MAC: Mines and Communities

Legislative and legal updates from the USA

Published by MAC on 2005-12-13

Legislative and legal updates from the USA

13th December 2005

Good news from the United States, where after intense lobbying the proposed additions to the Budget Bill that would have opened up public lands to mining have been withdrawn. Also, while corporate crimes are regarded as mere pecadillos in many countries, a federal US court has passed severe sentences on executives of a domestic metals producer for violations of the Clean Water Act. Meanwhile, the Bush regime continues permitting bigger corporations to violate that very act.

Controversial Mining Subtitle Withdrawn from Budget Bill - Public Access to Hundreds of Millions of Acres of Public Lands Preserved

Press Release - Earthworks

13th December 2005

Congressman Jim Gibbons (R-Nevada), Chairman of the House Energy and Mineral Resources Subcommittee announced that he was officially dropping the controversial mining provisions that he and House Resources Committee Chairman Richard Pombo (R-California) inserted into a budget reconciliation bill.

"We applaud Congressman Gibbons' decision to drop the mining subtitle from the budget reconciliation bill," said Stephen D'Esposito, president of EARTHWORKS. "We welcome the call of Representative Gibbons, and the call of Senators around the West from both parties, to consider meaningful mining reform in the coming year and we look forward to working with all parties to promote the multiple goals of protecting communities and our public lands, safeguarding our natural resource heritage, and ensuring economic development and responsible mining practices."

If the mining provisions had passed, they would have allowed land speculators and multi-national mining and energy corporations to take ownership of hundreds of millions of acres of federal public lands in the West. In the process, public lands now used by millions of Americans for hunting, fishing and myriad other recreational purposes could have been placed off limits. According to federal data, recreational spending by visitors to these lands contributes approximately $8 billion per year to local economies. The provisions also would have prohibited the federal government from imposing royalties on minerals and metals removed from public lands, thus foregoing billions of dollars in potential revenues that could help offset the nation’s staggering budget deficit.

A bipartisan group of western Senators opposed the mining subtitle, as well as a broad coalition of hunters, anglers, and other recreational users of public lands along with conservationists and business leaders such as jewelry retailers.

“The diversity and breadth of the coalition that joined forces to protect our public lands and call for an open, thorough debate on mining law reform was impressive” continued D’Esposito. “The coalition ranged from trout fisherman to jewelers to county officials in the West. This same coalition will now work with congressional leaders, mining company officials and others towards mining law reform that balances all objectives and interests."

In grappling with this mining language it has become clear that the use of our public lands must balance responsible mining with other vital uses of these lands, as well as conservation," said Alan Septoff, Research Director of EARTHWORKS." And it is this balance that we should seek to strike in future debate about the fate of our country's mining laws."

Legal Experts Ask Congress to Reject Sale of Parklands to Miners

Enviroinmental News Service (ENS)

9th December 2005

BOULDER, Colorado - Nineteen natural resource law professors are urging Congressional leaders to strip controversial mining provisions from a massive deficit reduction bill when House and Senate conference committees meet next week to reconcile competing versions of the bill.

The mining section of the budget bill, advanced by House Resources Committee Chairman Richard Pombo of California and Congressman Jim Gibbons of Nevada, both Republicans, allows mining companies to purchase mining claims - even if they are within a protected area such as national parks or wilderness areas.

In a letter sent to Congress on December 6, the law professors warned that the mining provisions could lead to widespread liquidation of public lands across the West, threatening America’s western heritage and the health of rural western communities.

“Simply put, these proposed changes in federal law are fundamental and far reaching, and if enacted, could have devastating effects on federal land management and policy,” stated the legal experts from 15 universities in their letter to Congress.

Referring to the bill’s mining section, they wrote, “It is so loosely worded and its standards are so relaxed that it could open a large proportion of the federal lands - potentially hundreds of millions of acres - to purchase.”

The law professors join six western governors and more than a dozen high-level former federal and state land managers, including three formers chiefs of the U.S. Forest Service and several Bureau of Land Management directors, who have recently announced their opposition to the Pombo-Gibbons provisions.

More than 100 sportsmen, taxpayer, retail business, conservation, and Native American groups oppose measure, which they call a "land grab."

The legal scholars’ letter was accompanied by a 15 page analysis of the proposed public lands sell-off, which contradicts many of the assertions by Pombo and Gibson about how much public land would be affected and what the potential impacts would be.

“In short, this program could promote a new rush to privatize the nation’s public lands, an undertaking not seen for a century or more,” concluded the law professors’ letter to Congress. “Such far-reaching changes to federal law and policy should not be enacted as part of a last-minute addendum to complex budgetary legislation.”

On November 18, the House passed the Budget bill containing Pombo's mining provision. The bill next moves to the House-Senate conference committee. The Senate version of the Budget bill does not include the mining subtitle, so the advocacy group Westerners for Responsible Mining and the law professors say keeping the mining language out of the conference report, which must be passed by both the House and Senate before being signed into law by the President, is crucial to preserving western public lands.

For text of the letter and the legal analysis, visit Westerners for Responsible Mining at:

Iron Pipe Maker Mcwane, Executives Sentenced for Enviro Crimes

Environmental News Service (ENS)

9th December 2005

WASHINGTON, DC - Cast-iron pipe manufacturer McWane Inc. and company executives James Delk, Michael Devine, and Charles Barry Robison were sentenced Monday in federal court for environmental crimes connected with the operation of McWane Cast Iron Pipe Company in Birmingham, Alabama.

Judge Robert Propst sentenced McWane to pay a fine of $5 million and serve a period of probation for five years. McWane, Inc. is also ordered to perform a community service project valued at $2.7 million.

Judge Propst ordered Delk to serve probation for three years, including six months of home detention and a fine of $90,000. Devine received two years of probation, including three months of home detention and a fine of $35,000. Robison received two years of probation and a fine of $2,500, and was ordered to do 150 hours of community service work.

After a six week trial in June, McWane as well as Delk, a former vice president and general manager; and Devine, a former plant manager and current employee of McWane in New Jersey, were found guilty of conspiracy to violate the Clean Water Act by discharging industrial process wastewater into Avondale Creek in Birmingham through storm drains, in violation of their permit.

McWane and Delk also were convicted of 18 counts of discharging hydraulic oil and sludge containing zinc and lead into Avondale Creek and eventually Village Creek, which runs into Bayview Lake, between May 1999 and January 2001. Devine was convicted of seven counts of discharging pollutants into Avondale Creek between May 1999 and January 2000.

In a related count, McWane and Robison, the company's vice president for environmental affairs, were convicted of making a false statement to the U.S. Environmental Protection Agency (EPA) by misrepresenting that various locations relating to wastewater management were acceptable when this was not an accurate description of those locations. Many inspections the company said were held, in fact, had not been conducted.

“The evidence at trial depicted years of illegal discharges and concerted efforts by company officials to hide those discharges from state and federal regulators,” said Sue Ellen Wooldridge, assistant attorney general for the Justice Department’s Environment and Natural Resources Division.

Another McWane employee, Donald Harbin, pleaded guilty to a one-count information charging him with conspiracy to violate environmental laws connected with the operation of McWane Cast Iron Pipe Company. Harbin oversaw maintenance activities at the company during a time when it was discharging processed waste water into Avondale Creek in Birmingham in violation of a federal permit. Harbin is scheduled to be sentenced on December 19.

“Discharging of untreated or improperly treated industrial wastewater and pollutants are primary contributors to the impairment of water quality in our nation,” said Granta Nakayama, the EPA’s assistant administrator for enforcement and compliance assurance.

“This jury found a conspiracy between McWane, Inc. and its highest positioned employees at the McWane Cast Iron Pipe Company to violate the Clean Water Act and to make false statements to the EPA,” said U.S. Attorney Alice Martin. “It is critical that we enforce criminal environmental laws against corporate wrongdoers and their employees, so that Birmingham residents are protected from the harm caused by a company putting pipe and profits above the public’s welfare.”

“The FBI is fully committed to investigating environmental matters that pose a significant risk to public safety. We are very pleased with the outcome of this case, the interagency cooperation involved, and the strong message sent that environmental crimes will not be tolerated, ” said Carmen Adams, special agent in charge, Federal Bureau of Investigation.

The case represents the third conviction of a McWane company in the past year.

In November, Pacific States Cast Iron Pipe Company, a division of McWane, Inc. in Provo, Utah, and two executives were charged with committing conspiracy, Clean Air Act violations, and submitting false statements to the government. The six-count indictment named McWane, as well as Robison and Charles Matlock, former vice president of McWane, Inc. and general manager of Pacific States.

In September, Union Foundry Company, a division of McWane, Inc. and an iron foundry in Anniston, Alabama, was sentenced to pay $4.25 million in criminal fines and community service, and serve probation for three years. Union Foundry pleaded guilty to a two-count information charging illegal treatment of hazardous waste and worker safety violations that resulted in the death of an employee, Reginald Elston.

In March 2005, Tyler Pipe Company, a division of McWane in Tyler, Texas, pleaded guilty to submitting a false statement and violating the Clean Air Act. The federal district court ordered Tyler Pipe to pay a criminal fine of $4.5 million and serve probation for five years.

In December 2003 in Phillipsburg, New Jersey, Atlantic States, a division of McWane of Birmingham, Alabama, and several managers were charged with conspiracy to violate federal clean air and water regulations and laws governing workplace safety, as well as obstruction of criminal and regulatory investigations by EPA and the Occupational Safety and Health Administration. This case is now in the midst of a four month jury trial in Trenton, New Jersey.

Sierra Club Lawsuit Targets EPA Rule on Toxic Chemical Emissions

Environmental New Service (ENS)

12th December 2005

WASHINGTON, DC - The Sierra Club is going back to court to appeal a ruling by the U.S. Environmental Protection Agency (EPA) that the group claims fails to address a previous court order won six years ago.

The group is suing to force the EPA to impose the strictest protections required by law on hundreds of hazardous waste combustors nationwide that release tons of toxic air pollution each year.

Litigation filed Thursday by Earthjustice on behalf of Sierra Club in the U.S. Court of Appeals for the District of Columbia Circuit challenges the agency's rule, which the plaintiff claims does nothing to reduce toxic chemicals like dioxins, mercury, toxic metals and organic hazardous air pollutants.

"EPA has again shown us that reducing toxic air pollution does not register within the agency as a high priority," said Earthjustice attorney James Pew, who will argue the case.

"For the millions of Americans who live near these combustors who are at a higher risk for cancer and other illnesses, reducing overall pollution releases is an unbelievably high priority," said Pew. "If EPA saw this as the threat it truly is, they certainly would have required much stronger emission reductions from these combustors."

In 1999, Earthjustice successfully challenged a previous hazardous waste combustor rule that did not comply with federal law. The EPA's subsequent proposed rule, issued October 12, again fails to meet the requirements of the Clean Air Act by neglecting to address many of the most dangerous pollutants emitted by hazardous waste combustion.

The EPA has identified hazardous waste combustors as sources that "emit some of the most toxic, bioaccumulative and persistent hazardous air pollutants."

The agency estimates that there are about 145 facilities operating 265 combustors nationwide. Combustors can include hazardous waste burning cement kilns, industrial boilers, lightweight aggregate kilns, and hydrochloric acid furnaces.

"Years ago we learned how bad it was to burn our garbage in our backyards," said Marti Sinclair, chair of Sierra Club's National Air Committee. "We stopped burning, but apparently these combustors did not get the message. While they continue to burn huge amounts of hazardous waste right in our backyards, EPA again fails to require them to reduce the amount of pollution they contribute to nearby communities."

The Sierra Club aims to reduce toxic emissions from industrial polluters such as polyvinyl chloride and plywood manufacturers, cement kilns, power plants, industrial waste incinerators and mobile sources such as cars, buses and trucks.

In all of these cases, EPA's dismissal of federal law, court orders and meaningful pollution reduction have forced conservation, public health and community groups into litigation to seek stronger clean air protections, Earthjustice says.

"The rules that EPA has proposed for many different industrial facilities are continually inadequate," Pew said. "Whether it's a federal court or Congress directing EPA to draft stronger protections against air pollution, the agency just seems to continually ignore these guidelines."

Pennsylvania OKs Lafarge Cement to Burn Nonrecyclable Plastics

Environmental News Service (ENS)

12th December 2005

HARRISBURG, Pennsylvania, - The Pennsylvania Department of Environmental Protection today approved an air quality plan for LaFarge North American Inc. in Whitehall Township that allows the company to use certain nonrecyclable plastics as a fuel supplement in its cement kilns.

The DEP issued the approval for the Lehigh County facililty following a two year review process that included a test burn and sampling regimen that the department developed and monitored to obtain data to determine whether emissions met all air quality regulations.

“The entire testing and monitoring process was carefully controlled to ensure there was no threat to public health or the environment,” said DEP Northeast Regional Director Michael Bedrin.

LaFarge had to test for many organic and inorganic chemicals, including dioxin, furans and products of incomplete combustion. The company also had to conduct a specially designed health-based risk assessment, using DEP’s approved models and protocols, on emissions found during the test burn to ensure the use of these plastics are safe for residents and the environment.

LaFarge submitted the request to DEP in January 2003 and proposed to use Types 4, 5, 6 and 7 plastic as a fuel supplement. The plastic type codes are defined by the Society of the Plastics Industry.

Type 4, low-density polyethylene, includes many plastic bags, shrink wrap, and garment bags.

Type 5, polypropylene includes refrigerated containers, some bags, most bottle tops, some carpets, some food wrap.

Type 6, polystyrene includes throwaway utensils, meat packing, and protective packing.

Type 7 is layered or mixed plastic with no recycling potential.

At the time of its original application, DEP directed the company to present the details of the proposal to township officials and residents and ensure their early involvement in the process.

During review of the LaFarge application, state recycling experts reviewed the use of the specific recyclable material as a fuel and found there is no secondary market for these plastic, confirming the company’s assertion that these materials normally are disposed of in landfills.

In addition to these preliminary assessments, the plan approval also requires additional fuel sampling, annual stack emissions testing and the use of continuous emission monitors to ensure air quality.

DEP held a public hearing on the application October 27. A comment and response document on the testimony that was presented during that meeting has been prepared and will be distributed and made available to residents and officials. The LaFarge air plan approval can be appealed to the state Environmental Hearing Board within 30 days.

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