4

Conclusions and Recommendations

The study shall identify and consider…recommendations and conclusion regarding how federal and state environmental, reclamation and permitting requirements and programs can be coordinated to ensure environmental protection, increase efficiency, avoid duplication and delay, and identify the most cost-effective manner for implementation.

The charge to the Committee has three major components. First, the Committee was asked to identify federal and state statutes and regulations applicable to environmental protection of public lands in connection with mining activities. Second, the Committee was charged with considering the adequacy of statutes and regulations to prevent unnecessary or undue degradation of the public lands. These were discussed in Chapters 2 and 3 respectively. In this chapter, the Committee addresses the third part of its charge and presents its conclusions and recommendations for the coordination of federal and state regulations to ensure environmental protection, increase efficiency, avoid duplication and delay, and identify the most cost-effective manner for implementation.

Each recommendation is followed by supporting text that provides the justification for the recommendation, discusses its implications, and explains the Committee's view of how it can be implemented.

CONCLUSIONS

Existing regulations are generally well coordinated, although some changes are necessary. The overall structure of the federal and state laws and regulations that provide mining-related environmental protection is compli-



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HARDROCK MINING ON FEDERAL LANDS 4 Conclusions and Recommendations The study shall identify and consider…recommendations and conclusion regarding how federal and state environmental, reclamation and permitting requirements and programs can be coordinated to ensure environmental protection, increase efficiency, avoid duplication and delay, and identify the most cost-effective manner for implementation. The charge to the Committee has three major components. First, the Committee was asked to identify federal and state statutes and regulations applicable to environmental protection of public lands in connection with mining activities. Second, the Committee was charged with considering the adequacy of statutes and regulations to prevent unnecessary or undue degradation of the public lands. These were discussed in Chapters 2 and 3 respectively. In this chapter, the Committee addresses the third part of its charge and presents its conclusions and recommendations for the coordination of federal and state regulations to ensure environmental protection, increase efficiency, avoid duplication and delay, and identify the most cost-effective manner for implementation. Each recommendation is followed by supporting text that provides the justification for the recommendation, discusses its implications, and explains the Committee's view of how it can be implemented. CONCLUSIONS Existing regulations are generally well coordinated, although some changes are necessary. The overall structure of the federal and state laws and regulations that provide mining-related environmental protection is compli-

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HARDROCK MINING ON FEDERAL LANDS cated, but generally effective. The structure reflects regulatory responses to geographical differences in mineral distribution among the states, as well as the diversity of site-specific environmental conditions. It also reflects the unique and overlapping federal and state responsibilities. Conclusions that address overall environmental protection and program efficiency related to technical issues, regulations, or guidance include: Federal land management agencies' regulatory standards for mining should continue to focus on the clear statement of management goals rather than on defining inflexible, technically prescriptive standards. Simple “one-size-fits-all” solutions are impractical because mining confronts too great an assortment of site-specific technical, environmental, and social conditions. Each proposed mining operation should be examined on its own merits. If backfilling of mines is to be considered, it should be determined on a case-by-case basis, as was concluded by the Committee on Surface Mining and Reclamation (COSMAR) report (NRC, 1979). Site-specific conditions are too variable for prescriptive regulation. The Bureau of Land Management (BLM) and the Forest Service need not have identical regulations, but some changes are warranted. The two agencies have broadly similar land management mandates. There are, however, some differences in the kinds of lands they manage, in their specific responsibilities, and in their organization. Whereas some of the Committee's recommendations would make the agencies' approaches to regulating hardrock mining more similar, the Committee is not suggesting that uniformity in all aspects is necessary. Some small mining and milling operations present environmental risks and potential financial liabilities for the public. These exposures are small by comparison to large operations, but as currently regulated they constitute a disproportionate share of the problems for the land management agencies. Current regulations do not provide land management agencies with straightforward procedures for modification of plans of operations even with compelling environmental justification. Federal criteria do not distinguish between temporarily idle mines and abandoned operations. This distinction is important because mines that become temporarily idle in response to cyclical metal prices and other factors need to be stabilized but not reclaimed, whereas mines that are permanently idle need to be reclaimed. Financial risks to the public and environmental risks to the land exist whenever secure financial assurances are lacking.

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HARDROCK MINING ON FEDERAL LANDS Current regulations discourage reclamation of abandoned mine sites by new mine operators. New mineral deposits are commonly found at the sites of earlier mines. Even though the operator of a new mine may volunteer to clean up previous degradation, the long-term liability acquired under current regulations can be significant. As a result, non-taxpayer supported reclamation opportunities are missed and undisturbed lands may be preferentially disturbed for new mining sites. Post-mining land use and environmental protection are inadequately addressed by both agencies and applicants. The regulations and plans of operation generally specify what actions will be taken to protect water quality and what surface reclamation is to be performed for closure. However, there is inadequate consideration of protection of the reclaimed land from future adverse uses; of very long-term or perpetual site maintenance; or of rare, but inevitable, natural emergencies. Improvements in the implementation of existing regulations present the greatest opportunity for improving environmental protection and the efficiency of the regulatory process. Federal land management agencies already have at their disposal an array of statutes and regulations that for the most part assure environmentally responsible resource development, but these tools are unevenly and sometimes inexpertly applied. Specific conclusions regarding implementation are as follows. The National Environmental Policy Act (NEPA) process is the key to establishing an effective balance between mineral development and environmental protection. The effectiveness of NEPA depends on full participation of all stakeholders throughout the NEPA process. Unfortunately this rarely happens in a timely fashion. The Committee was consistently frustrated by the lack of reliable information on mining on federal lands. The lack of thorough information extends from that needed to characterize the lands available for mineral development to that needed to track mining and compliance with regulations. Without more and better information, it is difficult to manage federal lands properly and assure the public that its interests are protected. Deficiencies in both staff size and training were observed by the Committee in some offices of land management agencies. Increases in

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HARDROCK MINING ON FEDERAL LANDS staffing and improved training should result in improved environmental protection and program efficiency. Forest Service permitting procedures for mineral exploration projects with limited environmental impact commonly take significantly longer than is necessary. Misunderstandings of the term “unnecessary or undue degradation” (FLPMA, 1976 [43 U.S.C. §§7401 et seq.]) leave some BLM field staff uncertain whether the agency has the authority to protect valuable resources, such as riparian habitats, that may not be specifically protected by other laws. Federal land management agency representatives are inconsistent in their understanding of their enforcement authority and tools. This results from uncertain interpretations of the statutes and regulations, inadequate staff training, and deficiencies in the tools themselves. Inefficiencies and time delays in the completion of environmental review under NEPA, issuance of permits, and conduct of other administrative actions unnecessarily consume the resources and time of many stakeholders. Better information on federal lands is needed to make wise land use decisions. The land use planning process required for BLM and Forest Service lands by the Federal Lands Policy and Management Act and the National Forest Management Act, respectively, provide for identification of land and resources deserving special environmental concern. Successful environmental protection is based on sound science. Improvements are needed in the development of more accurate predictive models and tools and of more reliable prevention, protection, reclamation, and monitoring strategies at mine sites. The science base is far from complete and environmental protection requires that improvements continue to be devised. Some of the most important environmental concerns at hardrock mining sites are those related to long-term water quality and water quantity, which affect riparian, aquatic biological, groundwater, and surface water resources. A broadly coordinated, national research effort is needed to guide future development and to create improved methods for predicting, measuring, and mitigating environmental impacts related to hardrock mining. Portions of the public and the mining industry have little confidence in the propriety or fairness of the regulatory and permitting system. Some members of the public perceive that regulators work too closely with the companies and permit operations without sufficient environmental safeguards. Conversely, some mining operators experience delays that they perceive to be

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HARDROCK MINING ON FEDERAL LANDS caused, in part, by members of the public who seek to forestall mining through the permitting and regulatory processes. Lack of confidence in the regulatory and permitting system can lead to delays and higher costs for industry, regulatory agencies, and the public and can also limit opportunities for improving environmental protection. Conditions are changing for regulations and mining. Technology, social values, the economy, and scientific understanding change continually. Thus, environmental regulations applicable to mining will be most effective if they can use these changes to improve environmental protection. Similarly, the mining industry should benefit through lower operating cost and greater environmental protection. Therefore, a regulatory system that is adaptive to change will serve the public, the environment, and industry best. RECOMMENDATIONS Recommendation 1: Financial assurance should be required for reclamation of disturbances to the environment caused by all mining activities beyond those classified as casual use, even if the area disturbed is less than 5 acres. Justification The Committee observed unreclaimed exploration and mining sites that currently fall under BLM's category of notice-level activities, where the land disturbance amounts to less than 5 acres. Some of these sites are examples of unnecessary or undue degradation. The Committee believes that the inability to require a bond or other financial assurance for reclamation of these sites represents a gap in existing regulations. This recommendation proposes a major change in the way BLM regulates notice-level activities, which currently do not require financial assurances. According to data reported by BLM, there are 181 currently outstanding notices of noncompliance for 14,989 currently active notice-level activities (BLM, 1999a, Tables 3–2 and 3–6); that is, less than 2% of the currently active notice-level operations have outstanding notices of noncompliance. Approximately 72% of the outstanding notices of noncompliance for notice-level activities are for “failure to reclaim ” (BLM, 1999a, Table 3–6). Although the percentage of notice-level activities cited for noncompliance is small, and even fewer sites are left without some form of reclamation, BLM staff spend

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HARDROCK MINING ON FEDERAL LANDS significant time locating operators of these sites and achieving compliance with reclamation requirements. Disturbance of surface resources beyond those defined as casual use (see Sidebar 1–3) are considered significant. If bonds or other acceptable types of financial assurances were posted for reclamation of all such disturbances, regulatory agencies could use these funds to reclaim sites that have been abandoned or for which the operator is unwilling to reclaim the land. The requirement of financial assurance would protect taxpayers, who might otherwise be shouldered with the responsibility of reclamation. Furthermore, the bond itself provides an incentive for operators to reclaim the land in a timely manner. Discussion The objective of this recommendation is to guarantee financial assurance for all significant disturbances, while continuing to allow activities with negligible impact to be conducted without permits. In this context significant disturbance for the purpose of requiring financial assurances generally occurs when motorized equipment is taken off existing roads onto a site. Examples include the use of bulldozers (for building new roads and drill pads) and backhoes (for digging exploration trenches). The Forest Service currently uses a standard of “significant disturbance” in determining the threshold beyond which a plan of operations is needed (26 CFR 228.4). On BLM lands, neither a notice nor a plan of operations is required if the activity is classified as “casual use,” which is an activity ordinarily resulting in only negligible disturbance of the land and its resources (see Sidebar 1–3). BLM generally considers as casual use those activities that do not involve mechanized earth-moving equipment or explosives or do not involve motorized vehicles in areas designated as closed to off-road vehicles (43 CFR 3809.0–5). Implementation Standard bond amounts for certain types of activities on specific kinds of terrain should be established by the regulatory agencies. It should be recognized that certain types of activities are less costly to reclaim than others. A set of activity- and terrain-dependent standard bond amounts (by state, BLM district, or forest) should be established for typical activities, especially those of prospectors, small exploration companies, and small miners, so that adequate bonds are posted for activities under 5 acres and so that the permitting process is expedited. Standard bond amounts (a certain number of dollars per acre of land disturbed for a particular type of activity) should be

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HARDROCK MINING ON FEDERAL LANDS used in lieu of detailed calculations of bond amounts based on the engineering design of a mine or mill. In addition, the Committee encourages the use of bond pools to lessen the financial burden on small miners. Recommendation 2: Plans of operations should be required for mining and milling operations, other than those classified as casual use or exploration activities, even if the area disturbed is less than 5 acres. Justification The Committee observed examples of unnecessary or undue degradation on a few notice-level mining operations, which are not now required by BLM to have plans of operations. The Committee considers this to be a gap in the current regulations. This recommendation proposes a major change in the way notice-level operations are treated. Mine development, extraction, and mineral processing activities generally disturb the land more significantly than exploration activities (see Appendix A, which describes the overall mining process, Appendix B, which discusses impacts, and Recommendation 3, which addresses notice-level exploration activities). As such, mine development, extraction, and mineral processing require considerable engineering design and construction activities, whereas, apart from the design of roads to minimize erosion and impact on sensitive areas, exploration requires little, if any, engineering and construction. A plan of operations should be subjected to regulatory approval to assess and help minimize environmental disturbance from mine development, extraction, and mineral processing activities. (Recommendation 3 addresses expedited procedures for exploration.) Discussion This recommendation seeks to ensure that potential environmental impacts of mine development, extraction, and mineral processing operations are adequately considered and that the land will be reclaimed after mines and mills close. The Committee favors retaining the BLM distinction for casual use operations and the Forest Service's similar recognition of activities with no significant impact. The Committee discussed two examples in an effort to determine which kinds of mining-related activities should have approved operating plans. In the first example, small suction dredges used to recover placer gold from

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HARDROCK MINING ON FEDERAL LANDS sediments in streams generally are allowed under various state laws to be in the streams only during certain times of the year, preventing disturbance of fish at critical stages in their life cycles. The Committee believes that BLM and the Forest Service are appropriately regulating these small suction dredging operations under current regulations as casual use or as causing no significant impact, respectively. In the second example, the Committee debated whether bulk sampling for metallurgical testing, an activity that could be considered advanced exploration rather than mining, should require a plan of operations or be considered a notice-level activity. Bulk sampling commonly involves excavation, from a shallow open pit or small underground openings, of 10 to 1,000 tons or more of presumed ore. The rock is tested, typically off site at an operating mill or at a metallurgical laboratory, to determine whether the contained metals can be extracted efficiently and profitably. Because an exploration project must advance to a considerable degree before bulk sampling is done and because bulk sampling can require the excavation of considerable amounts of overburden and waste rock, the Committee believes a plan of operation should generally be required for activities involving bulk sampling. Thus, the Committee believes that, in association with a quick review of the operating plans, these same types of operations would benefit from a NEPA review that uses existing and readily available information. Some of this information may be available through the documentation developed by the land management agency for the land use planning process. The NEPA process will commonly require an environmental assessment rather than an environmental impact statement; in either case, the land management agency is responsible for timely completion of the appropriate NEPA documents. The requirement for a plan of operation for all mine development, extraction, and mineral processing operations should not be viewed as an opportunity to slow the process through extended review, but rather as an opportunity to develop the information needed for improved operations and for better monitoring and enforcement. Implementation The Committee recognizes the valuable role that small miners play in the development of the nation's mineral wealth. Because of scale, small mines generally have less potential environmental impact than major mines. The Committee therefore believes that, with adequate bonding for reclamation, small miners should receive expedited schedules and services in permitting. For example, regulators should provide small miners with examples of generic permit applications that clearly explain the miner's responsibilities. The Committee believes that certain types of mineral extraction processes should be

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HARDROCK MINING ON FEDERAL LANDS treated differently than others in terms of the speed with which plans of operations are reviewed and approved. Some could have rapid, check-off-the-boxes approaches to permit applications. For example, mining for mineral specimens for collectors could be reviewed and permitted rapidly if no potentially harmful chemicals are used on site for beneficiation and if less than 5 acres of land is disturbed. Most specimen mining occurs in established mining districts, where adequate surface access exists. In addition, the land management agencies could assist small miners and mill operators by assigning more personnel to help complete permit applications, educate the operators in the permitting process, and develop standardized, easy-to-understand forms. Recommendation 3: Forest Service regulations should allow exploration disturbing less than 5 acres to be approved or denied expeditiously, similar to notice-level exploration activities on BLM lands. Justification The ability to obtain access to land in a timely manner is vital to exploration (see Appendix A). The Committee found that the time it takes industry to obtain permission to explore on federal lands varies considerably by agency, even when disturbance to the land is likely to be minimal. This recommendation calls for a major change in the way the Forest Service approves exploration activities for disturbances of less than 5 acres. Along with Recommendation 1, which would require financial assurances for such exploration activity on BLM lands, this recommendation would make the requirements for exploration on Forest Service and BLM lands similar. Under the current system for notice-level exploration activities affecting 5 acres of land or less, BLM has 15 days to respond and notify the operator if extraordinary measures are needed for the planned activities. In contrast, Forest Service officials reported that essentially identical exploration activities on Forest Service lands often require eight months lead time and sometimes as long as two years to obtain approval, although some approvals for exploration are obtained more quickly. Before plans of operations for exploration are approved, Forest Service officials generally inspect the sites, carefully review the plans, and prepare environmental assessments. The length of time can vary depending on whether the operator has the financial resources to provide for a third party to prepare an environmental assessment or must wait for the Forest Service to prepare the document.

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HARDROCK MINING ON FEDERAL LANDS Exploration typically progresses from one place to another depending on the results of the previous tests. For example, the results of one drill hole will often dictate the optimal location of the next drill hole. Anticipating the location of all drill holes on a particular piece of land is difficult. Therefore, exploration companies, when planning their exploration programs, tend to add to the estimated number of drill hole locations that are necessary. Exploration companies informed the Committee that companies typically attempt to limit disturbance to less than 5 acres at a time on BLM lands because of the quick review from BLM for notice-level disturbances. Because such a provision does not exist in Forest Service regulations, there is less incentive to limit disturbance on these lands. In fact, because the review time is so lengthy, companies are likely to submit proposals for far larger exploration programs on Forest Service land than on BLM land in order to avoid further delays that would be caused in obtaining additional approvals. The only incentive for limiting disturbance on Forest Service lands appears to be the cost of reclamation. Discussion The objective of this recommendation is to allow exploration activities to be conducted quickly when minimal degradation is likely to occur. The Committee believes that, with reclamation bonds or other financial assurances in hand for land disturbance (see Recommendation 1), exploration should be able to proceed expeditiously. That is, the current BLM 3809 regulation with a 15-day response time for notice-level exploration activities should be maintained, and a similar procedure should be adopted by the Forest Service. Increased use of geographic information systems to check locations for such features as riparian areas, steep terrain, cultural resources, and known habitats and locations of threatened or endangered species should facilitate the necessary evaluations by land managers. Quick response time improves exploration efficiency because it gives operators the necessary flexibility to modify plans based on initial results, and because it provides an incentive for operators to design exploration activities that minimize the disturbed acreage. Implementation Although the Committee recognizes that Forest Service lands often are in steeper terrain with more springs and creeks than BLM lands, the Committee believes that, with financial assurances in place, exploration disturbing less than 5 acres should be able to proceed on Forest Service lands as rapidly as on BLM lands. That is, the Forest Service should modify its 228 regulations to allow for rapid approval of exploration activities disturbing less than 5 acres.

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HARDROCK MINING ON FEDERAL LANDS The Committee does not intend that the requirement of bonding for exploration activities (Recommendation 1) result in a federal action that would automatically trigger an environmental assessment or environmental impact statement. BLM does not currently require companies to supply an environmental assessment for notice-level activities. The Committee believes that not requiring environmental assessments for exploration with less than 5 acres of disturbance is appropriate for both BLM and Forest Service lands. The Committee debated whether the 5-acre threshold for BLM notice-level activities, above which full plans of operations with environmental assessments or environmental impact statements are required, is appropriate. Five acres appears to be a reasonable threshold, if reclamation bonds or other financial assurances are required, because environmental impacts from exploration at this level are likely to be minimal and because the cost (generally $5,000 to $25,000 for a full 5 acres of expected disturbance) is likely to be sufficiently high to provide an incentive for operators to reclaim the land quickly. Recommendation 4: BLM and the Forest Service should revise their regulations to provide more effective criteria for modifications to plans of operations, where necessary, to protect the federal lands. Justification Concern was expressed to the Committee about the ability of BLM and the Forest Service to require modifications of plans of operations in light of new circumstances or information, such as unexpected acid drainage, problems with water balance, adequacy of approved containment structures, or discovery of impacts on wells and springs. The ability to require operators to make necessary modifications is essential to the agencies' ability to prevent unnecessary or undue degradation of federal lands. A BLM state director or Forest Service supervisor now may require modifications only after making a set of findings that include determinations on the foreseeability of the issue when the original plan was approved, and if the agency took all reasonable measures to forestall the issue at that time. However, arguments over what should have been “foreseen ” or whether a BLM or Forest Service officer took “all reasonable measures” in approving the original plan makes the modification process dependent on looking backward. Instead, the process should focus on what may be needed in the future to correct problems that have resulted in harm or threatened harm. Protection of the lands should not depend entirely on an after-the-fact assessment of how good a job was

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HARDROCK MINING ON FEDERAL LANDS of stakeholders that the agencies are adequately fulfilling their obligation to protect the environment at mining projects on federal lands. Mining regulation depends on the application of a multitude of statutes and regulations by numerous agencies, which the Committee found, in the aggregate, to be generally effective in protecting the environment from the potential impacts of mining on federal lands. The Committee also was told that mine operators are comprehensively implementing permit requirements, conducting required monitoring, and appropriately reporting results. It was not clear, however, that the federal land management agencies are systematically tracking operator compliance with the commitments made in permits, reviewing and evaluating monitoring results, and effectively communicating this information to agency officials and interested stakeholders. Information that could be usefully tracked, compiled, and reported includes: inspection reports of federal land managers and of other federal, state, and local agencies; summaries of monitoring data and reports that, in particular, characterize the degree of compliance with standards and criteria at mines and that highlight incidents of noncompliance; corrective actions taken to return sites to compliance; enforcement actions required to assure implementation of required corrective actions; status of reclamation at mine sites; status of financial assurances; financial assurance forfeitures required; and outstanding incidents of noncompliance requiring farther action. Compiled information should be summarized periodically and reported upward in the federal land management agencies. This same information should be readily accessible to the public, either as published reports or postings on the Internet. Implementation The federal land management agencies should review and compile compliance data from the management information systems used by cooperating federal, state, and local agencies to track and report compliance with their permits and environmental requirements. The agencies should not duplicate efforts. Other federal, state, and local agencies also have an obligation to maintain their own management information systems and to provide appropriate information to the land management agencies. Care in the

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HARDROCK MINING ON FEDERAL LANDS design and implementation of an appropriate management information system can avoid excessive paperwork and diversion of personnel from field inspection duties. Periodic public reporting is needed on the compliance status of individual mines, as well as aggregated district, state, and national compliance information. This would help allay public concerns that federal land management agencies are not adequately protecting the environment at mining operations on federal lands. Recommendation 12: BLM and the Forest Service should carefully review the adequacy of the staff and other resources devoted to regulating mining operations on federal lands and, to the extent required, expand and/or reallocate existing staff, provide training to improve staff capabilities, secure supplemental technical support from inside and outside the agencies, and provide other support as necessary. Justification Some land management offices report that they have too few people to conduct inspections, review proposed operating plans, process appeals, and conduct other required activities. This concern extends beyond the simple numbers of people assigned to these functions. The responsibilities of the land management agencies involve many different scientific disciplines and can be technically very complex. Offices responsible for regulating mining projects may not always have access to the trained and experienced personnel required. Discussion The objective of this recommendation is to improve and supplement the technical capabilities of the land management agencies to increase efficiency and ensure environmental protection. Opportunities available to supplement the existing capabilities of land management agencies are various and include the following: expanding and/or reallocating existing staff; providing intra and inter-agency training to improve staff capabilities, including not only briefings and seminars but also rotational temporary assignments, field visits, and other means of exposing less-experienced staff to the accumulated knowledge of veteran personnel;

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HARDROCK MINING ON FEDERAL LANDS securing supplemental technical support from within the agencies (e.g., the BLM Technical Services Center's support of hydrological analyses in Nevada) and from other public agencies (e.g., the U.S. Geological Survey's Humboldt River Basin study provides important technical support to a land management agency by assisting in the evaluation and management of cumulative hydrological impacts); developing and using centers of excellence where individuals with the appropriate training and experience are available to support a number of different field offices; providing field offices with sufficient contracting funds to retain outside experts as necessary; expanding the role of private sector registered professionals (e.g., in addition to designing engineered mine facilities such as tailings dams, leach pads, diversion structures, and waste dumps; specifying the monitoring necessary to determine whether the facility is operating appropriately; reviewing the resulting data periodically; and certifying that the facility is operating within its design parameters, and if necessary, specifying corrective actions); using tools that will increase staff productivity, such as conducting more frequent inspections of exploration and mining activities and using computer models to estimate reclamation costs, conduct viability analyses, and support other tasks; and providing necessary supplies. Implementation Several of these opportunities warrant early attention by the federal land management agencies. Staff training should be provided to improve staff capabilities. BLM should explore opportunities to expand the role of its Technical Services Center to assist in scoping and preparing environmental documents, specifying appropriate environmental monitoring, reviewing environmental monitoring data, and assisting on other technical matters. The Forest Service research stations may be able to provide similar assistance. BLM and the Forest Service should seek additional technical resources from the USGS and other appropriate agencies such as NSF, DOE/National Laboratories, EPA, and the Fish and Wildlife Service. In addition, the academic community could become better engaged in support of the land management agencies. The agencies also could expand the role of registered professionals from the private sector and increase the use of tools to enhance staff productivity.

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HARDROCK MINING ON FEDERAL LANDS Recommendation 13: BLM and the Forest Service should identify, regularly update, and make available to the public, information identifying those parts of federal lands that will require special consideration in land use decisions because of natural and cultural resources or special environmental sensitivities. Justification Lacking information on the important natural and cultural resources and environmental sensitivities of federal lands, miners are at risk of investing in exploration and then being denied a permit or being permitted under unfavorable terms. From the public's viewpoint, lack of prior environmental information may cause a mining project to advance to the point where environmental sensitivities are recognized too late and cannot be adequately accommodated. The best opportunity to avoid these unfortunate outcomes is through the prior identification of special environmental and resource situations. The public availability of this information will permit all stakeholders to make informed decisions regarding the use of federal lands. Discussion Riparian zones, cultural and religious sites, unique ecosystems, and other settings on federal lands are now generally recognized as deserving special consideration in determining the appropriateness and management of mining. In reserving selected areas of federal lands for special purposes, such as national parks or wilderness areas, Congress typically withdraws the land from competing uses, including mining. The Forest Service and BLM use administrative withdrawals within legislatively prescribed limits to preclude hardrock mining on federal lands for such facilities as offices and campgrounds and for protecting areas used for scientific studies, municipal watersheds, and similar public purposes. The Committee notes, however, that using withdrawal orders is a relatively inflexible tool for reflecting environmental sensitivities during permitting in site-specific situations. The land use planning processes required for federal lands by the Federal Land Policy and Management Act (FLPMA) for BLM and the National Forest Management Act (NFMA) for the Forest Service provide for identification of land and resources deserving special environmental concern. FLPMA, for example, provides for the designation of “areas of critical environmental concern” (ACECs) on BLM lands where special management is needed “to

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HARDROCK MINING ON FEDERAL LANDS protect and prevent irreparable damage to important historic, cultural, or scenic values, fish and wildlife resources or other natural systems or processes, or to protect life and safety from natural hazards ” (FLPMA, Sec. 103). Areas defined in land use plans as requiring special protection can be withdrawn from mineral entry within legislatively prescribed limits. The agencies' land use planning processes provide for public input and review. However, the time needed to prepare and revise plans limits their usefulness in providing timely information. In addition to the information on environmentally sensitive resources and conditions provided in the land use plans, additional information should be provided in advisories that identify the types of resources and areas that the agencies consider sensitive. This additional information could serve as an early signal for miners and others about conditions that are likely to require additional attention during the permitting process. Implementation BLM and the Forest Service should identify natural or cultural resources or environmental sensitivities on federal lands that require special consideration in land use planning, including that related to hardrock mining. The agencies should use their land use planning processes to (1) identify these lands that should be withdrawn from hardrock mining or may require special considerations in permitting, (2) give specific consideration to hardrock mining as a potential land use, and (3) establish guidelines for reclamation and mitigation that apply to mining. This can be accomplished through the land use plans for federal lands required by FLPMA and NFMA. Adopting this recommendation should help to assure appropriate consideration of all surface resources and efficient use of resources and environmental information in mining decisions. When land use planning identifies lands that should be protected from all mining, existing withdrawal authority should be sufficient. Recommendation 14: BLM and the Forest Service should plan for and assure the long-term post-closure management of mine sites on federal lands. Justification The Committee found that current regulatory programs primarily address the exploration, permitting, operation, reclamation, and closure of mines and

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HARDROCK MINING ON FEDERAL LANDS have only recently focused on the post-closure management needs of mine sites on federal lands. Because hardrock mining on unpatented mining claims is a temporary use of the land and because the federal land management agencies resume direct responsibility for management of mine sites after reclamation and closure are complete and reclamation bonds are released, consideration should be given to the long-term needs and responsibilities for managing these sites. Discussion Federal land management agencies should consider the land uses that are appropriate for a closed and reclaimed mine site, and perhaps more importantly, whether any uses should be controlled or precluded. In addition, the following management requirements should be addressed and assured for each site: measures needed to preserve future mineral access; residual public safety hazards and the need for fences, signs, and other features that must be periodically checked and maintained; measures needed to assure the integrity of closed waste units including the monitoring of tailings pond caps and waste rock and leach pad covers and their possible repair because of erosion or other failure, and the checking of adit plugs for continued effectiveness; long-term environmental monitoring required to assure that the site remains stable and does not become a source of off-site contamination and the implementation of appropriate corrective measures; the operation and maintenance of any water treatment facilities required to maintain water quality compliance of the site over the long term; and financial assurance to ensure implementation of these post-closure management requirements. These matters are more relevant to large sites than small, but should be considered on a site-specific basis for any operation subject to a plan of operations. Site-specific post-closure management plans should be prepared and approved, and to the extent that costs can be reasonably identified, appropriate post-closure financial assurances should be established for mine sites on public lands. The need for appropriate consideration of sites reasonably anticipated to require long-term operation of water treatment facilities is of particular importance because of the substantial costs of operating and maintaining these

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HARDROCK MINING ON FEDERAL LANDS facilities. Many questions remain about maintenance of treatment facilities for long periods of time and the types of financial assurances that might be appropriate to cover such costs. Questions also remain about the predictive tools currently available, their ability to accurately predict the need for long-term water treatment (see Appendixes B and D), and how and when to apply the results of such predictions to the need for financial assurances. The Committee did not examine the long-term treatment and associated financial assurances in great detail. However, information was received indicating concern by the public and regulatory personnel about long-term treatment and the ability to require financial assurances. The Committee found that, with some exceptions, most states, the BLM, and the Forest Service do not require bonding for long-term or perpetual treatment of water at mine sites. The need for treatment of acid drainage and pit waters may extend long beyond typical post-closure periods (generally 30 years or less). If these costs are not assured, the public will eventually incur the costs of long-term water treatment at such sites if they become necessary. The Committee agreed that long-term water treatment and associated financial assurances will be necessary at some sites, and that the appropriate application of the predictive models and the appropriate long-term financial assurance instruments are areas that need further study. The Committee reached no conclusion regarding the appropriateness of either requiring financial assurances for unanticipated, potentially environmentally damaging, extremely low-risk post-closure occurrences (such as the failure of drainage control systems or tailings embankments in a storm that is greater than the design storm event). Implementation The federal land management agencies should develop procedures that will enable them to identify, in the review and approval process for plans of operations, the kinds of post-mining requirements that are likely to arise and to incorporate these into the approved plan of operations. In addition, provisions should be made to amend or clarify, as necessary, applicable land use plans to reflect the post-closure requirements of the site and to consider institutional, management, staffing, and other needs of the post-closure mine site. Appropriate types of financial assurance should be investigated for long-term water treatment. Recommendation 15: BLM should prepare guidance manuals and conduct staff training to communicate the agency's authority to protect valuable resources that may not be protected by other laws.

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HARDROCK MINING ON FEDERAL LANDS Justification Although mining operations are regulated under a variety of environmental protection laws implemented by a number of different federal and state agencies, the Committee was concerned that these laws may not adequately protect all the valuable environmental resources that might exist at a particular location proposed for mining development. Examples of resources that may not be adequately protected include springs, seeps, riparian habitat, ephemeral streams, and certain types of wildlife. In such cases, the BLM must rely on its general authority under FLPMA and the 3809 regulations to prevent “unnecessary or undue degradation.” Because the regulatory definition of “unnecessary or undue” at 3809.0–5(k) does not explicitly provide authority to protect such valuable resources, some of the BLM staff appear to be uncertain whether they can require such protection in plans of operations and permits. Some resources may deserve to be protected from all impacts, while other resources may withstand some impacts with associated mitigation. BLM should clarify for its staff the extent of its present authority to protect resources not protected by specific laws, such as the Endangered Species Act. Discussion As discussed in Chapter 3, BLM and the Forest Service have a variety of mechanisms available for withdrawing from mining or protecting particularly valuable or sensitive areas or resources in advance of any proposed development. To the extent that they can make use of these mechanisms, they will provide protection to such resources or areas at the same time that they provide advanced notice to potential mining operations about which areas and resources ought to be avoided or protected in the planning and design of these operations. However, it may not be possible to identify all such areas or resources in advance. In this case, the agencies will have to rely on their general authorities, implemented through the NEPA process, to provide such protection on a site-specific basis. Representatives from the Forest Service seemed clear in their authority to provide such protection, but some BLM representatives expressed ambiguity about this issue. The ambiguity results from the definition of “unnecessary or undue” in the agency's regulations pertaining to hardrock mining. These regulations emphasize such factors as “reasonable mitigation measures,” “prevention of a nuisance,” and compliance with other explicit environmental protection statutes. They do not, however, provide explicit authority to protect valuable or sensitive resources that are not adequately protected by these other

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HARDROCK MINING ON FEDERAL LANDS environmental protection statutes. Nevertheless, BLM has required such protection in some operating plans, and the Department of the Interior's Board on Land Appeals has upheld these requirements. However, there is no clear guidance for agency personnel in the regulations or in the guidance documents on the extent of the agency's authority or on how these issues should be handled in the development and approval of operating plans for proposed mining operations. Implementation BLM should prepare guidance manuals to clarify its existing authority to protect resources and train staff accordingly. During the NEPA process for mine operating plans, BLM should consider unnecessary or undue degradation of those resources that are not protected by other laws, determine what authority it has to act, and take appropriate actions to provide the appropriate level of protection. Recommendation 16: BLM and the Forest Service should plan for and implement a more timely permitting process, while still protecting the environment. Justification The permitting process is cumbersome, complex, and unpredictable because it requires cooperation among many stakeholders and compliance with dozens of regulations for a single mine. As a result, there is a tendency for the process to drag on for years, even a decade or more. This drains and diverts the resources of land management agencies that should be managing their full range of responsibilities. It is also burdensome to operators and does not provide the best environmental protection. The public, the land management agencies, and the permit applicants would all benefit if the permitting process were conducted more efficiently. Discussion NEPA reviews and permitting are complex and time consuming because of the wide range of environmental and other issues and the numerous stakeholders with diverse priorities. The collection of some baseline environmental data requires at least a full cycle of seasons, and sometimes longer. All deserve thorough consideration. At the same time, the review and permitting processes should be completed as soon as the work can be done properly,

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HARDROCK MINING ON FEDERAL LANDS eliminating delays due to inadequate stakeholder cooperation, insufficient planning, or insufficient agency staffing. An efficient process will require full disclosure of information related to a proposed operation, full public access to and participation in the process, and full cooperation of all stakeholders and agencies interested or involved in the proposed operation. The efficiency of NEPA review and permitting is in large part a management matter. The land management agency with lead responsibility should set and achieve deadlines and have sufficient qualified staff to do so. More timely permitting will free the agency staff to better address all their other environmental responsibilities. Recommendations in this report that support more efficient reviews and permitting include Recommendations 1, 2, 6, 10, 11, and 12. Implementation Several of the other recommendations in this report, when implemented, will help achieve the objectives of this recommendation. Information on the time involved in recent reviews and permitting need to be compiled and analyzed to identify and correct causes of any unnecessary delays. With these actions land management agencies can set and manage to achieve reasonable goals for completion of reviews and permits while continuing to protect the environment. SUMMARY The above conclusions and recommendations, taken together, summarize the Committee's views of the actions needed to coordinate federal and state mine reclamation, operations, and permitting requirements and programs. Some of these will require congressional action and some will require changes in federal regulations. Still others will require changes in the implementation of existing regulations and programs. Adopting these recommendations will improve environmental protection and reclamation of hardrock mining on federal lands, as well as the efficiency of the permitting process.

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