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HARDROCK MINING ON FEDERAL LANDS Executive Summary This report responds to a request by Congress that the National Research Council assess the adequacy of the regulatory framework for hardrock mining on federal lands. The regulatory framework applies to hardrock (locatable) minerals—such as gold, silver, copper, and uranium—on over 350 million acres of federal lands in the western United States. To conduct the study, the National Research Council appointed the Committee on Hardrock Mining on Federal Lands in January 1999. The charge to the Committee had three major components. First, the Committee was asked to identify federal and state statutes and regulations applicable to environmental protection of federal 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 federal lands. Third, the Committee was asked for its 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. The report deals with hardrock mining on federal lands managed by two agencies—the Bureau of Land Management (BLM) in the Department of the Interior, and the Forest Service in the Department of Agriculture. The area of federal land available to hardrock mining in the western states is enormous, but the surface area actually physically disturbed by active mining is small in comparison. However, impacts on water quality, vegetation, and aquatic biota often extend beyond the immediate area of the mine site. The BLM is responsible for 260 million acres of land in the western states, including Alaska, of which roughly 90% are open to hardrock mining. Approximately 0.06% of BLM lands are affected by active mining and mineral exploration operations. The Forest Service manages 163 million acres in the western states, of which roughly 80% are open to hardrock mining. Together, the two land management agencies are responsible for 38% of the total area of the western states. These lands are important for their potential mineral wealth and
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HARDROCK MINING ON FEDERAL LANDS timber, for grazing purposes, as a source of clean water, as a location for recreational activities, as wildlife habitats and scenic areas, and for other purposes. Mining inevitably affects these resources. The significance of potential negative impacts depends on the extent to which they can be avoided or mitigated. This, to some extent, depends on compliance with regulations. Mining, its impacts on other resources and uses, and the regulatory structure are related matters that require balance and reason when dealing with the potentially competing issues of protection of the environment, production of minerals and metals and employment for society, and associated federal and state statutory responsibilities. This report is particularly timely in that the BLM has proposed to revise its regulations for hardrock mineral exploration and development conducted under the authority of the General Mining Law of 1872. Because the Committee's charge stated that the baseline for the study was the existing regulatory framework rather than proposed changes to that framework, the Committee did not focus on the BLM proposal to revise its regulations. The Committee was told that the Forest Service was also internally considering revisions in its regulations for hardrock mining in national forests, but the Committee has not reviewed any of the changes being considered. The Committee's conclusions and recommendations are based on information obtained in a series of presentations and open public forums at Committee meetings in Washington, D.C., Denver, Reno, and Spokane. Committee members also made visits to a variety of mining operations in Colorado, California, Nevada, Washington, and Alaska. The Committee also was helped in its work by a large volume of reports, submissions to the Committee, and copies of submissions to the BLM in connection with the proposed revision of its hardrock mining regulations. The Committee itself represented a wide spectrum of skills and experience relevant to mining on federal lands. HARDROCK MINING AND THE ENVIRONMENT Hardrock mining occurs where minerals are concentrated in economically viable deposits. Ore deposits form as variants of such geologic processes as volcanism, weathering, and sedimentation operating with an extraordinary intensity. Ore deposits typically are parts of large-scale (several miles across and perhaps just as deep) ore-forming systems in which many elements, not just those of economic interest, have been enriched. Only a very small portion of Earth's continental crust (less than 0.01%) contains economically viable
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HARDROCK MINING ON FEDERAL LANDS mineral deposits. Thus, mines can only be located in those few places where economically viable deposits were formed and discovered. Many hardrock commodities are associated with magmatic and hydrothermal processes, which in turn, are associated with modern or ancient mountain belts. The abundant igneous rocks and associated hydrothermal systems and the mountainous or sparsely vegetated terrain make the West the location of most hardrock mines in the United States. Some of these same areas are also valued for aesthetic and cultural reasons, which creates potential for conflict among uses of the land. While society requires a healthy environment, it also requires sources of materials, many of which can be supplied only by mining. The mining process consists of exploration, mine development, mining (extraction), mineral processing (beneficiation), and reclamation (including post-closure). The hardrock mining process is described in Chapter 1 and Appendix A. Each step from exploration through post-closure has the potential to cause environment impacts. In addition to the obvious disturbance of the land surface, mining may affect, to varying degrees, groundwater, surface water, aquatic biota, aquatic and terrestrial vegetation, wildlife, soils, air, and cultural resources. Actions based on environmental regulations may avoid, limit, control, or offset many of these potential impacts, but mining will, to some degree, always alter landscapes and environmental resources. Regulations intended to control and manage these alterations of the landscape and the environment in an acceptable way are generally in place and are updated as new technologies are developed to improve mineral extraction, to reclaim mined lands, and to limit environmental impacts. Therefore, the committee emphasizes that these potential impacts will not necessarily occur, and when they do, they will not occur with the same intensity in all cases. The potential environmental impacts of hardrock mining are discussed in Chapter 1 and Appendix B. EXISTING REGULATORY FRAMEWORK Hardrock mining operations in the United States are regulated by a complex set of federal and state laws and regulations intended to protect the environment (see Chapter 2). The scope and degree of regulation depends on the type and size of the mining operation; the kinds of land, water, and biological resources affected; the state in which the operation is located; the organization of the state and local permitting agencies; and the ways federal and state agencies implement relevant statutes and regulations. The basic statute for hardrock mining on federal lands is the General Mining Law of 1872. Land management direction is provided in the Federal Land Policy and
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HARDROCK MINING ON FEDERAL LANDS Management Act of 1976 (FLPMA) for the BLM and in the 1897 Organic Act and the 1976 National Forest Management Act for the Forest Service. These statutory authorities find further expression in the regulations adopted by the respective agencies. Proposed mining activities on federal lands trigger the application of BLM's Part 3809 regulations (43 CFR Part 3809) and the Forest Service's Part 228 regulations (36 CFR Part 228). BLM's Part 3809 regulations establish guidelines intended to assure compliance with the FLPMA prohibition of “unnecessary or undue degradation of public lands.” The Forest Service's Part 228 regulations establish guidelines intended to assure compliance with the Forest Service regulatory requirement to “minimize adverse environmental impacts on national forest surface resources,” based on the Organic Act. The National Environmental Policy Act (NEPA) serves to integrate BLM and Forest Service decision making on particular mining proposals with evaluation of other environmental concerns, as well as with other state and federal permitting requirements (see Chapter 2). For operations on federal lands that are expected to have significant impacts on the environment, the environmental impact statement (EIS) under NEPA serves as the “spine” of the federal land manager's decision-making process. The EIS process includes requirements for publicly “scoping” the issues and identifying alternatives to be evaluated, and results in a record of decision that determines the content of the plan of operations and mitigation requirements. For smaller operations on federal lands, an environmental assessment (EA) often is produced instead of an EIS. The EA is intended to assist the federal land management agency in deciding whether environmental impacts will be significant. Various state and federal laws establish environmental requirements applicable to mining operations on federal lands. These include state reclamation laws, state and federal water pollution laws, state groundwater quality laws, state water rights laws, state and federal fish and wildlife laws, state and federal air quality laws, wetlands laws, and other laws. Memoranda of understanding (MOUs) among the federal agencies and state agencies establish the links between state environmental requirements and federal land managers' decisions. Conclusions and recommendations are presented below related to 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 conclusion is followed by a recommendation. Conclusions and recommendations are discussed in more detail, including justifications and discussion, in Chapter 4.
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HARDROCK MINING ON FEDERAL LANDS GENERAL CONCLUSIONS AND RECOMMENDATIONS 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 complicated 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. Conclusion: 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. For example, 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). Recommendation: BLM and the Forest Service should continue to base their permitting decisions on the site-specific evaluation process provided by NEPA. The two land management agencies should continue to use comprehensive performance-based standards rather than using rigid, technically prescriptive standards. The agencies should regularly update technical and policy guidance documents to clarify how statutes and regulations should be interpreted and enforced. Although the overall regulatory structure for hardrock mining on federal lands is effective, the Committee has identified a number of areas where the implementation of existing laws and regulations could be improved (see “Improvements in Implementation” below). The Committee also has identified specific issues or “gaps” in the existing regulations intended to protect the environment (see “Regulatory Gaps” below). In addition, the Committee recommends that research be conducted to improve scientific understanding of issues related to environmental impacts of hardrock mining (see “Research Needs” below).
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HARDROCK MINING ON FEDERAL LANDS IMPROVEMENTS IN IMPLEMENTATION 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. The committee has identified the following issues where the implementation of existing regulations could be improved through enhanced information management, greater understanding of existing laws and regulations by federal land management staff, and improved efficiency: Conclusion: 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. Recommendation: BLM and the Forest Service should maintain a management information system that effectively tracks compliance with operating plans and environmental permits, and communicates this information to agency managers, the interested public, and other stakeholders. Conclusion: 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. Recommendation: 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. Conclusion: The NEPA process is the key to establishing an effective balance between mineral development and environmental protection. The effectiveness of NEPA depends on the full participation of all stakeholders throughout the NEPA process. Unfortunately this rarely happens in a timely fashion. Recommendation: From the earliest stages of the NEPA process, all agencies with jurisdiction over mining operations or affected resources
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HARDROCK MINING ON FEDERAL LANDS should be required to cooperate effectively in the scoping, preparation, and review of environmental impact assessments for new mines. Tribes and nongovernmental organizations should be encouraged to participate and should participate from the earliest stages. Conclusion: 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. Recommendation: BLM and the Forest Service should plan for and implement a more timely permitting process, while still protecting the environment. Conclusion: 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. Recommendation: 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. Conclusion: Forest Service permitting procedures for mineral exploration projects with limited environmental impact commonly take significantly longer than necessary. Recommendation: 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. Conclusion: Deficiencies in both staff size and training were observed by the Committee in some offices of land management agencies. Increases in staffing and improved training should result in improved environmental protection and program efficiency. Recommendation: BLM and the Forest Service should carefully review the adequacy of 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. REGULATORY GAPS Although improvements in implementation present the greatest opportunities for improving environmental protection and the efficiency of the regulatory
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HARDROCK MINING ON FEDERAL LANDS process, the committee also has identified the following specific issues or “gaps” in the existing regulations: Conclusion: Financial risks to the public and environmental risks to the land exist whenever secure financial assurances are lacking. Recommendation: 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. Conclusion: 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. Recommendation: 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. Conclusion: Current regulations do not provide land management agencies with straightforward procedures for modification of plans of operations even with compelling environmental justification. Recommendation: 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. Conclusion: 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. Recommendation: BLM and the Forest Service should adopt consistent regulations that a) define the conditions under which mines will be considered to be temporarily closed; b) require that interim management plans be submitted for such periods; and c) define the conditions under which temporary closure becomes permanent and all reclamation and closure requirements must be completed. Conclusion: 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 might 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
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HARDROCK MINING ON FEDERAL LANDS for new mining sites. Recommendation: Existing environmental laws and regulations should be modified to allow and promote the cleanup of abandoned mine sites in or adjacent to new mine areas without causing mine operators to incur additional environmental liabilities. Conclusion: 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. Recommendation: BLM and the Forest Service should plan for and assure the long-term post-closure management of mine sites on federal lands. Conclusion: 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. Recommendation: Federal land managers in BLM and the Forest Service should have both (1) authority to issue administrative penalties for violations of their regulatory requirements, subject to appropriate due process, and (2) clear procedures for referring activities to other federal and state agencies for enforcement. RESEARCH NEEDS 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. Recommendation: Congress should fund an aggressive and coordinated research program related to the environmental impacts of hardrock mining.
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HARDROCK MINING ON FEDERAL LANDS CONCLUDING PERSPECTIVES 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 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. 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 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. The Bureau of Land Management 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. All of the Committee's 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 the recommendations 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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