CHAPTER 17 PERMITTING A HARDROCK MINE IN CALIFORNIA
| Jurisdiction | United States |
(Jan 1996)
PERMITTING A HARDROCK MINE IN CALIFORNIA
Gresham, Varner, Savage, Nolan & Tilden
San Bernardino, California
I. INTRODUCTION
A. Peter Keppler's "An Overview of the Mineral Permitting Process," RMMLI 1981 Institute on Mineral Resources Permitting ("Permitting I") is still the mode. Since then —
1. A few more statutes: e.g., EPCRTKA/CRTKL, Calif. CESA.
2. A few more regulations: e.g., COE 404, Calif. Air Toxic "Hot Spots."
3. More regulatory outreach: e.g., new COE 404 "waters," new CDFG 1603 "streams," more NEPA "major federal actions," more CEQA EIRs.
4. "Permitting" even more a part of the mining lexicon.
5. His conclusion still valid: "Although the permitting process often seems overwhelming, a well planned, systematic approach can reduce uncertainty and delay and minimize disruption to orderly mineral resource development. It is essential for the developer to identify as early as possible the permits that will be required for the project, the responsible agencies and individuals who will process the permits, local decision-makers who may influence the permitting agencies or the permitting process, and public groups and individuals who may be affected by or have an interest in the proposed development. After the ground rules and key players have been determined, the developer can formulate a plan for obtaining necessary permits in the most cost-effective, timely manner. As with most endeavors, careful preparation and open, honest dealings with concerned parties will usually bring about the desired result."
B. Focus will be on permitting a California mining project on both federal (BLM) and private land, with respect to land use and environmental.
1. Will not discuss support needs, such as access and water.
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II. PERMITS/MATRIX
A. Some good permits lists since 1981: e.g., California Mining Association, February 1995 (attached); Mineral Resources Alliance State and Federal Surveys; American Law of Mining, 2d Ed., Section 166-02[3].
B. Tough part: putting it all together. Attached Permitting Matrix for federal/California an approach.
C. Key: Be organized. See the overall picture. Permit smart.
III. GETTING SMART UP FRONT
A. Good consultants "who know the territory," political, technical, legal. Resist assuming your out-of-state experience works in California.
B. Develop complete project description first. Will need for what follows.
C. Know your rights as well as your obligations. Don't assume a one way street if regulator seems unreasonable.
D. Don't get pushy, but be brave.
E. Try to establish a congenial "local" representative.
F. Don't be afraid to introduce attorney early. Helps enrich understanding if issues arise later, and early friendly exposure helps lessen "hired gun" image later. Be a facilitator, not a litigator.
IV. GETTING ROLLING
A. Don't be stampeded before ready. Establish your baseline for EIS/EIR/Other first. Don't let NEPA/CEQA drive the project.
B. Don't overdo regulator statements. Seek input, but don't become true believer.
C. Avoid questions. Make statements, with backup.
D. Resist "eleventh hour" regulatory "red herrings." Be brave, but not intransigent.
E. Don't leave your "game plan" unless necessary.
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F. Allow time for the unexpected.
G. Know where to go next, if you are right.
H. Know the roles of your consultants. They tend to want to do each other's job.
— consultant's role: not to manage your business, or be your lawyer. Watch for consultant/regulator synergism
— attorney's role: help strategize, organize, and "growl softly" when needed
V. THE LAND USE/ENVIRONMENTAL PERMITTING MATRIX
A. Approvals to use land in certain ways.
— FLPMA Plan of Operations
— SMARA Mining Permit/Reclamation Plan
— COE 404 Discharge, "Waters of U.S."
— CDFG 1603 "Stream Alteration
— Other Land Use Approval(s)
B. Guiding the process.
— NEPA "hard look" at potential environmental impacts
— CEQA substantive requirement of feasible mitigations/alternatives
— ESA Section 7 consultation with USFWS for T&E species
— NHPA/SHIPO
— CESA 2081 MOU for incidental take of T&E and candidate species A.G. Opinion: No take by habitat modification
C. Input to the process.
1. Air Quality
— CAA: EPA: PSD, NSPS
— Calif: NSR, AC/PO
2. Water Quality
— CWA: NPDES/Stormwater
— Calif: RWQCB: NPDES/Stormwater delegated. WDRs
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3. Hazardous Materials/Substances, Wastes
— RCRA: Calif. delegated
— EPCRTKA/CRTKL: Chemical Releases, Inventory, Business Plan
VI. PITFALLS OF A CALIFORNIA MINE PROJECT
A. Colorado School of Mines Working Paper #93-8, 9-23-93
VII. SUMMARY AND CONCLUSIONS
A. Permitting a large hardrock mine project in California is a tough business
B. But doable, if permit smart, with awareness of total concept.
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ACRONYMS
| 404 Permit | Permit for "discharge of dredged or fill material" issued by COE under Section 404, CWA |
| 1603 Permit | Permit for "stream alteration" issued by CDFG under Section 1603, F&G Code |
| 2081 Permit | Permit for Incidental Take of CESA listed T&E Species and Candidate Species issued by CDFG under Section 2081, F&G Code |
| AC/PO | California Air District Authority to Construct/Permit to Operate under California Air Pollution Control Laws, Health and Safety Code 39000-44384 |
| A.G. | California Attorney General |
| CAA | Federal Clean Air Act, 42 U.S.C. 7401-7642 |
| CEQA | California Environmental Quality Act, Public Resources Code 21000-21177 |
| CESA | California Endangered Species Act, F&G Code Sections 2050-2098 |
| COE | U.S. Army Corps of Engineers |
| CDFG | California Department of Fish and Game |
| CWA | Federal Clean Water Act, 33 U.S.C. 1251-1387 |
| EIR | California Environmental Impact Report under CEQA |
| EPCRTKA/CRTKL | Emergency Planning and Community Right-to-Know Act, 42 U.S.C. 11001-11050 ; Calif. Community Right-to-Know Law, Health and Safety Code, Chapter 6.95 |
| ESA | Federal Endangered Species Act, 16 U.S.C. 1531-1544 |
| F&G Code | California Fish and Game Code |
| FLPMA | Federal Land Policy and Management Act, 43 U.S.C. 1701-1784 |
| NEPA | National Environmental Policy Act, 42 U.S.C. 4341-4370a |
| NHPA | National Historic Preservation Act, 16 U.S.C. 470 |
| NPDES | Natural Pollutant Discharge Elimination System Permit, CWA |
| NSPS | New Source Performance Standards, CAA |
| NSR | New Source Review by Air District Under California Air Pollution Control Laws |
| Porter-Cologne | California Porter-Cologne Water Quality Control Act, Water Code 13300-13999.18 |
| PSD | Prevention of Significant Deterioration Permit, CAA |
| RCRA | Federal Resource Conservation and Recovery Act, 42 U.S.C. 6921-69396 |
| RWQCB | California Regional Water Quality Control Board |
| SHPO | State Historic Preservation Officer |
| SMARA | California Surface Mining and Reclamation Act |
| T&E Species | Species listed as threatened or endangered under ESA and/or CESA |
| USFWS | U.S. Fish and Wildlife Service |
| WDR's | RWQCB Waste Discharge Requirements under Porter-Cologne |
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POTENTIAL LAND USE, ENVIRONMENTAL AND WORKER SAFETY
PERMITS, APPROVALS AND PROCESSES FOR
MINING PROJECTS IN CALIFORNIA
| Agency/Department | Permit/Approval/Process | Required For |
| FEDERAL AGENCIES | ||
| Federal Land Managers (e.g., Bureau of Land Management, U.S. Forest Service) | Plan Of Operations/Reclamation Plan. (43 CFR 3802 et seq.; 36 CFR 228 et seq.) | > Surface disturbing activities. |
| Environmental Review (e.g., Environmental Impact Statement (EIS) Or Environmental Assessment (Finding Of No Significant Impact). National Environmental Policy Act (NEPA) (42 USC 4321 et seq.). Cultural/Paleontological Resource Permit (National Historic Preservation Act, 16 USC 470). Archeological Resources Protection Act Survey. (16 USC 469 et seq.) | > Review environmental impacts of project. > Survey/excavation on federal lands. > Protection of archeological resources on public lands. | |
| Bureau of Land Management | Right-Of-Way Grant. (Federal Land Policy And Management Act, 43 USC 1701 et seq.) | > Easements on BLM-managed lands. |
| Temporary Use Permit. (43 USC 1701 et seq.) | > Short-term |
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