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HARDROCK MINING ON FEDERAL LANDS 2 Existing Regulatory Framework The study shall identify and consider…the operating, reclamation, and permitting requirements for locatable minerals mining and exploration operations on federal lands by federal and state air, water, solid waste, reclamation and other environmental statutes, including surface management regulations promulgated by federal land management agencies and state primacy programs under applicable federal statutes and state laws and the time requirements applicable to project environmental review and permitting. This chapter summarizes the federal land management standards and operating, reclamation, and permitting requirements for locatable (hardrock) minerals mining and exploration on federal lands. STATUTORY POLICIES FOR MANAGEMENT To assess the adequacy of regulatory requirements, the Committee examined the objectives set forth by Congress for federal land managers to apply to hardrock mining activities on federal lands. The Federal Land Policy and Management Act of 1976 (43 U.S.C. §1701– 1784) provides the Bureau of Land Management (BLM) with management standards for hardrock mining activities on public lands. Section 1701(a) states:
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HARDROCK MINING ON FEDERAL LANDS The Congress declares that it is the policy of the United States that— (7) goals and objectives be established by law as guidelines for public land-use planning, and the management be on the basis of multiple use and sustained yield unless otherwise specified by law.1 (8) the public lands will be managed in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values; that, where appropriate, will preserve and protect certain public lands in their natural condition; that will provide food and habitat for fish and wildlife and domestic animals; and that will provide for outdoor recreation and human occupancy and use. (12) the public lands be managed in a manner which recognizes the Nation's need for domestic sources of mineral, food, timber, and fiber from the public lands, including implementation of the Mining and Minerals Policy Act of 1970 as it pertains to the public lands. 2 1 43 U.S.C. §1702(c) defines multiple use as “a combination of balanced and diverse resource uses that takes into account the long-term needs of future generations for renewable and nonrenewable resources, including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and natural scenic, scientific, and historical values; and harmonious and coordinated management of the various resources without permanent impairment of the productivity of the land and the quality of the environment with consideration being given to the relative values of the resources and not necessarily to the combination of uses that will give the greatest economic return or the greatest unit output.” 2 The Mining and Minerals Policy Act of 1970 states: “The Congress declares that it is the continuing policy of the Federal Government in the national interest to foster and encourage private enterprise in (1) the development of economically sound and stable domestic mining, minerals, metal and mineral reclamation industries, (2) the orderly and economic development of domestic mineral resources, reserves, and reclamation of metals and minerals to help assure satisfaction of industrial, security, and environmental needs, (3) mining, mineral and metallurgical research, including the use and recycling of scrap to promote the wise and efficient use of our natural and reclaimable mineral resources, and (4) the study and development of methods for the disposal, control, and reclamation of mineral waste products, and the reclamation of mined land, so as to lessen any adverse impact of mineral extraction and processing upon the physical environment that may result from mining or mineral activities.” 30 U.S.C. 21a.
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HARDROCK MINING ON FEDERAL LANDS And Congress provided in section 1732(b): In managing the public lands the Secretary shall, by regulation or otherwise, take any action necessary to prevent unnecessary or undue degradation of the lands. The Forest Service manages mining and its impacts under the standard of the 1897 Organic Act, which grants the Secretary of Agriculture general power to promulgate rules to regulate “occupancy and use and to preserve the forests thereon from destruction.”3 The Forest Services also operates under the National Forest Management Act (16 U.S.C. 1600–1640). Both agencies also have management authority under the Surface Resources Act, which applies to mining claims located after 1955: “Rights under any mining claim hereafter located under the mining laws of the United States shall be subject…to the right of the United States to manage and dispose of the vegetative surface resources thereof and to manage other surface resources thereof.”4 These statutory authorities find further expression in the regulations adopted by the respective agencies (43 CFR 3809 and 36 CFR 228) but the regulations do not exhaust the authority of the agencies. The statutory standards, coupled with the agencies' obligations under the National Environmental Policy Act (NEPA) to “interpret and administer ” their laws in accordance with the policies set forth in NEPA,5 make it clear that the BLM 3 16 U.S.C. §551. United States v. Weiss, 642 F.2d 296 (9th Cir. 1981) (upholding Forest Service Part 228 regulations under the Organic Act); United States v. Doremus, 888 F.2d 630 (9th Cir. 1989) (upholding Forest Service Part 228 regulations under Surface Resources Act). 4 30 U.S.C. §612. 5 NEPA §102(1), 42 U.S.C. §4332(1), provides that “The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in the Act.” Section 105 of NEPA, 42 U.S.C. §4335, further provides that “the policies and goals set forth in this Act are supplementary to those set forth in existing authorization of Federal agencies.” The policies are the six set out in §101(b), 42 U.S.C. §§4331(b): to “(1) fulfill the responsibilities of each generation as trustee of the environment for succeeding generations; (2) assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings; (3) attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences; (4) preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity and variety of individual choice; (5) achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life's amenities; and (6) enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.”
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HARDROCK MINING ON FEDERAL LANDS and Forest Service have public responsibilities that go beyond those of the state regulatory agencies seeking to protect specific environmental media. The federal agencies as land managers on the public's behalf stand in a different relationship to the land and its resources than simply as regulators of impacts. The federal land managers have a mandate for long-term productivity of the land, protection of an array of uses and potential future uses, and management of the federal estate for diverse objectives. This relationship means that the term “regulator” does not fully describe BLM and Forest Service responsibilities when dealing with mining activities on federal lands. It also means that these agencies are not merely landholders. They are both landholders and regulators, with a set of statutory management standards. Further, they must serve a constituency almost always described in national terms—“the nation's needs,” “all Americans,” “future generations.” These factors explain in part why federal officials told the Committee that even in those states where working relationships and regulatory coordination were almost uniformly described as positive and productive, they were concerned about their ability to rely entirely on state regulators to address both short-term and long-term land use implications of mining operations on federal lands. Concerns surfaced in such areas as the ability to track and respond quickly to expansions in disturbed areas at small mines and to address post-mining conditions at larger mines. ENVIRONMENTAL REGULATION This section describes the regulatory framework governing hardrock mining on federal lands. The description is not intended to summarize every regulatory program potentially applicable to any mining operation but rather to identify the roles currently played by the major statutory and regulatory programs. It should be noted that for a major hardrock mining operation, 30 or more federal, state, and local regulatory programs may apply. (Appendix C lists the permits required for many recent large-scale mining operations on federal lands in various states.) Small-scale exploration or mining operations may be subject to a more limited array of regulations and programs. The precise scope of regulation depends on the type of operation; the size of the operation; the types of land, water, and biological resources affected; the state in which the operation is located; the existence of state air and water
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HARDROCK MINING ON FEDERAL LANDS pollution control programs operating with federal approval; and the organization of state and local permitting agencies. Federal Land Management Agency Responsibilities Federal land management planning requirements. BLM land use plans under the Federal Land Policy and Management Act (FLPMA)6 and Forest Service plans prepared under the National Forest Management Act7 establish the parameters within which surface-disturbing activities may occur on BLM or Forest Service lands subject to the interests created by the General Mining Law. These planning processes are not linked to specific mining proposals, but are intended to guide broad agency management decisions about the use of federal lands and the management of resources on the land. These land management plans do not override the interests acquired by the mining claimant under the General Mining Law, but provide a framework for agency consideration and protection of other resources. Preparation of these land management plans must comply with NEPA,8 which includes requirements for consideration of alternatives, as well as provisions for public scoping, review, and comment. BLM and Forest Service regulations. Proposed mining activities on federal lands trigger the application of BLM's 43 CFR Part 3809 regulations (promulgated in 1980) or the Forest Service's 36 CFR Part 228 regulations (promulgated in 1974). The regulations themselves prescribe the review procedures requiring the submission of either notices or plans of operations. The BLM regulations require no notice or other submission for “casual use ” operations involving “negligible” surface disturbance; whereas reclamation is required, no standards are set forth and no financial assurance guaranteeing reclamation is required. The BLM regulations require submission of a notice for other operations disturbing 5 or fewer acres, but the BLM does not approve the notice or specify particular operating methods. Reclamation of these “notice-level” operations is required, but no financial assurance is required. Operations disturbing more than 5 acres must submit a “plan of operations” for review and approval by BLM and must post financial assurance in an amount determined by BLM to guarantee reclamation. The Forest Service requires operations of any size to submit a notice and to submit a plan of operations if the Forest Service determines there will be 6 43 U.S.C. §§1701–1784. 7 16 U.S.C. §§1600–1687. 8 42 U.S.C. §4321 et seq.
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HARDROCK MINING ON FEDERAL LANDS any “significant” disturbance of the surface. The Forest Service generally requires plans of operations for all mechanized mining or exploration operations on Forest Service lands regardless of acreage. Posting of financial assurance in an amount determined by the Forest Service is required. The Part 3809 and Part 228 regulations establish performance standards intended to assure compliance with, respectively, the FLPMA prohibition of “unnecessary or undue degradation of public lands” and the Forest Service regulatory requirement to “minimize adverse environmental impacts on national forest surface resources,” based on the 1897 Organic Act. The National Environmental Policy Act. NEPA serves to integrate BLM and Forest Service decision making on particular mining proposals with evaluation of other environmental concerns, as well as with other state and federal permitting requirements. The relevant land management agency (BLM or Forest Service) prepares the NEPA documents that inform the manager's decision on the proposed mining operation. Where more than one agency is involved, they reach agreement as to which will be the lead agency or share the lead. Other agencies may become “cooperating agencies” or may elect simply to comment on draft documents in the same manner as the public. The Council on Environmental Quality's regulations encourage federal, state, and tribal agencies that have decision-making responsibilities with respect to a proposed operation—including permitting responsibilities—to become cooperating agencies in preparing the NEPA documents and in performing the required analysis.9 For large-scale mining operations on federal lands, the environmental impact statement (EIS) required under NEPA serves as the “spine” of the federal land manager's decision-making process. The EIS process includes requirements for publicly “scoping” the issues and identifying alternatives to be evaluated. It provides for preparation of a draft EIS evaluating alternatives and identifying impacts. The draft is subject to public comment and to review and comment by other agencies. A final EIS must respond to all substantive public and agency comments and serve to inform the decision maker. The final decision is made by a record of decision (ROD), which determines the content of the plan of operations and mitigation requirements. Smaller mines often trigger only an environmental assessment (EA), a NEPA document intended to assist the federal land management agency in deciding whether environmental impacts are significant. If the EA shows that 9 40 CFR §1501.6. “Cooperating agency means any Federal agency other than a lead agency which has jurisdiction by law or special expertise with respect to any environmental impact involved in a proposal… A State or local agency of similar qualifications or, when the effects are on a reservation, an Indian Tribe, may by agreement with the lead agency become a cooperating agency.” 40 CFR §1508.5.
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HARDROCK MINING ON FEDERAL LANDS they are, an EIS must be prepared. If not, the agency prepares a finding of no significant impact (FONSI). Unlike EISs, EA/FONSIs are not necessarily subject to public review and comment, although Council on Environmental Quality regulations state that such review is to be afforded in cases where the proposed action “is, or is closely similar to, one which normally requires the preparation of an environmental impact statement” or if the action is “one without precedent.”10 Certain routine activities, such as minor modifications to approved plans of operations, are categorically excluded from NEPA review by BLM or Forest Service procedures. BLM also has a practice of accepting notices for mining operations disturbing less than 5 acres without conducting any environmental review under NEPA.11 In contrast, the Forest Service prepares EAs in connection with plans of operations for such small operations. Three public land states have their own “state NEPA” laws that require state agencies to prepare EAs or EISs in connection with activities such as mining. California, Montana, and Washington usually integrate these state processes with the federal NEPA process to avoid duplication of effort. These states have effectively accepted “cooperating agency” or co-lead agency status for NEPA implementation with respect to the review of mining operations. States without “state NEPA” laws must make decisions about their level of reliance on the federal EIS and about becoming a cooperating agency under NEPA on a case-by-case, agency-by-agency basis. Endangered species, historic preservation, Indian trust responsibilities, and other laws. Other federal laws create consultation and other substantive obligations. The Endangered Species Act (ESA) requires the federal land management agency to consult with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service or both when threatened or endangered species may be adversely affected by a proposed operation.12 ESA and NEPA processes are often integrated; indeed, the presence or potential presence of listed species may lead an agency to prepare an EIS rather than an EA. The National Historic Preservation Act 13 and the American Indian Religious Freedom Act,14 also require BLM and the Forest Service to consult with other agencies and with tribes and to consider and mitigate impacts on protected 10 40 CFR §1501.4(e)(2). 11 This practice was upheld by the U.S. Court of Appeals for the Ninth Circuit, which held that “BLM does not sufficiently involve itself in the approval process to render notice [level] mine review a major federal action requiring NEPA compliance.” Sierra Club v. Penfold, 857 F.2d 1307 (9th Cir. 1988). 12 16 U.S.C. §1536. 13 16 U.S.C. §470 et seq. 14 42 U.S.C. §1996.
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HARDROCK MINING ON FEDERAL LANDS resources or interests. The consultation processes are usually integrated with NEPA review. The federal government's trust responsibility to Indian tribes also applies to federal decision making concerning the occurrence of hardrock mining. The trust responsibility stems from a variety of sources, including treaties and statutes. Its applicability is not limited solely to mining operations that occur on Indian lands; it applies also to off-reservation activities on the public lands that affect Indian treaty rights, cultural resources, or other interests. Coordination with state decision makers. Whereas the decision making outlined above is under the jurisdiction of the land management agencies, memoranda of understanding (MOUs) between the BLM and state agencies and the Forest Service and state agencies establish the links between state environmental regulatory requirements and federal land manager decisions under 3809 and 228 regulations. The Committee reviewed a broad array of these MOUs, which varied significantly in vintage, detail, and specificity. Of the western states, only Arizona lacks a formal interagency agreement related to hardrock mining on federal lands. Some MOUs involve a state and a single federal land management agency; others are signed by representatives of the state, BLM, and the Forest Service. Some MOUs address only a single issue, whereas others deal with a broad range of management considerations. MOUs frequently indicate whether the federal agency will defer to state decisions, make independent decisions, or share decision-making authority, as well as define how inspection and enforcement, monitoring, and financial assurance will be handled. The MOUs are important, as they seek to avoid duplication while recognizing the sometimes divergent interests of federal and state regulators. Effect of patenting. For the purposes of regulation, patented lands (or lands acquired by mining operations from the government through exchanges) are treated like any other privately owned lands. They are regulated under the state and federal environmental permitting programs discussed below, but are not specifically covered by the federal requirements discussed above. Specifically, the plan of operations requirements and NEPA compliance associated with approval of plans of operations do not apply to private lands. Nor does the “consultation” requirement under the Endangered Species Act apply to mining on patented lands (unless triggered by some other federal action such as issuance of a permit to fill wetlands); although the prohibition on “taking” of listed species applies whether an operation is on privately owned or publicly owned lands. Nevertheless, if patented lands are intermingled with unpatented federal lands, the plan of operations and associated NEPA and ESA requirements will apply to the operation. For this reason, some mining operations that include only a small area of unpatented mining claims seek to exchange other lands for
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HARDROCK MINING ON FEDERAL LANDS these lands, or to obtain patents, in order to simplify the review process and eliminate federal land management oversight. Environmental Permitting Requirements In addition to the 3809 and 228 regulations, various other state and federal laws establish environmental requirements applicable to mining operations on federal lands.15 State environmental regulations of general applicability apply on federal lands and are not preempted by the General Mining Law or other federal laws.16 The following description highlights the most significant of these environmental laws as they relate to surface management issues. State reclamation laws. Laws requiring reclamation of hardrock mine sites now exist in all western public land states, although permitting of all operations under these laws has not been entirely completed in Arizona and New Mexico, among the more recent states to adopt such laws.17 These reclamation laws often establish: thresholds for the regulation of exploration operations, small mining operations, large mining operations, and “special” or “designated” mining operations using certain chemical beneficiation techniques; application content, review and approval procedures, public participation requirements; requirements relating to the characterization of overburden and ores, prediction of acid drainage, and management of acid-generating materials; requirements relating to the management of introduced substances related to beneficiation of ores (cyanides, lixiviants); requirements for stabilization and reclamation of the site; requirements for closure of tailings disposal areas, spent ore areas; requirements for revegetation; financial assurance requirements, including what the assurance must cover, any minimum or maximum amounts required, forms of 15 See Table C-1, Appendix C, for a list of compilations of state regulatory permitting references consulted by the Committee to assist its primary research on statutory and regulatory requirements. 16 California Coastal Comm'n v. Granite Rock Co., 480 U.S. 572 (1987). 17 Ariz. Rev. Stat. §37–932 provides that for mines on federal lands “an approved federal reclamation plan and a financial assurance mechanism …consistent with” the state's reclamation law “supersede” state requirements.
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HARDROCK MINING ON FEDERAL LANDS acceptable assurance (bonds, letters of credit, corporate guarantee), procedures to establish or revise required amounts, and procedures for release; reporting requirements; and monitoring requirements. Small mining operations often have fewer obligations and requirements under these laws (see Table 2–1). State reclamation laws resemble one another in broad terms, but differ in specificity, approach (technically prescriptive standards versus performance-based standards), and financial assurance requirements. They are generally administered by agencies at the state level organized to regulate mining. In California, however, reclamation is regulated at the county level, subject to oversight by the State Mining and Geology Board. Surface water quality protection laws. These laws, in general, correspond to the federal Clean Water Act permitting programs. Section 402 of the Clean Water Act requires permits for all discharges from “point sources” to the waters of the United States. 18 A state may operate the permitting program in place of the Environmental Protection Agency (EPA) if the EPA has approved the state's regulatory program. All the western federal land states except Alaska, Arizona, Idaho, and New Mexico operate permitting programs pursuant to EPA delegations. EPA is responsible for surface water discharge permitting in these four states. The permit limits are a combination of technology-based effluent limits and water quality-based limits (where the technology-based limits are not sufficient to meet water quality standards in the receiving waters). Such limits may face further tightening in the future as states conduct assessment of their impaired waters under section 303(d) of the Clean Water Act. Under this section, the states must identify water bodies that do not meet water quality standards with current permit limits, and must establish total maximum daily loads (TMDLs) in order to meet those standards. TMDLs allocate pollutant loads among the sources of discharge. Section 402 permits typically include numerical standards for the active mining phase and may include different or best professional judgment standards for post-mining discharges. Some states require a “zero discharge” permit for mine facilities designed not to discharge, where there may be adverse effects if discharge occurs. A number of states rely on their water 18 33 U.S.C. §1342.
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HARDROCK MINING ON FEDERAL LANDS TABLE 2–1 Reclamation and Financial Assurance Requirements for Small Mining and Exploration Operations Federal Requirements BLM No notice and no financial assurance is required if “casual use”; operator must prevent unnecessary or undue degradation. Filing of notice is required for all other operations under 5 acres; reclamation is required but no financial assurance. Forest Service Plan of operations is required if there is significant disturbance of surface resources; reclamation and financial assurance are required. State Requirements Alaska Under 5 acres requires annual application, letter of intent, annual reclamation statement; no financial assurance. Arizona Exploration and mining less than 5 acres are not regulated under reclamation law; no financial assurance. Notice to Department of Water Resources required for drill holes 100 ft. or more deep. Aquifer protection permit can apply to small operations, and requires demonstration of financial capacity; exempts overburden returned to excavation area and materials not chemically leached or that will not otherwise leach concentrations violating aquifer standards. California Not regulated under reclamation law if under 1 acre and overburden disturbed is less than 1,000 cu. yd.; no financial assurance. Waste discharge regulations (chemical processes, waste units design and closure requirements) have no size threshold and financial assurance is required. Colorado Prospecting not regulated if disturbed area is less than 1,600 sq. ft. and not exceeding two such disturbances per acre, or 5 acres statewide in 24-month period; no financial assurance. Larger prospecting operations require notice of intent and financial assurance of $2,000/acre. Limited impact mining
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HARDROCK MINING ON FEDERAL LANDS operations affecting less than 10 acres and less than 70,000 tons of material have simpler permitting requirements than larger operations except for designated mining operations; financial assurance is required. Idaho Hardrock exploration operations must file a notice and reclaim; financial assurance is not required if less than 5 acres. Mines of any size must have reclamation plan and financial assurance. Placer exploration operations must file a notice and reclaim, but financial assurance is not required if less than 2 acres. Placer mines more than 2 acres require reclamation plan and financial assurance limited to $1,800/acre. Montana Exploration requires statewide license; license requires bonding of $200–$2,500/acre. Small miners exclusion statement allows an operator to disturb up to 5 acres without a permit; two such sites if at least 1 mile apart. Hardrock small miners are not required to reclaim or post bond; placer small miners must reclaim and post bond not to exceed $10,000. Small operators using cyanide are required to obtain a permit and post bond for that portion of the operation. Nevada No reclamation permit is required for exploration or mining operation disturbing and not reclaiming areas of less than 5 acres within 1 mile radius in any calendar year (and not processing more than 36,500 tons annually). No financial assurance is required. Exploration boreholes must be plugged in accordance with regulations of state engineer. Water pollution discharge program applies with no size threshold. New Mexico Operations eligible for a general reclamation permit are wet operations (2–100 cu. yd. of material moved per year) or dry operations (up to 200 cu. yd. per year); no financial assurance required. Minimal impact exploration operations (less than 5 acres and no significant impact on water or groundwater or certain other factors) require a permit but no financial assurance. Minimal impact mining operations (less
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HARDROCK MINING ON FEDERAL LANDS than 10 acres and not otherwise excluded) require a permit, but do not require financial assurance if 2 acres or less. Oregon No reclamation permit for mining operations disturbing less than 1 acre of land, or that move less than 50 cu. yd. in streambeds or less than 5,000 cu. yd. otherwise; and no financial assurance required. A special permit is required for exploration that disturbs more than 1 cumulative acre or requires drilling of holes 50 feet or more in depth. Blanket bonding is authorized for exploration. South Dakota Exploration is conducted under a notice of intent. A notice is not required for activities that cause “very little or no surface disturbance. ” Reclamation of exploration operations conducted under notice is mandatory; financial assurance must be posted either based on site-specific conditions or a $20,000 surety for statewide exploration. Small-scale mining operations, defined as affecting less than 10 acres exclusive of access roads and extracting less than 25,000 tons of ore or overburden per calendar year and not using cyanide or other chemical or biological leaching processes; financial assurance not exceeding $2,500 total. Utah Notice of intent for exploration and mining operations of less than 5 acres; no financial assurance required; reclamation required in accordance with rules. Washington Reclamation law does not regulate mining operations disturbing and not reclaiming less than 3 acres, and exploration operations disturbing less than 1 acre in an 8-acre area; no financial assurance is required for operations below these thresholds. Metal mining and milling act does not have a size threshold. Wyoming Requires a notice for exploration by drilling and a license to explore by dozing; the license cannot cover more than 40 acres of disturbance in 4 contiguous 1/16th sections. Both the notice and license require a minimum financial assurance of $10,000. A letter of authorization with no financial assurance
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HARDROCK MINING ON FEDERAL LANDS is given for small disturbances, such as less than 3-inch suction dredging. A small mine permit and financial assurance are required for operations moving 10,000 cu. yd. or less and 10 or fewer acres disturbed in any year. NOTE: This table addresses primarily reclamation and financial assurance requirements and does not represent all regulation of small operations. For example, small mine operations may require water pollution discharge permits, air pollution permits, wildlife agency approvals, endangered species and cultural resources reviews, or other permits. pollution control permitting programs to regulate hardrock mining facilities and processes that introduce cyanides, acids, or other substances to the mine site. For example, Nevada's water pollution control permitting process is the primary regulatory framework for control of beneficiation and process units. In addition to regular section 402 permits for point source discharges from mining operations, the Clean Water Act also requires control of industrial stormwater discharges that enter surface waters, including seepage from leach heaps and waste rock dumps. These are generally regulated pursuant to a general permit or permit-by-rule.19 General permits under section 402 are also used to regulate water quality concerns associated with placer mining in Alaska. State groundwater quality laws. Many states have laws designed to protect the quality of groundwaters from discharges from mining and other operations. These laws range from the detailed permitting program in Arizona (requiring aquifer protection permits based on detailed prescriptive standards) to the California mining waste requirements under the Porter-Cologne Act (establishing waste characterization standards and presumptive design standards for management units) to Colorado's groundwater law (which requires each regulatory agency to integrate groundwater protection into its permitting and regulatory decisions). State water rights laws. State laws in the West subject the withdrawal and use of surface water and groundwater to regulation by the state engineer's office or its equivalent agency. Such review is generally intended to protect beneficial users and assure the integrity of water rights. Thus, mining processes that result in consumptive uses of water or dewatering of aquifers 19 33 U.S.C. §1342(p).
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HARDROCK MINING ON FEDERAL LANDS and surface waters must obtain permits from the state engineer. Water quantity laws also can have some impact on mining practices and approaches, including effects on the post-mining hydrology that must be achieved. Fish and wildlife laws. Many states have enforceable requirements that relate to fish and wildlife. These may include provisions requiring stream diversion permits (as in California), netting of process ponds to prevent death or injury to migratory birds and terrestrial animals (as with Nevada 's industrial pond permitting program), limitations on the timing and location of suction dredging in streams used by anadromous fish (as in Washington), as well as requirements related to definition of post-mining land use objectives and revegetation standards. Air quality permitting. Air pollution permits are required for most hardrock mining operations beyond the smallest operations. Generally, this is state permitting pursuant to the federal Clean Air Act; it may include controls for fugitive dust, particulates, sulfur dioxide emissions, certain metals, and volatile organic compounds.20 Clean Water Act section 404 permitting. A federal permit from the U.S. Army Corps of Engineers is required when a mining activity will result in filling waters of the United States, including wetlands.21 In some cases, a “general permit” may be available for activities disturbing small areas that are believed to cause minimal impacts. The 404 program requires avoidance of wetlands, minimization of unavoidable impacts, and mitigation of impacts (including compensatory mitigation). Section 404 permitting also triggers a requirement under section 401 that the state in which the activity occurs must certify that the activity will not impair water quality below state standards; states may impose conditions or requirements in connection with their grant of certification. 22 Other regulation. Other types of regulation typical at hardrock mines on federal lands include Resource Conservation and Recovery Act (RCRA) regulation of certain hazardous wastes and laboratory chemicals as well as certain processing wastes not exempted by RCRA or state laws more stringent than RCRA. Wastes from the extraction and benefication of mineral ores are exempt from hazardous waste regulation under RCRA, as are specified mineral processing wastes, but states may apply more stringent definitions. State solid waste regulations also apply to various wastes, including garbage, construction debris, and other wastes not exempt under state law. Other regulatory programs include the Safe Drinking Water Act regulation of underground injection and protection of source waters; protection of cultural resources and 20 42 U.S.C. §§7401 et seq. 21 33 U.S.C. §1344. 22 33 U.S.C. §1341.
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HARDROCK MINING ON FEDERAL LANDS archaeological permitting; reporting requirements under the Emergency Planning and Community Right-to-Know Act; spill reporting obligations under the Comprehensive Environmental Response, Compensation, and Liability Act, and liability under that Act for releases of hazardous substances to the environment (including liability for natural resource damages); Uranium Mill Tailings Radiation Control Act regulation of uranium tailings disposal sites; local regulation, zoning, and occupancy requirements; transportation regulation (including road closures, relocations, crossings); and other requirements. Section 313 of the Emergency Planning and Community Right-to-Know Act requires certain types of operations annually to report any releases to the environment, accidental or planned, of the 650 listed chemicals (including metals and other substances identified as hazardous), as well as amounts of chemicals involved in certain other types of activities, such as recycling or destruction. Originally implemented in 1987, the Toxic Release Inventory regulations under this section were revised in 1997 to require hardrock mining operations to complete this reporting. The first report from hardrock mines was due on July 1, 1999, for 1998 calendar year releases. Regulation of uranium industry. The regulatory structure that governs the uranium industry is unique because of the role of the Nuclear Regulatory Commission, which regulates all aspects of the uranium industry that involve processing of uranium, including the in situ solution mining of uranium. The EPA, or a state with a delegated program, also regulates the in situ solution mining of uranium because the injection wells are considered to be Class 3 wells under the Underground Injection Control Program (40 CFR 140–143). State groundwater protection and water rights laws also apply. Traditional mining of uranium is regulated in the usual fashion by other federal and state agencies. A more detailed discussion of the uranium industry is in Appendix A. RELATIONSHIPS AMONG STATE AND FEDERAL ENVIRONMENTAL REGULATIONS Crosscutting issues under all the federal, state, and local programs include permitting, monitoring and reporting requirements, inspection and enforcement, reclamation, surety, bond release, and public participation opportunities. Some of these relationships are defined by MOUs, while others are worked out more informally. The current array of MOUs differ significantly in their specificity. Given the variation in topography, climate, and area of federal lands open to hardrock mining in any state, differences in state laws, and local differences in public attitudes toward mining, consistency among state MOUs may not be necessary or even desirable. Testimony provided by federal and state officials
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HARDROCK MINING ON FEDERAL LANDS at meetings of the Committee indicated that the MOUs generally serve their stated purposes. However, of more relevance is whether federal and state laws each need to cover all topics of concern, or whether coordination of the respective laws can adequately address hardrock mining impacts. For example, apparent gaps in federal regulatory authority (e.g., groundwater quality) may be filled by state authority. On the other hand, federal reclamation bonding requirements, such as for small operations on Forest Service lands, sometimes fill a state regulatory vacuum. Unless there is strong coordination, gaps or duplication of effort may occur. How do these varying programs relate to one another? Federal agencies that manage lands open to mineral exploration and development regulate hardrock mining and exploration by managing the land and regulating the land's uses. Congress, mostly acting through laws administered by the EPA, has assigned permitting and regulation of water quality and air quality to the states (except where states have elected not to seek authorization and have left permitting to EPA). Most states have taken on these responsibilities. Water quantity has historically been subject to state regulation. Groundwater quality (in the absence of federal legislation) has also been largely a matter of state regulation. Protection of cultural resources on lands open to mineral extraction is of concern to federal agencies through the National Historic Preservation Act, to states through their state historic preservation offices, and to Indian tribes and others with cultural heritage in the mining areas, such as residents of historic mining towns. This dispersion of management and concerns for environmental and cultural protection among federal, state, tribal, and local entities raises the issue of which entity has, or should have, the leading role in managing and regulating activities that may create environmental degradation. Virtually all areas of concern about environmental degradation or protection of cultural resources are addressed in some fashion by regulation and permitting procedures; however, there are times when higher levels of environmental or cultural protection may be desired for site-specific reasons. These resource protection issues can often be addressed through federal resource management planning processes, which allow input from all interested parties. In general, the state and federal environmental permitting agencies are the first-line enforcers. The BLM and Forest Service may also take enforcement action under their respective 3809 and 228 regulations when the activity results in violation of those regulations or violates the terms of the plan of operations or the notice requirements. State regulatory agencies, the EPA, the U.S. Army Corps of Engineers, or the U.S. Fish and Wildlife Service will ordinarily take the lead in enforcement when a regulatory standard has been contravened—such as
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HARDROCK MINING ON FEDERAL LANDS violation of an effluent guideline, failure to report a release, or causing the death of migratory birds or harm to endangered species. Federal land managers may act independently (even where a regulatory agency has also acted) to assure that land management objectives not necessarily reflected in an abatement order issued by another agency are satisfied. In general, the existence of multiple regulatory programs helps to assure that at least large-scale mining on federal lands is subject to substantial scrutiny. At the same time, however, the complexity of the various programs can make the system difficult to understand, approach, and implement efficiently. As a result, mining regulation, permitting, monitoring, reclamation, closure, and post-closure becomes a series of negotiations carried on against a background of regulatory requirements and programs. This means that governmental regulators at all levels need a significant degree of sophistication and training in order to make these programs efficient and effective. The programs do not—and cannot—operate in cookbook fashion. Thus, many of the findings and conclusions of this report involve mixed issues of regulatory adequacy and implementation. TIME REQUIREMENTS FOR ENVIRONMENTAL REVIEW AND PERMITTING Examination of timing provisions and requirements in state and federal laws and regulations reveals a variety of approaches by the agencies. The amount of time required for project review and permitting is influenced as much by implementation practices of state and federal agencies as by statutory and regulatory requirements. For example, while NEPA comment and review requirements under the Council on Environmental Quality's regulations23 could in theory allow a project to proceed from notice of intent to prepare an EIS to a record of decision in approximately six months, the committee found that large-scale mines on federal lands require between 18 months and 8 years to complete both the EIS review and all the permitting and other approvals by state and federal agencies with jurisdiction over the mining operations. NEPA regulations do provide some opportunities to address timing issues. The regulations expressly encourage federal agencies to set time limits appropriate to individual actions. They also provide that an agency “shall set time limits if an applicant for the proposed action requests them. ”24 23 40 CFR §1500. 24 40 CFR §1501.8(a).
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HARDROCK MINING ON FEDERAL LANDS Some laws have explicit timing requirements. For example, Colorado law provides that a decision must be made on the state reclamation permit within 120 days after receipt of the application, unless the operation is particularly complex or other circumstances require more time. The law provides for an additional 60-day review period under such circumstances. To afford sufficient time for review, Nevada 's water pollution regulations state that applications must be submitted at least 165 days before the intended commencement of operations; the regulations also require a pre-application meeting with the regulatory agency to identify data needs and avoid unnecessary delays in determining that permit applications are complete. Nevada's reclamation regulations tie the timing of the reclamation permit issuance to completion of the federal EIS process. Some states, such as California, have adopted time requirements for their “state NEPA” processes. However, even where state laws impose time limits, operators noted that there can be implicit pressure to agree to extensions of time beyond these limits in order to avoid risking a denial based on lack of information desired by an agency. The time required for environmental review and permit issuance is also related to the completeness and technical adequacy of the permit information provided by the operator. It can take a significant time for the applicant to acquire an adequate data base. Timing of environmental review and permitting is affected by agencies' ability to coordinate with one another, as well as by the availability of sufficient agency staff and technical resources. Where coordination among state and federal regulatory agencies is high, environmental review and permitting appears to be faster—at least in areas that are not highly controversial due to publicly competing interests and values. Where separate agencies engage in serial permitting, rather than coordinating their review efforts, the process—including data gathering—can take longer. These implementation relationships are explored further in Chapter 3.
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Representative terms from entire chapter: