CHAPTER 1 AN OVERVIEW OF THE MINERAL PERMITTING PROCESS
| Jurisdiction | United States |
(Mar 1981)
AN OVERVIEW OF THE MINERAL PERMITTING PROCESS
Vice President and General Counsel AMAX Environmental Services, Inc.
Denver, Colorado
The mining industry today is not the same species that it was ten or twenty years ago. The end product is the same, but the methodology used has changed enough to give even the most casual observer the impression that public and governmental intervention has had a profound influence on mineral exploration, development and extraction. A significant portion of the mineral resources permitting process at all levels of government has evolved due to the attitude of the general public that the environment needs to be protected from unregulated, destructive mining practices. Balancing the desire for continued economic growth, technological advancement, and national safety with the desire for a beautiful and pleasant environment, much legislation has emerged to try to preserve both goals for the benefit of a society with a multitude of values that are not always compatible.
The list of federal environmental protection statutes seems endless: The National Environmental Policy Act, Clean Air Act, Federal Water Pollution Control Act, Safe Drinking Water Act, Toxic Substances Control Act, Resource Conservation and Recovery Act, Surface Mining Control and Reclamation Act, and the reams of regulations issued pursuant to each of them, place great responsibilities and burdens on mineral resources companies, as well as other industries. Concurrent state and local laws and regulations deepen the murky waters one must navigate to be permitted to construct and operate a mine. Today, most mining companies understand the concern behind these laws and the importance our society places on clean air, clean water, and aesthetically pleasing vistas. It is understood that there is no longer any tolerance for unfettered mineral development; instead the challenge to protect the environment goes along with the responsibility to produce the raw materials needed by our society.
The advent of a sense of responsibility for the environment did not magically spring to life with enactment of the first comprehensive environmental laws. Many companies were sensing the public desire to avoid or control destructive mining practices well before Congress enacted strong environmental protection legislation. It did not require the hand of the federal government to guide the early efforts at mitigating harmful effects, although understandably not every aspect of these laws' objectives were acomplished by the pioneering projects. What was
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evident, however, was the indication that the mining industry was ready and willing to act responsibly and to respect the needs and desires of others.
An example of this environment-respecting attitude is the AMAX "Experiment in Ecology," which began nearly three years before the National Environmental Policy Act (NEPA) was passed.
The Experiment in Ecology
The Henderson molybdenum deposit in central Colorado was discovered by AMAX geologists in the mid-1960's. The deposit is estimated to contain some 300 million tons of ore, with an average yield of about six pounds of molybdenum per ton. If this discovery had been made in the 1950's or early 1960's, it might have been placed on a typical schedule of around three years from the reconnaisance stage to the start of construction. The development of underground openings, bulk sampling and test mining would be undertaken with the aim to get at the ore as quickly as possible. Initial development efforts would be followed by construction of the mine itself, and a mill, transportation system, and tailing disposal area near the mouth of the mine. The desire to maximize profits and obtain a high yield of molybdenum in a short time frame would be sought above most other concerns.
In 1967, AMAX chose to make a pioneering effort into the feasibility of industrial development while being ecologically sensitive. A unique cooperative effort among AMAX, representatives of the U.S. Forest Service, and a group of prominent environmentalists was created and named the "Experiment in Ecology." This step to consider ecological needs in developing a mine was not altogether a new one for AMAX. Award winning conservation steps already had been taken in operating the Climax mine and building the Urad mine, and were also present in many of AMAX's other endeavors. However, this plan would for the first time establish open communication between the company and the local environmental community.
Probably one reason the Experiment in Ecology was so successful is because the environmentalists were highly reputable, concerned citizens who were willing to listen to the economic needs and desires of the company, while encouraged to express their own views and knowledge about environmental concerns that the company was not always aware of. Also, AMAX was genuinely concerned about ecological matters and did not treat the Experiment as simply a public relations tool designed to gain favor for the company by making token appeasements to environmental groups.
As a result of the Experiment in Ecology, development at Henderson was strongly influenced by environmentally-sound
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principles. This added to the overall cost of the project, but at the same time, recommendations had to be economically justifiable. The largest point of contention between the environmentalists and AMAX was the siting of the tailing disposal area. Locating the tailing pond near the mine would have created a large tailing disposal area readily visible from a nearby highway. More than 30 proposed tailing sites were reviewed and abandoned because of environmental and visual concerns. Finally, a site on the opposite side of the Continental Divide from the mine location was approved. The mill site and tailing pond are nearly 14 miles away from the mine site, and a railway tunnel beneath the Divide approximately 9.5 miles long had to be constructed.
In connection with development of the mine, mill site and tailing pond, an ecological inventory was made to analyze the flora and fauna in the surrounding area. Of course, these are routinely done today as part of the environmental impact statement (EIS) requirements under the National Environmental Policy Act, but at that time it was a pioneering effort for both AMAX and the participating biologists and botanists. Many understandings and criteria in assessing the environment were developed during the Henderson ecological inventory and although the processes used today are somewhat different they are so as a partial result of the knowledge acquired during this experience. Due to the Experiment and the philosophy it has generated throughout AMAX, much has been done to protect the flora and fauna of the Henderson site and at other AMAX operations.
The environmental efforts at Henderson also are reflected in AMAX's land use policy as to much of the 22,750 acres in two counties (Grand and Clear Creek) involved in the Henderson operation. Before AMAX purchased the property, it was privately owned and closed to public hunting and fishing. AMAX opened 15,000 acres to recreation, which also provides access to 6,000 acres of National Forest land. Dealings with the Forest Service in acquisition of some of this land involved multiple negotiations with both private parties and the Service.
The Experiment in Ecology was a major step toward giving credence at an industrial level to legitimate environmental concerns. Roger Hansen, then executive director of the Colorado Open Space Coordinating Council and a member of the Experiment group, said, "The Experiment never represented Henderson as a model. We never said this is the zenith of all man's endeavors to live in harmony with nature. It wasn't humility that caused us to feel that way, but reality, because environmental planning is an evolutionary process."
Major Federal Environmental Laws and Regulations
There are numerous administrative agencies that could be
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involved in granting a company the necessary permits to engage in mineral development. Some are more involved in the process than others, notably the Environmental Protection Agency (EPA), Bureau of Land Management (BLM), the Forest Service, the Geological Survey, and the Corps of Engineers. A look at some of the more significant permits that may be required for a mining project will show the role each of these agencies plays in the permitting process.
The National Environmental Policy Act (NEPA, 42 U.S.C. §§ 4321 et seq., as amended) was the first statute enacted as the result of the heightened environmental awareness of the late sixties. Signed into law on the last day of 1969, NEPA is primarily aimed at governmental decisionmaking. It consists of three general parts. First, it declares a national policy that requires federal agencies to be trustees of the environment for the benefit of the public. Second, it establishes the environmental impact statement (EIS) process. Third, the Council on Environmental Quality (CEQ) is created to advise the Executive Office on environmental matters. The second part is the most significant to the permitting process, especially when the EIS requires a multi-agency review and coordinated response.
When a mining company applies for a federal permit, lease, or right-of-way that triggers the EIS process, it is in its best interest to give all possible assistance to the preparation of the EIS, because a full appraisal of the environmental effects of a project at the outset will significantly lessen potential delays in placing the new mine in operation. The draft EIS prepared by the lead agency (i.e., the agency determined to be the most directly responsible for the proposed action) is reviewed by the EPA and other agencies. The draft is read to review both the environmental impact of the proposed action and the...
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