Washington, D.C. – Reps. Raúl M. Grijalva, Rush Holt and Colleen Hanabusa today wrote the heads of the Environmental Protection Agency (EPA), White House Council on Environmental Quality and Army of Corps of Engineers (ACE) to ask for a review of Clean Water Act implementing regulations. Loopholes currently allow mining companies to discharge waste into nearby waters in spite of the law’s intent.

The letter – signed by 11 other Members of Congress – asks the EPA and ACE to close two specific loopholes in the rules they currently use to enforce the Clean Water Act. One states that “waste treatment systems” are not waters of the United States, allowing mining operations to treat rivers, lakes, and streams as dumping grounds for untreated toxic waste. The second was created by a 2002 regulatory rewrite that redefined “fill,” the leftover waste from hard rock and coal mining operations, and shifted oversight of fill disposal to Section 404 of the CWA. Scrutiny under Section 404 is much more lenient than a separate pollution standard that was designed to regulate dumping of industrial waste products. 

“Because of these two loopholes, the industry gets a free pass to contaminate our waters, and minority populations are bearing the brunt of this,” Rep. Grijalva said. “The administration can address this quickly without cost to taxpayers. This is a crisis that doesn’t have to exist.” 

“Too often mining companies are given sweetheart deals at the expense of local communities and the environment,” Rep. Holt said. “The Clean Water Act loopholes addressed in this letter can and should be fixed administratively. Expedited action will help to ensure that low-income and native communities are protected from unsafe drinking water that has been tainted by toxic mining waste.”

“Closing these loopholes will allow us to fulfill our obligation to protect America’s rivers, lakes, and wetlands,” Rep. Hanabusa said. “The intent of the Clean Water Act is clear: to ensure that clean water is available for consumption, agriculture, and recreation. While responsible mining operations serve our nation’s needs, it cannot come at a devastating cost to our rural and Native American communities.”

As documented in Honoring the River, a recently released report by the Tribal Partnerships Program of the National Wildlife Federation, Tribal communities across the west have a long history of dealing with mining pollution.

The text of the letter is included below.

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May 22, 2013

Dear Ms. Sutley, Mr. Perciasepe, and Ms. Darcy:

We are writing to urge the closing of two loopholes in the Clean Water Act’s (CWA) implementing regulations. These loopholes allow hardrock mines to store untreated industrial waste in the nation’s rivers, lakes, and wetlands, and addressing them will promote the protection of America’s waters and support responsible mining practices.

According to EPA estimates, the hardrock mining industry is the biggest producer of toxic waste in the country.The agency calculates that mining is responsible for polluting 40% of the headwaters in western watersheds.These are watersheds that provide drinking water to millions of Americans, including many Native American communities, and it would be irresponsible to ignore the inherent risks associated with mining when an administrative solution exists.

Developing large mines is often complex and controversial, but there are certain practices that everyone should agree are unacceptable.In particular, hardrock mines should never be allowed to discharge untreated tailing and other industrial waste into our waters.Aquatic ecosystems are valuable and fragile resources, especially in the arid states of the Southwest and other areas across the West.Waters are also natural conduits that can carry pollution for miles if a tailings dam is improperly built, fails, or deteriorates with age.Nobody wants chemicals, heavy metals, or acid drainage— all by-products of modern mining—to taint the waters in which our families fish, drink, and swim. 

Unfortunately, there are currently two loopholes in the Clean Water Act’s regulations that allow many hardrock mines to cut costs by discharging untreated industrial waste into a nearby river valley or wetland. Modern mines produce millions, sometimes billions of tons of waste, frequently containing toxic chemicals such as arsenic, cadmium, and lead.Some hardrock mining operations have used these loopholes to avoid complying with pollution standards adopted decades ago by EPA.

Please take immediate steps to close the CWA’s mining loopholes by revising EPA and Corps regulations to (1) clarify that the waste treatment system exclusion applies only to manmade waters and (2) exclude waste discharges that are subject to effluent limitations from the definition of “fill material.” 

Thank you for your attention to this matter.We look forward to your reply.

Sincerely,

cc:    Gina McCarthy, Environmental Protection Agency
      Bob Sussman, Environmental Protection Agency
      Nancy Stoner, Environmental Protection Agency
      Terrence “Rock” Salt, Department of the Army (Civil Works)
      Meg Gaffney-Smith, Army Corps of Engineers