THE CURRENT REGULATIONS ARE INADEQUATE

The current hard rock mining regulatory program of the Bureau of Land Management (BLM) fails to protect the environment and the public from the damaging effects of gold, silver, uranium and other mining activities.

New regulations are needed to ensure that the pollution produced by mining is contained, and the environmental damage to public lands caused by mining can be corrected.

PROTECTION OF WATER RESOURCES IS CRITICAL

Special emphasis must be given to the prevention of pollution to water resources. Water is precious and scarce in the western states, and mining today continues to contaminate rivers, streams and underground aquifers with cyanide and heavy metals.

BLM SHOULD DENY MINING WHERE IT IS INAPPROPRIATE

The BLM needs to recognize its authority to deny mining operations that will cause significant damage to the environment, or in places where mining is in conflict with other uses. Examples of such places include areas with important water resources, places of recreational, scenic or cultural value and places where the company cannot demonstrate that a mine sites can be reclaimed (cleaned-up).

BLM NEEDS COMPREHENSIVE OPERATING AND RECLAMATION STANDARDS

BLM needs to adopt comprehensive operating and reclamation standard that apply to all mining operations. These standards need to include provisions to minimize damage to the environment during mining, as well as restoration of water resources, fish and wildlife habitat and other uses of public land after mining.

THE PUBLIC SHOULD BE FULL PARTNER IN MINING REGULATION

New regulations for hard rock mining should include specific provisions for public input into proposed mining operations, changes in mining activities, and opportunities for citizen inspection of mine sites on public lands.

MINING REGULATIONS NEED EFFECTIVE ENFORCEMENT PROVISIONS

The current regulations are inadequate to ensure that hard rock mining will meet its environmental requirements. Comprehensive enforcement provisions are needed to compel companies to meet their obligation to protect the environment when mining on our public lands.

The rules that govern hardrock mining on BLM lands (43 CFR 3809) need to be strengthened, and then enforced, in order to protect the health and safety of communities near mine sites and to prevent the degradation of our public lands.

DEFINITION OF "UNNECESSARY OR UNDUE DEGRADATION"

The Federal Land Policy and Management Act of 1976 (FLPMA) mandates that the Secretary of the Interior prevent "unnecessary or undue degradation" of the public lands.  However, this phrase "unnecessary or undue degradation" was not adequately defined in FLPMA or the 3809 Regulations.

The current regulations are inadequate because they authorize BLM to permit operations that may (1) produce long-term or permanent pollution of waters, (2) create permanent public health hazards when open pits and ponds with toxic water are left after mining, or (3) result in long-term displacement of wildlife populations or recreational use on public lands.

To prevent "unnecessary or undue degradation," BLM must:

• Recognize its authority to deny mining that may damage the environment or that is otherwise inconsistent with land management objectives
• Protect water resources from long-term disruption and damage
• Set clear, unambiguous standards for environmental protection, and then enforce them

AUTHORITY TO DENY MINING

In order to prevent undue degradation, BLM must determine whether mining is an appropriate use of the public lands in the proposed area, taking into account the other resource values that are going to be displaced by hardrock mining.

Hardrock mining  should not take place in areas that will produce long-term pollution to drinking and agricultural water supplies, where the public lands are being managed primarily for recreation values, in Areas of Critical Environmental Concern - which are set aside to protect outstanding natural resource values, and areas managed primarily to protect cultural, archeological and fish and wildlife values.

When evaluating a site, BLM officials should look at:

• An assessment of a worst case scenario of environmental impact
• Feasability of reclaiming the site
• Cumulative impact analysis
• Socio-economic and cultural impact analysis
• Evaluation of all reasonable alternatives, including the need for buffer zones.
• Analysis of off-site impacts from noise, lights, and vibrations

OPERATING AND RECLAMATION PERFORMANCE STANDARDS

The current regulations fail to define how mining should take place to minimize impacts on the environment.

Emphasis should be placed on prevention of environmental damage through programmatic design standards that result in long-term, multi-generational protection of the mining area.

(There are several steps in the development of a mining operation, and in the reclamation of an area where mining has taken place.  These steps include: exploration, development, extraction, beneficiation, processing and transportation, reclamation, and site closure.  Generally, operating standards apply to a mining operation during exploration and mining.  Reclamation standards apply during reclamation and site closure.)

A.  Operating Standards
Operating standards should include the following requirements:
• Achievement of  all applicable air and water quality standards
• Specific plan for protection of habitats for threatened and endangered species
• No net loss of threatened and endangered species or critical habitats
• Positive methods to exclude wildlife from the mining area (least harmful)
• Water-quality monitoring of mining effluents
• Cumulative hydrologic impact analysis, including the effects of major storm events on project facilities, potential project impacts on groundwater levels and quality, and the long-term effects of pit lakes on water quality and quantity
• Maintenance of riparian vegetation sufficient to buffer storm events, and sufficient to provide cover and shade along streambanks
• Protection of all soil resources, particularly topsoil and organic materials for post-mining reclamation
• Waste minimization planning
• Spill prevention and spill response planning
• Re-use and recycling of process materials
• Where practical, reclamation and re-use of mined materials
Monitoring of site conditions is critical to detect and anticipate potential environmental problems.

Detection levels need to be set that trigger corrective action response by the operator in order to prevent exceeding applicable performance standards and to prevent occurrence of any temporary or permanent resource damage or degradation.

B.  Reclamation Performance Standards
Reclamation should accomplish restoration of air, water, land, and biota such that a self-sustaining ecosystem, comparable to undamaged ecosystems in the area, is established.  The practices followed to achieve comprehensive reclamation include but are not limited to:
• Restoration of water resources, including water quality, quantity, recharge capacity, and pre-mining drainage configuration
• Prevention of water contamination from acid mine drainage
• Restoration of fish and wildlife habitats
• Specific plan for restoration of habitat for threatened and endangered species
• Restoration of the landscape to a condition that is at least as productive as the pre-mining landscape.
• Restoration of native soils and native plant communities
• Recontouring to the original topography
• Backfilling of open pits
C.  Validity Test
These new reclamation and operation standards should be reviewed to determine whether a mining operation is cost-effective, and therefore the claim is "valid."  This "validity" test is critical in the decision whether to issue a patent of our public lands to the mining companies.

One of the most damaging impacts from current hardrock mining operations today is the pollution from mining on surface and groundwater resources, and the loss of water quantity when drainages or aquifers are pumped to accommodate a mining operation.

BLM must give special attention to addressing the impacts of hardrock mining on water quality and water quantity.

An effective regulatory program for water protection should include the following requirements:

• Pre-mining analysis of water resources -- both quality and quantity
• Reclamation bonding to cover the costs of anticipated water resource impacts
• Minimization of damage to water resources during mining
• Achievement of all applicable water quality standards
• Protection against any off-site release of toxic or hazardous chemicals, metals, or acid drainage into groundwater and surface water
• Maintenance of riparian vegetation and ability of riparian system to dissipate storm flows
• Restoration of stream channels and hydrologic function disturbed by mining
• Restoration of any waters affected by mining to pre-mining water quality

A. Inspection

Many of the accidents that occur at mining operations could be prevented if there were more frequent and more thorough inspections.

Inspection requirements should include:

• Inspection without prior notice
• Adequate personnel to review mine sites on at least a quarterly basis, or monthly through aerial overflights
• More frequent inspections for high risk operations such as cyanide heap leach mines
• Third party monitoring
B. Enforcement

The current regulations fail to provide any credible enforcement mechanism for the BLM to correct damage to the public lands caused by mining.  Under the current regulation, BLM must prepare a legal case and obtain a federal court order in order to address environmental damage at a mine site.  This is a very high threshold for enforcement action.

Enforcement requirements should include:

• Assessment of civil and criminal penalties against corporations and their corporate officials
• Operation changes or fines
• Cessation orders
• State administrative penalties
• Citizen enforcement
• Program authority withdrawal
• Permit bar for operators with past violations in any regulatory context - When a mining company leaves a site unreclaimed after the regulations go into effect, that company should be blocked from receiving another permit to mine on public lands until the previous damage is corrected.

The current regulations fail to protect the environment against damage caused by "notice " level mines, which affect five acres or less of the public lands.

The current practice of allowing sites smaller than five acres to go forward without an approved plan of operation should be ended.  This exemption needs to be eliminated in order to prevent "unnecessary or undue degradation."

Mines of any size can degrade the environment. Some of these sites, such as cyanide heap leach mines, use toxic chemicals to extract minerals from the ground, creating environmental and human health risks. Placer mining operations that are less than five acres can destroy streams and riverbeds that are critical for salmon and other fisheries.  These small placer operations can produce major downstream impacts through increased sedimentation, disruption of the waterflow, and destruction of riparian or streamside vegetation.

This five-acre exemption is abused in many different ways.  Often, one operator will mine several different five-acre areas in order to avoid regulation.  These several small areas add up to one very large site.  In California's gold country and other historic mining areas, individuals will send in a notice that they are proceeding with a mining operation, and instead build second homes, vacation cabins or, even worse, trash dumps on these five- acre sites.

COORDINATION WITH STATE REGULATORY PROGRAMS

Today, state mining regulatory programs are inadequate to protect the environment from the impacts of hardrock mining.

State programs vary greatly from state to state.  Nevada's program is largely voluntary, and the mining companies can negotiate how they will reclaim a mine site on a case by case basis.

Most states have totally inadequate programs to regulate the pollution caused by hardrock mining on water resources.  Most states do not recognize the importance of returning the lands affected by mining to a productive use, such as restoration of wildlife habitat and recreation opportunities.

It is the responsibility of the federal government to regulate mining on federal lands.  These public lands support a wide diversity of uses, and users, which must be factored into decisions about where to have a mine, and how a mining operation should be conducted.

Regulation of mining on federal lands cannot be delegated to the states.

Alternatively, if a state has a reclamation requirement that is stronger than the federal standard, the state standard should prevail over the federal standard, and become enforceable by the federal land management agency.

Most mining operations take place on lands that are partially owned by the federal government, and partially owned by a private individual or corporation.  In those circumstances where federal lands are involved, the federal government should have the lead responsibility to manage the mining operation, and coordinate activities with the appropriate state agency.

CITIZEN PARTICIPATION

New regulations for hardrock mining should include specific provisions for public input into proposed mining operations, changes in mining activities, and opportunities for citizen inspection of mine sites on public lands. The public should be a full partner in mining regulation.

Citizen participation should include:

• Public hearings near proposed mine site, as well as near major population centers
• Notification list
• Funding for citizen and tribal participation
• Procedures for designation of lands unsuitable for mining
• Convenient documentation availability
• Comprehensive citizen suit and intervention rights with rights of cost recovery
• Stays of activity on site during permit appeal if irreparable damage would occur
• Semi-annual public tours until bond is released

Before permits are issued, information about the company should be disclosed. This information should include:

• Ownership and control of the operator and any parent, subsidiary or other affiliate, including controlling partners, directors, and stockholders
• Demonstrated lack of ability or intent to comply with applicable state or federal regulation of mineral activities

Funds to achieve timely and effective permitting, investigation, program administration, inspection, monitoring and enforcement could be generated by operator and applicant fees.

BONDING

Despite the recent effort to adopt new regulations for reclamation bonding, the BLM failed to ensure that the mining industry would shoulder the costs for damage to the environment caused by hardrock mining.  Instead, the new bonding regulations provide loopholes that will result in the liability for environmental damage ultimately passing to the public to correct.

Bonding requirements should include:

• Full-cost of comprehensive reclamation (see reclamation standards section)
• 30-year post-closure monitoring
• No self-bonding
• A review and upgrade on a regular basis
• Establishment of financial responsibility for corrective action before releases occur
• Held long enough to ensure successful and substantially complete performance