National Tribal Environmental Council

The Toxic Release Inventory (TRI) and its effect on mining releases has been an issue of importance which has been raised as a concern by Tribes based on its significance to Indian Tribes and cultural resources. The issue is the pre-proposal by the USEPA regarding the TRI reporting obligations for metal mining activities. Click here for EPAs Rulemaking Gateway. Currently, this pre-proposal is projected to be printed in the Federal Register around February 2011.

This issue stems from a court order which set aside EPA’s interpretation of “manufacture” in the mining context.¹ The court ruled that naturally occurring ores in situ have not been “manufactured” in the meaning of the Emergency Planning and Community Right to Know Act (EPCRA) section 313. EPA had previously considered naturally occurring materials to be “manufactured” by a natural process.

The initial lawsuits were filed in 2001 and 2003 respectively. This pre-proposal for rulemaking has stemmed from these court cases and is why this clarification pre-proposal is moving forward. It has further been identified that during this rulemaking, environmental justice issues will be a significant factor considered in the rule.

Tribes should be aware that with EPA including environmental justice issues in the proposed rulemaking, it may be a good time to become involved early in the planning and comment process. Some issues that may be of importance to Tribes are (1) this topic is likely to result in the collection of data that could be used to assess potential impacts on health and environmental conditions having direct impacts on Tribal communities and resources, (2) it may affect the availability of information accessible to Tribal communities and (3) it may have direct economic impacts effects on communities with dependence on mining.2

On September 8, 2010, the group Chemical Right 2 Know, held a TRI Tribal Lands webinar. Discussions were held on studies such as the Winnebago Tribe of Nebraska and its fish tissue study, and discussions were held on TRI issues in Alaska.

When this pre-proposal becomes a rule, the Docket number will be EPA-HQ-OEI-2009-0453 and comments can be submitted through Regulations.gov. NTAA would like any input from Tribes on concerns or comments than can be included in a comment letter when this rule is published to the Federal Register.

If you have any questions or comments, contact Jen Youngblood at This e-mail address is being protected from spambots. You need JavaScript enabled to view it

1 Barrick Goldstrike Mines, Inc v. Christine T. Whitman and the Unites States Environmental Protection Agency1 , U.S. District Court for the District of Columbia; 260 F. Supp 2d. 28 (2003) and National Mining Ass’n v. Browner, UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO; 51 ERC (BNA) 2104

2 USEPA Clarification of TRI Reporting Obligations Under EPCRA Section 313 for Metal Mining Activities http://yosemite.epa.gov/opei/RuleGate.nsf/(LookupRIN)/2025-AA11