The Big Dump

Ten years ago, changes in the Clean Water Act opened the floodgates for mining refuse. Can the flow be reversed?

This election cycle has brought much consternation and gnashing of teeth about tax loopholes. They’re top of mind and tip of the tongue for politicians, pundits and the public. In August, Bloomberg Businessweek’s Brendan Greeley wrote that doing away with such loopholes was “an idea appealing in principle and toxic in practice.”

Greeley was speaking figuratively, but a number of legal loopholes are quite literally toxic. That’s the unappealing reality in some of the West’s most scenic spots, from the Rocky Mountains to Alaska’s Bristol Bay. Because of changes made in the Clean Water Act in 2002, hard-rock mining operations are able to dump more waste materials into more waterways than at any time since the act was originally passed in 1972. One proposed mine in northwest Montana would dump a jaw-dropping 13 million gallons of polluted water each year into freshwater streams, lakes and rivers.

“When the Clean Water Act was passed in 1972, it specifically prohibited mine waste from being disposed of in waterways, and the mining industry operated and permitted mines for years under those requirements,” says Bonnie Gestring of Earthworks, a nonprofit dedicated to protecting the environment from damage due to mineral and energy development. “Now, we have this new regulation that reverts responsible mine-waste disposal back to a century ago.”

In 2002, the Bush administration—through the Environmental Protection Agency and the U.S. Army Corp of Engineers—limited the Clean Water Act in two significant ways: It redefined “waters” to allow mining developers to use natural lakes, wetlands, rivers and streams as “waste-treatment systems,” and it expanded the definition of permissible “fill material” to include waste from hard-rock mines. The EPA now estimates that some 40 percent of Western watersheds are contaminated by heavy metals from hard-rock mining.

“I don’t think people realize fully what a mine entails,” says Jennifer Bock of the Crested Butte, Colo., High Country Citizens’ Alliance. “It’s not just a hole in the ground; mines today are taking apart a mountain and then transporting waste rock, building tailings ponds, building dumps,”

Meanwhile, technology is making it easier for mining companies to dig deeper into nature, says Nic Callero of the National Wildlife Federation.

“Part of [mining’s strength] has to do with the profit margin that exists because of high prices,” he says. “[But] the other part of it has to do with the new technologies that allow mining companies to go into areas that are so remote and off the grid that they would [previously] have been unthinkable.”

Environmental organizations have been pressing for a rollback of the 2002 changes—and their arguments may be having an impact: Next year the EPA and the U.S. Army Corps of Engineers will convene for a rules review to reconsider the loopholes allowing for mining-waste disposal.

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