Waste Not, Want Not: DOI Aims To Boost the Extraction of Critical Minerals From Mine Waste

Federal regulation of mine waste could look very different by the end of the year if the U.S. Department of the Interior (DOI) meets a new suite of goals it has set for itself. A recent Secretary’s Order (the Order) calls for a significant rethinking of how that waste might be used for the extraction of critical minerals, with changes in the works for permitting and federal financial assistance across several statutes. As with many of the DOI’s recent reforms, the durability of these changes — and their usefulness to operators — will depend on the speed and specifics of particular reforms: the rulemaking and (likely) litigation of the coming months will determine whether the grasp of the Order will meet its reach.

On July 23, 2025, the Secretary of the Department of the Interior issued Secretary’s Order 3436 “Unlocking Critical and Strategic Minerals from Mine Waste, Cutting Red Tape, and Restoring American Dominance in Strategic Mineral Production.” As the name indicates, the Order seeks to facilitate the rapid extraction of critical and “energy” minerals from “mine waste,” which the Order defines, in relevant part, as “solid or liquid waste generated as a result of mining, mineral processing, or refining … often found in mine waste piles, coal processing waste, coal refuse, tailings, and discharges.” Here’s what to know about the Order:

• Focus on “Critical Minerals” — and Uranium. Although the title and preamble to the Order variously refer to “strategic” and “energy” minerals, those terms are not used elsewhere in the Order. The real focus is on “critical minerals” and, additionally, uranium. The Order does not define “critical minerals,” though it alludes to the definition in Executive Order 14241. That Executive Order, in turn, relies on the definition in 30 U.S.C. 1606(a)(3): the list of minerals designed by the Secretary of the Interior himself, acting through the Director of the U.S. Geological Survey.
• Regulatory Clarity Under SMCRA. Coal waste may contain significant amounts of critical minerals. As the name of the statute suggests, the Surface Mining Control and Reclamation Act (SMCRA) generally regulates surface coal mining in the United States, and requires state, federal, or tribal approval of mining operations or significant changes thereto. There are open questions as to whether and how operations to extract critical minerals from surface coal mine waste — as opposed to coal mining itself — fall under SMCRA. The Order calls for the DOI to begin promulgating regulations to answer that question, in the negative, within 60 days.
• Federal Financial Assistance for Extraction. The Order identifies several statutes — including SMCRA and the Infrastructure Investment and Jobs Acts — authorizing federal financial assistance for the reclamation and revitalization of mine lands after the conclusion of mining operations. Under the Order, bureau heads must clarify to existing recipients of those funds, within 60 days, how those funds may be used to extract critical minerals from mine waste. The DOI must then begin formalizing that advice — through regulation or non-binding guidance — within 90 days of the Order. Because these funds have traditionally been used for reclamation activities exclusive of additional mining, the changes proposed by the Order for federal funding could have significant implications for the large swaths of former mines on public and private lands nationwide.
• Special Treatment for Uranium. The Order provides extra incentives for the extraction of uranium from mine waste. It commands the Bureau of Land Management to prioritize approval of plans for extraction of “uranium and associated critical minerals from mine waste” over other mining plans, a major procedural advantage for uranium reclamation proposals amid mounting agency resource constraints. The Order also invokes emergency procedures under the National Environmental Policy Act, the National Historic Preservation Act, and the Endangered Species Act, which, as we have discussed elsewhere, pose risks and rewards for project proponents.
• Future Reforms for Non-Coal, Non-Uranium Projects: The Order also includes general calls for regulations and regulatory review to facilitate the Order’s purpose, including by tackling novel issues like the applicability (and potential waiver or reduction) of SMCRA’s Abandoned Mine Land fee to mine waste extraction, the proper reclamation standards for projects that may extract critical minerals from mine waste, and the uses of new technologies to facilitate that extraction. The Order also directs the U.S. Geological Survey to provide maps of publicly owned mine waste resources to assist private companies identify business opportunities.

Especially in its treatment of uranium and federal financial assistance, the Order could presage significant changes in how the DOI regulates abandoned and reclaimed mine land. The breadth and novelty of these changes, once implemented, is likely to draw the attention — and possible scrutiny — of states, tribes, and citizen groups nationwide, with attendant litigation, oversight, and regulatory risk. Changes to SMCRA’s implementing regulations may raise thorny questions of the statute’s ambit, and of its internal bifurcation between Title IV reclamation activities and Title V mining authorizations. Expedition of uranium reclamation could test the limits of emergency permitting, notwithstanding the U.S. Supreme Court’s recent decision in Seven County. And the use of federal financial assistance to facilitate new mining will implicate an arcane suite of appropriations laws.

Operators in this space should closely monitor the DOI’s next moves — particularly its forthcoming guidance and proposed regulations — which will reveal how ambitious this reform effort truly is.

© Arnold & Porter Kaye Scholer LLP 2025 All Rights Reserved. This Blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.