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HARDROCK MINING ON FEDERAL LANDS 3 Adequacy of Environmental Protection As specified by Congress, the study shall identify and consider…the adequacy of federal and state environmental, reclamation, and permitting statutes and regulations applicable in any state or states where mining or exploration of locatable minerals on federal lands is occurring, to prevent unnecessary or undue degradation. This chapter responds to Congress's second request to the Committee, and includes assessment of statutes and regulations, implementation of the regulations, and related matters to protect the environment. The Committee's assessments are presented as a series of issues related to the adequacy of environmental protection and regulatory efficiency related to mining. Apart from the issues that are identified, the Committee noted the significant improvements in mining-related environmental protection in recent decades. The Committee also noted that the staffs of federal land management agencies and the federal and the state regulatory agencies are generally dedicated to their tasks. Finally, all stakeholders the Committee encountered appeared to be concerned about environmental protection, even though they may disagree about the means and extent of that protection. An evaluation of the adequacy of environmental protection related to mining on federal lands should include an analysis of the statutes to determine if they are protective of the environment or if they contain gaps or duplications. A regulatory program, however, is more than a collection of statutes. Laws can differ in their implementation, and their interpretation can be modified by court decisions. Laws are amplified and clarified through regulations. The regulations in turn are supplemented by published guidelines,
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HARDROCK MINING ON FEDERAL LANDS policy statements, and administrative interpretations, which may not be consistent over time or among offices. The Committee has reviewed several recent compilations of regulatory requirements (see Appendix C). The implementation of regulations through permits depends on such factors as the training and experience of the permit writers, their workload and staffing levels, their specific knowledge of the proposed operations, and their interpretation of rules and policies. Similar factors may affect the quality and effectiveness of the site inspections and monitoring that determine if mining activities are in compliance with operating permits. Finally, the implementing authorities must have and be willing to use enforcement tools when noncompliance occurs. Ultimately, the adequacy of state and federal regulatory programs for protecting the environment must be measured by what happens on the ground. In this Chapter the Committee first presents a brief discussion of the essential elements of a regulatory program. The Committee then discussed a number of issues related to the adequacy of environmental protection of hardrock mine sites. The following issues are discussed and assessed: regulatory issues; regulatory implementation issues; scientific issues; the need for early stakeholder consultation; reclamation, closure, and post-closure management; regulatory efficiency issues; and public involvement issues. The issues presented herein lead to the recommendations presented in Chapter 4. ELEMENTS OF A REGULATORY PROGRAM The Committee identified the following 11 elements of an effective regulatory program: Information to describe pre-mining conditions, potential changes to the environment resulting from a project, and proposed post-mining/reclamation land use conditions; Models and tools to project and assess the consequences of these changes; Standards and criteria to determine if the changes comply with permit requirements, or are otherwise acceptable; Monitoring to demonstrate that standards and criteria are met. Reporting and analysis of the monitoring results to assess compliance with standards and criteria and trigger appropriate response to noncompliance; Appropriate responses to correct noncompliance and assure it will not reoccur;
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HARDROCK MINING ON FEDERAL LANDS Enforcement actions to assure adequate responses to non-compliance; Financial guarantees to protect the environment if the operator fails; Personnel and resources, properly trained and supported, to adequately implement and administer the regulatory program; A management information system to track the effectiveness of the regulatory program; and Stakeholder communications to assure that the entire process is open to appropriate public scrutiny. Some of the elements are procedural (e.g., reporting and enforcement), and others describe the resources needed to make the procedures effective (e.g., models and tools, monitoring, and the management information system). Recognizing in advance the need to satisfy these eleven elements will add to the timeliness and adequacy of the regulatory program. These essential elements are discussed below and were used to identify the issues discussed later in this chapter. Information Information needed to describe environmental changes that result from a mining project can be divided into two categories: (1) environmental data and other information describing the site's existing, and, if available, pre-mine conditions; and (2) proposed plans of operations, reclamation plans, post-closure management plans, and other information required to identify the physical activities proposed for the site, and whether mining conditions can support the post-mining land use. Both sets of information must be adequate to determine the type and extent of impacts. Models and Tools The models and tools needed to project and assess the consequences of changes in baseline conditions resulting from the activities proposed for the site include air quality emission factors and models, acid-generation prediction models, pit lake water quality models, and hydrological models, among others. Current models and tools have varying degrees of uncertainty and have been subjected to varying degrees of calibration and verification (see Appendix D).
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HARDROCK MINING ON FEDERAL LANDS Standards and Criteria Standards and criteria are required to determine if the physical activities proposed for the site are in compliance with permit requirements. These standards and criteria are derived from the authorities applicable to the regulation of mining. They range from specific numerical standards, such as those included in federal and state Clean Water and Clean Air Act requirements, to the more qualitative requirements, such as those typically contained in state reclamation laws. Monitoring Appropriate environmental monitoring is essential to establish the effectiveness of containment measures, demonstrate compliance with standards and criteria, and direct responses to non-compliance (see Appendix B for discussion of long-term monitoring). Care should be taken to assure that monitoring requirements are adequately comprehensive and include the necessary quality control measures and documentation to be credible to the public. To the extent feasible, monitoring programs should include “early warning” elements to detect potential non-compliance far enough in advance to allow a suitable response that will prevent violation of standards and criteria. Reporting and Analysis Adequate reporting of monitoring results is required to assess compliance with standards and criteria and to trigger appropriate responses to incidents of non-compliance or, in the case of early warning monitoring, incidents of potential non-compliance. Reports should include tabulations, analyses, interpretations, and summaries that will allow the public to understand the results, will clearly support the conclusions, and will target actions to correct non-compliance. Corrective Actions Mine operators should quickly respond to correct actual or potential environmental problems identified through inspection and monitoring activities. These responses should be designed and engineered by qualified professionals, and if non-compliance has occurred, should be reviewed and
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HARDROCK MINING ON FEDERAL LANDS approved by the agencies with jurisdiction. Implementation should be monitored and documented with the same care given to original construction. Enforcement Enforcement tools are required to assure adequate responses to violations and to assure that all of the required program elements are implemented. However, enforcement tools are preferably a seldom used component of an effective regulatory program. It is important to distinguish between circumstances presenting imminent danger to human health or the environment and other occurrences of non-compliance. Any enforcement mechanism should include appropriate due process for the violator and should emphasize compliance rather than operator penalty. Financial Guarantees Reclamation financial guarantees have long been an element of both state and federal programs, and are needed to assure that mines are reclaimed, even when the operator fails or is financially unable to undertake reclamation. These costs should not become a public burden. More recently, financial assurances are being required for predicted or actual environmental impacts during or after mining if the operator fails to appropriately correct identified problems or does not respond to pollution releases. In addition, most jurisdictions are now examining the need to assure post-closure management of reclaimed mine sites. The various financial mechanisms should be secure and sufficiently liquid to allow responses to near-term needs. Personnel and Resources Adequately trained personnel and supporting resources are the key to effective implementation of a regulatory program. Adequate training is needed to maintain skills in the face of changing technology and to maintain an understanding of mining and environmental requirements. Acquiring and maintaining the necessary skills requires adequate funding and other technical resources. To complete inspections in remote areas, the federal land management agencies should consider the use of helicopters. Although costly, this option may be especially useful when notices of intent are filed in remote areas and BLM has only 15 days to respond.
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HARDROCK MINING ON FEDERAL LANDS Management Information System A management information system (MIS) is essential to regulatory programs. Such a system tracks the effectiveness of the regulatory effort and allocates the necessary personnel and resources to maintain adequate environmental protection and to continuously improve overall program effectiveness. An MIS can provide the basis for effective stakeholder communications, as well as the number and types of mines; summaries of monitoring, inspection, and enforcement information; and the status of reclamation, financial assurances, and outstanding violations. Stakeholder Communications Effective, two-way stakeholder communications are essential to assure that the entire regulatory program is appropriately open to public scrutiny. An open and well-communicated regulatory program is essential in building public confidence that effectiveness has been achieved and that federal lands are being adequately protected. REGULATORY ISSUES The Committee did not have sufficient information to evaluate fully the environmental impacts of modern hardrock mining. Regulation of mining will limit and control many of these impacts, but mining will still alter landscapes and environmental resources because regulations generally are not designed to prevent all impacts, because some impacts are not addressed by regulations, and because it is unreasonable to expect there will not be violations or failures of the regulations. While most of the current environmental impacts from hardrock mining are related to the over 200,000 inactive and abandoned mines (EPA, 1997b), some ongoing mining operations also affect environmental resources. (Appendix B contains a summary of the kinds of potential environmental impacts that can occur at hardrock mines on federal lands.) Nearly 20% of the mining sites inspected by EPA and the states between August 1990 and August 1995 were subject to enforcement actions. Nearly all the violations involved either the Clean Water Act, the Clean Air Act, or the Resource Conservation and Recovery Act (EPA, 1997b). This suggests that some hardrock mining operations cause environmental impacts, even under current regulatory conditions, and that these impacts are subject to regulatory enforcement
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HARDROCK MINING ON FEDERAL LANDS actions. The Committee has no information regarding the effectiveness of these enforcement actions. The Committee reviewed several assessments of the substance and adequacy of federal and state laws and regulations pertaining to hardrock mining throughout the western United States. The Committee heard testimony from speakers who contended that a compelling case had not been made to revise the BLM regulations and from other speakers who contended that the regulations do not adequately protect the environment. The Committee identified issues or gaps that reflect inadequacies in the statutes and regulations related to environmental protection and regulatory efficiency. In spite of these issues or gaps, and based on numerous discussions and meetings with federal and state regulators, mining industry representatives, and the public, the Committee finds that the existing regulations are generally well coordinated and effective. These issues or gaps related to regulation are discussed below. Role Conflicts in Land Management Agencies The Committee found that federal land management agencies have potentially conflicting roles. First, they manage the land for the multiple, and often conflicting, uses provided for by laws and regulations. In a sense, they are hosts for miners, lumbermen, and recreation visitors. Second, they are regulators responsible for ensuring that all activities conform to laws and regulations and that the environment is protected. Third, they are responsible for implementing the Mining Law of 1872, which appears to assign a priority to hardrock mining on the lands they manage. This leads to the following questions: Can they fairly and evenly discharge their historic role as host to land users and accommodate their growing role as regulators? Can they balance the interests of miners and the general public by issuing timely permits that reasonably protect the environment? Can they effectively implement the regulatory authorities that statutes provide? Other agencies face similar conflicts. For instance, the Environmental Protection Agency (EPA) is responsible for evaluating the adequacy of environmental impact statements (EISs). Yet, the EPA should be a cooperating agency in the NEPA process for preparation of EISs. In some instances, when conflicts between management and regulation apparently became too serious, Congress assigned different roles to different agencies, sometimes by dividing the original agency into independent parts. One partial solution to this problem is to provide easy public access to agency information and activities so the public could perform an oversight function. Recommendations 10, 11, and 13 address the issue of interagency cooperation and public participation. The
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HARDROCK MINING ON FEDERAL LANDS Committee believes the federal lands can be managed efficiently and effectively despite these potential conflicts. Regulatory Standards There are two types of regulatory standards used to limit environmental effects of mining: performance-based standards and technically prescriptive standards. Performance-based standards, sometimes referred to as outcome-based standards, specify the desired result or outcome rather than a method, process, or technology. The BLM's standard to avoid “unnecessary or undue degradation” and the Forest Service's standard to “minimize adverse environmental impacts” are both performance-based standards. These general standards articulate the agencies' overall management objectives, and can be used as the foundations or goals on which more specific standards are established. Technically prescriptive standards sometimes referred to as design standards, prescribe the specific techniques to be used to achieve adequate environmental protection. Standards that specify the type and thickness of liners below waste dumps and tailings piles are examples of technically prescriptive standards. A strength of performance-based standards is that they allow maximum consideration of the particular site-specific conditions and technology options in deciding how to achieve environmental goals. They also encourage the development of new and more cost-effective approaches to achieving these goals. Some disadvantages are that they may require regulators to have a greater degree of technical sophistication to assess the ability of proposed methods to meet the standards. Also, mine operators may have less initial certainty as to the methods that agencies will deem acceptable in meeting performance standards; the public may be confused by the approval of different methods to meet the standards from site to site. These disadvantages may, however, be addressed through training and development of clear guidance manuals and procedures. Examples of Canadian guidance materials that are used routinely by mine operators in Canada and the United States include Price and Errington (1998) and Price (1997). Manuals such as these that provide technical guidelines but acknowledge site-specific variability could be created for issues related to environmental protection at mine sites. A strength of technically prescriptive standards is that they minimize ambiguity and uncertainty about requirements of the regulated facility. Technically prescriptive standards also have disadvantages. For example, they typically assume that a national or statewide standard is appropriate for all locations and conditions and do not allow for site-specific conditions that may warrant special considerations. They also are insensitive to technological
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HARDROCK MINING ON FEDERAL LANDS change and may inhibit improvements. Recommendation 9 in Chapter 4 reflects the Committee preference that BLM and the Forest Service rely predominantly on performance-based standards. Financial Assurance The requirement for financial assurance for mining activities on federal lands has been inconsistent, depending in part on the type and size of the activity and the state where it occurs. For example, the Committee observed instances of recently abandoned but unreclaimed exploration and mining sites that had not been covered by any financial assurance. Financial assurance for such disturbances beyond casual use could discourage unreclaimed abandonment and provide funds for reclamation. The Committee also found that long-term water treatment and monitoring at mine sites generally does not carry financial assurance at either the state or federal level. A few states have adopted regulatory programs that authorize agencies to require financial assurance for long-term water quality protection. The BLM and the Forest Service have negotiated such financial assurances, but on a case-by-case basis for some mines on federal lands. Under current federal land management regulations all mines with operating plans are required to have some type of financial assurance for reclamation. Notice-level operations under the BLM regulations do not have to provide financial assurance. Notice-level activities can include exploration, mining, and processing operations, provided they disturb less than 5 acres. Casual use activities pose insufficient environmental risk to warrant financial assurance. Appendix E summarizes the types of available financial assurance. Based on the Committee's findings, inadequate protection of the public and the environment caused by current financial assurance procedures is a gap in the regulatory programs. Recommendations 1 and 14 in Chapter 4 address financial assurance for mining activities. Modification of Plans of Operations Several commentors, including federal agency personnel, expressed concern to the Committee that BLM and the Forest Service lack sufficient authority to require prompt modifications of plans of operations when the potential for degradation is identified. Examples warranting revisions could include unexpected acid drainage, problems with water balance, potential inadequacy of containment structures, and discovery of water quantity impacts
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HARDROCK MINING ON FEDERAL LANDS on wells and springs (see Appendix B). The authority to require operators to make modifications for cause is necessary to prevent unnecessary or undue degradation of federal lands. BLM regulations state that “at any time during operations under an approved plan, the operator on his/her own initiative may modify the plan or the authorized [BLM] officer may request the operator to do so.” (43 CFR 3809.1–7). A “significant” modification must be reviewed and approved by BLM “in the same manner as the initial plan,” that is, with appropriate NEPA review, among other requirements. If an operator fails to submit a modification requested by the authorized BLM officer “within a reasonable time, usually 30 days,” the officer may recommend to the BLM state director that the operator be required to submit a modification. In deciding whether to require a modification, the state director must determine whether “all reasonable measures” were taken by the authorized officer “at the time the plan was approved to ensure that the proposed operations would not cause unnecessary or undue degradation”; that the disturbance now resulting from operations under the approved plan or from unforeseen circumstances “is or may become of such significance” that modification is “essential” to prevent unnecessary or undue degradation; and that the disturbance can now be minimized using “reasonable means. ” Operations continue under the prior approved plan until a modified plan has been submitted and approved. However, if the operations are actually causing unnecessary or undue degradation, the state director must advise the operator of “reasonable measures” to be taken pending review and approval of the modifications. The operator must immediately take all necessary steps to implement those measures within a “reasonable period” established by the state director. Forest Service regulations provide that “at any time during operations under an approved plan of operations, the authorized officer may ask the operator to furnish a proposed modification of the plan detailing the means of minimizing unforeseen significant disturbance of surface resources.” If the operator does not furnish a proposed modification within a time deemed reasonable by the authorized officer, the authorized officer may “recommend to his immediate superior that the operator be required to submit a proposed modification of the plan” (36 CFR 228.4[e]). The supervisor must find that all reasonable measures were taken to predict the impacts in reviewing the original plan of operations, that the unforeseen disturbance is significant, and that it can be minimized using reasonable means. “Lacking such determination that unforeseen significant disturbance of surface resources is occurring or probable and that the disturbance can be minimized using reasonable means, no operator shall be required to submit a proposed modification of an approved plan of operations ” (36 CFR 228.4[e]). As with BLM regulations, the Forest Service regulations provide that operations may continue under the
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HARDROCK MINING ON FEDERAL LANDS previously approved plan of operations pending approval of a modified plan unless the supervisor determines that measures are needed to prevent unnecessary or unreasonable injury to surface resources. Disputes have arisen over the ability of the BLM and Forest Service to require modifications in various settings based on the language of the regulations. Such disputes include (1) whether issues of concern were identified in the review of the original plan, or whose fault it was that they were not addressed and (2) issues of the “reasonable means” that may be considered in a modification proceeding. The lack of clarity in these standards and the backward-looking nature of the findings required by the regulations have created uncertainties and inefficiencies in addressing impacts promptly. Recommendation 4 in Chapter 4 addresses the issue of modifying plans of operations to protect public lands. Different Regulatory Approaches for Exploration, Mining, Extraction, and Mineral Processing Exploration, mining, and processing present different levels of environmental risks (see Appendixes A and B). Similarly, different types of exploration and different types of mining and processing present different levels of environmental risk. The Committee found that regulatory efficiency does not necessarily reflect the level of environmental risk (e.g., exploration projects creating little potential environmental impact may take an extraordinarily long time to permit). It appears that the Forest Service and BLM do not adequately tailor regulations and permitting to match a project's potential for environmental damage. The Forest Service requires that financial assurances be provided and environmental assessments and plans of operations be prepared for any activity beyond “casual use.” The Forest Service requirement for plans of operations seems restrictive for small exploration projects that have little environmental impact. The BLM, on the other hand, requires neither financial assurance nor plans for activities disturbing less than 5 acres, requiring only that a 15-day review period precede any operations. The BLM approach seems more appropriate for exploration projects, except for the lack of financial assurances for activities on less than 5 acres. Information developed as exploration proceeds is used in decisions on steps that follow. At each stage of exploration, new findings help the operator decide whether to abandon the project, modify work in the already disturbed area, or extend the program in a particular direction on the ground. Extensions must be approved promptly if work is to continue and particularly if there is a limited exploration season. The Committee heard suggestions that this
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HARDROCK MINING ON FEDERAL LANDS which vary widely, may be more timely than the federal processes, which depend on the involvement of a U.S. magistrate. In addition to these federal and state enforcement authorities, there are enforcement authorities for other federal regulatory programs, such as those of the Army Corps of Engineers and the EPA. These programs may provide a more expedited path for dealing with operator noncompliance than the federal land management agency process. However, the Committee found that federal agency procedures for deciding when to refer apparent violations to state environmental permitting agencies, EPA, or the Army Corps of Engineers are not consistent or readily accessible. Memoranda of understanding (MOUs) address this issue in some states. MOUs do not always address enforcement coordination with federal agencies in those states where EPA (rather than the state) has permitting authority. While enforcement actions taken by BLM or the Forest Service are generally limited to violations of plans of operations, a plan is likely to include areas that state permitting agencies consider their responsibility. The regulation of water quantity through water rights issued by a state engineer is one such area. Initiation of an enforcement action by BLM or the Forest Service without prior consultation with, and agreement by, a state water resources agency undoubtedly would result in dispute. In summary, enforcement of mining-related compliance on federal lands is inconsistent and unnecessarily difficult. Recommendations 6 and 15 in Chapter 4 address the enforcement authority of the land management agencies. SCIENTIFIC ISSUES Regulatory programs are based on scientific understanding and analyses, and the adequacy of any regulatory program is substantially determined by the adequacy of its scientific underpinnings. The Committee identified several environmental issues whose solutions require more scientific information and understanding than is now available (see Appendix D). Science has contributed greatly to the amelioration of environmental problems associated with mining, and it has the potential to do much more. It serves as the foundation on which to base effective regulations, provides baselines and mileposts for performance expectations, and promises an ever improving ability to forecast and control future environmental impacts. Scientific research and observations have provided the basis for the development of models that predict the concentration of metals and other constituents in leachate and pit lakes over time; for predictions of the impacts of discharge waters on aquatic and terrestrial biota; and for improvements in the effectiveness and environmental protection of exploration and development techniques. A coordinated research effort is
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HARDROCK MINING ON FEDERAL LANDS needed to properly calibrate and improve the methods and models, and to adequately address such issues as the long-term cumulative effects of mining. Expanded discussions of some of these issues and others related to the environmental impacts of hardrock mining are found in Appendixes A, B, and D. Water Among the various environmental concerns related to hardrock mining, those involving the quantity, quality, and distribution of water are dominant. Water quality issues at mine sites may include metals, cyanide, acid drainage, pit lake water quality, placer mining, and mine water discharge to streams, all such conditions being site specific. Water quantity issues include mine water discharge to streams, groundwater withdrawal, and pit lake water quantity. Water quality and quantity issues affect riparian resources and aquatic biota. The potential environmental impacts of mining related to water are discussed in Appendix B. Some of the technological approaches to minimize impacts to water from mining are discussed in Appendix A. Sidebar 3–1 describes the origin of metal-bearing acid drainage whose prediction and mitigation are critical to planning an environmentally acceptable mining operation. Appendix B includes a discussion of predictive and empirical tests for acid-generating potential. Appendix D addresses some of the uncertainties associated with the accurate prediction of acid mine drainage. Pit lakes have recently been recognized as major long-term environmental concerns (see Appendixes B and D), and the Committee was able to visit several mines in Nevada that do or will contain pit lakes. The ability to accurately model the future hydrology and chemistry of these lakes and to forecast their roles as social and ecological assets or liabilities is a significant challenge deserving a large and diverse research effort (see Appendix D). The challenge is made even greater by the states that have not classified or designated a status for pit lakes, either individually or collectively. Recommendation 8 in Chapter 4 proposes the funding of a research program for the environmental impacts of mining. Baselines and Backgrounds Mine exploration and development occur in remote places where the environment has been relatively undisturbed or in areas that have been disturbed by prior mining or other development. In both cases, data must be collected to establish baseline conditions for tracking the effects of mining on
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HARDROCK MINING ON FEDERAL LANDS SIDEBAR 3–1 Where does acid mine drainage come from? One major environmental concern at many hardrock mine sites is metal-rich acid drainage, often referred to as acid mine drainage. A common feature of most ores is the presence of large quantities of sulfur, usually as pyrite or marcasite (both FeS2) or pyrrhotite (Fe1-xS). These minerals often occur with copper, zinc, lead, silver, arsenic, and other sulfides that constitute the economic part of the mineralization in sulfide ore bodies. Disseminated pyrite, in particular, commonly occurs in areas well beyond the zone of economic mineralization and as a component of waste rock. In such sulfur-rich deposits sulfur is released by the slow natural processes of oxidation, weathering, and erosion. The mountain ranges of the West are populated by areas stained red by the weathering of pyrite to earthy iron oxides, or “rust.” The sulfuric acid concurrently produced had been diluted and dispersed, crating local, and generally minor, natural degradation, although some natural acid springs do exist. Nature has created this natural oxidation at a leisurely pace. Mining exposes sulfur-rich material to the atmosphere at a much faster pace, which leads to more rapid oxidation. In the process, mining may create environmental problems with acidic runoff if this sulfuric acid is released to the environment. The acidity of the water and its proximity to metals in the ore may generate waters of low pH that are high in copper, iron, zinc, aluminum, arsenic, selenium, and other elements environmental conditions and to help guide reclamation decisions. Baseline measurements are needed on parameters such as rainfall and its variability, infiltration and stream discharge rates, vegetational communities, and the character and dynamics of terrestrial wildlife and aquatic biota over a sufficiently long period to establish meaningful baseline conditions. In previously disturbed areas, such features as the original drainage patterns and soil and water chemistry may be indecipherable. Determining the sufficiency of data is important and difficult for both administration and science, but it is an action that deserves both a practical resolution and continued investigation. The importance of monitoring is discussed in Chapter 1 and Appendix B.
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HARDROCK MINING ON FEDERAL LANDS THE NEED FOR EARLY STAKEHOLDER CONSULTATION The Committee heard from many individuals and organizations that early consultation among all stakeholders is essential for regulatory efficiency. Many individuals who addressed the Committee on this issue emphasized that the NEPA and permitting processes could be expedited if all stakeholders were to participate in the earliest scoping and pre-application meetings. Agreement might not be reached among all of the stakeholders. However, the issues would be better understood by the public and defined to the benefit of the public, the agencies, and the applicant if early consultation occurred under the NEPA and permitting processes. Early consultation should include all stakeholders, including the relevant federal, state, and county agencies, tribes, citizens groups, and the applicant. The Arizona Aquifer Protection Permits Application Guidance Manual provides an example of procedures for pre-application meetings and coordination, in this case between the Arizona Department of Environmental Quality and the applicant. The Committee heard that some federal agencies had declined to be involved in the scoping and pre-permitting meetings, but subsequently had imposed additional information gathering and other requirements on the applicant. This approach is particularly disruptive and likely has the effect of prolonging both the NEPA and permitting processes. The EPA was repeatedly criticized at the Committee's public meetings, as well as in various reports, for declining to be a cooperating agency in the preparation of mining EISs (EPA, 1997a,b). The federal land management agencies appear to be attempting to promote early consultation among the agencies most involved in the approval of the proposed mining operations. They testified that they, as a matter of course, encourage many of these agencies to cooperate in the preparation of the EIS. In some cases, however, they have not been sufficiently aggressive in identifying and inviting nongovernment organizations to cooperate in the EIS process. These organizations must have the opportunity to identify their concerns during the scoping process. Otherwise, they may raise their concerns late in the process or in appeals of the final EIS to federal courts, which disrupts the permitting process and makes it difficult to collect the appropriate baseline data. The land management agencies can invite, encourage, and facilitate the early participation of other federal, state, and local government agencies, but they cannot require it. Recommendation 10 in Chapter 4 addresses the need for early stakeholder involvement in EIS scoping, preparation, and review.
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HARDROCK MINING ON FEDERAL LANDS RECLAMATION, CLOSURE, AND POST-CLOSURE MANAGEMENT The Committee learned of concerns about reclamation, closure, and post-closure management of mining sites and also inspected examples of reclamation at active and inactive mining sites. This section addresses the principal issues related to these topics. Although most of these issues do not lead to specific recommendations, long-term post-closure management of mine sites is addressed in Recommendation 14 in Chapter 4. Backfilling The matter of requiring backfilling at open-pit mine sites was addressed in 1979 by a National Research Council report by the Committee on Surface Mining and Reclamation (COSMAR) as follows (NRC, 1979, p. xxviii): The [Surface Mining Control and Reclamation] Act requires that [coal-mined] land be restored to approximately its original contours. This provision is generally not technically feasible for non-coal minerals, or has limited value because it is impractical, inappropriate, or economically unsound… Further, to restore the original contour where massive ore bodies have been mined by the open-pit method could incur costs roughly equal to the original costs of mining. Although technically possible, such backfilling of a large open pit would be of uncertain environmental and social benefit, and it would be economically impractical to mine some deposits under the current cost structures. The appropriateness of backfilling open-pit mines continues to be a matter of public debate. The Committee has no strong basis to contradict the COSMAR conclusion on backfilling, which was based on an analysis of estimated costs. Although the Committee believes partial or complete backfilling can be environmentally and economically desirable in some circumstances, it was unable to find a basis to establish a general presumption either for or against backfilling in all cases. The NEPA process is appropriate for considering and weighing the costs and benefits of backfilling in a site-specific context. Federal land management agencies can assist that process with guidance documents that address the following factors: the impact of backfilling on the potential availability of mineral
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HARDROCK MINING ON FEDERAL LANDS resources that may become economically recoverable in the future; the site-specific environmental benefits that complete or partial backfilling may provide, such as reducing acid rock drainage, avoiding the development of poor water quality in a pit lake, or protecting surrounding groundwater resources; the negative environmental impacts that backfilling may cause, such as delayed reclamation and habitat development; and the degradation of groundwater quality if the backfill material is leached or chemically transformed as a result of geochemical conditions in the backfilled pit or underground workings. The circumstances under which backfilling is most likely to be viable include the following: mining areas where multiple ore bodies allow mining and backfilling to proceed without double handling of the backfill material; locations where backfilling may eliminate negative environmental impacts, such as acid drainage; and sites where backfilling provides an economically viable means of achieving reclamation goals or protecting other, specified resource values. Reclamation Planning for Possible Future Uses Some presenters to the Committee pointed out that mining operations may create features that are positive contributions to the surrounding area. For example, historic mining features may be of significant economic and cultural value to adjacent communities, either as tourist attractions or as part of the cultural heritage of the communities. Historic mining towns such as Cripple Creek and Leadville, Colorado, are important parts of America's cultural legacy, as well as continued centers of economic activity from tourism. Similarly, modern mines, if appropriately designed and reclaimed, could become important historic or cultural resources in the future. It was also pointed out that portions of a mine, such as waste rock dumps, tailings impoundments, pit lakes and highwalls, and underground mine openings may be attractive to wildlife if appropriately reclaimed. Pit lakes can provide aquatic resources for wildlife in otherwise arid regions of the country. The highwalls of the former open pits offer habitat for raptors. Waste rock dumps and exposed mineral deposits also provide recreational opportunities for hobbyists. And, as the number of operating mines declines, the opportunity for
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HARDROCK MINING ON FEDERAL LANDS “hands on” training of earth science students increasingly rests with historic mines. Finally, the Committee was told of the responsibility of the United States, as the largest consumer of minerals in the world, to retain opportunities for mining on public lands. Experience has indicated that the most likely locations for future development and extraction of additional mineral resources will probably be in existing mining regions. Based on these arguments, reclamation decisions should carefully consider possible future uses of mine sites. Protection of the environment and consideration of safety are paramount, but those goals may still be met while considering other potential future values and uses for the mine sites. Post-Closure Issues One of the most common concerns expressed to the Committee was the post-closure condition and use of past mining sites. It was pointed out that many reclaimed sites will require some degree of monitoring and maintenance by the landowner over the long term. In the case of unpatented mining claims on federal lands, the long-term landowner will be BLM or the Forest Service. Unless other provisions have been made through financial assurance, the costs of continuing care will be paid by the public. An important part of long-term management will be monitoring, inspection, and low-level maintenance of reclamation features, such as soil covers, vegetation, closed impoundments, waste rock piles, and water diversion structures. In some cases the quality of surface water or groundwater must also be monitored. It is also important for the federal land management agencies to plan for post-closure uses of the land. Pit lakes, for example, may provide an opportunity for boating and other water sports. Leach and wasterock piles may attract off-road vehicle enthusiasts, and open-pit highwalls may attract weekend rock climbers. Some of these post-closure uses, however, may violate the integrity of the reclamation features. Extensive off-road vehicle use, for example, could cause significant damage to soil and vegetative covers on leach and waste rock piles. If this occurs, the entry of water and air may exceed the design objectives, possibly leading to unexpected seepage and changes in water quality. Some unintended uses may also conflict with the intended uses of the site. Some recreational activities, for instance, could conflict with intended grazing or wildlife use. Post-closure land use conflicts have the potential for creating significant environmental and safety problems. Dealing with these problems and attempting to manage the unplanned or unforeseen uses may impose
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HARDROCK MINING ON FEDERAL LANDS additional costs and staffing requirements on the federal land management agencies. Post-closure problems could also arise from unusual climatic or hydrological events. Climate variations, especially in a desert environment, could lead to flooding or drought, either of which could damage the reclaimed site and result in increased costs to maintain the integrity of the reclamation design and structures. Although the likelihood of extreme events occurring at any one site may be low, the probability that they will occur at some site at some time is high. Long-term monitoring to detect potential problems and trends must be a part of post-closure plans. The responsibility and costs for monitoring and responding to unexpected uses and events will ultimately remain with the property owner. Ideally, such monitoring consists of nothing more than periodic inspections of the site by the owners or appropriate agency personnel or both. Some sites, however, will require a more extensive and sophisticated post-closure monitoring program. Monitoring is used for at least the following three purposes: determine if certain management actions were properly fulfilled; test predicted outcomes of closure plans; and identify and characterize trends or changes in site or regional attributes. Many types of monitoring are important in post-closure issues. The most obvious is monitoring for geotechnical, hydrologic, and geochemical stability. A variety of tools exist for monitoring in each of these areas, and the tools must be selected and used appropriately. Guidance documents and manuals should be developed by the federal land management agencies, and appropriate training should be provided to responsible personnel. Monitoring results should be used by land managers to verify that the outcomes of closure designs are those that were predicted. If monitoring results deviate from the expected outcomes, monitoring should be increased to verify the deviations, and appropriate responses to correct noncompliance should be taken in a timely fashion. Accurate evaluation and interpretation of monitoring data are not trivial tasks, and agencies should be certain that the personnel who are assigned those tasks are well qualified and trained. In some cases, it might be appropriate to employ non-agency professionals to assist in the evaluation and interpretation of the monitoring results (see Appendix B). Information presented to the Committee suggests that issues of reclamation, closure, and post-closure management have not been adequately addressed by the federal land management agencies. Without changes in planning, the agencies will not be prepared to handle these significant use and
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HARDROCK MINING ON FEDERAL LANDS environmental challenges, and the public may be faced with major financial liabilities. REGULATORY EFFICIENCY ISSUES The charge to the Committee includes provisions to review time requirements, efficiency, duplication, and delay. Specifically, the Committee was asked to address the time requirements applicable to project environmental review and permitting; and to make recommendations and conclusions regarding how permitting requirements and programs can be coordinated to increase efficiency, avoid duplication and delay, and identify the most cost-effective manner for implementation. Concerns about timing and delays were raised by many who communicated with the Committee. Such delays are an indication of regulatory inefficiency, whether the delay results from inadequate resources or from inefficient use of the resources available. The Committee did not conduct a management audit of the efficiency of the federal land management agencies, considering that to be beyond the scope of this study. However, comments regarding timeliness and delays are within the Committee's charge. The most serious matter is the excessive time required to complete a NEPA review, followed by the often lengthy time required to issue operating permits. The laws and regulations applicable to a proposed mining operation and the associated administrative procedures ensure that approval of a new mine is a very deliberate process. In many cases, two years of baseline data are needed before a plan of operations can be submitted. If the data are not available from an existing source, then the applicant may need to wait two years while the data are collected. However, this process has become much slower and more costly than was originally intended or than it needs to be. The process can now take many years. It commonly imposes data collection and analysis requirements on the applicant and the regulatory agency that are poorly coordinated, excessively expensive, and of uneven value in protecting the environment. Mining operators are entitled to a NEPA and permitting process that is as timely and cost effective as possible while still achieving compliance with all statutes and regulations. The federal land management agencies are responsible for making certain this happens by managing the NEPA and permitting process efficiently. The public is entitled to confidence that the foregoing has occurred. Based on presentations to the Committee, improvements in efficiency of the process are needed. Issues discussed earlier in this chapter affect regulatory efficiency. For example, the early involvement of all key agencies and other cooperating
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HARDROCK MINING ON FEDERAL LANDS entities in the NEPA process could speed the permitting and make agency resources available for other regulatory work. Freeing staff from the distractions of financially unprotected notice-level activities and small mines and mills without plans of operations, along with providing an adequate management information system, should improve service to clients and make the operations more efficient. Recommendation 16 in Chapter 4 addresses the need for a more timely permitting process that still protects the environment. PUBLIC INVOLVEMENT ISSUES The Committee heard evidence of public distrust of the management of mining on federal lands. Local residents near a mine spoke of being excluded from mining decisions that affected the health and quality of life in their community. Others alleged that agencies collaborated with mining operators to advance mine plans regardless of contrary information and views. People spoke of repeatedly being excluded from crucial decisions. Commonly, this was because the decisions were considered to be “technical amendments” to the operating plan or because the proposal was considered to be of such limited significance that it could be addressed through the administrative process, categorical exclusion, or environmental assessment, all of which involve reduced public review and comment. As addressed earlier, the Committee was frustrated in its attempt to find publicly accessible information regarding mining on federal lands. Such experiences produce distrust in the fairness and propriety of the management and regulatory system. At the same time, the Committee saw evidence of stakeholders developing communication and participation among all interested constituencies. Discussions with federal and state agency employees at state and field office levels generally demonstrated personal and agency commitments to public participation. The committee visited one mining operation where the company took extra steps to keep the public informed by establishing a citizens advisory committee and issuing periodic newsletters about mine activities. These initiatives appear to have raised public involvement and public trust. The NEPA process is designed to promote public participation in decisions regarding federal lands, and it appears to be achieving many of its objectives. Mining on public lands is controversial and many people hold strongly opposing views. Some people value mining for what it contributes to the national economy and to war efforts. Others are more concerned with pollution and environmental issues than with mineral production. Both sets of values are important and are needed in the debate, but a shift toward more environmental concern is causing difficulties for federal land management agencies as they try to adjust to these changes in public values.
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HARDROCK MINING ON FEDERAL LANDS Federal land management agencies historically have given support to such public land uses as mining, logging, and grazing. Now they are giving as much attention to such issues as watershed protection and clean water for public use, wildlife habitat, wilderness, ecosystem preservation, and endangered species. Because these are public lands, they must support the full range of public values. To fulfill this responsibility they must provide information on all aspects of the public lands and encourage the public to use that information in expressing its interests and concerns. The public is entitled to confidence that public lands are environmentally protected during exploration and mining activities. Federal and state laws, regulations, policies, and procedures go far in assuring this protection, but they are not sufficient. Changes in public values, environmental understanding, mining and reclamation technology, and the federal land management and regulatory agencies demand an extraordinary effort to promote public education, involvement, scrutiny, and trust in the coordination of environmental protection and management of mining on federal lands. The foregoing cannot be achieved solely through public relations programs. Public confidence also cannot be achieved with the currently inadequate management information systems, as discussed in earlier sections. The NEPA process is well suited to help achieve the objectives, but its effectiveness suffers from inadequate participation by many agencies and constituencies. Public confidence in the land management agencies is compromised if the public lacks the ability to track compliance with land use decisions. The Committee believes that the recommendations in this report, if adopted, will significantly benefit public education and participation, and contribute to a healthy balance between mining and the environment. Recommendations 11 and 13 in the next chapter address issues related to public participation and availability of information about mining operations. SUMMARY The analysis of hardrock mining-related issues in this chapter leads to the Committee's conclusions and recommendations presented in Chapter 4, which are based on the elements needed for an effective regulatory program as outlined in the introduction of this chapter. The analysis shows a need for correcting some gaps and inadequacies in the regulations themselves, for improving implementation of the regulations, and for increasing the availability and quality of scientific information. Ignoring these needs for corrections and improvements in the face of rapidly changing technology, economics, and environmental concerns puts the environment, the public, and the mining industry at risk.
Representative terms from entire chapter: