborate, but determination of responsible parties on these abandoned mines is tricky and time-consuming and onerous business, and using the process, as I understand it, we have come up with who we believe are the responsible parties, and we use Superfund authorities and funding to try to fix these up. As you well know, it is an enormous problem all over the West, the abandoned mines and different environmental problems with them.
Mr. GIBBONS. When there is no direct responsibility to a previous mine occupant or previous mine operator, has the Superfund been able and adequate to address the issues that face you when you go to reclaim or improve these areas? Have the Superfund requirements permitted you to do that, or do we need, in Congress, to enact legislation that would allow the Superfund to more easily address these issues?
Mr. GADT. I will try to answer some of that. On the national forestland, we have not completed inventory yet but we have—at present, we anticipate around 38,000 abandoned mine sites. A small percent of them would actually qualify for any funding from CERCLA, RCRA any other source of Federal funds. Also, a very small percent of them—actually, if we could identify the potential responsible parties, a very small percent of those actually fall in the category. So we have a very large percent of other areas that we need to have funding available and we are pursuing funding available to correct those.
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Our 1998 budget that you all just enacted or are acting on includes funding to do some of that. I would like to add, though, the industry has been very cooperative with us in helping us to clean up these sites. Sometimes in existing operations, but, also, going into watersheds where we are trying to improve the overall quality of the drainage.
The Western Governors Association, we have a cooperative arrangement with them, so with the Western Governors, the companies, the source of the funds federally and so forth, we have and are pursuing an effort to correct some of these problems.
Mr. GIBBONS. Would you suggest, since you said the Superfund authority only applied to a very small percentage of these operations because of the current language in the law, that we should address the Superfund authority language to broaden its coverage so that that money, that vast sum of money that sits in that fund can be applied to these situations, would you recommend that?
Mr. GADT. You know, Congressman, I am not an authority on Superfund wording and language, and I would rather not comment on that right now and maybe do some staff work and get back to you if that would be all right.
Mr. GIBBONS. I would like to hear personally from you on that issue.
Mr. GADT. I will do that. Thank you.
[The information referred to may be found at end of hearing.]
Mr. GIBBONS. Ms. Rivers–Council, thank you, and I know you and I have chatted in the past and had an excellent working relationship and I know we will continue to do so. Let me say that, first of all, in addressing your comments about the need to revise the 3809 regulations, do you have a view that there is a concern within the agency about the increase in delays of permitting due to the changes that are going to be promoted in the changes to the 3809 regulations?
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Ms. RIVERS–COUNCIL. Congressman, I am not certain that I could fully respond to whether the changes in the regulations will necessarily delay the permitting process. When I reflect back on the 1981 implementation of the surface mining regulations, we did make a commitment way back then to do a review. We have found, over the last dozen plus years, that the mining itself has become a little bit more complex. We are going deeper into the Earth, the mines are becoming bigger, but our partnerships are increasing. I can attest that over the last couple of years, the time our process to complete environmental impact statements takes, as an example, has certainly gone down.
Mr. GIBBONS. So you don't see any changes in the delays that would be required for these mining companies in terms of their permitting from any proposed changes that would be out there.
Ms. RIVERS–COUNCIL. I don't see that delays would necessarily occur.
Mr. GIBBONS. You mentioned shortcomings in the current 3809 regulations. Could you explain what you mean by shortcomings?
Ms. RIVERS–COUNCIL. An example of the shortcomings of the 3809 regulations, raised both within BLM and enternally by our customers, is the 5-acre threshold for requiring a plan of operation rather than a notice.
Mr. GIBBONS. So what you are saying to us is in these proposed rule changes, you expect to see an increase in the acreage for noticed operations, from 5 acres, say, to 20 or 25, something, you know, some increase.
Ms. RIVERS–COUNCIL. There is certainly some consideration being given to eliminate that rule altogether. It would certainly cut out the need for miners to notice the Bureau of Land Management when they are going to disturb five acres or less.
Mr. GIBBONS. We were just chatting about the fact if you eliminated that, then everybody would be under the planned operations then and certainly be required to have a bonding requirement under the planned operation, if that is your intent.
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Ms. RIVERS–COUNCIL. That is a potential, certainly. But I believe, until we have been able to review all of the comments that came out of the scoping sessions, and we had over 1,800 comments, I don't believe we are prepared to say summarily that that is going to be the case.
Mr. GIBBONS. With the new 3809 regulations that you have got with regard to bonding, there is a requirement in there for the review process of the reclamation to include water, water quality standards being met. Now, let me ask this question. You would agree that that is in there?
Ms. RIVERS–COUNCIL. I would agree that there are references, very definitely.
Mr. GIBBONS. And the standards have to be met and determined before the bond can be released.
Ms. RIVERS–COUNCIL. Well, we are not trying to implement the standards. That comes under the purview of the State.
Mr. GIBBONS. I am not asking you to regulate the standard, just a determination has to be made that the standards are met before the bonding can be released; is that not true?
Ms. RIVERS–COUNCIL. Congressman, I would hesitate to give you a specific answer on that.
Mr. GIBBONS. Your opinion.
Ms. RIVERS–COUNCIL. I don't have an opinion until the scoping comments have been fully analyzed.
Mr. GIBBONS. This is on the current bonding requirements, not future. This is current bonding requirements that the BLM has already made a final ruling and put into implementation in March 1997, requiring water standards, water quality to be met before the bonding can be released. My question would be, if Dr. Myers' concerns about 30 years down the road problems will arise, at what point can a bonding permittee expect to see his bond released if he has paid into this sum his bond, satisfied and released, at what point do you expect a bondholder, a permittee, excuse me, to expect this to impact his operation?
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Ms. RIVERS–COUNCIL. If I understand your question, you were asking at what point could the permittee expect to have their bond returned after the mine has closed.
Mr. GIBBONS. That is correct.
Ms. RIVERS–COUNCIL. Or the operation itself has. The anticipation would certainly be that upon full satisfaction among all the partners, the miner, the State, the Federal Government, BLM obviously included, that once that occurs, we would be able to return that bond money. Now, that can easily translate into a year to 2 to 3 years and currently it is up to about 3 years after the operation closes down.
Mr. GIBBONS. If an outside agency challenged the release of the bond, for example, the Sierra Club or something to the BLM and forced a complaint to be heard, saying 30 years down the road this could cause some irreparable damage, that we should not release that bond, would your agency then hold the bond until the 30-year period?
Ms. RIVERS–COUNCIL. I believe I would certainly have to go back and rely on my advisors in the office, my technical experts, on the exact definitions of how we would review that.
Mr. GIBBONS. Would you go do that for us and give us some feedback?
————
The BLM bonding regulations provide that 60 percent of a bond can be released if reclamation requirements are met for backfilling, regrading and stabilization of leach pads, heaps and tailings. The remaining 40 percent of a bond cannot be released until the disturbed area has been revegetated to establish a diverse, effective and permanent cover and until any effluent discharged from the area has met applicable effluent limitations and water quality standards for not less than 1 full year, without violations and without the necessity for additional treatment.
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In Nevada, BLM is currently coordinating with the State of Nevada Division of Environmental Protection and with stakeholders to develop guidance to the industry regarding release criteria of the remaining 40 percent of the bond. Although the discussions are not complete, it appears that based on current experience, release of the bond will occur within reasonable timeframes, in full coordination with the State regulatory agencies.
Ms. RIVERS–COUNCIL. Absolutely. I would be happy to respond to that.
Mr. GIBBONS. Thank you. Thank you very much. Mr. Drozdoff, I hope I pronounced your name correctly and I apologize. Would the State of Nevada be able to achieve, in your opinion, its goals, environmental goals, with the industry, and the mining industry in particular, even if the 3809 regulations were not in effect?
In other words, if the State of Nevada in its environmental protection requirements, today, had the force and effect that they do, would they be able to achieve the same environmental goals without 3809 in existence?
Mr. DROZDOFF. I would probably say, no. Just because when the regulation—for example, with our reclamation regulations, I think the State legislature takes very seriously the notion of not duplicating activities, and if there was an activity that had already been prescribed in Federal regulations——
Mr. GIBBONS. Can you name one for us?
Mr. DROZDOFF. Well, one would be perhaps the 5-acre issue on public lands, because of the staffing needs and because, again, the reason for nonduplicating of efforts, the State legislature did not want to have DEP do the same thing that the BLM was doing, so——
Mr. GIBBONS. On a noticed operation.
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Mr. DROZDOFF. Exactly, right, so that would be an area.
Mr. GIBBONS. But noticed operations don't have the same impact nor the same usage or detriment as a planned operation would have.
Mr. DROZDOFF. Clearly, absolutely.
Mr. GIBBONS. Under a planned operation, let's assume the BLM removes the 5-acre requirement which would include you to have the responsibility for every operation. According to the BLM, that may be what they want to do is eliminate the 5-acre distinction, putting everybody in a planned operation. Would you say, in your opinion, that the State of Nevada has adequate laws to cover environmental protection and reclamation for any operation?
Mr. DROZDOFF. I suppose we feel very comfortable with our regulations that they exist and I am not an expert in 3809, so I am at a little bit of a disadvantage there because I don't know some of the nuances that may exist. Certainly, from our standpoint, the regulations that we have, both cross-medium, whether it is air, water, RCRA, we take pride in, we enforce, and we do a good job in regulating those activities.
Mr. GIBBONS. I would agree with you as well, so, thank you, Madam Chairman.
Mrs. CUBIN. Thank you. I think I will start with Mr. Blackwell. Will the Forest Service begin proposing new mining regulations after the BLM finishes with their process?
Mr. GADT. We are in the process now and we actually started with last November, soliciting input from our field units on what they felt were the needs, if any, regarding 228(a) regulations. Ours have been in place since 1974 and so we have received some input from our field units and we are in the process of looking at that now to determine what, if any, changes need to be made in order to address the field concerns. Did that answer your question?
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Mrs. CUBIN. Yes, it did. One little caveat here then. I certainly hope, and I know the Forest Service would never do this, but the BLM did, in taking 5 1/2-year old input off the shelf and then implementing that as a proposed rule, so I certainly hope the public will be taken into consideration before the rules are put out.
Mr. GADT. Our input today has been post January 1997. Actually, I think March and April, with I think recent validations as recently as like in August, I believe.
Mrs. CUBIN. Is that in-house input.
Mr. GADT. Yes, it is all in-house input at this point.
Mrs. CUBIN. But you will go out and do the appropriate public—the 60-day comment on the rules and so on.
Mr. GADT. Yes, right.
Mrs. CUBIN. I want to make sure you do plan to take public input before hand.
Mr. GADT. Yes.
Mrs. CUBIN. Great. That is all I need to know. I would like to—let me make sure. I have all these notes, I want to make sure I don't have anymore questions of Mr. Blackwell. I don't see any right here. Mr. Drozdoff, would you agree with the statement that there is no problem implementing the new bonding rule?
Mr. DROZDOFF. No, I would not agree with that statement. They have clearly impacted operations and issues in Nevada, the Division of Minerals needed to—or felt it was very appropriate to actually get a new State law in place to expand the scope of some of its statutes to better accommodate issues that stem from the 3809 bonding rule.
Again, we have committed to work with the State office on some of the activities, or some of the needs now that stem from 3809, but they have clearly created more work for at least two State agencies, and so, no.
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Mrs. CUBIN. I am not going to ask Ms. Rivers–Council that question because on June 19, 1997, Solicitor John Leshy testified to the Committee, quote, ''The BLM tells me there is no problem implementing the new bonding rule,'' and I don't want to get you crosswise with anyone, but I just sort of sensed at the time maybe that was an overstatement.
In earlier testimony, Mr. Drozdoff, someone suggested, and I apologize, I can't remember who it was, that the State could enforce the Federal law in environment. Would you agree with that?
Mr. DROZDOFF. Only insofar as that Federal law has been delegated to the State.
Mrs. CUBIN. Assuming it were.
Mr. DROZDOFF. If we have a delegated program, for example, under the Clean Water Act and the MPDS program and there was a violation of a water quality standard from either a permitted or an unpermitted facility, the State would clearly have the ability, if it felt necessary, to take enforcement action on that.
Mrs. CUBIN. And you feel confident the State could recognize your inspection, and then could have the wherewithal under enforcement to maintain the high quality of the environment.
Mr. DROZDOFF. I do. You know, I think that the State, as I stated earlier, the State does take pride and it goes beyond DEP at this point. I think the State, whether it is the State legislatures or other State agencies, I think the State does take pride in what it does in the State and feels comfortable in its approach.
Mrs. CUBIN. Just very—you don't have to be specific about this, but, generally, are the Nevada State environmental laws as stringent as Federal laws?
Mr. DROZDOFF. I would say that they are at least as stringent. As I said, when it comes to federally delegated laws, we implement specific requirements of those laws and regulations into our programs, cross-media, and as we alluded to earlier, there are other areas that are not even covered under Federal law, such as groundwater protection and some of the specifics of our reclamation statutes, State statutes, that are also included, so I think that the State enforces, in the programs that it has delegation, the State enforces those Federal laws appropriately and, further, it enforces its State laws and regulations appropriately.
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Mrs. CUBIN. You mentioned in your testimony the fact that a special levy on miners pays for a liaison person between the Nevada Department of Environmental Protection and the BLM to ensure that the Federal and State permitting is smooth. Would you elaborate on how that works and how it is working as well?
Mr. DROZDOFF. Sure I would. It is a relatively new program. It has been in place for about a year, and the liaison position serves many functions. It serves on large scale issues, such as reviewing our memorandum of understanding with the BLM and the Forest Service on ways to improve that, but as Ms. Rivers–Council said, there are other issues that continually have come up that require more immediate attention and they are specific on the ground issues.
At a specific mind-set, that may require that the two agencies communicate effectively and quickly, and all three of those areas, the liaison position has helped. Its genesis was—the position was a 1-year position that was in place. The BLM, the NDEP, environmental groups and industry, it seemed like it was doing a good—it was providing a good service. Certainly, I would think from the industry's perspective, they were able to talk to both agencies at one time, which was an improvement. And so I would say it has been a good success, and the point I guess I would make about that in relation to the entire 3809 process is if it is determined that 3809 needs to be reviewed, the area where some information would be—it would be interesting to hear whether having this sort of flexible approach, having the resources to fund liaison positions and having ability to put forth meaningful memorandums of understanding, I think, would go very far in everybody's role of protecting the environment, but at the same point, give everybody the tools to do it in a way that makes the most sense.
Mrs. CUBIN. One last thing. We certainly would welcome written testimony from the State engineer.
Mr. DROZDOFF. OK.
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Mrs. CUBIN. I guess I can go ahead and cover this—well, never mind. Now, I would like to move to Ms. Rivers–Council, and first of all, congratulate you and you, Mr. Blackwell, on testimony from Mr. Drozdoff that said how you worked together, and that is absolutely the most important thing and it really is the only bit of good news I have really received coming out into the districts and into the States and I really do appreciate that and just encourage you to keep up that level of cooperation in working with the local people, the companies and the State governments.
You mentioned the USGS' efforts to study the hydrology in the Humboldt Basin. How does this effect differ from Dr. Myers' work, the Great Basin Mine Watch?
Ms. RIVERS–COUNCIL. I really can't respond to how Dr. Myers' work differs or has similarities to what the USGS is doing in concert with other partners, universities, industry. I really cannot speak to that at all, Congresswoman.
Mrs. CUBIN. That is fine. Let me ask you this question, then. What do you think of the concept that if the Nevada State engineer does not interpret Nevada environmental laws, water laws appropriately, that the BLM should step in and enforce those laws.
Ms. RIVERS–COUNCIL. I am not sure I understand if you are asking me for an opinion or if something has been stated in that regard.
Mrs. CUBIN. And this certainly, I want to be fair to Dr. Myers, so if he hears something here he disagrees with, I encourage you to send in your written response afterwards, but after his testimony, I asked him if my understanding was correct, that he would suggest that if the Nevada State engineer was not interpreting Nevada water law or environmental law correctly, or appropriately, that the BLM should step in and do that, and you heard his answer.
Ms. RIVERS–COUNCIL. I do remember the question now that I have heard you ask it again. I guess I have not even considered that the State water engineer could not interpret appropriately. We do work so closely together, the BLM and the State, and our relationships are intact in such a way that if there are concerns or disagreements, we are able to at least sit down and try to talk through what those issues are. It would be very difficult for me to even envision that we would have to necessarily step in over the water engineer.
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Mrs. CUBIN. Thank you. Congress did the 2-acre exemption under Smacker in the late 1980's because there was evidence that—when I say ''did in,'' I mean they eliminated it. There was evidence that they were stringing—that some coal miners in Appalachian, not Wyoming, were stringing some of those 1.9-acre sections and so they took that back.
Do you have any fear that if the 5-acre exemption was eliminated, I mean, I have fear that what Representative Gibbons talked about might happen. Do you have any opinion on what impact that stringing together could have with the 1.9-acre operations?
Ms. RIVERS–COUNCIL. I would hesitate to try to compare the mining laws with coal mining because, No. 1, I know very, very little about coal mining and probably just a fraction more on mining activities. I believe that Secretary Babbitt's intent is to fully scope out the impacts of either eliminating the 5-acre threshold or maintaining it.
Mrs. CUBIN. So that wouldn't fit at all, then. Everyone would just be in operation.
Ms. RIVERS–COUNCIL. I think there are a couple of possibilities. It could remain that it is a notice issue or it could become a full plan kind of an issue, or it could be considered along with basic surface use, and that is one of the elements of the scoping that is being reviewed, which gets into casual use, and that is basic surface disturbance.
Mrs. CUBIN. Thank you. I don't have any more questions. Just a statement that I am delighted to see a woman in your position because, frankly, sorry guys, we need a lot more women.
Ms. RIVERS–COUNCIL. Thank you. I agree with you 100 percent.
Mrs. CUBIN. This will conclude the official part of the—not the official, but the testimonial part of the hearing. I want to say one thing. I know that there are people here and people who wish they could be here who wanted to be able to testify in front of the Committee, and Jim wanted to make this statement.
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Mr. GIBBONS. I had it all written out.
Mrs. CUBIN. This is his statement. He is the guy here, he can do it.
Mr. GIBBONS. I just wanted to offer, Madam Chairman, because of the limited time here today and the number of witnesses who wanted to testify who had information that they thought would be pertinent to these hearings, that we offer them an opportunity to submit in writing, and I would be happy to act as the receiver of that information to ensure that it got to the Committee and into the public record, any comments that they wanted to make, that they feel should be a part of the public record here today. So I would ask unanimous consent from the Committee that we have an opportunity to submit written testimony from those who were not provided an opportunity today, within a timeframe and I would limit that to about a 3-week period.
Mrs. CUBIN. Actually, we don't even probably need unanimous consent. That is the policy of this Subcommittee, although the 3-week period that you request is longer than is typical. Usually we have a 10-day period before we close a record, but I am certainly happy to grant a 3-week period where anyone can send written testimony or comments on testimony that you may have heard and you can send that either to Representative Gibbons or directly to the Committee, which is generally the way that works, so thank you all.
And the clerk, who is the real boss of this place, says be sure to include that those comments should say for the public record when they are submitted. So thank you all very much for your attendance here today and your concern about what is going on in the State and the country and it has been my pleasure to be here in Nevada with you and I do certainly hope to return.
[Whereupon, at 1:10 p.m., the Subcommittee was adjourned.]
[Additional material submitted for the record follows.]
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STATEMENT OF BILL W. UPTON, PLACER DOME U.S. INC.
My name is Bill Upton. I am the Manager of Environmental Affairs for Placer Dome U.S. Inc. (PDUS). In this capacity, I have direct and oversight permitting responsibilities for PDUS. Placer Dome U.S. Inc. operates three large gold mines in the United States (two in Nevada and one in Montana) and conducts extensive mineral exploration throughout the west including Alaska. Our United States operations employ a total of 955 people. We employ people in Nevada, Montana, Alaska and Kentucky.
Placer Dome U.S. Inc. has a long history of permitting and operating on public land in Nevada and Montana. Our most recent permitting experience is the expansion of our existing mining operations. In Nevada, Cortez Gold Mines began operations in 1969 and is located primarily on public land administered by the BLM and Bald Mountain Mine began operations in 1981 and is located exclusively on BLM administered lands. Our Golden Sunlight Mine in Montana began operations in 1981 and is primarily located on private land but also operates on some BLM administered land.
All of our operations are permitted under the requirements of 43 CFR 3809 and have undergone extensive environmental reviews pursuant to the National Environmental Policy Act (NEPA). Permitting under 3809 and NEPA has been ongoing at Cortez Gold Mines since 1990. The BLM completed their first Environmental Impact Statement for Cortez in 1993. Subsequent discoveries led to the permitting of our Crescent Pit and preparation of another EIS for our Pipeline Pit and No. 2 Mill Expansion. The BLM is currently completing an Environmental Impact Statement for the most recent Cortez Plan of Operations, ''The 1996 Amendment to the Pipeline Plan of Operations, for the South Pipeline Project,'' which was submitted in September 1996.
In 1993 PDUS acquired the Alligator Ridge Mine, which was originally permitted under 3809 in 1981 by another operator, and merged it with our nearby Bald Mountain Mine operations which began commercial scale heap leaching operations in 1985. The BLM completed an EIS for the expansion of Bald Mountain Mine in 1995 and most recently permitted Bald Mountain's LJ Ridge expansion. In 1993 Bald Mountain mine received the Nevada Governors Award for outstanding reclamation and just this year PDUS received the BLM National ''Health of the Land Award'' for our reclamation efforts conducted at the Alligator Ridge Mine.
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At Golden Sunlight in Montana initial mine development was permitted in 1981 under the Montana Mining and Mineral Policy Act and the Montana Environmental Policy Act. In 1995 the mine submitted an application to expand operations and the Montana Department of Environmental Quality as the lead agency and the BLM as a cooperating agency are completing an EIS for the expansion.
Nevada and Montana have primacy for permit programs required by the Resource Conservation and Recovery, Clean Water, and the Clean Air Acts. In addition both states have regulations requiring the reclamation of lands disturbed by mining. Each PDUS mining operation has obtained and must comply with the requirements of these various state and Federal permits as well.
PDUS supports reasonable surface management and permitting regulations for our operations on both public and private lands. Based on our experience with permitting mining activities on public lands in two different states, we believe the current Federal permitting requirements adequately protect public lands and that any further Federal permitting requirements or regulation would be of little benefit and would only duplicate existing State programs and complicate the excellent State and Federal permitting and regulatory programs in these states.
The remainder of my testimony will center on the BLM's review of possible changes to their surface management regulations for mineral operations under 43 CFR 3809. PDUS had the opportunity to tour several members of the BLM Task Force conducting this review at our Pipeline Project in April and at Golden Sunlight in early September. The Task Force saw first hand how many of the issues they are concerned with in 3809 are being managed effectively on the ground under their current regulations and the strong State and Federal regulatory programs in both states.
For example at Cortez they saw Notice Level exploration drilling operations and the controls incorporated in these operations to prevent unnecessary and undue degradation. They walked over areas where similar activities had been conducted the season before and which had already been reclaimed and which were nearly indistinguishable from the adjacent undisturbed land. They saw the comparatively low density and intensity of disturbance typical of this activity. We explained to them how important Notice Level exploration is to our long term planning and survival, how it provides the opportunity to gain timely access to prospective areas to further assess their mineral potential before investing the enormous amount of time and money required to permit Plan Level disturbance (greater than 5 acres) under 3809.
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At Golden Sunlight the details of their steep slope reclamation plan including a sophisticated soil cover, revegetation emphasizing the establishment of native plant species and comprehensive reclamation monitoring program were observed. The Task Force observed the importance of incorporating site specific conditions such as topography, soils and precipitation into the reclamation plan and how this had been accomplished through the existing State and Federal permitting program in Montana. They also saw the distinct differences in site conditions between Golden Sunlight and Cortez. Unlike many other industries mining can only occur where the resource is located. The contrast in site conditions between Golden Sunlight and Cortez and the resulting differences in their reclamation plans are a good example of why ''one size fits all'' performance standards would be inappropriate for hard rock mining given the wide variety of site conditions within which it can occur.
Pit backfilling including the enormous expense in dollars and resources to accomplish it, the potential adverse environmental impacts associated with it and the loss in potential mineable resources it would result in were discussed at both operations with the Task Force. The Task Force learned first hand how this issue was included in the alternative analysis during the permitting of both operations and therefore is already receiving detailed evaluation as part of existing State and Federal permitting requirements.
Most importantly the Task Force saw how permitting and regulation of hard rock mining is being effectively coordinated with State Government in both Nevada and Montana. They saw how the permitting role of these States on issues concerning air quality and water quality and quantity is being coordinated with the BLM and effectively carried out in a manner protective of public lands.
We took the opportunity while the Task Force was touring our mines to emphasize that while they were considering revisions to their 3809 regulations there were many other new or pending state and Federal regulatory proposals which individually and collectively would have significant affect on our operations and our industry in general. The most important of these new and pending rulemakings include the following: EPA's addition of hard rock mining to the list of industries covered by the Toxic Release Inventory requirements, new particulate standards for regulating dust, proposed regional haze regulations, efforts to possibly narrow or eliminate the Bevill Amendment, and proposed Hard Rock Mining Framework, and the new BLM bonding requirements. We urged the Task Force to consider these recent or pending regulatory changes as part of their review.
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In summary PDUS believes, as we showed and explained to the BLM 3809 Task Force, the existing 3809 regulations are working to protect public lands. As new and expanded mining methods and operations begin the current 3809 regulations complemented by strong state regulatory programs have provided for and will continue to provide for the adequate protection of public lands. Contrary to those who oppose mining or would support additional regulatory controls on our operations, we have not seen any evidence that additional regulation is warranted. The examples I've provided from our operations in Nevada and Montana are testimony to the fact that current regulations are comprehensive and when properly implemented in coordination with state programs adequately protect public, as well as, private lands.
I want to thank you for the opportunity to address this Committee and will do my best to answer any questions.
STATEMENT OF EVERETT E. GUSTIN
Madam Chairman, Honorable Members:
Welcome to Elko. I sincerely appreciate your willingness to conduct this oversight hearing on this most vital issue. More importantly, that you are reaching out for constituent input is very encouraging.
Having been involved in the mining industry in the Western United States for some twenty-seven years in several different capacities ranging from tramp miner to superintendent of mining at two large operations, to mine claim holder, to owner of an independent contracting business serving mining, I've been afforded many different perspectives on the evolution of the regulatory regime and political and populist perceptions of the value of mining in modern day life in this country.
But how these perceptions and attitudes interface with reality and legality is the subject at hand today. The current effort to rewrite through administrative fiat mining rules and regulations that have taken over one hundred and thirty years to evolve and be refined is at best, the height of bureaucratic arrogance and at worst, a crude, misdirected and illegal power play that simply cannot be tolerated by Congress, the states, the courts or the people of this country.
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Stepping away from generalities and moving into specifics, I offer the following for your consideration:
Why are we bringing forth words here today to our duly elected representatives asking them to rein in the activities of a government employee run wild? An appointee within whose purported purview it is, to write the regulations, implement the rules, and review and adjudicate decisions concerning basic individual rights violate the separation of powers doctrine. The western United States ''subject'' of this medieval realm, who thought he owned the possessory title in mining, grazing, water or agricultural rights, and the rights to make improvements on such, is dragged through a kangaroo gathering called the court of administrative appeals, where the legislative, executive and judicial branches have been rolled into one easy instrument of rule without recourse.
And what is the alleged mechanism justifying this complete bypass of our system of checks and balances and the separation of powers?: The proprietary interest of the Federal Government in 87 percent of the State of Nevada. The very Federal Government of whose mandates include fairness and equality between the States and of the Bill of Rights for our individual citizens. Where did we go wrong? How many people in the State of Nevada and the other western States are chained to the arbitrary rule of appointed and, anointed by some, administrative henchmen such as the Secretary of the Interior? A position now apparently on a historically increasing momentum with the inclination to assign itself police powers, ignore Federal law attempting to regulate itself, i.e. the Administrative Procedures Act, and strip American Citizens of their Bill of Rights when engaging in activity out on the land that is purported to ''belong to all of us.''
Justice Scalia writing for the majority in the June 27, 1997, Supreme Court case Printz vs U.S., instructed us: ''The separation of the two sovereign spheres is one of the Constitution's structural protections of liberty. Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.''
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To quote further: ''In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people . . .'' and ''Federal commandeering of State governments is such a novel phenomenon that this Court's first experience with it did not occur until the 1970's when the E.P.A. promulgated regulations requiring states to prescribe auto emission testing . . . and on this issue, the Courts of Appeals for the Fourth and Ninth Circuits invalidated the regulations on statutory grounds in order to avoid what they perceived to be grave constitutional issues. The District of Columbia Circuit invalidated the regulations on both Constitutional and statutory grounds. After the Supreme Court granted certiorari to review statutory and constitutional validity of the regulation; the Government declined to defend them and instead rescinded some and conceded the invalidity of those that remained. . . .''
And in conclusion, he wrote . . .
''We held in New York that Congress cannot compel the States to enact or enforce a Federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting that State's officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a Federal regulatory program. It matters not whether policymaking is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty. Accordingly, the judgment of the Court of Appeals for the Ninth Circuit is reversed.''
I'm certain that the Honorable Members here today are familiar with and understand the intent of the court's instruction. So, I ask you today, are Members of Congress ready to tackle this issue politically and legally or will the burden fall to the directly affected parties yet again?
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Mining is America's financial backbone. The Mining Law is the last great vestige of acquiring proprietary interest by common law principle, mixing sweat with soil to earn equity. Mining has made America strong without subsidy.
I've witnessed 70 percent of the mining claims be regulated and taxed out of business in the last several years. I've experienced a 40 percent reduction in my personal business this year because of an illegal bonding rule implementation. Mining has been under an escalating P.R. assault for the past several years. We try to respond with reason and logic and compliance and what does it get us? More assault, more restrictions. I've personally traveled to countless meetings, raised funds for lawsuits on behalf of mining, been personally harassed for becoming politically active and openly advocating for mining. Many others have made these and other sacrifices, but we are losing the war. I encourage you to legislate, leverage funding and even litigate to bring this insanity to an abrupt halt. There is nothing to be gained by allowing the 3809 rewrite to advance as proposed, and everything to be lost. You have either heard or will hear from others today that the mining industry in Nevada does an excellent job under the current statutory framework. No notable shortcomings are evident. I assure you that an industry already suffering under falling commodity prices, over-regulation, severely shaken stock market confidence and severely restricted access to prime exploration land will have no alternative but to look elsewhere. They will continue to take their money, expertise and many jobs with them.
I understand the difficulties you face in Congress from a political and ''numbers game'' standpoint. Perhaps a challenge to this action on constitutional grounds would be more productive for us all. The Supreme Court seems to agree.
The states are and can continue to be capable of enforcing regulations to ensure environmentally responsible mining activity. Please pave the way to allow that to happen.
Thank you for the opportunity to present my views.
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STATEMENT OF ROYCE L. HACKWORTH, CHAIRMAN, ELKO COUNTY COMMISSION
Madam Chairman and Subcommittee Members on Energy and Mineral Resources, I am Royce L. Hackworth, Chairman of the Elko County Commission and owner of Hackworth Drilling Inc.
I want to welcome you to Elko the county seat of Elko County. I appreciate this Subcommittee coming to the people and area where the revision of the 3809 regulations will effect. It shows the mining industry, the residents of Elko County and the United States the willingness and concern you have in getting the facts on whether the BLM needs to rewrite the 3809 regulations.
Elko County is 10,900,000 acres in size, yet only 28 percent of it is under private ownership. The other approximately 72 percent of the county is Public Lands under Federal Management. On the public lands in Elko County the mining industry does explore for and find many valuable mineral deposits, such as gold, silver, copper, barite bentonite and gypsum just to name a few. The mining industry creates many good paying jobs in the exploration of and development of these resources. On average the industry pays in excess of $38,000 per year plus benefits in the jobs it creates. The jobs that are created employ people with PhD's all the way down to those who did not complete high school. The mining industry creates good paying jobs for men and women alike. These high paying jobs do not make their employees depend on state and Federal subsidized housing, food programs, health care programs to live the American Dream. In fact the industry and their employees pay taxes for those who depend upon state and Federal programs just to live.
My concern is the change in attitude toward the mining industry by the Federal agencies by the implementation on undue or excessive regulations. What troubles me is the method and reasoning the BLM has used in deciding ehange the 3809 regulations. I do not believe nor will I accept the Secretary of the Interior haviing the power to circumvent the NEPA process and Congress in changing the 3809 regulations. The BLM does not clearly define a purpose and need along with a definitive and specific proposed action for public scoping as NEPA regulations require that every EIS ''briefly specify the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed actions.'' 40 CFR 1502.13. When the secretary makes a statement (in his letter of January 6, 1997) that ''It is plainly no longer in the public interest to wait for Congress to enact legislation . . .'' I fear for the future of our country. Nor the framers of our Constitution or you as duly elected Members of Congress would or should believe that any Federal agency could obtain or try to circumvent the powers given to Congress. The 3809 regulations are not an impending emergency to our national security. So why should the Secretary be permitted not to follow the normal NEPA process or circumvent Congressional wisdom.
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The Federal public land agencies cannot nor should not be given unlimited ability to create regulations without Congressional oversight. Let me give you a couple of examples of regulations run amuck by the Federal Land agencies in our county.
1. Here in Elko County, U.S. Forest Service employees of the Humboldt–Toiyabe National Forest, are protected by agency regulations that prohibit them from being subpoenaed to testify before a grand jury. A classic example of a employee being immune from the laws that every citizen of the United States has to abide by.
2. Where logic does not work when it comes to Federal land managers just following the regulations they are in charge of—Jarbidge Community Cemetery. Elko County in trying to obtain a one-acre addition to expand the current cemetery. The USFS comes back to the county with a 20 year lease for the one acre parcel. The county is in a dilemma. We do not know whether to rename the cemetery the Jarbidge Community Time Share Cemetery or the Jarbidge–Lazarus Cemetery. With the current boldness of the Federal Land Agencies in creating new regulations, I feel they believe, they have been granted a higher power of authority. However, I do not believe they will be able to raise the dead every 20 years to renew their cemetery lease.
3. This year the BLM enacted new bonding requirements for claim holders on the public lands without following the NEPA process correctly. This is just putting more nails in coffin for mining activity in the United States. We have already seen a 70 percent reduction in claim holders when the $100 holding fee per claim was enacted. By not encouraging people and companies to look for mineral discovery here at home we are driving the mining industry outside of our country with good paying jobs.
I am here today as a County Commissioner asking you to please stop the BLM from enacting undue regulations on the mining industry. The current regulations are being handled by the states and current Federal law. Please use what ever power you have to curtail the Secretary of the Interior for not following the true NEPA process in creating regulations. Also, I am asking you to revoke the newly enacted BLM bonding regulation and have the bonding regulations go through a true NEPA process that defines the purpose and needs in the way the law intended it to be enacted. In the State of Nevada we have a comprehensive regulatory environment to protect the citizens and the lands in our state.
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I thank you for the opportunity to make this testimony.
STATEMENT OF ZANE STANLEY MILES, CHIEF DEPUTY, EUREKA COUNTY DISTRICT ATTORNEY
Chairman Cubin and Members of the Subcommittee:
My name is Zane Stanley Miles. I am a member of the Nevada State Bar, currently serving as deputy district attorney of Eureka County, the leading county in the United States for the production of gold. I am here representing the district attorney's office and Eureka County. My office and Eureka County government are grateful to the Committee for its decision to come to Gold Country, U.S.A., to hear our comments on proposed revisions to hardrock mining regulations.
My qualifications to give testimony before you today are based upon my extensive experience in and observing local government in Nevada, California, Colorado and Washington State. During the past 20 years I have served as a district attorney or deputy district attorney in three Nevada mining and ranching counties and as public defender for Elko County where we meet today. Previously, I was the editor of daily newspapers in four different states, including two dailies in Nevada, and served for some years as state editor and business editor of the old Nevada State Journal in Reno. I don't consider myself an academic expert, but I do know from practical experience how local government works and should work. And I do know a lot about rural Nevada and its economy.
There are many other persons scheduled to testify today who are far better qualified than I am to discuss technical mining matters. Therefore, our testimony will be concerned primarily with the LEGAL effects of the regulations proposed by the Department of the Interior.
It is our belief that there are no legal benefits—and that there are substantial legal detriments—to be found in the proposed regulations. When subjected to a cost/benefit analysis, the proposals fall short of providing any rationale for their adoption. The reasons for our belief are set forth below.
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I—THE MINING LAWS OF 1866 AND 1873 HAVE WORKED FOR 125 YEARS. TODAY, THE LAWS HAVE BEEN GUTTED BY INTERIOR'S BUREAUCRACY.
Congress in 1866 and 1873 enacted legislation intended to further and encourage development and use of the mineral resources of the Western territories. Those Acts and other laws effectively severed mineral rights from the basic fee estate, and authorized the public to appropriate and develop the minerals. Some authorization (patenting) was expressly spelled out in the statutes; the laws also generally recognized the Western laws and custom of prior appropriation to beneficial use (unpatented claims).
Subject to bonanza and borrasca, boom and bust, mining prospered in the West for a century. The majesty, the greatness of the Congressional scheme was that the Western mineral lodes were available to anyone willing to tramp the hills and look for color. The resources were not solely for big business, they benefited the little guy as well.
For years and years the small miner and prospector could protect his interest in an unpatented claim by doing a small amount of ''assessment work'' each year. Thus he could hold onto a prospect until he could raise cash for development, or sell the claim to a larger mining company which had the financial resources to turn a claim into a property with a positive economic yield. In some cases it requires expenditure of millions, even billions, of dollars to convert a hole in the ground into a cash cow.
A few years ago the bureaucrats in the Department of the Interior decided that ''assessment work'' was environmentally unsound. Instead, Interior decreed that an annual cash fee must be paid for every unpatented claim. The result of that ill-advised decision was to drive the small, cash-starved miners and prospectors off their claims. They may have been able to finance the required assessment work each year, or do it themselves, but most of them could not come up with $200 or $100 per year per claim. They were forced to forfeit claims, instead of waiting out economic conditions for the proper time to develop.
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Ironically, almost all of the forfeited claims in Nevada have been taken up by the big mining companies, the very companies that Secretary of Interior Babbitt claims are reaping unwarranted profits. I don't agree with the Secretary's analysis, and Eureka County is pleased as punch to be the host county for giant operations such as Barrick, Newmont and Homestake. We admire their ability to marshal the billions of dollars in resources necessary to develop disseminated gold prospects.
But it is a pity that the big operators no longer depend on the small miner and prospector to find mineral resources. And most of the blame for that is chargeable directly to Secretary Babbitt.
Let me tell you a brief, illustrative story about former clients of mine. They're dead now, and I won't give you any names, although a lot of the people in this room will recognize the facts. The story actually is pretty well known in our area.
He was a small miner and prospector all his life. He and his wife struggled, sometimes in abject poverty. Things never came together for them, but they did stake some promising claims. They did the annual assessment work, often themselves with pick and shovel, to maintain possession. As time passed, she was incapacitated with advanced diabetes; he became deaf and his physical strength deteriorated.
Finally, they were able to sell some 75 claims to one of the big mining companies in a deal that would have paid them millions over an eight-year span. Life had passed them by, however. They were able to buy a new car before he collapsed and died from a massive heart attack; she died not long after.
I wish my clients had been able to enjoy more of the fruits of their labors, but at least they received some benefit. Remember, they were able to keep their claims because they could satisfy the assessment requirements with manual labor. Just a few years later, and they would have lost those 75 claims because they would not have had the money to pay the annual fees imposed by Secretary Babbitt. The big mining company which paid several million dollars for those claims could have simply top-filed and waited until my clients forfeited, picking up the claims for next to nothing. Naturally, in light of management's responsibility to the shareholders, it would have done so rather than paying my clients several million dollars.
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Perhaps Secretary Babbitt isn't evil; maybe he is only an example of the doctrine of unintended consequences. But his policy of requiring annual fees instead of assessment work has deprived hundreds of small prospectors in Nevada, thousands throughout the West, of the benefit of their labors, of the prospect of riches. And that was done by bureaucratic fiat, not after considered, measured debate in Congress.
The Mining Laws of 1866 and 1872 worked, and worked well, until the Department of the Interior came under the control of a group of well-intentioned but ill-informed Secretary and bureaucrats who have imposed adverse regulations without approval of Congress. It is up to the Congress of the United States to take back law-making power from the bureaucrats, and revest that precious authority in the elected representatives of the people.
There is a place, more than that, there is a need, in development of the mineral resources of the West for both the small prospector and the mega-corporation. Congress should insure that there is room for both.
II—STATE AND LOCAL GOVERNMENT ARE CAPABLE OF ENFORCING MINING REGULATIONS; THERE IS NO NEED FOR EXTENSIVE FEDERAL ACTION.
Perhaps the most disturbing current trend in the Department of Interior is the apparent belief that only the bureaucracy in Washington, DC, knows what is best. The bureaucrats regularly ignore local government, just as they regularly ignore the Congress of the United States. It is appalling that Secretary Babbitt can declare that, since Congress has chosen not to act on some of his pet projects, that he'll impose his beliefs anyhow by adoption of bureaucratic rules and regulations.
On a state and local level, the State of Nevada and Nevada's mining counties have an excellent record of commonsense enforcement of environmental and other controls on the mining industry. Our enforcement is thoughtful, unbiased, complete, effective, and accomplished with due regard for the benefits resulting from mineral development.
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From our viewpoint, certain things aren't really worth worrying about. A good example is Secretary Babbitt's new regulation which requires bonding for reclamation of areas of disturbance of only five acres.
Nevada's land area is 110,000 square miles, 640 acres per square mile. Perhaps a tenth of that area has mineral potential. Far less than a tenth of that tenth (1 percent of our total area) ever will be subject to surface disturbance. Five-acre mine sites just don't amount to much in the greater scheme of things. Imposing bonding requirements on five-acre sites simply serves to impoverish the small, cash-starved miner and prospector who is struggling to develop a prospect.
However, if Congress in its wisdom were to decree that all environmental rules be applied to such small sites, the Nevada Division of Minerals and the local District Attorneys would enforce the laws. We've done so in the past in other contexts. I know of important mines in Nevada which have been prosecuted by the local District Attorney for violation of the Migratory Bird Act or the Endangered Species Act. Some of us may not think much of some of those laws, but as long as they are on the books, we'll do our job.
Generally, in Nevada, our Legislature has seen fit to authorize state agencies to contract with the Federal Government to enforce such laws. It's part of our frontier heritage. If it has to be done, we'd rather do it ourselves. We still insist that the phrase, ''I'm from the Federal Government and I'm here to help you''! is an oxymoron. So, our Nevada Division of Environmental Protection enforces Federal environmental law; our Division of Mines enforces Federal mining laws; our Department of Wildlife enforces Federal migratory bird laws and endangered species laws.
And in all of those cases, the office of the local District Attorney is charged with the duty of prosecution after the state offices have completed their investigation of alleged irregularities. Only in very limited circumstances does our Nevada Attorney General have the authority to intervene in such matters.
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In Nevada, we believe that laws should be enforced by the political entity closest to the people, county government through its district attorneys. We believe that local enforcement is much more acceptable to the public than enforcement emanating from some bureaucrat's office in Washington. The imposition of regulations AND the imposition of enforcement from above is antithetical to the American experience. We don't need national police forces. Unfortunately, in the past 30 years power-hungry Federal bureaucrats have moved in that direction.
Our local District Attorneys prosecute even unpopular laws without fear of favor. An example:
In one of Nevada's mining counties a few years ago a couple of migratory birds managed to get inside the netting which a mine had erected to keep birds and animals out of a cyanide-laden pond. The mining company had gone to considerable expense to comply with the applicable Federal laws. The exploring birds died, of course. The Nevada Division of Wildlife investigated, and submitted the facts to the District Attorney. The District Attorney, although the decision certainly was unpopular with mining interests, prosecuted and obtained a very substantial fine in settlement. I believe it was $50,000, or $25,000 per bird. The exact amount isn't important. What is important is that the state and local authorities handled the matter, expeditiously and efficiently, without any need for recourse to the Federal courts.
If I can make any points to you today, it would be these two:
(1) Congress must take its law-making powers more seriously, and sharply limit the power of unelected bureaucrats to make rules and regulations with the force of law, and
(2) Where Federal laws, rules and regulations are needed, Congress should mandate that its laws be enforced by the states and local governments if the states and local governments are willing so to do. Direct Federal enforcement is unnecessary unless states and counties refuse to act. That has not been the case in Nevada.
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Respectfully submitted by the EUREKA COUNTY DISTRICT ATTORNEY, William E. Schaeffer, District Attorney
STATEMENT OF JACK BLACKWELL, DEPUTY REGIONAL FORESTER, INTERMOUNTAIN REGION, USDA, FOREST SERVICE
Madam Chairman and Members of the Subcommittee:
Thank you for the opportunity to discuss the Forest Service's hard rock mining program.
For over 125 years, the mining industry has explored and developed locatable minerals underlying Federal lands, under provisions of the 1872 Mining Law. The Mining Law of 1872, and legislation since 1872, make public lands available for mineral development, allow private enterprise to develop and maintain an economically sound and stable domestic mining industry, and provide for the orderly development of domestic mineral resources.
Under Forest Service regulations, operators are required to reclaim lands to prevent or control damage to the environment so that existing problems with abandoned mines are not compounded.
Reclamation must be accomplished to protect other affected resources and minimize on-site and off-site damage, and to protect public safety. Before operations commence, the Forest Service in conjunction with operators, must establish and document in the plan of operations the reclamation standards for each site-specific activity.
Currently, under USDA regulations, minerals are considered in the overall context of planning for all resources. We have made progress in the last few years in administering our regulations for locatable minerals, including more thorough documentation and disclosure of effects of mineral activities under the National Environmental Policy Act. We strive to continually improve planning and administrative activities under statutory authority.
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Hard Rock Mining Permitting Process
The Forest Service administers 5,000 to 6,000 plans of operation each year for hard rock mineral projects. The Intermountain Region, of which the Humboldt–Toiyabe National Forests are a part, has the heaviest minerals workload within the Forest Service. The Region administers about 2000 hard rock plans of operation per year.
When we receive a mining proposal, it is analyzed to determine if a plan of operations is necessary. If necessary, the plan is reviewed to determine if it contains the required information, what level of environmental analysis is needed, and if additional time is required to review the plan of operations. Within thirty days of receipt of a plan of operations, the district ranger informs the operator of the status of the plan.
Once all necessary information is provided, the environmental analysis is undertaken to analyze and disclose potential environment effects, and alternatives to the proposal. The plan of operations may be revised to include any additional items identified in the decision which were not in the original plan of operations. Once the plan is complete and a bond has been submitted for reclamation, the plan is approved.
Generally, projects are processed expeditiously in cooperation with the mining companies. The Forest Service discusses the proposal with the company to determine how the proposal can best meet the intent of the regulations. The Forest Service works with other Federal, state and local agencies to help coordinate the permitting process and avoid duplication. Memorandums of Understanding exist for program-wide coordination and are also developed for project-specific needs to facilitate this cooperation.
When project applications are received, the Intermountain Region strives to process mining operation applications quickly to accommodate the company's schedule, within the constraints of existing laws and regulations. For example, here in Elko County, the Jerritt Canyon Mine Expansion and DASH Project, both major undertakings, were permitted in less than 16 months. In contrast, a 1996 study commissioned by the Gold Institute found that the average time to permit a gold mine in the United States was in the range of 4 to 5 years.
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One shortcoming of the Forest Service's permitting process for mining operations is our inability to meet consistently the timeframes specified in minerals regulations. The Forest Service is working hard to have these time frames work concurrently with other mandatory time frames, rather than sequentially. The Council on Environmental Quality is also working to remedy the problem of inconsistent time frames through its NEPA effectiveness study.
Field units with the heaviest hard rock mining workloads have also been encouraging a regulatory review and update for a number of other issues. Accordingly, we are examining possible modification of the surface-use regulations and have included this effort in the fiscal year 1997 plan of work, which will extend into fiscal year 1998.
These regulations were first issued in 1974, and no substantive modifications have occurred since. They have provided the Forest Service and the mining community with the means of meeting their mutual environmental responsibilities to protect the surface resources of National Forest System lands. They are intended to provide that protection without unreasonably inhibiting or restricting the activities of prospectors and miners.
Current Status of Regulatory Review
The Forest Service is examining changes to address shortcomings in the areas of occupancy, notices of intent, plans of operations, reclamation, and bonding. This effort is being coordinated with the Bureau of Land Management's review of its surface management regulations. The joint agency goal is to have regulations as consistent as possible.
As we stated earlier, managing the surface resource effects of operations, much work remains to remediate the effects of historical operations which have been abandoned. The Forest Service, in cooperation with state and other agencies, is working to identify and correct these problems.
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This concludes my prepared testimony and I would be pleased to answer questions you may have.
STATEMENT OF JEAN RIVERS-COUNCIL, ASSOCIATE STATE DIRECTOR, NEVADA STATE OFFICE, BUREAU OF LAND MANAGEMENT
Madam Chair and members of the Subcommittee. I appreciate the opportunity to appear here today to discuss the status of permitting hardrock mining operations on public lands managed by the Bureau of Land Management (BLM) in Nevada. The BLM regulates these operations pursuant to the general mining laws of the United States and the Federal Land Policy and Management Act.
The State of Nevada is often called the Silver State. It became a state shortly after the discovery of the rich silver deposits of the Comstock Lode on the east side of the Sierra Nevada Mountains. Now, more than a century later, gold production in northern Nevada has eclipsed the silver production of the famous Comstock.
It is important to note that proper management of minerals production is only one of many resource issues for the BLM in Nevada. About 67 percent of the total land in Nevada is managed by the BLM. In addition, BLM Nevada has recorded over 756,000 mining claims of which 135,000 are still active (involving more than two million acres). More than half of all new claims filed annually with the BLM are recorded in Nevada.
Today I would like to focus on one aspect of the BLM's Nevada programs—the BLM's work with the mining industry. Nevada is the largest producer of gold and silver in the United States. About 67 percent of gold production in the Nation is from Nevada. That amounts to over seven million ounces per year. It can be said that the modern gold rush started in Nevada. Public lands have played a significant role in mineral development in Nevada. They continue to do so.
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Processing Trends
To meet the needs of industry during this rush, the BLM and other regulatory agencies have worked intensively to reduce the time required to process notices and plans of operations. In the late 1980's, the time required to review and approve plans of operations and environmental impact statements was measured in years. The BLM recognized the pace of processing those plans was unacceptable. We addressed our process and improved it. In the last 2 years the BLM has developed more consistent and predictable technical guidelines. In several areas the agency has taken management steps to improve the quality and timeliness of review. Even with more complex plans of operation today, we have decreased review time. Some reviews of major plans of operations and environmental impact statements in Nevada take only twelve to fifteen months.
In coordination with agencies of the State of Nevada, the BLM is now processing 13 major new mining projects, mine expansions, and environmental impact statements. There are about 2,300 active existing notices of operations and 335 open plans of operations on the public lands managed by the BLM in Nevada.
Regulatory Framework
The basic Federal regulations under which we operate are found in 43 CFR Part 3800. One provision of these regulations relates to smaller exploration and mining operations on public lands. These are operations which cause a cumulative surface disturbance of five acres or less. These operators are required to notify the BLM at least 15 calendar days before commencing operations.
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The regulations are different for exploration and mining projects on public lands managed by the BLM that exceed five acres of disturbance. These operators must have a plan of operation analyzed and approved by the BLM. As a Federal agency, the BLM has a regulatory responsibility to assure that all Federal laws and regulations are met. The agency must properly analyze the information and impacts concerning any proposed operation. It has a responsibility to disclose information on mining operations to the public, as the ultimate owners of the land.
When the BLM processes exploration and mine plans and notices of operations, it must follow numerous Federal laws. These include the National Environmental Policy Act; National Historic Preservation Act; Endangered Species Act; Native American Graves Protection and Repatriation Act; American Indian Religious Freedom Act; Migratory Bird Treaty Act; the Federal Land Policy and Management Act; and the various statutes which make up the General Mining Law.
Changes affecting Processing Time
As I noted earlier, development of mineral resources in Nevada has grown rapidly in recent years. Nevada production has escalated from about a half million ounces of gold per year in 1981 to over seven million ounces in 1997. A large percentage of that production occurred on America's public lands. New production activity has shifted away from mining in shallow pits with simple leach grade oxide ores. Today's production comes from huge, deep open pits. Some of it also comes from underground mining. Some mines are producing gold from more than 1,200 feet below the surface. Furthermore, the ores produced today possess a far more complex chemistry and more expensive and challenging to process than those mined in the past.
In many of the valleys of Nevada, the ore lies below the water table. In the 1980's, these mines dewatered at an initial rate of 7,000 to 8,000 gallons per minute. To keep today's mines dry, water must be pumped at rates exceeding 30,000 to 50,000 gallons per minute.
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To provide scientific data to support future Federal and State permitting and environmental activities, the U.S. Geological Survey (USGS) is working as the lead agency with the Nevada Department of Conservation and Natural Resources on a water resource study of the cumulative impacts of mining in the Humboldt River Basin. Major funding has been provided by Barrick Goldstrike and Santa Fe Pacific Gold Companies (now a part of Newmont Mining Corporation).
Major mining corporations have also come forward as working participants in the permitting process. They have voluntarily and willingly funded third party contracts to prepare National Environmental Policy Act documentation. Their willingness to work with the system, and to pay a fair share of the cost, has been crucial in reducing the length of the permitting process.
Good neighbors, cooperation
As I mentioned at the outset, the BLM has responsibility for a major part of the land in Nevada. This agency works hard to be a good neighbor. One way we do that is to work with the State in the mineral exploration and mine permitting program. The BLM has reached some major agreements with the State of Nevada, including two with the Nevada Department of Conservation and Natural Resources.
The first involved development of a program with the Department's Division of Environmental Protection for review of exploration and mining plans, reclamation bonding, inspections and reclamation requirements. Today there is a joint review process in Nevada.
Under a memorandum of understanding with the State Division of Environmental Protection, we jointly hold over $375 million in reclamation bonds and sureties for exploration and mining operations on public lands.
• As part of this agreement, the State of Nevada, through fees paid by industry and allocated by legislation, has created a BLM-State mine permitting liaison position. This person works to resolve mutual concerns regarding permitting. Mining applicants benefit from the efficiency of this joint operation.
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Under a second agreement, the BLM and the Nevada Division of Wildlife are cooperating in developing wildlife protection requirements, especially for tailings ponds and other mine ponds which contain chemicals used in mining operations.
The BLM also works closely with the Nevada Division of Minerals regarding remediation of abandoned mine hazards. Mining has occurred in Nevada for more than 140 years. During that time many prospectors and miners abandoned sites without cleaning them up. The State is helping us with this problem. Last year more than a hundred hazardous mine sites were identified and secured by the state. The Division of Minerals works with the mineral industry and the counties to make lands managed by the BLM safe once more.
The BLM has and will continue to practice and use the best science to address any new emerging issues. This can be achieved only through cooperation with the State and with industry. I have already mentioned the joint USGS–Nevada study of the Humboldt River Basin. The mutual goal is to provide more consistency and better predictability in the process. The results include some points in which we can all take pride. Let me list some of the products of this collaboration between the State, industry and Federal agencies.
• Comprehensive mine revegetation guidelines and standards. • Consistent water data analysis guidelines for mine plans and environmental documentation.
• Guidelines for ecological risk assessment.
• Statewide guidance on how to address cumulative impacts in environmental impact statements.
Challenges
The BLM's hardrock mining surface regulations date back to 1981. Recent updates have included use and occupancy rules, an acid mine drainage policy, and hardrock bonding regulations. Secretary Babbitt in January of this year directed the BLM to form a 3809 task force which would address shortcomings in the current surface regulations, incorporate BLM policies which were developed to supplement the existing regulations, and meet BLM's strategic plan of incorporating ''standards.'' The task force has embarked on a scheduled two year effort to update the 3809 regulations. Issues to be addressed include eliminating or modifying the 5-acre threshold for notices, revising the definition of unnecessary or undue degradation, expanding environmental and reclamation requirements, and clarifying casual use. Scoping meetings were held this spring throughout the country. We will be releasing to the public summaries of the comments at the scoping meetings.
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During your stay here in Elko I am sure you have observed that this is a vital, growing city with a strong economy. The employees of the BLM in Nevada are aware of the important role we play in maintaining this healthy, growing economy. During the past decade technological advances in the mining industry have allowed the region's gold mines to create this expansion. The BLM has kept up with those advances. We have reduced the time required to permit development of these mines on public land. At the same time, we have learned how to address complex, comprehensive plans for mines that are on a scale not imagined twenty years ago.
This concludes my statement. I will be pleased to answer any questions you may have.
STATEMENT OF HON. MIKE FRANZOIA, MAYOR,
Congresswoman Cubin and Congressman Gibbons
I would like to thank you for providing me the opportunity to address you and personally welcome you to our great City.
You are here today to listen to testimony regarding the mining industry. As a citizen of this City for the past 17 years, I would like to share with you the impact we have experienced from mining. All of this I've witnessed first hand.
Elko continues to be a growing, thriving community. In 1980, our population was less than 10,000. We now have a population that approximates 19,000 and are projected to reach a population of nearly 31,000 in the next 15 years. Initially, this growth presented impact challenges to our high quality of life. But through these challenges, the community began receiving many things that we otherwise may have waited for, or perhaps, would never have realized.
Growth has been good for Elko, and the mining industry has played a role in our success. Let me give you a few examples:
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• To bring new families in to the area, the mining industry invested in permanent, quality housing developments. This moved Elko away from being a ''boom'' town in the traditional sense. The traditional ''boom'' town is one that grows temporarily, then upon industry down turn, literally moves out. The permanent investment into Elko by the mining industry insures long-term community sustainability.
• Investment by the mining industry into our recreational facilities enables us to offer activities to citizens and visitors of all ages. Donations in cash and services to recreational projects include equipment, parks, sports fields, and a ski facility.
• Access to cultural activities and events have improved for all of us. Our museum is in the middle of a major expansion, the Western Folklife Center is a major attraction for citizens and visitor alike, and the Great Basin College now has a theater where we can enjoy a variety of entertaining performances. All of these are benefactors of the generosity of the mining industry.
• Education has been enhanced in Elko. What was once known as the Northern Nevada Community College is now Great Basin College. This fine institution offers education and training in a wide variety of fields, including mining technology. And we are all watching for this institution to become a 4 year college in the near future. The mining industry and its employee's have been great supporters of our college as well as our public school system. A new junior high is now in use in the Spring Creek area thanks to the mining industry's major contribution to the project.
We are glad this industry has impacted our community—it has been a positive impact on our quality of life. Legislation and regulation that harm mining is certainly not in the best interest of this community.
Thank you for providing the time to me to share the excitement I feel about this City and the wonderful things we have to celebrate—much of it a result of our mining industry neighbors.
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