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"National Academy Of Sciences Issues Report Card On Hardrock Mining," Crowell & Moring Mining Law Monitor

October 1999

Author: R. Timothy McCrum.

The National Academy of Sciences ("NAS") released its long-awaited report, Hardrock Mining on Federal Lands, on September 29, 1999. Because of widespread concern by the western states and the mining industry about Interior Secretary Bruce Babbitt's proposed comprehensive and burdensome revisions to the 43 C.F.R. Subpart 3809 regulations, Congress had asked the NAS in 1998 to assess the adequacy of existing federal and state environmental and reclamation regulations applicable to hardrock mining on public lands in the West. The members selected to prepare the report came from diverse backgrounds and conducted their analysis in a thorough and objective manner. The NAS Study Committee held numerous public meetings where it heard and considered the viewpoints of state and federal agencies, environmental groups, Native American representatives, and mining industry representatives.

The Committee was chaired by Perry Hagenstein, who has had a long and distinguished career involving public land policy issues. Other Committee members such as Paul Barton, retired from the U.S. Geological Survey, and Jonathan Price, the State Geologist of the Nevada Bureau of Mines and Geology, brought substantial geologic expertise to the Committee, as did Sam Adams, a past President of the American Geological Institute and former head of the Department of Geology at the Colorado School of Mines. Several Committee members were associated with environmental groups and regulatory agencies. Ann Maest is a geochemist with past experience with the U.S. Geological Survey, as well as with the Environmental Defense Fund. Dick Reavis brought his nearly thirty years of regulatory experience with the U.S. EPA and the Nevada Division of Environmental Protection to the process. Duncan Patten spent most of his career with Arizona State University, where he was a professor of Plant Biology and Director of the Center for Environmental Studies. Edwin Clark was formerly the Vice President of the Conservation Foundation and a former regulator with the U.S. EPA. A few of the Committee members, such as Ann Baldridge and Ray Krauss, had substantial environmental permitting experience with the mining industry. Don Gentry was the sole mining engineer. He was a professor at the Colorado School of Mines for over 25 years. Don Runnells brought his substantial environmental and geotechnical engineering consulting experience to the Committee. The sole lawyer on the Committee was James McElfish, who has spent most of his career with the Environmental Law Institute, and co-authored a study of the Federal Surface Mining Control and Reclamation Act that was critical of coal industry practices on environmental grounds, and another study critical of the hardrock industry.

Industry and States Make the Grade; Interior Comes Up Short

Given the diverse backgrounds of the Committee members, it is especially significant that the Committee's first conclusion was that the "overall structure of the federal and state laws and regulations that provide mining-related environmental protection is complicated, but generally effective." Its second conclusion was probably its most important finding, namely that "improvements in the implementation of existing regulations present the greatest opportunity for improving environmental protection and the efficiency of the regulatory process" (emphasis added). The Committee found that federal land management agencies already have at their disposal an array of statutes and regulations which "assure environmentally responsible resource development," but these "tools are unevenly and sometimes inexpertly applied." In other words, Secretary Babbitt's comprehensive proposal to revise, expand, and further complicate, the 43 C.F.R. Subpart 3809 regulations is unnecessary (and therefore unwarranted).

Indeed, when it is recognized that Secretary Babbitt has been in charge of these federal land management regulations at the Interior Department since early 1993, the NAS conclusions regarding his treatment of those regulations are a scathing criticism of his administration. For example, according to the NAS report, the "Committee was consistently frustrated by the inability of federal land management agencies to provide timely, accurate information regarding how they manage their lands and the status of mining projects under their jurisdiction." The report stated that the "lack of information appeared to be greatest among highly placed officials who have the greatest need to know." In a thinly veiled reference to senior Interior Department officials, the Committee found that "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."

The Committee made several recommendations for improved implementation and administration of the existing federal land management regulations, such as the development of management information systems to track compliance with operating plans and environmental permits, and enhanced communication of information to agency managers, the public, and other stakeholders. The Committee also recommended that the Bureau of Land Management ("BLM") and the Forest Service should carefully review the adequacy of staff and other resources devoted to regulating mining operations on federal lands and expand or reallocate existing staff, provide training to improve staff capabilities, and secure supplemental technical support from inside and outside the agencies.

The Committee's report offered virtually no criticism of the state environmental regulatory programs. The Committee found that the existing federal and state regulatory "structure reflects regulatory responses to geographic differences in mineral distribution among the states, as well as the diversity of site-specific environmental conditions."

Similarly, the NAS Committee's report portrayed the modern mining industry quite positively. The Committee explained that mining companies "have a strong continuing interest in seeing the [regulatory] process work smoothly." The Committee found that because modern mining companies "are involved for the long haul, they will go to great lengths to avoid creating problems that may cause regulators to be reluctant to approve modifications to their existing plans or proposals for new operations." The Committee found "significant improvements in mining-related environmental protection in recent decades" and stated that all stakeholders the Committee encountered "appeared to be concerned about environmental protection . . . ."

Regulatory Analysis and Recommendations

Interior's proposed 3809 rules would establish a presumption that backfilling should be carried out in every case, placing the burden on the operator to explain why the presumption was not applicable. On that controversial subject, the Committee repeated the findings of the 1979 NAS Committee on Surface Mining and Reclamation ("COSMAR") that "to restore the original contour where massive ore bodies have been mined by the open-pit method could incur costs roughly equal to the original cost of mining" and that such backfilling "would be of uncertain environmental and social benefit." The Committee's 1999 report stated that it had "no strong basis to contradict the COSMAR conclusion on backfilling . . . ." Accordingly, the Committee concluded that although "partial or complete backfilling can be environmentally and economically desirable in some circumstances, it was unable to find a basis to establish a general presumption either for or against backfilling in all cases."

The Committee did identify several minor "regulatory gaps" in the existing federal land management regulations, but was careful to point out that these gaps must be viewed in the context of its overall recommendation that "improvements in implementation present the greatest opportunities for improving environmental protection and the efficiency of the regulatory process . . . ." Thus, the identification of these few minor regulatory gaps in no way provides a justification for the comprehensive 3809 proposal by the Interior Department.

The Committee urged that the existing BLM exemption from the plan of operations requirement for mining operations under five acres be scaled back so that only exploration activities would continue to be exempt. Further, the Committee urged that even these exempt exploration activities be subject to financial assurance requirements. These are extremely modest changes to the regulations, which most companies in the hardrock mining industry have already endorsed.

The Committee recommended some minor changes in the existing regulatory procedures governing modifications to plans of operations, and urged BLM and the Forest Service to adopt regulations governing temporary closures of mines. The Committee also urged BLM and the Forest Service to plan better for and assure the long-term post-closure management of mine sites on federal lands, although the Committee did not expressly urge regulatory changes to accomplish this goal. The Committee also recommended that federal land management agencies have the authority to issue administrative civil penalties, although it properly questioned whether statutory authority for such penalties exists now. Finally, the Committee urged that existing environmental laws and regulations be modified so as to encourage remining at abandoned mine sites as a new means of reclaiming those sites.

Comment Period Reopened

On October 26, 1999, in light of the NAS report, the Interior Department published a notice in the Federal Register reopening the public comment period for 120 days on the proposed revisions to the 3809 regulations. Perhaps not surprisingly, in classic Washington-speak Interior is claiming that the NAS report actually supports its rulemaking effort. However, at the time of this writing Congress is deliberating over further legislative restrictions upon Interior's authority to proceed with any final rule during the next fiscal year. Congress wants Interior to improve its implementation of the existing regulations before compounding the identified administrative problems with new complex rules. Even if the congressional restrictions are not ultimately successful, the NAS report will provide substantial evidence in the administrative record which will render any broad and burdensome 3809 rule vulnerable to judicial review in the future. In addition, the NAS report provides a significant, objective rebuttal to the continuing claims of environmental groups that hardrock mining on federal public lands lacks adequate federal and state regulation.

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R. Timothy McCrum
Partner – Washington, D.C.
Phone: +1 202.624.2752
Email: rmccrum@crowell.com