Metal Mining Proposal Marks Online Forum Trend at EPA

10/14/2009

The U.S. Environmental Protection Agency (EPA) launched an online forum on the agency's blog to collect comments on a potential change to the way metal mining companies report their pollution. Controversial court decisions in recent years have reduced the amount of information on the industry's pollution. This online forum marks at least the third time the Obama administration's EPA has used a "Web 2.0" tool to engage the public on matters of proposed agency policies.

According to the Toxics Release Inventory (TRI), the metal mining sector consistently places among the most polluting industries. In 1997, the metal mining industry and several others were added to TRI, which is an EPA program requiring thousands of facilities to report how much toxic pollution they release. From 1998 to 2007, more than 19 billion pounds of toxic releases were reported by the industry. Yet even with such large quantities being reported, many environmental groups are concerned that a significant amount of releases is not being disclosed, largely due to the agency's response to the court decisions.

In 2003, the mining industry won a partial victory in a lawsuit against the EPA over how to report its pollution to TRI. The court's decision led the agency to exempt small concentrations of toxics in waste rock from being reported. The EPA established a de minimis provision exempting concentrations of most toxics under one percent from having to report. Although concentrations of naturally occurring toxics such as selenium are typically low in metal mines' waste rock, the prodigious amounts of waste rock mean that the total amount of toxics quickly adds up.

The EPA is now considering a possible metal mining rulemaking. The online forum is a preliminary step in the agency’s preparation for a formal rulemaking process. The agency has not specified what issues it expects to address in the rulemaking, nor why such a process is even needed. Rather, the agency is requesting comments on several issues previously raised by stakeholders during telephone interviews conducted by EPA in November 2008.

The public is encouraged to submit comments on five broad issue areas raised by the industry and environmental groups:

  • Ways that TRI can drive environmental improvements
  • Accurate measurement of releases
  • Expanding what releases must be reported
  • Clarifying definitions of terms
  • Any additional TRI metal mining issues

This online process for metal mining and TRI mimics the process used by two other EPA offices to gather comments in a more informal manner than through the use of the Federal Register. The Office of Enforcement and Compliance Assurance (OECA), working with the Office of Water, solicited opinions from the public to help design its upcoming Clean Water Enforcement Action Plan. The action plan – ordered by the EPA administrator – is intended to improve information transparency, strengthen enforcement of water pollution laws, and expand the use of technology to increase efficiency and provide information to the public. OECA also designed an online forum to collect ideas on areas to focus its enforcement and compliance activities in the future. In this case, the online forum aids an ongoing process at EPA – the revision of its enforcement priorities every three years. A future fourth online forum is planned by the head of EPA's solid waste office, but it has not been announced yet.

What impact on agency policy these forums will have remains to be seen. In each instance, the agency has not exploited fully the capabilities of the forums. For example, the enforcement forum, as its name suggests, allows for multilateral conversations, with commenters responding to one another. The agency has not responded to any comments, creating a one-way flow of information and failing to engage the public in dialogue.

The clean water forum was intended to inform the creation of a document for the EPA administrator. The action plan was due at the end of September. It has not yet been disclosed whether the plan is completed or available to the public. There is no way to judge the extent the public's forum comments were incorporated into policy recommendations until the report is released.

The metal mining discussion forum will be open until Oct. 30. According to EPA, comments received before that time will be included in a public docket, and a link to the docket will be posted. A proposed rule may be published by early 2011.