Summary of Environmental Law in the United States

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18 Mining

 

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18.2 Exploration and Development of Mines

 

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The General Mining Act of 1872 provides that all valuable mineral deposits in lands belonging to the United States should be open to exploration and purchase by U.S. citizens. 30 U.S.C. secs. 22-47. Other statutes that provide specific permitting requirements for exploration, establishment, development, and operation of mines in the United States are contained in Title 30 of the U.S. Code. Section 617 of the Internal Revenue Code (IRC) is designed to encourage mineral exploration by allowing a deduction from taxable income of certain mining exploration and development costs (oil, gas, and geothermal wells are excluded). 26 U.S.C. sec. 617.

Percentage Depletion

Section 613 of the IRC allows an independent producer to utilize "percentage depletion," deducting a flat percentage, on gross income from certain oil and gas wells, geothermal deposits, geopressured natural gas, specified coal and metal mines, non-metal mines and natural mineral deposits. 26 U.S.C. sec. 613;. Highest deductions are allowed for minerals such as lead, mercury, and uranium, all of which can be hazardous to human health, wildlife, and the environment. 26 U.S.C. sec. 613 (b)(1). By stimulating production, the percentage depletion allowance favors the use of virgin materials and depresses the market for recycled products.

Expensing of Mining Exploration and Development Costs

Section 617 of the IRC allows for deduction from taxable income of certain mining exploration and development costs (oil, gas, and geothermal wells are excluded). 26 U.S.C. sec. 617; 26 C.F.R. sec. 1.611-0. Standard accounting procedures would amortize these costs over the life of the project through depreciation. This provision creates an incentive to explore for minerals, with the risk being underwritten by the taxpayer.

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18.3 Regulation of Mining Wastes

 

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Mining wastes are generally covered by other environmental statutes, if they fall within the general requirements of those statutes. Thus, for example, many mining wastes contain "hazardous substances," and their release triggers the cleanup and liability provisions of the Comprehensive Environmental Response, Compensation and Liability Act, described in Section 13. Discharges of mining wastes may also require a permit under the Clean Water Act, described in Section 9.1.

In addition, several statutes are particularly tailored to mining wastes. The Uranium Mill Tailings Radiation Control Act of 1978, Pub. L. No. 95-604, 92 Stat. 3021 (codified in scattered sections of 42 U.S.C.), is designed to provide for the stabilization, disposal, and control of radioactive uranium mill tailings located at mill operations. The statute provides for the assessment and remediation of mill tailings sites, and the regulation of mill tailings during processing at active mill operations. See Section 12.3: Radioactive Wastes. The Anthracite Mine Water Control Act, 30 U.S.C. secs. 571-576, regulates the drainage of water from anthracite coal formations and mines. The Act finances water control at existing and abandoned mines. The Materials Disposal Act of 1947, 30 U.S.C. secs. 601-604, and the Surface Resources Act of 1955, 30 U.S.C. secs. 601, 603, 611-613, govern the disposal and removal of certain mineral waste materials.

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18.4 Reclamation of Mines

 

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Except for surface coal mines covered under the federal Surface Mining Control and Reclamation Act (SMCRA), mining reclamation is not generally regulated under federal statute. State laws, however, can impose state reclamation requirements on any mining activities in the state.

Surface Mining Control and Reclamation Act

SMCRA, 30 U.S.C. secs.1201-1328, was designed to prevent and repair environmental damage from coal strip mining. Any person intending to surface mine for coal must obtain a permit issued by the state under an approved state plan or by the federal government if there is no approved state plan. To receive a permit, the applicant must submit a detailed reclamation plan, demonstrate that the company has sufficient liability insurance to cover potential injuries and damage caused by the mining operations, and post an assurance bond to cover the costs of the reclamation plan. 30 U.S.C. secs. 1256-1259; 30 C.F.R. pts. 777-780. The permittee also must meet certain environmental performance standards. 30 U.S.C. sec. 1265; 30 C.F.R. pts. 715, 816. SMCRA provides for a range of enforcement and implementation powers, including: inspection and monitoring, 30 U.S.C. sec. 1267; civil penalties of up to US$5000 per violation, 30 U.S.C. sec. 1268; criminal fines of up to US$10,000 and one year imprisonment for willful violations or false statements, 30 U.S.C. sec. 1268; 30 C.F.R. pt. 723; additional fines of at least US$750 per day for failing to correct violations after notice, 30 U.S.C. sec. 1268; 30 C.F.R. pt. 723; citizen enforcement,30 U.S.C. sec. 1270; and detailed government enforcement provisions, 30 U.S.C. sec. 1271.

Reclamation Fees and Fund

All operators of coal mines must pay a reclamation fee, which ranges from nacec.10 cents to 35 cents per ton depending on the type of coal and whether it is surface mined or mined from underground. 30 U.S.C. sec. 1232(a). Proceeds from the reclamation fees are used mostly for reclamation and restoration of land and water resources adversely affected by past coal mining. 30 U.S.C. sec. 1231.

State Reclamation Laws

SMCRA leaves most enforcement and implementation powers in the hands of those states that submit approved plans. State laws can also impose their own reclamation requirements on any mining activities in the state, including private and state lands not covered by SMCRA.

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18.5 Mining Rights on Public Lands

 

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Under federal law, private persons can gain the right to mine on public lands by locating a claim or by leasing or purchasing mineral rights.

Locating a Claim

Under the General Mining Act of 1872, 30 U.S.C. secs. 22-47, any person may enter public lands, locate a claim, and obtain title to remove all similar minerals throughout the claim. The person can also obtain a "patent" to the land, which allows transfer of title to the land from public to private ownership. This process applies primarily to hard rock minerals, gold, and gems, and does not apply to peat, coal, oil, gas, or common materials, such as gravel or sand. Miners are not charged a fee for access to hard rock minerals on federal lands, even though in 1990 the value of such minerals extracted from public lands approached US$1.2 billion.

Leasing Mineral Rights

Under the Mineral Lands Leasing Act of 1920, ch. 85, 41 Stat. 437 (codified as amended in scattered sections of 30 U.S.C.), a person can gain the right to explore and mine certain specific minerals. This process applies to some minerals, such as potassium, sodium, phosphates, and sulfates, and to most energy resources, such as coal, oil and gas, oil shale, and geothermal resources. See 30 U.S.C. secs. 201-287. Regulations vary according to the statutory and leasing system, but most include environmental conditions and require payment of rents and royalties to the government. See Section 21: Energy. Surface coal mining is not allowed in many areas determined to be unsuitable, including national parks, wildlife refuges, wilderness areas, recreation areas, wild and scenic rivers, and most national forest lands. 30 U.S.C. sec. 1272.

Purchasing Mineral Rights

Certain commonly occurring materials such as clay, gravel, or sand can be purchased from public lands. Materials Disposal Act of 1947, 30 U.S.C. secs. 601-604; Surface Resources Act, 30 U.S.C. sec. 611.

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2003