Loopholes in the Clean Water Act


Lower Slate Lake, before and after being used as a mine waste dump for the Kensington mine. Credit: Pat Costello

Loopholes in the Clean Water Act allow mines to pollute clean water

Hardrock mines produce millions, sometimes billions of tons of mine waste, which frequently contain toxic materials such as arsenic, mercury, cadmium and lead. Unfortunately, it has become a common industry practice to use lakes, streams and wetlands for mine waste disposal.

The problem: there are two loopholes in regulations adopted by the EPA and Army Corps of Engineers (Corps) that allow many hardrock mines to dispose of mine waste into waterways, destroying fish and other aquatic life.

The first loophole: a 2002 revision of regulations expanded the definition of “fill material” under Section 404 of the Clean Water Act to include mine waste. Section 404 was intended to regulate the placement of rock, soil, clay, sand and other materials normally used in construction related activities, not mining waste.

The second loophole: regulations defining “waters,” allow mine developers to designate natural lakes, rivers, streams, and wetlands as “waste treatment systems,” exempt from the Clean Water Act.

We can close the loopholes, and protect clean water and public health

While it is cheaper for the mining company to dump mine waste in lakes and streams, it is an unnecessary and irresponsible way of doing business. For over 30 years, the mining industry operated without these loopholes.

The good news for people who care about clean water, community health, and abundant wildlife is that EPA and the Corps can close the loopholes with two simple rule changes. First, the agencies should explicitly limit the waste treatment system exclusion to only manmade waters. This was, in fact, how EPA originally interpreted the regulation back in 1980. And second, EPA and the Corps can revise the 2002 definition of “fill” to once again exclude waste disposal.

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Tagged with: water, mining, loopholes, clean water act

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