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

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

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

cated, but generally effective. The structure reflects regulatory responses to geographical differences in mineral distribution among the states, as well as the diversity of site-specific environmental conditions. It also reflects the unique and overlapping federal and state responsibilities. Conclusions that address overall environmental protection and program efficiency related to technical issues, regulations, or guidance include:

1. 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.

2. If backfilling of mines is to be considered, it should be determined on a case-by-case basis, as was concluded by the Committee on Surface Mining and Reclamation (COSMAR) report (NRC, 1979). Site-specific conditions are too variable for prescriptive regulation.

3. The Bureau of Land Management (BLM) and the Forest Service need not have identical regulations, but some changes are warranted. The two agencies have broadly similar land management mandates. There are, however, some differences in the kinds of lands they manage, in their specific responsibilities, and in their organization. Whereas some of the Committee's recommendations would make the agencies' approaches to regulating hardrock mining more similar, the Committee is not suggesting that uniformity in all aspects is necessary.

4. 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.

5. Current regulations do not provide land management agencies with straightforward procedures for modification of plans of operations even with compelling environmental justification.

6. 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.

7. Financial risks to the public and environmental risks to the land exist whenever secure financial assurances are lacking.

8. Current regulations discourage reclamation of abandoned mine sites by new mine operators. New mineral deposits are commonly found at the sites of earlier mines. Even though the operator of a new mine may volunteer to clean up previous degradation, the long-term liability acquired under current regulations can be significant. As a result, non-taxpayer supported reclamation opportunities are missed and undisturbed lands may be preferentially disturbed for new mining sites.

9. Post-mining land use and environmental protection are inadequately addressed by both agencies and applicants. The regulations and plans of operation generally specify what actions will be taken to protect water quality and what surface reclamation is to be performed for closure. However, there is inadequate consideration of protection of the reclaimed land from future adverse uses; of very long-term or perpetual site maintenance; or of rare, but inevitable, natural emergencies.

Improvements in the implementation of existing regulations present the greatest opportunity for improving environmental protection and the efficiency of the regulatory process. Federal land management agencies already have at their disposal an array of statutes and regulations that for the most part assure environmentally responsible resource development, but these tools are unevenly and sometimes inexpertly applied. Specific conclusions regarding implementation are as follows.

1. The National Environmental Policy Act (NEPA) process is the key to establishing an effective balance between mineral development and environmental protection. The effectiveness of NEPA depends on full participation of all stakeholders throughout the NEPA process. Unfortunately this rarely happens in a timely fashion.

2. 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.

3. 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.

3. Forest Service permitting procedures for mineral exploration projects with limited environmental impact commonly take significantly longer than is necessary.

4. 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.

5. 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.

6. 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.

7. Better information on federal lands is needed to make wise land use decisions. The land use planning process required for BLM and Forest Service lands by the Federal Lands Policy and Management Act and the National Forest Management Act, respectively, provide for identification of land and resources deserving special environmental concern.

Successful environmental protection is based on sound science. Improvements are needed in the development of more accurate predictive models and tools and of more reliable prevention, protection, reclamation, and monitoring strategies at mine sites. The science base is far from complete and environmental protection requires that improvements continue to be devised. Some of the most important environmental concerns at hardrock mining sites are those related to long-term water quality and water quantity, which affect riparian, aquatic biological, groundwater, and surface water resources. A broadly coordinated, national research effort is needed to guide future development and to create improved methods for predicting, measuring, and mitigating environmental impacts related to hardrock mining.

Portions of the public and the mining industry have little confidence in the propriety or fairness of the regulatory and permitting system. Some members of the public perceive that regulators work too closely with the companies and permit operations without sufficient environmental safeguards. Conversely, some mining operators experience delays that they perceive to be

caused, in part, by members of the public who seek to forestall mining through the permitting and regulatory processes. Lack of confidence in the regulatory and permitting system can lead to delays and higher costs for industry, regulatory agencies, and the public and can also limit opportunities for improving environmental protection.

Conditions are changing for regulations and mining. Technology, social values, the economy, and scientific understanding change continually. Thus, environmental regulations applicable to mining will be most effective if they can use these changes to improve environmental protection. Similarly, the mining industry should benefit through lower operating cost and greater environmental protection. Therefore, a regulatory system that is adaptive to change will serve the public, the environment, and industry best.

Recommendation 1: Financial assurance should be required for reclamation of disturbances to the environment caused by all mining activities beyond those classified as casual use, even if the area disturbed is less than 5 acres.

The Committee observed unreclaimed exploration and mining sites that currently fall under BLM's category of notice-level activities, where the land disturbance amounts to less than 5 acres. Some of these sites are examples of unnecessary or undue degradation. The Committee believes that the inability to require a bond or other financial assurance for reclamation of these sites represents a gap in existing regulations. This recommendation proposes a major change in the way BLM regulates notice-level activities, which currently do not require financial assurances.

According to data reported by BLM, there are 181 currently outstanding notices of noncompliance for 14,989 currently active notice-level activities (BLM, 1999a, Tables 3–2 and 3–6); that is, less than 2% of the currently active notice-level operations have outstanding notices of noncompliance. Approximately 72% of the outstanding notices of noncompliance for notice-level activities are for “failure to reclaim ” (BLM, 1999a, Table 3–6). Although the percentage of notice-level activities cited for noncompliance is small, and even fewer sites are left without some form of reclamation, BLM staff spend

significant time locating operators of these sites and achieving compliance with reclamation requirements.

Disturbance of surface resources beyond those defined as casual use (see Sidebar 1–3) are considered significant. If bonds or other acceptable types of financial assurances were posted for reclamation of all such disturbances, regulatory agencies could use these funds to reclaim sites that have been abandoned or for which the operator is unwilling to reclaim the land. The requirement of financial assurance would protect taxpayers, who might otherwise be shouldered with the responsibility of reclamation. Furthermore, the bond itself provides an incentive for operators to reclaim the land in a timely manner.

The objective of this recommendation is to guarantee financial assurance for all significant disturbances, while continuing to allow activities with negligible impact to be conducted without permits. In this context significant disturbance for the purpose of requiring financial assurances generally occurs when motorized equipment is taken off existing roads onto a site. Examples include the use of bulldozers (for building new roads and drill pads) and backhoes (for digging exploration trenches).

The Forest Service currently uses a standard of “significant disturbance” in determining the threshold beyond which a plan of operations is needed (26 CFR 228.4). On BLM lands, neither a notice nor a plan of operations is required if the activity is classified as “casual use,” which is an activity ordinarily resulting in only negligible disturbance of the land and its resources (see Sidebar 1–3). BLM generally considers as casual use those activities that do not involve mechanized earth-moving equipment or explosives or do not involve motorized vehicles in areas designated as closed to off-road vehicles (43 CFR 3809.0–5).

Standard bond amounts for certain types of activities on specific kinds of terrain should be established by the regulatory agencies. It should be recognized that certain types of activities are less costly to reclaim than others. A set of activity- and terrain-dependent standard bond amounts (by state, BLM district, or forest) should be established for typical activities, especially those of prospectors, small exploration companies, and small miners, so that adequate bonds are posted for activities under 5 acres and so that the permitting process is expedited. Standard bond amounts (a certain number of dollars per acre of land disturbed for a particular type of activity) should be

used in lieu of detailed calculations of bond amounts based on the engineering design of a mine or mill. In addition, the Committee encourages the use of bond pools to lessen the financial burden on small miners.

Recommendation 2: Plans of operations should be required for mining and milling operations, other than those classified as casual use or exploration activities, even if the area disturbed is less than 5 acres.

The Committee observed examples of unnecessary or undue degradation on a few notice-level mining operations, which are not now required by BLM to have plans of operations. The Committee considers this to be a gap in the current regulations. This recommendation proposes a major change in the way notice-level operations are treated.

Mine development, extraction, and mineral processing activities generally disturb the land more significantly than exploration activities (see Appendix A, which describes the overall mining process, Appendix B, which discusses impacts, and Recommendation 3, which addresses notice-level exploration activities). As such, mine development, extraction, and mineral processing require considerable engineering design and construction activities, whereas, apart from the design of roads to minimize erosion and impact on sensitive areas, exploration requires little, if any, engineering and construction. A plan of operations should be subjected to regulatory approval to assess and help minimize environmental disturbance from mine development, extraction, and mineral processing activities. (Recommendation 3 addresses expedited procedures for exploration.)

This recommendation seeks to ensure that potential environmental impacts of mine development, extraction, and mineral processing operations are adequately considered and that the land will be reclaimed after mines and mills close.

The Committee favors retaining the BLM distinction for casual use operations and the Forest Service's similar recognition of activities with no significant impact.

The Committee discussed two examples in an effort to determine which kinds of mining-related activities should have approved operating plans. In the first example, small suction dredges used to recover placer gold from

sediments in streams generally are allowed under various state laws to be in the streams only during certain times of the year, preventing disturbance of fish at critical stages in their life cycles. The Committee believes that BLM and the Forest Service are appropriately regulating these small suction dredging operations under current regulations as casual use or as causing no significant impact, respectively.

In the second example, the Committee debated whether bulk sampling for metallurgical testing, an activity that could be considered advanced exploration rather than mining, should require a plan of operations or be considered a notice-level activity. Bulk sampling commonly involves excavation, from a shallow open pit or small underground openings, of 10 to 1,000 tons or more of presumed ore. The rock is tested, typically off site at an operating mill or at a metallurgical laboratory, to determine whether the contained metals can be extracted efficiently and profitably. Because an exploration project must advance to a considerable degree before bulk sampling is done and because bulk sampling can require the excavation of considerable amounts of overburden and waste rock, the Committee believes a plan of operation should generally be required for activities involving bulk sampling.

Thus, the Committee believes that, in association with a quick review of the operating plans, these same types of operations would benefit from a NEPA review that uses existing and readily available information. Some of this information may be available through the documentation developed by the land management agency for the land use planning process. The NEPA process will commonly require an environmental assessment rather than an environmental impact statement; in either case, the land management agency is responsible for timely completion of the appropriate NEPA documents. The requirement for a plan of operation for all mine development, extraction, and mineral processing operations should not be viewed as an opportunity to slow the process through extended review, but rather as an opportunity to develop the information needed for improved operations and for better monitoring and enforcement.

The Committee recognizes the valuable role that small miners play in the development of the nation's mineral wealth. Because of scale, small mines generally have less potential environmental impact than major mines. The Committee therefore believes that, with adequate bonding for reclamation, small miners should receive expedited schedules and services in permitting. For example, regulators should provide small miners with examples of generic permit applications that clearly explain the miner's responsibilities. The Committee believes that certain types of mineral extraction processes should be

treated differently than others in terms of the speed with which plans of operations are reviewed and approved. Some could have rapid, check-off-the-boxes approaches to permit applications. For example, mining for mineral specimens for collectors could be reviewed and permitted rapidly if no potentially harmful chemicals are used on site for beneficiation and if less than 5 acres of land is disturbed. Most specimen mining occurs in established mining districts, where adequate surface access exists. In addition, the land management agencies could assist small miners and mill operators by assigning more personnel to help complete permit applications, educate the operators in the permitting process, and develop standardized, easy-to-understand forms.

Recommendation 3: Forest Service regulations should allow exploration disturbing less than 5 acres to be approved or denied expeditiously, similar to notice-level exploration activities on BLM lands.

The ability to obtain access to land in a timely manner is vital to exploration (see Appendix A). The Committee found that the time it takes industry to obtain permission to explore on federal lands varies considerably by agency, even when disturbance to the land is likely to be minimal. This recommendation calls for a major change in the way the Forest Service approves exploration activities for disturbances of less than 5 acres. Along with Recommendation 1, which would require financial assurances for such exploration activity on BLM lands, this recommendation would make the requirements for exploration on Forest Service and BLM lands similar.

Under the current system for notice-level exploration activities affecting 5 acres of land or less, BLM has 15 days to respond and notify the operator if extraordinary measures are needed for the planned activities. In contrast, Forest Service officials reported that essentially identical exploration activities on Forest Service lands often require eight months lead time and sometimes as long as two years to obtain approval, although some approvals for exploration are obtained more quickly. Before plans of operations for exploration are approved, Forest Service officials generally inspect the sites, carefully review the plans, and prepare environmental assessments. The length of time can vary depending on whether the operator has the financial resources to provide for a third party to prepare an environmental assessment or must wait for the Forest Service to prepare the document.

Exploration typically progresses from one place to another depending on the results of the previous tests. For example, the results of one drill hole will often dictate the optimal location of the next drill hole. Anticipating the location of all drill holes on a particular piece of land is difficult. Therefore, exploration companies, when planning their exploration programs, tend to add to the estimated number of drill hole locations that are necessary.

Exploration companies informed the Committee that companies typically attempt to limit disturbance to less than 5 acres at a time on BLM lands because of the quick review from BLM for notice-level disturbances. Because such a provision does not exist in Forest Service regulations, there is less incentive to limit disturbance on these lands. In fact, because the review time is so lengthy, companies are likely to submit proposals for far larger exploration programs on Forest Service land than on BLM land in order to avoid further delays that would be caused in obtaining additional approvals. The only incentive for limiting disturbance on Forest Service lands appears to be the cost of reclamation.

The objective of this recommendation is to allow exploration activities to be conducted quickly when minimal degradation is likely to occur. The Committee believes that, with reclamation bonds or other financial assurances in hand for land disturbance (see Recommendation 1), exploration should be able to proceed expeditiously. That is, the current BLM 3809 regulation with a 15-day response time for notice-level exploration activities should be maintained, and a similar procedure should be adopted by the Forest Service.

Increased use of geographic information systems to check locations for such features as riparian areas, steep terrain, cultural resources, and known habitats and locations of threatened or endangered species should facilitate the necessary evaluations by land managers. Quick response time improves exploration efficiency because it gives operators the necessary flexibility to modify plans based on initial results, and because it provides an incentive for operators to design exploration activities that minimize the disturbed acreage.

Although the Committee recognizes that Forest Service lands often are in steeper terrain with more springs and creeks than BLM lands, the Committee believes that, with financial assurances in place, exploration disturbing less than 5 acres should be able to proceed on Forest Service lands as rapidly as on BLM lands. That is, the Forest Service should modify its 228 regulations to allow for rapid approval of exploration activities disturbing less than 5 acres.

The Committee does not intend that the requirement of bonding for exploration activities (Recommendation 1) result in a federal action that would automatically trigger an environmental assessment or environmental impact statement. BLM does not currently require companies to supply an environmental assessment for notice-level activities. The Committee believes that not requiring environmental assessments for exploration with less than 5 acres of disturbance is appropriate for both BLM and Forest Service lands.

The Committee debated whether the 5-acre threshold for BLM notice-level activities, above which full plans of operations with environmental assessments or environmental impact statements are required, is appropriate. Five acres appears to be a reasonable threshold, if reclamation bonds or other financial assurances are required, because environmental impacts from exploration at this level are likely to be minimal and because the cost (generally $5,000 to $25,000 for a full 5 acres of expected disturbance) is likely to be sufficiently high to provide an incentive for operators to reclaim the land quickly.

Recommendation 4: BLM and the Forest Service should revise their regulations to provide more effective criteria for modifications to plans of operations, where necessary, to protect the federal lands.

Concern was expressed to the Committee about the ability of BLM and the Forest Service to require modifications of plans of operations in light of new circumstances or information, such as unexpected acid drainage, problems with water balance, adequacy of approved containment structures, or discovery of impacts on wells and springs. The ability to require operators to make necessary modifications is essential to the agencies' ability to prevent unnecessary or undue degradation of federal lands.

A BLM state director or Forest Service supervisor now may require modifications only after making a set of findings that include determinations on the foreseeability of the issue when the original plan was approved, and if the agency took all reasonable measures to forestall the issue at that time. However, arguments over what should have been “foreseen ” or whether a BLM or Forest Service officer took “all reasonable measures” in approving the original plan makes the modification process dependent on looking backward. Instead, the process should focus on what may be needed in the future to correct problems that have resulted in harm or threatened harm. Protection of the lands should not depend entirely on an after-the-fact assessment of how good a job was

done at the time the original plan was approved. It is more important to address what can be done now to avoid unnecessary or undue impacts. Modification procedures should look forward, rather than backward, and reflect advances in predictive capacity, technical capacity, and mining technology.

Disputes have arisen over the ability of the BLM and Forest Service to require modifications under particular circumstances, for example, Island Mountain Protectors, IBLA 97–76R et al. (Nov. 20, 1998) (dispute over whether revised closure plan is or is not a “proposed modification ” of the plan of operations); and Creole Corp., 146 IBLA 107 (1998) (dispute over authority to require modification where detailed factual findings were not made on adequacy of 17-year old plan of operations where active operations had never commenced).

In part, this look backward is intended to prevent unfairly reopening issues that were, or should have been, anticipated at the outset. In practice, these requirements can complicate attempts to address current effects that became apparent only after some period of operation. See, for example, Red Thunder, Inc., 129 IBLA 219, 101 I.D. 52 (1994) (recounting dispute over legal status of letter “revisions” to plan of operations when acid drainage had been considered in the original plan of operations, but mining of sulfide ores had not been anticipated).

Various offices of BLM and the Forest Service have resorted to different strategies to preserve flexibility to respond to environmental harm or threatened harm despite the limitations of the current regulations. For example, some BLM offices routinely include reopener provisions in approved plans of operations, explicitly providing for submission of modifications where monitoring or other operating experience shows results different from those that were anticipated. The Forest Service often issues plans of operations that are valid only for a defined period—thus requiring the operator to submit a new plan of operations periodically, giving the Forest Service an opportunity to require modifications in the new plan. Some larger operators have agreed to include periodic review and update requirements in their plans to give the land management agency some ability to make necessary changes. While these approaches do not entirely conform to current regulations, they have helped protect the environment. Staff comments and documents reviewed by the Committee suggest that the regulations should be modified to improve criteria for modifications, require periodic reviews, and/or specify expiration dates for approved plans of operations to assure the opportunity to adjust practices where needed.

Provisions for periodic review of plans of operations, and the ability to require modifications, are important to deal with adverse effects on public lands. BLM and Forest Service regulations should not require the agencies to make retrospective findings on “foreseeability” or whether “all reasonable measures ” were applied in approving the existing plan. Modifications should be based on the results of monitoring or other data that demonstrate the occurrence or likely occurrence of unnecessary or undue degradation if the plan is not modified.

One of the implications of requiring modifications is the need for NEPA review. Where such modifications are needed to prevent unnecessary or undue degradation, such review should be expeditious and tied to the NEPA document approving the initial plan of operations. In addition, revised agency procedures should contain safeguards to assure that modifications are imposed only after serious consideration and following a procedure that protects the interests of the mining company in continuing to conduct operations, consistent with the avoidance of unnecessary or undue degradation.

The Committee did not determine if plans of operations should be reviewed or reopened at predetermined intervals. The evolutionary nature of mining at individual sites—particularly at mines using newer technologies and dealing with disseminated mineral deposits—requires changes in the limitations on plan modifications in the original BLM and Forest Service regulations. Updating of financial assurance instruments should also take place as conditions change that might affect the levels of bonding or other forms of financial assurance. Practices now vary among the states and federal agencies.

Recommendation 5: 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.

Temporary closures as a result of low mineral prices may cause environmental problems if appropriate management measures are not undertaken. Federal land management agencies should have regulations to

address such events. The land management agencies need to have the authority to require an operator to properly close a mine rather than allow it to remain in limbo if poor market conditions persist. The situation today is quite different from that over the last two decades when gold and other mineral prices were high and relatively stable.

Under some state regulations, temporary closures (defined as substantial reductions in output) exceeding a specific period of time trigger a requirement for permanent closure. Some companies have used “temporary ” status to delay or avoid taking appropriate final actions to clean up and otherwise close their facilities. Agencies should have a clearly stated process and criteria to be used in responding to temporary closures. Several states already have adopted regulations addressing this issue for mining operations.

The Forest Service and BLM should develop a common approach to addressing temporary closures and should delineate when temporary closures become permanent. This should be implemented through a rule-making process. They should also enter into understandings, and if necessary formal agreements, with the states that have already adopted such regulations concerning how the agencies will coordinate their efforts and which agency will take the lead in addressing temporary closures.

Recommendation 6: 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.

Field-level BLM and Forest Service personnel told the Committee that they have experienced difficulty, in some cases, in enforcing compliance with regulations and the requirements of notices and plans of operations. The Committee is not able to assess the relative levels of on-the-ground compliance and noncompliance resulting from the limitations of the existing enforcement procedures. However, the Committee is persuaded that more consistent and accessible procedures for deciding when to refer apparent violations to other

agencies and the ability to issue reasonable administrative penalties, subject to appropriate due process, would improve the efficiency of agency operations and enhance the protection of the environment.

Currently, federal land managers must seek a court injunction to compel an operator to respond to a “notice of noncompliance,” which directs the operator to return to compliance (43 CFR 3809.3–2; 36 CFR 228.7[b]). While some districts of BLM and the Forest Service have found such notices sufficient, others regard them as ineffective. The difference appears to be the ease or difficulty with which these offices can obtain the assistance of a U.S. attorney to seek injunctive relief.

Forest Service staff members also advised the Committee that they resort to regulations containing a general provision that makes violation of any 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). Access to a U.S. magistrate, assisted by Forest Service law enforcement personnel, apparently gets the early attention of operators that are in violation of their plans of operations.

Some Forest Service staff members also reported the use of the 261 authority, rather than the mining-specific 228 authority, because of poor wording of the “notice of noncompliance” section of 228.7(b). This 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 leads to concern about the efficacy of the notice of noncompliance in preventing harm to forest land resources.

Currently, the consequence for failing to comply with a notice of noncompliance from BLM or the Forest Service is the possibility that an operator may be ordered to comply by a federal court at some later date, with no sanction or disincentive for not responding at the outset. In the case of the Forest Service, petty criminal prosecution is also an option. The Committee finds that an administrative penalty authority should be added to the array of enforcement tools in order to make the notice of noncompliance a credible and expeditious means to secure compliance.

In addition to their own enforcement authorities, federal land management agencies need to acknowledge and to rely on the enforcement authorities of other federal, state, and local agencies as much as possible. The provision of

this additional enforcement authority for federal land management agencies makes it imperative that formal understandings be developed between those agencies and the state and federal permitting authorities to prevent duplication of effort and to promote efficiency.

BLM and the Forest Service should establish more consistent and accessible procedures for deciding when to refer apparent violations to other agencies that have direct interests in, and responsibilities for, operator activities that adversely affect the environment. Using memoranda of understanding (MOUs) or other means, the procedures should allow for the expeditious involvement of other agencies, except in cases where the land management agency needs to act immediately to protect public lands and resources, or in cases where the other agency is unable or unwilling to act with appropriate speed. In these cases clear procedures and standards are needed to guide the use of existing enforcement authority when violations have occurred or are imminent.

In addition, BLM and the Forest Service should seek authority from Congress, if statutory authorization is necessary, or otherwise revise and expand the existing enforcement provisions in the 3809 and 228 regulations to include administrative penalty authority for violations of their regulations and operating plans or notice-level requirements. Such penalty authority should be subject to appropriate due process, including the opportunity for the operator to rectify the circumstance of noncompliance, to undertake an administrative appeal, and to seek recourse to the courts.

Recommendation 7: 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.

Representatives of several mining companies indicated to the Committee that they would consider partial or full voluntary cleanup of some abandoned sites in or adjacent to their ongoing operations. They were, however, concerned about liabilities they might incur in doing work on abandoned sites. Under the Clean Water Act, CERCLA, and potentially under RCRA, mine operators doing any work at an abandoned site could incur liabilities.

In most cases, some cleanup would improve environmental quality and is better than no cleanup. In addition to federal impediments to voluntary clean up, some states have environmental laws that may pose additional barriers, laws that may be more stringent than their federal counterparts. The Committee did not address the general problem of abandoned hardrock mines on federal lands, but it believes barriers to reclaiming abandoned mines sites in connection with new operations should be removed.

The goal of environmental regulations is to protect and improve the environment. There are opportunities for correcting environmental problems caused by abandoned mines, in some cases where new mining is being done in old mining districts. Concern over legal liabilities or the ability to meet regulatory standards leads mine operators to design around older mined areas and pre-existing discharges. In many cases, however, reclamation of previously mined areas would be a reasonable approach for combining construction of the new mine with improvement of environmental problems caused by earlier mining. For example, existing pits might be appropriate places for waste rock disposal; construction of tailings facilities might present opportunities to stabilize or reclaim previous disposal sites; or replacement wetlands sites might be located to provide some treatment for existing poor-quality discharges. Incentives might be needed to assure that appropriate opportunities for reclamation and improvement of environmental impacts are not missed. Similarly, in previously mined areas adjacent to new mining operations, but not necessary for operation of the new mine, there may be opportunities for voluntary activities that could benefit the public. The added cost of full or partial cleanup of these sites could be considerably less than later cleanup under CERCLA rules. For example, use of equipment that is already on site would be less costly for the company or the government than the standalone costs if the cleanup were to be accomplished by bringing in the equipment at another time. By working with stakeholders and agencies responsible for overseeing the Clean Water Act, CERCLA, and other potentially inhibiting regulations, federal land management agencies could affect some degree of environmental improvement at old mining sites.

The Committee does not propose these changes to allow cleanup of abandoned mines without any liability for performance of the work. Regulatory agencies must be able to review and approve a work plan, to oversee the work, and to use appropriate mechanisms of control if the actions taken are not improving the environment. The objective of changes in laws and regulations

would be to recognize that environmental improvement is worth pursuing at abandoned sites and to limit the liability incurred by the cleanup entity. The Committee also recognizes that if a responsible party can be identified for the site, the site may not be considered truly abandoned and other cleanup approaches can be pursued.

Some states (e.g., Colorado and Montana) have voluntary cleanup regulations for all types of industrial sites. State regulators and the entities that have used those regulations for abandoned mine-site cleanup indicate that these regulations appear to be working well in promoting cleanup of abandoned sites or sites grandfathered from reclamation requirements. However, their application is limited to those sites where the Clean Water Act or CERCLA liability is not a concern. In addition, the ability of regulators to regulate site cleanup varies with each program.

To promote voluntary cleanup programs at abandoned mine sites, Congress needs to approve changes to the Clean Water Act and the CERCLA legislation to minimize company liabilities. The federal land management agencies, in cooperation with the EPA, and other state or federal agencies with potential regulatory authority, should propose to Congress changes in regulatory authority that would promote voluntary cleanup. Input should be solicited from other stakeholders, such as mining companies, tribes, and environmental organizations.

Recommendation 8: Congress should fund an aggressive and coordinated research program related to environmental impacts of hardrock mining.

Regulatory agencies and the mining industry are not adequately addressing research needs related to the environmental aspects of hardrock mining and reclamation, including the uncertainty associated with predictive modeling. The Committee recommends that Congress provide funds to support this important research. The mining industry, environmental groups, and other stakeholders should participate in defining needed research. Some of these needs are identified in Appendix D, including those related to water quality and quantity and to biological and ecological impacts. Research that looks at cumulative impacts, either from multiple mines or multiple uses should be supported to sort out the significance of the impacts of each use. That applies,

for example, to cumulative impacts of groundwater withdrawal on regional aquifers and regional water balances.

The potential for long-lasting environmental impacts from mining is high, but research on these issues is inadequate. Ideally, prioritization of and participation in funding for research on these issues should come from a combination of governmental, environmental, and industrial entities.

Unlike many other kinds of industrial point-source emissions, releases from mining operations may take years to develop (e.g., acid drainage) and may continue for many years after a mining operation has closed. So far, the success of modeling long-term water quality and quantity impacts has been fragmented, and the concordance of predicted and actual outcomes has not been adequately reviewed. Sampling, testing, and monitoring can provide data to help test, refine, and calibrate long-term predictive models.

The biological aspects of mining are even more neglected and deserve research support. Success in improving environmental controls has shifted some of the most severe remaining impacts of hardrock mining from humans to aquatic and terrestrial biota. Species that may be affected include some threatened or endangered species. Most research on pollution prevention has been focused on manufacturing wastes, but the potential for reducing process waste in mining may exceed that in other industries because of the large scale of mining. Advanced mining technologies, such as bioleaching and in situ solution mining, have the potential to reduce pollution and minimize surface disturbance, but the long-term environmental consequences of these methods have not been adequately investigated.

Research on the long-term environmental effects of hardrock mining should involve federal agencies (USGS, BLM, USFWS, USFS, EPA, NSF, DOE/National Laboratories), state mining and environmental regulatory agencies, state geologic surveys, universities, environmental groups, and the hardrock mining industry. The capabilities and cooperation of all these groups are needed. Lacking at the present time are adequate funding, a broad commitment to a coordinated research effort, and a focus for coordinating research and disseminating the results. The land management agencies should participate, along with federal and state regulatory agencies, by identifying their priorities for research related to their land management responsibilities.

No single agency or organization can take on full responsibility for the variety of research needs. In addition to the range of government research organizations, each with topical and disciplinary research strengths, some large mining companies have research facilities that could contribute to a focused program. A research program on environmental effects also should have a strong competitive grants program to stimulate relevant academic research. In addition, the EPA and the U.S. Fish and Wildlife Service have research programs that could contribute to a better understanding of the environmental impacts of mining. A listing and discussion of significant research topics is given in Appendix D. The environmental issues are serious enough to warrant immediate congressional funding of research in this area.

Recommendation 9: 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.

The intent of this recommendation is to retain the advantages of the current decision-making approach, which bases environmental protection and reclamation requirements on site-specific evaluations conducted pursuant to NEPA, while encouraging the agencies to provide clear public information about their interpretations of and intentions for implementing their regulatory requirements. Several individuals recommended to the Committee that the land management agencies develop regulations incorporating specific numeric standards to control many aspects of the operation and reclamation of hardrock mines. Such an approach would have the advantage of providing explicit quantitative requirements that would be clear to all stakeholders. It would have the disadvantage of reducing the ability of the operating plan and reclamation requirements to be sensitive to site-specific conditions and considerations.

The Committee believes that the NEPA process and its various state equivalents provide the most useful and efficient framework for evaluating proposed mining activities for three reasons.

First, the NEPA process provides the most comprehensive and integrated framework for undertaking these evaluations. The NEPA environmental assessment process includes the full range of environmental concerns, whether or not they are specifically addressed by some other regulatory program, as well as cultural and other concerns. It allows for clear identification of tradeoffs between different and sometimes competing values, and promotes a better understanding by all stakeholders of the implications of the many decisions involved in the preparation and approval of a mine's operating plan. It also provides a framework for coordinating the diverse information requirements, concerns, and permitting decisions of the many regulatory agencies and other stakeholders. No other regulatory program provides such a comprehensive, integrated mechanism for decision making.

Second, the NEPA process ensures that the decisions are based on careful analyses of site-specific conditions. For example, ore deposits occur in every conceivable type of geographic and geologic location from arid deserts to tropical rain forests to high mountains. The values and sensitivities associated with diverse types of environmental and cultural resources can vary at least as widely. An operating plan for mining activities must adapt and respond to these specific conditions and sensitivities. The NEPA process allows this responsiveness; regulatory programs relying on inflexible, technically prescriptive standards often do not.

Setting objectives for pit lake water quality is a good example of the advantages of the site-specific NEPA process. Requirements for the long-term quality of pit lake waters vary widely among the states and even in the same state. Water quality standards applied to pit lakes vary from those appropriate to industrial ponds to those required to protect waters of the United States. Pit lake settings are highly variable, and include circumstances where pit waters discharge to downstream watersheds, where pit lake waters mix with surrounding groundwater, and/or where pit lakes are closed basins subject to high evaporation. The Committee concluded that pit lake water quality should be subject to regulation and not simply left to chance. However, the Committee had difficulty identifying a universal approach suitable for the classification of all pit lakes.

In the Committee's view, the site-specific, long-term consequences of pit lakes should be fully considered in the NEPA process. Project approvals should clearly establish acceptable post-closure water quality conditions appropriate to the long-term use of the site and those that provide adequate protection for affected ground and surface waters, as well as wildlife and water fowl.

Third, mining technology for a site can vary substantially, depending on the type of ore, the nature and extent of the ore deposit, and many other site-specific conditions. Mining technologies also have changed, and will continue to change. The NEPA process allows the agencies to be responsive to such technological differences. Less flexible regulatory approaches do not allow this flexibility and, as a result, can cause technologies to be “frozen,” often with adverse impacts for both the mining operators and the environment.

For all these reasons, the Committee believes that the agencies should continue to rely to the maximum extent possible on the flexible, comprehensive NEPA evaluation process for making permitting decisions. However, the Committee also recognizes that the NEPA process is not perfect. The process is complex and time consuming and can be implemented inefficiently (see discussions under Recommendations 10 and 16). In addition, although the process recognizes environmental impacts of alternative actions, its objective is to minimize (not necessarily prevent) impacts through mitigation. Therefore some unrestorable impacts may occur even with agreed mitigation measures.

The Committee also believes it is in everyone's best interest if the agencies clearly set forth their policies, interpretations, intentions, and environmental goals in guidance documents and policy papers and make them available to all stakeholders. Discussions with agency personnel demonstrated that many differences in interpretation and perception about existing authorities and policies currently exist in an agency. Such confusion in the agencies can only confuse other stakeholders about the agency's policies. By clearly setting forth these interpretations and policies the agencies can reduce confusion and increase the efficiency of the decision-making process for everyone. By using guidance documents and policy papers rather than regulations for this purpose, the agencies can retain the flexibility that the Committee believes is so important.

Continued reliance on the NEPA process requires no modifications to current agency procedures except as identified under other recommendations. The agencies already have the authority to issue guidance documents and policy papers. The challenge is to implement a process for developing, issuing, and updating such documents that allows them to be informed by stakeholder comments (including public comments, where appropriate), while avoiding the inflexibility and costs of the traditional regulatory process. In order to be useful and effective, the advisories also must be easy for mining claimants to obtain. Examples of such guidence documents created by the British Columbia Ministry of Energy and Mines include Price and Errington (1998) and Price (1997).

Recommendation 10: From the earliest stages of the NEPA process, all agencies with jurisdiction over mining operations or affected resources 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.

The lack of early, consistent cooperation and participation by all the federal, state, and local agencies involved in the NEPA process results in excessive costs, delays, and inefficiencies in the permitting of mining on federal lands. Delayed and inconsistent involvement by nongovernmental organizations exacerbates these problems. In some cases, the agency representatives who do participate in the NEPA process are not those who will be responsible for issuing the ultimate permits, resulting in the raising of new information collection and analytical requirements during the final permitting phases. The objective of this recommendation is to promote efficient, fair, and timely consideration of mining proposals by streamlining the NEPA compliance process and eliminating permitting delay.

The Committee received testimony about the frequency of this problem and the substantial costs and delays that it can cause. Examples of problems include:

• failure to achieve early consensus on the appropriate scope and methodologies for collecting baseline environmental data (this failure may result in the need to repeat studies);

• introduction of new issues not included in the initial scoping by parties, including agencies that failed to participate in early consultation;

• late requirements to analyze additional alternatives not included in the original scope;

• intra-agency disconnect between personnel responsible for NEPA compliance and those responsible for permit decisions, resulting in late requests for additional information that should have been included in the original NEPA document; and

• multiple draft documents and revisions requiring additional public review.

The EPA was frequently singled out as an agency that often creates such problems because of its unwillingness to participate early in the NEPA process.¹ Other nongovernmental and tribal organizations were also cited for failing to participate early in the process, partly because the land management agency did not invite or encourage these organizations to participate.

On the other hand, several examples of effective collaboration among agencies were also presented to the Committee. Cooperation appeared to work particularly well when the state also had an environmental impact assessment requirement. The earlier the joint efforts begin the more effective and efficient the decision-making process is for everyone concerned. In many cases, for instance, the land management agency should begin organizing the process even during exploration, when it becomes evident that the mineral resources appear sufficient to support mining.

The land management agencies can promote the early consultation process by undertaking an aggressive, critical review of their current NEPA implementation practices and identifying sources of delay and inefficiency. Examples of effective and timely permitting also should be examined and used as models to improve and streamline the permitting of mining projects elsewhere.

In addition, it is crucial that the land management agencies adopt policies that will ensure that they secure high-level commitments to participate fully in the NEPA process from each potentially concerned federal, state, and local agency, and that will identify and include as cooperators the appropriate tribal and other nongovernment organizations. This must include full participation in the scoping process so that new issues are not introduced too late, and it must include concurrence on the appropriate work programs for baseline studies and other report components before the work is undertaken. Implementation of this recommendation also may require other federal agencies involved in decision making to adopt and implement guidance of their own to assure that the collaboration is early, effective, and sufficient. In this regard, the EPA Hardrock Mining Framework, if implemented, provides an example of such an agency commitment.²

The National Interagency Coordinating Committee formed in 1995 by interagency agreement among EPA, BLM, the Forest Service, and the National Park Service represents an approach to coordination among senior managers on a policy level that might also support implementation of this recommendation. However, the agreement will expire in 2000 unless it is extended, and its effectiveness depends on continued attention by senior managers.

Recommendation 11: 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.

The Committee was consistently frustrated by the inability of federal land management agencies to provide timely, accurate information regarding the status of mining projects under their jurisdiction. 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. Public testimony expressing concern that mining on federal lands is or is not adequately regulated was based mainly on anecdotal data and generally lacked systematic support.

As stewards of the federal lands, federal land management agencies have a responsibility to track systematically the performance of mining projects under their jurisdiction and to communicate this information effectively to stakeholders. Although the Committee was told by field-level personnel that such tracking was generally accomplished, the systematic compilation of the information necessary to document this conclusion was found only in field office files.

This recommendation addresses two of the essential elements of a regulatory program (see Sidebar 3–1), a management information system and stakeholder communications. The objective is to improve the federal land management agencies ' management capabilities and to increase the confidence

of stakeholders that the agencies are adequately fulfilling their obligation to protect the environment at mining projects on federal lands.

Mining regulation depends on the application of a multitude of statutes and regulations by numerous agencies, which the Committee found, in the aggregate, to be generally effective in protecting the environment from the potential impacts of mining on federal lands. The Committee also was told that mine operators are comprehensively implementing permit requirements, conducting required monitoring, and appropriately reporting results.

It was not clear, however, that the federal land management agencies are systematically tracking operator compliance with the commitments made in permits, reviewing and evaluating monitoring results, and effectively communicating this information to agency officials and interested stakeholders. Information that could be usefully tracked, compiled, and reported includes:

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

• summaries of monitoring data and reports that, in particular, characterize the degree of compliance with standards and criteria at mines and that highlight incidents of noncompliance;

• corrective actions taken to return sites to compliance;

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

• status of reclamation at mine sites;

• status of financial assurances;

• financial assurance forfeitures required; and

• outstanding incidents of noncompliance requiring farther action.

Compiled information should be summarized periodically and reported upward in the federal land management agencies. This same information should be readily accessible to the public, either as published reports or postings on the Internet.

The federal land management agencies should review and compile compliance data from the management information systems used by cooperating federal, state, and local agencies to track and report compliance with their permits and environmental requirements. The agencies should not duplicate efforts. Other federal, state, and local agencies also have an obligation to maintain their own management information systems and to provide appropriate information to the land management agencies. Care in the

design and implementation of an appropriate management information system can avoid excessive paperwork and diversion of personnel from field inspection duties.

Periodic public reporting is needed on the compliance status of individual mines, as well as aggregated district, state, and national compliance information. This would help allay public concerns that federal land management agencies are not adequately protecting the environment at mining operations on federal lands.

Recommendation 12: BLM and the Forest Service should carefully review the adequacy of the staff and other resources devoted to regulating mining operations on federal lands and, to the extent required, expand and/or reallocate existing staff, provide training to improve staff capabilities, secure supplemental technical support from inside and outside the agencies, and provide other support as necessary.

Some land management offices report that they have too few people to conduct inspections, review proposed operating plans, process appeals, and conduct other required activities. This concern extends beyond the simple numbers of people assigned to these functions. The responsibilities of the land management agencies involve many different scientific disciplines and can be technically very complex. Offices responsible for regulating mining projects may not always have access to the trained and experienced personnel required.

The objective of this recommendation is to improve and supplement the technical capabilities of the land management agencies to increase efficiency and ensure environmental protection. Opportunities available to supplement the existing capabilities of land management agencies are various and include the following:

• expanding and/or reallocating existing staff;

• providing intra and inter-agency training to improve staff capabilities, including not only briefings and seminars but also rotational temporary assignments, field visits, and other means of exposing less-experienced staff to the accumulated knowledge of veteran personnel;

• securing supplemental technical support from within the agencies (e.g., the BLM Technical Services Center's support of hydrological analyses in Nevada) and from other public agencies (e.g., the U.S. Geological Survey's Humboldt River Basin study provides important technical support to a land management agency by assisting in the evaluation and management of cumulative hydrological impacts);

• developing and using centers of excellence where individuals with the appropriate training and experience are available to support a number of different field offices;

• providing field offices with sufficient contracting funds to retain outside experts as necessary;

• expanding the role of private sector registered professionals (e.g., in addition to designing engineered mine facilities such as tailings dams, leach pads, diversion structures, and waste dumps; specifying the monitoring necessary to determine whether the facility is operating appropriately; reviewing the resulting data periodically; and certifying that the facility is operating within its design parameters, and if necessary, specifying corrective actions);

• using tools that will increase staff productivity, such as conducting more frequent inspections of exploration and mining activities and using computer models to estimate reclamation costs, conduct viability analyses, and support other tasks; and

• providing necessary supplies.

Several of these opportunities warrant early attention by the federal land management agencies. Staff training should be provided to improve staff capabilities. BLM should explore opportunities to expand the role of its Technical Services Center to assist in scoping and preparing environmental documents, specifying appropriate environmental monitoring, reviewing environmental monitoring data, and assisting on other technical matters. The Forest Service research stations may be able to provide similar assistance. BLM and the Forest Service should seek additional technical resources from the USGS and other appropriate agencies such as NSF, DOE/National Laboratories, EPA, and the Fish and Wildlife Service. In addition, the academic community could become better engaged in support of the land management agencies. The agencies also could expand the role of registered professionals from the private sector and increase the use of tools to enhance staff productivity.

Recommendation 13: BLM and the Forest Service should identify, regularly update, and make available to the public, information identifying those parts of federal lands that will require special consideration in land use decisions because of natural and cultural resources or special environmental sensitivities.

Lacking information on the important natural and cultural resources and environmental sensitivities of federal lands, miners are at risk of investing in exploration and then being denied a permit or being permitted under unfavorable terms. From the public's viewpoint, lack of prior environmental information may cause a mining project to advance to the point where environmental sensitivities are recognized too late and cannot be adequately accommodated. The best opportunity to avoid these unfortunate outcomes is through the prior identification of special environmental and resource situations. The public availability of this information will permit all stakeholders to make informed decisions regarding the use of federal lands.

Riparian zones, cultural and religious sites, unique ecosystems, and other settings on federal lands are now generally recognized as deserving special consideration in determining the appropriateness and management of mining. In reserving selected areas of federal lands for special purposes, such as national parks or wilderness areas, Congress typically withdraws the land from competing uses, including mining. The Forest Service and BLM use administrative withdrawals within legislatively prescribed limits to preclude hardrock mining on federal lands for such facilities as offices and campgrounds and for protecting areas used for scientific studies, municipal watersheds, and similar public purposes. The Committee notes, however, that using withdrawal orders is a relatively inflexible tool for reflecting environmental sensitivities during permitting in site-specific situations.

The land use planning processes required for federal lands by the Federal Land Policy and Management Act (FLPMA) for BLM and the National Forest Management Act (NFMA) for the Forest Service provide for identification of land and resources deserving special environmental concern. FLPMA, for example, provides for the designation of “areas of critical environmental concern” (ACECs) on BLM lands where special management is needed “to

protect and prevent irreparable damage to important historic, cultural, or scenic values, fish and wildlife resources or other natural systems or processes, or to protect life and safety from natural hazards ” (FLPMA, Sec. 103). Areas defined in land use plans as requiring special protection can be withdrawn from mineral entry within legislatively prescribed limits.

The agencies' land use planning processes provide for public input and review. However, the time needed to prepare and revise plans limits their usefulness in providing timely information. In addition to the information on environmentally sensitive resources and conditions provided in the land use plans, additional information should be provided in advisories that identify the types of resources and areas that the agencies consider sensitive. This additional information could serve as an early signal for miners and others about conditions that are likely to require additional attention during the permitting process.

BLM and the Forest Service should identify natural or cultural resources or environmental sensitivities on federal lands that require special consideration in land use planning, including that related to hardrock mining. The agencies should use their land use planning processes to (1) identify these lands that should be withdrawn from hardrock mining or may require special considerations in permitting, (2) give specific consideration to hardrock mining as a potential land use, and (3) establish guidelines for reclamation and mitigation that apply to mining. This can be accomplished through the land use plans for federal lands required by FLPMA and NFMA.

Adopting this recommendation should help to assure appropriate consideration of all surface resources and efficient use of resources and environmental information in mining decisions. When land use planning identifies lands that should be protected from all mining, existing withdrawal authority should be sufficient.

Recommendation 14: BLM and the Forest Service should plan for and assure the long-term post-closure management of mine sites on federal lands.

The Committee found that current regulatory programs primarily address the exploration, permitting, operation, reclamation, and closure of mines and

have only recently focused on the post-closure management needs of mine sites on federal lands. Because hardrock mining on unpatented mining claims is a temporary use of the land and because the federal land management agencies resume direct responsibility for management of mine sites after reclamation and closure are complete and reclamation bonds are released, consideration should be given to the long-term needs and responsibilities for managing these sites.

Federal land management agencies should consider the land uses that are appropriate for a closed and reclaimed mine site, and perhaps more importantly, whether any uses should be controlled or precluded. In addition, the following management requirements should be addressed and assured for each site:

• measures needed to preserve future mineral access;

• residual public safety hazards and the need for fences, signs, and other features that must be periodically checked and maintained;

• measures needed to assure the integrity of closed waste units including the monitoring of tailings pond caps and waste rock and leach pad covers and their possible repair because of erosion or other failure, and the checking of adit plugs for continued effectiveness;

• long-term environmental monitoring required to assure that the site remains stable and does not become a source of off-site contamination and the implementation of appropriate corrective measures;

• the operation and maintenance of any water treatment facilities required to maintain water quality compliance of the site over the long term; and

• financial assurance to ensure implementation of these post-closure management requirements.

These matters are more relevant to large sites than small, but should be considered on a site-specific basis for any operation subject to a plan of operations. Site-specific post-closure management plans should be prepared and approved, and to the extent that costs can be reasonably identified, appropriate post-closure financial assurances should be established for mine sites on public lands.

The need for appropriate consideration of sites reasonably anticipated to require long-term operation of water treatment facilities is of particular importance because of the substantial costs of operating and maintaining these

facilities. Many questions remain about maintenance of treatment facilities for long periods of time and the types of financial assurances that might be appropriate to cover such costs. Questions also remain about the predictive tools currently available, their ability to accurately predict the need for long-term water treatment (see Appendixes B and D), and how and when to apply the results of such predictions to the need for financial assurances.

The Committee did not examine the long-term treatment and associated financial assurances in great detail. However, information was received indicating concern by the public and regulatory personnel about long-term treatment and the ability to require financial assurances. The Committee found that, with some exceptions, most states, the BLM, and the Forest Service do not require bonding for long-term or perpetual treatment of water at mine sites. The need for treatment of acid drainage and pit waters may extend long beyond typical post-closure periods (generally 30 years or less). If these costs are not assured, the public will eventually incur the costs of long-term water treatment at such sites if they become necessary. The Committee agreed that long-term water treatment and associated financial assurances will be necessary at some sites, and that the appropriate application of the predictive models and the appropriate long-term financial assurance instruments are areas that need further study.

The Committee reached no conclusion regarding the appropriateness of either requiring financial assurances for unanticipated, potentially environmentally damaging, extremely low-risk post-closure occurrences (such as the failure of drainage control systems or tailings embankments in a storm that is greater than the design storm event).

The federal land management agencies should develop procedures that will enable them to identify, in the review and approval process for plans of operations, the kinds of post-mining requirements that are likely to arise and to incorporate these into the approved plan of operations. In addition, provisions should be made to amend or clarify, as necessary, applicable land use plans to reflect the post-closure requirements of the site and to consider institutional, management, staffing, and other needs of the post-closure mine site. Appropriate types of financial assurance should be investigated for long-term water treatment.

Recommendation 15: BLM should prepare guidance manuals and conduct staff training to communicate the agency's authority to protect valuable resources that may not be protected by other laws.

Although mining operations are regulated under a variety of environmental protection laws implemented by a number of different federal and state agencies, the Committee was concerned that these laws may not adequately protect all the valuable environmental resources that might exist at a particular location proposed for mining development. Examples of resources that may not be adequately protected include springs, seeps, riparian habitat, ephemeral streams, and certain types of wildlife. In such cases, the BLM must rely on its general authority under FLPMA and the 3809 regulations to prevent “unnecessary or undue degradation.” Because the regulatory definition of “unnecessary or undue” at 3809.0–5(k) does not explicitly provide authority to protect such valuable resources, some of the BLM staff appear to be uncertain whether they can require such protection in plans of operations and permits. Some resources may deserve to be protected from all impacts, while other resources may withstand some impacts with associated mitigation. BLM should clarify for its staff the extent of its present authority to protect resources not protected by specific laws, such as the Endangered Species Act.

As discussed in Chapter 3, BLM and the Forest Service have a variety of mechanisms available for withdrawing from mining or protecting particularly valuable or sensitive areas or resources in advance of any proposed development. To the extent that they can make use of these mechanisms, they will provide protection to such resources or areas at the same time that they provide advanced notice to potential mining operations about which areas and resources ought to be avoided or protected in the planning and design of these operations. However, it may not be possible to identify all such areas or resources in advance. In this case, the agencies will have to rely on their general authorities, implemented through the NEPA process, to provide such protection on a site-specific basis.

Representatives from the Forest Service seemed clear in their authority to provide such protection, but some BLM representatives expressed ambiguity about this issue. The ambiguity results from the definition of “unnecessary or undue” in the agency's regulations pertaining to hardrock mining. These regulations emphasize such factors as “reasonable mitigation measures,” “prevention of a nuisance,” and compliance with other explicit environmental protection statutes. They do not, however, provide explicit authority to protect valuable or sensitive resources that are not adequately protected by these other

environmental protection statutes. Nevertheless, BLM has required such protection in some operating plans, and the Department of the Interior's Board on Land Appeals has upheld these requirements.

However, there is no clear guidance for agency personnel in the regulations or in the guidance documents on the extent of the agency's authority or on how these issues should be handled in the development and approval of operating plans for proposed mining operations.

BLM should prepare guidance manuals to clarify its existing authority to protect resources and train staff accordingly. During the NEPA process for mine operating plans, BLM should consider unnecessary or undue degradation of those resources that are not protected by other laws, determine what authority it has to act, and take appropriate actions to provide the appropriate level of protection.

Recommendation 16: BLM and the Forest Service should plan for and implement a more timely permitting process, while still protecting the environment.

The permitting process is cumbersome, complex, and unpredictable because it requires cooperation among many stakeholders and compliance with dozens of regulations for a single mine. As a result, there is a tendency for the process to drag on for years, even a decade or more. This drains and diverts the resources of land management agencies that should be managing their full range of responsibilities. It is also burdensome to operators and does not provide the best environmental protection. The public, the land management agencies, and the permit applicants would all benefit if the permitting process were conducted more efficiently.

NEPA reviews and permitting are complex and time consuming because of the wide range of environmental and other issues and the numerous stakeholders with diverse priorities. The collection of some baseline environmental data requires at least a full cycle of seasons, and sometimes longer. All deserve thorough consideration. At the same time, the review and permitting processes should be completed as soon as the work can be done properly,

eliminating delays due to inadequate stakeholder cooperation, insufficient planning, or insufficient agency staffing. An efficient process will require full disclosure of information related to a proposed operation, full public access to and participation in the process, and full cooperation of all stakeholders and agencies interested or involved in the proposed operation.

The efficiency of NEPA review and permitting is in large part a management matter. The land management agency with lead responsibility should set and achieve deadlines and have sufficient qualified staff to do so. More timely permitting will free the agency staff to better address all their other environmental responsibilities. Recommendations in this report that support more efficient reviews and permitting include Recommendations 1, 2, 6, 10, 11, and 12.

Several of the other recommendations in this report, when implemented, will help achieve the objectives of this recommendation. Information on the time involved in recent reviews and permitting need to be compiled and analyzed to identify and correct causes of any unnecessary delays. With these actions land management agencies can set and manage to achieve reasonable goals for completion of reviews and permits while continuing to protect the environment.

The above conclusions and recommendations, taken together, summarize the Committee's views of the actions needed to coordinate federal and state mine reclamation, operations, and permitting requirements and programs. Some of these will require congressional action and some will require changes in federal regulations. Still others will require changes in the implementation of existing regulations and programs. Adopting these recommendations will improve environmental protection and reclamation of hardrock mining on federal lands, as well as the efficiency of the permitting process.