Hardrock Mining on Federal Lands (1999)

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,

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.

The Committee identified the following 11 elements of an effective regulatory program:

1. Information to describe pre-mining conditions, potential changes to the environment resulting from a project, and proposed post-mining/reclamation land use conditions;

2. Models and tools to project and assess the consequences of these changes;

3. Standards and criteria to determine if the changes comply with permit requirements, or are otherwise acceptable;

4. Monitoring to demonstrate that standards and criteria are met.

5. Reporting and analysis of the monitoring results to assess compliance with standards and criteria and trigger appropriate response to noncompliance;

6. Appropriate responses to correct noncompliance and assure it will not reoccur;

7. Enforcement actions to assure adequate responses to non-compliance;

8. Financial guarantees to protect the environment if the operator fails;

9. Personnel and resources, properly trained and supported, to adequately implement and administer the regulatory program;

10. A management information system to track the effectiveness of the regulatory program; and

11. 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 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.

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).

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.

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.

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.

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

approved by the agencies with jurisdiction. Implementation should be monitored and documented with the same care given to original construction.

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.

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.

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.

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.

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.

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

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.

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

Committee believes the federal lands can be managed efficiently and effectively despite these potential conflicts.

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

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.

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.

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

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][3]). As with BLM regulations, the Forest Service regulations provide that operations may continue under the

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.

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

permitting process should consider the past environmental performance of the operator and a maximum of 5 unreclaimed acres as bases for extending the exploration area.

On the other hand, other mining activities, such as mine development, extraction, and mineral processing, can generate significant environmental impacts, and BLM's policy of requiring neither financial assurances nor plans of operations for such activities that disturb less than 5 acres may not be sufficiently protective of the environment or the government's fiduciary obligations.

The Committee emphasizes the need for regulatory efficiency (e.g., short permit time and permit restrictions that match the potential for environmental damage). Recommendations 2 and 3 in Chapter 4 offer approaches to minimize the inconsistencies in the different regulatory approaches for mining disturbances.

The agencies have at least 5 mechanisms for protecting valuable resources and sensitive areas from mining. The first is to formally withdraw federal land from mining and mineral development in recognition of extraordinary natural, scenic, or cultural values that are of such significance that other competing resource uses must be excluded. The withdrawal authority is also used to protect administrative and other public facilities.

The second mechanism is to prepare land management plans that identify natural and cultural resources and allocate competing uses accordingly. These plans specify limitations and mitigation that apply in particular locations and to particular uses, such as mining. These plans are intended to be based on thorough resource inventories and to be developed with broad public input so that they balance the needs of all constituencies. For BLM lands FLPMA also specifies that land use plans give priority to the designation and protection of areas of critical environmental concern (FLPMA, Sec. 202[c][3]). These are areas recognized as needing special management “to 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). Designated areas of critical environmental concerns (ACEC) are usually withdrawn from hardrock mining.

The third mechanism for protecting valuable resources and sensitive areas is the use of advisory guidelines that identify categories of resources or lands that deserve special consideration. Use of such guidelines is consistent with the principle that regulatory decisions should be based on site-specific evaluations and conditions. For instance, in many areas of the western United States,

healthy riparian habitat is scarce and has high value for wildlife or as a buffer to protect stream quality. In these cases, the flexible regulatory framework would suggest that riparian areas should be valued and be provided reasonable protection in site-specific decisions.

A fourth mechanism is through use of BLM's Visual Resource Management System (VRMS) which recognizes that public lands have a variety of visual values (BLM, 1986; BLM/EPA, 1998). The BLM uses the VRMS to evaluate the potential effects of an action on existing visual resources. A VRMS classification is part of BLM's land use planning process. It is important to note that the VRMS classification applies to all activities on BLM lands, not just mining-related activities. The system is also used as a guide to help ensure that every attempt is made to minimize potential visual impacts of a proposed action. The basic philosophy and uses of the system are described in the Visual Resource Contrast Rating Handbook (BLM, 1986).

A fifth important mechanism by which BLM and the Forest Service routinely protect environmental resources that are not governed by specific laws is the adoption of site-specific mitigation measures imposed on a plan of operations after the environmental assessment or EIS process. This is the most common way for the federal land management agencies to protect cultural values, riparian habitat, springs, seeps, and ephemeral streams that are not otherwise protected by specific laws.

The Forest Service appears to have ample authority to provide protection. BLM's interpretation of unnecessary or undue degradation, however, does not explicitly state that the BLM has the ability to provide such reasonable protection. It only indicates that the BLM can require reasonable mitigation for damage that does occur. In practice, however, the BLM has protected some resources that are not protected under other statutes. In most of these cases the applicant has either not formally protested the BLM's proposed protection or the Department of the Interior's Board of Land Appeals (IBLA) has upheld the BLM decision.

The right to mine on federal lands under the Mining Law of 1872 is conditioned on validation of discovery, which depends in part on the expected total costs of production, including those for environmental compliance and mitigation. The IBLA has stated this principle as: “First of all, the mere filing of a plan of operations by a holder of a mining claim invests no rights in the claimant to have any plan of operations approved… If the costs of compliance render the mineral development of a claim uneconomic, the claim itself is invalid and any plan of operations therefor is properly rejected” (IBLA 97–307, 97–506, 97–510: Great Basin Mine Watch et al. decided November 9, 1998). Recommendation 15 addresses the agencies' authorities to protect valuable resources that are not protected by other laws.

Several presentations to the Committee emphasized the difficulty of identifying cultural resources and tribal issues, and the time and cost that can be involved in locating and dealing with these issues. Government agencies have not expended as much effort in identifying, cataloguing, and protecting these resources as they have on behalf of the natural environment.

Cultural resources may include any works of mankind, be it American Indian or immigrant, pre-historic or of the current era. They may also include natural landscape features that are specially significant for cultural reasons. Proposed mining activities commonly will occur in previously mined areas because that is where new mineral deposits are likely to be found. New mining could put at risk historic ghost towns, railroads, bridges and other mining-related relics. These features are part of the settlement of the West and the industrial history of this country, and they often are afforded cultural preservation consideration.

Tribal interests may include, in addition to easily recognized cultural resources such as burial sites, less obvious features or locations such as seasonal campsites, or water sources such as springs. Federal land management agencies have limited capability to identify such areas unless they are assisted by tribal members. Some tribes have only recently begun to identify and protect their cultural and historic interests. Tribes may be reluctant to identify important areas or resources in order to protect their sanctity or prevent intrusion and plunder by others. This reluctance makes it difficult to fully consider tribal interests in a NEPA review and permitting process that relies on full participation of stakeholders and full disclosure and discussion of relevant information.

The Committee learned that efforts to identify cultural and tribal resources can significantly delay the completion of environmental impact studies. Tribes, for instance, may fail to respond or respond late in the NEPA process. In some cases this may be a result of a tribe having limited resources to deal with such issues. However, such delays can disrupt the efforts of other stakeholders to conduct an efficient process. In other cases, all tribes with potential interests in a land use proposal are not contacted, or are not contacted in a timely manner. Similar problems may arise with other types of cultural resources, even though most states have agencies that are responsible for cultural resources.

Federal agencies and many states now employ specialists in cultural and tribal resources. The Committee was told that better notification of land use proposals is now generally given to potentially interested stakeholders. Some tribes enter into confidential disclosure agreements with land management agencies. The Committee is not clear about the extent to which existing laws and regulations, such as the National Historic Preservation Act, the American

Indian Religious Freedom Act, and various state laws, adequately protect cultural resources and tribal interests. It also is not clear if cultural resources and tribal concerns are protected by either the Forest Service regulations providing the agency with authority to “minimize adverse environmental impacts on National Forest resources ” or by BLM's authority to avoid “unnecessary or undue degradation.” Providing adequate protection to these resources and concerns without unreasonably delaying the permitting process requires a delicate balancing of interests. This can best be achieved by the early participation of all potentially affected interests in the NEPA and permitting process, which is the focus of Recommendation 10 in Chapter 4.

Several individuals, including both small and large operators, stated that small miners or small operators play an important part in the mining industry, especially in the discovery of new mineral deposits. Although the environmental risk may be small compared to large operations, small operations are sometimes abandoned without adequate reclamation, requiring considerable agency time and imposing financial liabilities on the land management agency.

Recognizing the special circumstances of small operators, BLM regulations exempt operators disturbing less than 5 acres from the requirements of an operating plan or financial assurance (see Chapter 2). The small operations need only submit a “notice” to BLM indicating what they intend to do. BLM must respond to the notice within 15 days if it chooses to restrict or modify the proposed operations. Such notice-level activities require much less effort and time to obtain permission to begin operations. Nevertheless, such operations, particularly if they involve mine development, extraction, or mineral processing activities, should be reviewed, and questions should be raised if the regulatory program is inadequate.

The Forest Service provides no such exemption for small operations, although most small operators need submit no more than a short environmental assessment and operating plan with their applications. Nevertheless, agency staff restrictions often delay the preparation of EAs for several months, thus delaying the decision on the application.

The Committee visited notice-level sites on BLM lands and received testimony from BLM, the Forest Service, state regulatory officials, and industry and concerned citizens regarding the adequacy of current regulations. Degradation on notice level sites included open trenches and unreclaimed roads, abandoned mining and processing equipment, and unreclaimed stockpiles of ore and waste rocks. This is a burden to the agencies, and to the

taxpayers, who will pay for cleanup. Regulatory agencies find it difficult to implement procedures that protect and promote the beneficial activities of small mining operations without allowing significant environmental impacts or imposing financial liabilities on the public. Issues related to small mining operations are addressed in Recommendations 1, 2, and 3 in Chapter 4.

During presentations to the Committee, representatives of mining companies and regulatory agencies expressed frustration with current laws that discourage new mining operations from disturbing or reclaiming abandoned mine sites. Although the charge to the Committee did not include consideration of abandoned mines on federal lands, the affect of these historic features on future mining, and their related impacts, requires some mention.

New mines commonly develop at or near the sites of abandoned mines. New mining activities have the potential to reclaim damage from earlier mining activities. However, some federal environmental laws, such as the Clean Water Act, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), and potentially the Resource Conservation and Recovery Act (RCRA), discourage these opportunities and encourage companies to design their operations to avoid redisturbing previously disturbed areas. Similarly, operators are discouraged from reclaiming previously mined areas in the vicinity of new mining operations, even though the work would be beneficial and voluntary on the part of the miner. Reclamation of some abandoned mines has been integrated into current operations, and nearby historic waste disposal sites have been reclaimed in connection with ongoing mining activities. This is done, however, at the miners' risk. As a result of existing statutes, mine operators conducting work at an abandoned mine site could incur liabilities. Some states have environmental laws that may pose additional barriers to voluntary clean up. Therefore, operators avoid redisturbance of abandoned mine discharges and arrange their own discharges so that the pre-existing discharge is not affected. This is not in the best interests of environmental protection; opportunities for remediation are missed and new operations are, in effect, encouraged to disturb undisturbed lands. Recommendation 7 in Chapter 4 addresses the reclamation of abandoned mine sites.

Changes in commodity prices and other factors can influence the economics of mining and can result in an operator temporarily closing a facility. The duration of the closure is generally not known in advance, hence steps to protect the environment under these interim conditions may not be taken. In some cases concern was expressed that operators were using this temporary status to delay or avoid proper closure and cleanup of the facility. Lacking regulations that cover these situations, regulatory agencies have difficulty protecting the environment.

Agencies cannot make business decisions, such as when to open or close a mine, for the operators. However, several states, such as California, have adopted regulations covering temporary closures. California's regulations require the operator, after an operation becomes idle, to submit an interim management plan that must specify how the site will be maintained during the idle period. The interim plan may be effective for not more than 5 years, after which the lead agency must either grant a renewal of the plan or require commencement of reclamation. Unless an interim management plan has been submitted, an operation idle for over one year must commence reclamation. Neither the Forest Service nor BLM have yet adopted regulations dealing with temporary closure. Current low metal prices suggest this can be a serious regulatory issue. Recommendation 5 in Chapter 4 addresses issues related to temporary mine closures.

When poorly implemented, statutes and regulations are of limited benefit to the environment, the public, and mining operators. The Committee was told of instances in which regulatory agencies, particularly the federal land management agencies, did not implement their statutes and regulations efficiently. Shortcomings included failure to use existing statutory authority to meet environmental protection goals; inadequate information systems to track mining operations and inform the public; unreasonable time delays for NEPA reviews and permits; and inadequate staffing in terms of work loads, skills, and training.

The Committee found that BLM offices are often unable to meet their field site inspection goals. Some notice-level activities are rarely inspected,

and intervals between inspections of operating mines are longer than seems warranted. Oversight of critical mine development projects (e.g., the construction of liners under leach pads or liquor ponds) requires greater staff allocations than some agencies and offices are apparently capable of making. Still, the Committee was impressed by the competence, dedication, and effort expended by many of the agency personnel interviewed.

Staff shortages are likely to be at least partially responsible for the excessive delays experienced in NEPA reviews and issuance of permits that the Committee repeatedly heard described. Actions through the Department of the Interior's Board of Land Appeals are reportedly also unreasonably long. The availability of competent staff was another concern raised during the Committee's study.

Oversight of mining activities is a technologically demanding activity. It often requires hydrogeochemical analysis of proposed tailings ponds, waste ponds, and heap leach pads the hydrologic effects of proposed dewatering schemes; and the long-term impacts of pit waters on surrounding water quality and quantity (see Appendix B). The needed levels of expertise are not always readily available to regulatory agencies. Staff sharing among agencies or between agency offices and use of outside experts is of some, but apparently insufficient, help.

The current use of consultants raises questions about potential conflicts of interest, for in many cases the consultants, although retained by the agency, are paid by the applicant and the applicant therefore retains at least a perceived role in directing the consultant. For instance, most environmental impact statements prepared to support decisions to permit new mining operations or substantial modifications of existing operations are prepared by third parties selected by the agency and the applicant, and paid for by the applicant. Similarly, the agencies have apparently been able to receive technical assistance in spite of budgetary restrictions because the mining companies have offered to pay for the required consultants. The Committee heard of no instance in which this system created a problem, and it does allow the agencies to have access to expertise and resources that would be unavailable to them otherwise. The agencies also have the authority to reject advice and require changes to in draft reports, and have exercised this authority. However, the relationship does create the appearance, if not the fact, of a potential conflict of interest.

The Committee also received evidence that staff training is inadequate, for example, in the interpretation of the agency's regulatory authority and enforcement options. Issues of staff numbers and competence will more seriously affect environmental protection and regulatory efficiency if agencies are required to further reduce the resources devoted to regulating mining activities or if the regulatory burden is increased.

In addition to staffing issues, some administrative and operating procedures of the agencies appear to be out of date and inefficient. Opportunities for more efficient and effective monitoring and enforcement through remote-sensing techniques and air surveillance are worthy of further consideration. Recommendation 12 in Chapter 4 addresses issues related to adequacy of staff and other resources.

The Committee was consistently frustrated by the inability of federal land management agencies to provide timely, accurate information regarding how they manage their lands and the status of mining projects under their jurisdiction. The agencies could provide only approximate information regarding protected lands under their jurisdiction, the area of land currently subject to mining claims, the area covered by land use plans, and other basic land use statistics.

Information about current mining activities was even scarcer. The lack of information appeared to be greatest among highly placed officials who have the greatest need to know. Consequently, those responsible for regulatory management and change, and for keeping the public and Congress adequately informed, appear to be severely limited in their ability to do so.

More specifically, the Committee found it difficult to obtain comprehensive information on agency failures to prevent unnecessary or undue degradation on federal lands. Some compilations of non-compliance were obtained from the BLM, but there was no analysis or interpretation of the data to identify gaps or weaknesses in the regulatory system. The Committee considers this type of information essential for developing any proposals for regulatory change. Federal land management agencies have a responsibility to track the compliance of mines under their jurisdiction and to communicate this information to the public and other stakeholders. Although the Committee got the impression from field-level personnel that such tracking was generally accomplished, the Committee found no systematic, easily available compilation and analysis of the information for public and other stakeholder use.

Regulation of mining on federal lands requires that the federal land management agencies coordinate with a multitude of other regulatory agencies. It was not clear, however, if the federal land management agencies were systematically tracking operator compliance with the commitments made in permits and effectively communicating these findings to the various federal and state regulatory agencies, and to interested stakeholders. Examples of information that could be usefully tracked, compiled, and reported include:

• an up-to-date accounting of the number, commodity, type (e.g., openpit, underground), status (e.g., active, post-closure), land ownership status, and approximate production of all hardrock mines;

• inspection reports of federal land managers and of other federal, state, and local agencies;

• summaries and analysis of monitoring data and reports that characterize the degree of compliance with standards and criteria at the mine site and highlight incidences of noncompliance;

• appropriate responses taken to return sites to compliance;

• enforcement actions required to assure implementation of required corrective response;

• status of reclamation at the sites;

• status of financial assurances;

• any financial assurance forfeitures required; and

• any outstanding incidents of noncompliance requiring further action.

Reports on the status of NEPA reviews and permit actions, including lapsed time and estimated completion dates, would also be appropriate. 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. Periodic public reporting of NEPA and permitting status and the compliance status of individual mines, as well as aggregated district, state, and national compliance information, would help the public to determine whether the environment is being adequately protected and whether the regulations are being managed efficiently. This reporting would also focus public and agency attention on those circumstances requiring improvement. Recommendation 11 in Chapter 4 addresses the creation and management of a management information system.

The Committee heard from staff in BLM and Forest Service field offices regarding the adequacy and availability of their enforcement tools for violations of plans of operations (see 43 CFR 3809.3–2 and 36 CFR 228.7[b]). Committee members were struck by the differences in understanding that agency staff members expressed concerning their authority. Staff members in some Forest Service and BLM districts lamented their inability to use enforcement tools effectively, whereas staff members in another district of the same agency expressed confidence that they could use them.

For example, federal land managers can issue a notice of non-compliance to an operator, but must rely on a court injunction to compel an operator to respond. Whereas some districts of the BLM and Forest Service have found the notice relatively useful, others regard it as ineffective. Part of the difference appears to be the ease with which an office can obtain assistance from the U.S. attorney. This depends, in turn, on such factors as location of the federal district court, attorney and agency workloads, agency staff experience, and prosecutor priorities. The agencies have no authority to impose administrative penalties or other sanctions for failures to comply promptly with a notice of noncompliance under current regulations. There is, moreover, some debate about whether the general provisions for regulations under FLPMA or the Forest Service Organic Act authorize the federal agencies to adopt administrative civil penalties in the absence of express statutory provisions for such penalties.

Forest Service staff members advised the Committee that they commonly resort to regulations at 36 CFR part 261 to enforce the terms of operating plans, rather than seeking civil injunctive relief. These regulations contain a general provision that makes violation of a Forest Service-approved operating plan a petty offense punishable by a fine of not more than $500 or six months imprisonment (36 CFR 261.10[1], 261.1b). A $500 fine provides only a limited inducement for operators to correct problems in cases where compliance costs can be several orders of magnitude higher. Access to a U.S. magistrate, assisted by Forest Service law enforcement personnel, apparently is a stronger tool to achieve compliance from operators that are in violation of their plans of operations. Some Forest Service staff members also noted that their use of the 261 authority rather than the mining-specific 228 authority was in part due to poor wording of 228.7(b). That section currently provides that a notice of noncompliance will be issued when an operator is failing to comply with regulations or the plan of operations, and the noncompliance is unnecessarily or unreasonably causing injury, loss, or damage to surface resources. The apparent requirement that actual harm be occurring in addition to a violation has led to concern about the efficacy of the notice of noncompliance in preventing harm to land resources, rather than just correcting damages after the fact.

States retain much of the enforcement responsibility related to mining activities on federal lands. State regulatory programs contain enforcement provisions that provide for issuing notices of non-compliance and assessing penalties when the notices are not resolved. Typically, state agency personnel can issue the notices, and in some cases also the penalties. In other cases, an independent board or panel decides violations and assesses penalties. The state processes for dealing with noncompliance and an operator's failure to respond,

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.

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

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.

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.

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

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.

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.

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.

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

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.

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

“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.

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

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:

1. determine if certain management actions were properly fulfilled;

2. test predicted outcomes of closure plans; and

3. 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

environmental challenges, and the public may be faced with major financial liabilities.

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

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.

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.

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.

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.