Toxic information

Now how many industries can claim the kind of environmental triumph the American mining industry managed in 2002?

After all, the United States Environmental Protection Agency’s Toxics Release Inventory (TRI) notes that the metal mining sector released 43% less toxic material in 2002 than it did in 2001. Plainly the industry has made a smashing success of its environmental stewardship program.

All right, we are burlesquing the TRI again; it’s simply one of those annual festivals like the Running of the Bulls in Pamplona. But for a change, the mining industry gets to crow about the numbers — not because any part of the reality on the ground has changed, but because a falsehood peddled by the TRI in previous years has been changed from an Orwellian Big Lie into a mere whopper.

Thanks to a decision of the U.S. District Court in Barrick Goldstrike Mines Inc. v. Christine T. Whitman and United States Environmental Protection Agency, the metal-mining industry’s reportable “toxics release” — we reserve the right to use scare quotes around something as patently artificial as this number — slumped to 1.3 billion pounds in 2002 from 2.2 billion pounds in 2001. (Actually, the number in the 2001 TRI report, released this time last year, was 2.8 billion pounds; evidently there have been some numerical adjustments in the inventory, possibly having to do with individual facilities being moved between industrial sectors.)

Barrick Goldstrike, the operating unit of Barrick Gold at the Goldstrike mine in Nevada, successfully argued that ordinary waste rock — which, of course, contains natural concentrations of metals — was being improperly counted in the TRI, when it should have been subject to an exemption for trace quantities of substances on the TRI schedule of toxins. On a similar argument about mill tailings, the court deferred to the Environmental Protection Agency, saying that the regulation was ambiguous and the Agency was entitled to interpret it as meaning that disposal of mill tailings was a toxic release.

The effect of the court ruling was to chop waste rock out of the TRI, which strikes us as simple common sense; naturally occurring materials are not man-made pollution, whatever interpretation the EPA may want to put on them. In his decision on mill tailings, District Judge T.P. Jackson stuck closely to law and precedent, without pronouncing on the wisdom or unwisdom of the regulation itself. We continue to think that naturally occurring metals that aren’t recovered in a mill are not toxic releases either, but Judge Jackson observes that the EPA has the legal right to look at them that way.

We said in an editorial last year that “The popular idea of a ‘release’ is the disposal of a dangerous substance, in untreated form, direct to nature.” The EPA continues to cast a wider net, but happily the courts have cut at least some of the strings.