Publications

"Update on Interior and Agriculture Departments' Initiatives on Hardrock Mining,"

1997

Co-Authors: Edward M. Green, R. Timothy McCrum, and Steven P. Quarles.

In the January 1997 issue of the C&M MINING LAW MONITOR, we reported to you on major new initiatives by the Departments of the Interior and Agriculture to tighten the regulatory regime for hardrock mining on public lands.

At the Interior Department, in particular, this initiative started quickly. Responding to Secretary Babbitt's January 6, 1997 memorandum instructing the Bureau of Land Management ("BLM") to "upgrade" its surface management regulations (43 C.F.R. Subpart 3809), which govern the review and approval of plans of operations for any mining and most substantial exploration activities on BLM-managed public lands, BLM issued its "43 C.F.R. 3809 Action Plan" in March. The Action Plan established an ambitious schedule to conclude a "prescoping outreach" (including contact with western state governments, industry, and environmental groups, and the conduct of field trips) by the end of April.

Following this preliminary effort, BLM scheduled meetings in central western locations and Washington, D.C., to carry out scoping of issues and options required by the National Environmental Policy Act ("NEPA"). Following those meetings, the BLM Action Plan called for a summary of scoping comments to be prepared by June 30, and a regulatory options paper to be submitted to Secretary Babbitt by July 15, with his decisions on these options set for August 1. Once the Secretary had determined the further direction of the 3809 initiative, the BLM Action Plan called for a draft environmental impact statement ("DEIS") and the proposed revisions to the 3809 regulations to be published for public comment by April 1998. The Action Plan also established a BLM 3809 Task Force divided into two teams - one to focus on revision so the regulations and the other to the preparation of the DEIS.

The scoping meetings held in May and early June around the West generated enormous interest and were attended by over a thousand people, most of them representatives of the mining industry. Consistently, industry representatives at these meetings urged BLM and the Secretary to retain the concept of flexible management found in the existing 3809 regulations and not adopt rigid "command and control" requirements. This flexibility is necessary, industry representatives said, to accommodate widely varying site-specific environmental and geological conditions encountered in hardrock mining regions and to allow BLM's administration of the 3809 regulations to be integrated with the overlapping and variable requirements of the various federal and state regulatory programs (both mining- and environment-related), which apply to mining and mineral exploration activities on federal lands.

The scoping meetings themselves were criticized as premature because BLM had not yet prepared a DEIS, thus requiring the public to speculate as to what the BLM's proposal might be. Industry urged BLM to hold that a second round of scoping once it had developed a more definite proposal. More specifically, industry argued that BLM was required to provide a statement of purpose and need for any 3809 regulatory revisions so that the public could respond by proposing alternatives which could meet that purpose and need. Simply put, BLM was required to explain what (in its view) is wrong with the existing regulations and what needs to be fixed. Further, because BLM's regulations require compliance with all other federal and state environmental and reclamation laws, BLM was required to identify gaps or inadequacies in those laws in order to justify imposing new regulatory requirements.

After to the scoping meetings, BLM set a June 23 deadline for providing written scoping comments. By the close of the comment period, in addition to flipchart comments collected at the public scoping meetings, BLM had received 1,832 letters regarding the 3809 revisions. The volume of these responses was so overwhelming that the BLM Action Plan, which had been proceeding on schedule until June 23, quickly began to unravel.

Then, in mid-July, Senator Harry Reid (D-Nev.) successfully offered an amendment to the Interior Department appropriations legislation for fiscal year 1998 providing that no funds appropriated in that bill or in any other appropriations bill could be spent to develop a rulemaking proposal to amend or replace the 3809 regulations, or to prepare a DEIS on any such proposal until the Secretary had established an advisory committee composed of representatives of the Interior Department and each state that contained public lands open to location under the General Mining Laws. That advisory committee would provide the Senate Committees on Energy and Natural Resources and Appropriations and the House of Representative Committees on Resources and Appropriations with a report which was to include:

  • consensus recommendations on the appropriate relationship of states and federal land management agencies and the environmental and land management regulation of activities subject to the 3809 regulation;

  • current and proposed state environmental, land management, and reclamation laws, regulations, performance standards, and policies applicable to activities covered by the 3809 regulations, including those state laws and regulations which have been adopted to achieve primacy in the administration of federally mandated environmental laws;

  • an explanation of how those current laws, regulations, performance standards, and policies are coordinated with federal surface management efforts; and

  • consensus recommendations for how federal and state coordination can be maximized in the future to ensure environmental protection and minimize regulatory duplication, conflict, and burdens.

Adoption of the Reid Amendment shifted the attention of the Babbitt 3809 revision effort to Capitol Hill. Following the August congressional recess and intense negotiations between the Administration and key senators, on September 17 Senator Dale Bumpers (D-Ark.) offered a substitute amendment to the Reid Amendment, which provided as follows:

(a) No funds provided in this or any other act may be expended to develop a rulemaking proposal to amend or replace the Bureau of Land Management regulations found at 43 C.F.R. 3809 or to prepare a draft environmental impact statement on such proposal, until the Secretary of the Interior certifies to the Committees on Energy and Natural Resources and Appropriations of the United States Senate and the Committees on Resources and Appropriations of the United States House of Representatives that the Department of the Interior has consulted with the governor, or his/her representative, from each state that contains public lands open to location under the General Mining Laws.

(b) The Secretary shall not publish proposed regulations to amend or replace the Bureau of Land Management regulations found at 43 C.F.R. 3809 prior to November 15, 1998, and shall not finalize such regulations prior to 90 days after such publication. [Emphasis added.]

Urging senators to adopt his amendment, Senator Bumpers said that the drafters of the bill had not only agreed to it, but that "it [had] been microscopically fly-specked by all of the parties." The Reid-Bumpers Amendment was adopted by both the Senate and the House of Representatives, and the Interior Department Appropriations Bill, as of this writing, is at the White House awaiting President Clinton's approval.

As a result of both the volume of written scoping comments and the uncertainty associated with the Reid-Bumpers Amendment, the 3809 revisions juggernaut racing down the tracks of the BLM Action Plan has been at least temporarily delayed. BLM's 3809 Task Force provided Secretary Babbitt with a detailed "concepts" paper on September 16, setting forth a full range of discussion regarding the issues of concern to the Secretary. Those BLM and Department officials with whom we have spoken have taken great pains to distinguish this report from an options and/or decision document. As of this writing, BLM has not yet heard back from the Secretary as to how it should proceed.

Meanwhile, at the Agriculture Department, the U.S. Forest Service has begun a much lower-level and slower process to examine its surface-use regulations for hardrock mining (36 C.F.R. Part 228, Subpart A). That review was initiated at a September 1996 regional minerals directors' meeting and was included in the Forest Service's FY 1997 staff work plan. In late March, Forest Service headquarters sent a memorandum to regional foresters seeking their views on whether modifications are needed to these regulations. The regions responded and on, July 22, headquarters sent regional foresters another memorandum summarizing the responses which were received. The scope of these responses is quite far reaching, and if some or all of these suggestions were adopted, the 228 regulations would become much more burdensome. We also understand that there have been preliminary discussions among officials of BLM and the Forest Service regarding coordination of their respective regulatory revisions.

Whether this coordination between the two departments will be successful remains to be seen. We understand that communications with the Environmental Protection Agency and the Office of Surface Mining have also been preliminarily initiated by the BLM Task Force.

As for the future, key issues to watch include:

  • How will regulatory revisions deal with problems of technological, economic, and administrative feasibility?

  • Will the unnecessary or undue degradation standard be revised, and, if so, will it include granting the BLM the discretion to deny proposed plans of operations in sensitive environmental areas?

  • How closely, if at all, will the coal mining regulatory regime of the Surface Mining Control and Reclamation Act be the template for hardrock regulatory revisions?

  • Will the regulatory revisions recognize that western state regulatory programs are at a much higher level of performance than in years past and the mainstream of the hardrock mining industry is highly proficient in reclamation and in complying with other environmental protection requirements? and

  • What additional new funding/or resources, if any, will be made available for new regulations?

The answers to these questions are presently unclear, but what is clear is that the viability of a domestic hardrock mining industry on the nation's public land is substantially dependent on the right answers to those questions.

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Edward M. Green
Senior Counsel – Washington, D.C.
Phone: +1 202.624.2922
Email: egreen@crowell.com