CHAPTER 5 ENVIRONMENTAL AND RECLAMATION PERFORMANCE STANDARDS IN THE NEW 3809 REGULATIONS

• Jurisdiction: United States

Review and Analysis of the New BLM Surface Management (3809) Regulations
(2001)
CHAPTER 5
ENVIRONMENTAL AND RECLAMATION PERFORMANCE STANDARDS IN THE NEW 3809 REGULATIONS
Jim Butler
Parsons Behle & Latimer
Salt Lake City, Utah

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201 S. Main Street, Ste. 1500

INTRODUCTION AND SCOPE OF PAPER

In the new 3809 regulations adopted by the Bureau of Land Management (BLM) on Nov. 21, 2000, BLM significantly expanded and revised the environmental and reclamation performance standards applicable to hard rock mining on lands managed by the BLM. See 65 Fed. Reg. 69997 (2000). The new performance standards are set forth in new § 3809.420, but interpretation of these new standards also requires consideration of other provisions in the regulations, including definitions of terms used in the performance standards, and explanation of the regulatory language that is contained in the preamble to the final regulations and in the final environmental impact statement.

This paper discusses the environmental and reclamation performance standards contained in the new 3809 regulations and compares them with the provisions in the prior version of the regulations. In explaining the new requirements, it is helpful, and sometimes necessary, to comment on the legal authority to implement the regulations that is claimed or asserted by BLM. This paper should not be read as a commentary on BLM's legal authority, i.e., whether BLM has the authority to adopt and implement the new performance standards as written. In other words, it would be improper to cite this paper as an interpretation or concession of BLM's authority under FLPMA or the mining laws.

I. Environmental and Reclamation Performance Standards Under the Prior 3809 Regulations

The 3809 regulations in place prior to the November, 2000 revisions included performance standards that required:

1. reclamation of disturbed areas, §§ 3809.0-5(j), 3809.1-3(d) & 3809.1-5(c)(5);

2. mitigating measures identified and adopted through NEPA review, § 3809.2-1(b);

3. surface disturbance no greater than what would normally result from similar operations by a "prudent operator," § 3809.0-5(k); and

4. compliance with all applicable Federal and State environmental laws. §§ 3809.0-5(k), 3809.2-2.

Performance standards in the regulations were supplemented by BLM guidance such as the BLM Reclamation Handbook, Bonding Policy, Cyanide Management Policy, and Acid

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Rock Drainage Policy adopted after the regulations were promulgated in 1980. Where performance standards were provided by federal or state environmental laws, such as water quality standards, BLM deferred to those standards, and to federal or state permitting decisions interpreting and enforcing those standards. BLM's 3809 Manual advised that:

Certain substantive Federal environmental laws allow for State primacy. Where these laws affect locatable mineral operations BLM must defer to standards set by States with federally approved programs.

BLM Manual, 3809 — Surface Management, at § 3809.31(C).

Compliance with federal or state environmental permitting requirements, where applicable, was also sufficient to meet the operator's responsibility to avoid "unnecessary or undue degradation." No further analysis by BLM or additional environmental controls by the operator were required. See Committee for Idaho's High Desert, 146 IBLA 194 (1998) (finding no "unnecessary or undue degradation." where appellants failed to show that BLM or operator had failed to comply with applicable environmental protection statutes and regulations).

II. Environmental and Reclamation Performance Standards in the New 3809 Regulations

The new 3809 regulations provide a different approach to performance standards. Important changes to the regulations include adding performance standards in new areas, providing more detailed requirements in areas covered by existing regulations, expanding BLM's regulatory role in areas covered by other federal or state environmental laws, and moving some requirements from BLM guidance documents into the text of the regulations. The new and expanded performance standards are tied to BLM's new and expanded reading of its authority under FLPMA to take steps to prevent "unnecessary or undue degradation." See, e.g., 65 Fed. Reg. at 70041-42 ("BLM is required to regulate mining activity under FLPMA to prevent unnecessary or undue degradation of all resources of the public lands, including those protected by other authorities.") (emphasis added).

The new 3809 regulations group the performance standards in three categories: General Performance Standards, Environmental Performance Standards, and Operational Performance Standards.

A. General Performance Standards

1. Technology and Practices

The first requirement of the performance standards is that an operator must "use equipment, devices, and practices that will meet the performance standards of this subpart." § 3809.420(a)(1). This requirement appears to be a remnant of a proposal in the draft regulations that would have required an operator to use the "most appropriate technology and practices" to comply with environmental performance standards. See 65 Fed. Reg. at 70012-13 (explaining the change from the proposed rule). As written, this provision merely reinforces the operator's duty to

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comply with the performance standards using technology or practices that are expected to meet the standards.

2. Sequence of Operations

The new regulations add a requirement that an operator "avoid unnecessary impacts and facilitate reclamation by following a reasonable and customary mineral exploration, development, mining and reclamation sequence." § 3809.420(a)(2). In response to comments questioning whether this new requirement was necessary or appropriate, BLM claimed that there had been "past instances" where unnecessary environmental impacts resulted from operators that were not following a "reasonable and customary" mining sequence. FEIS Vol. II at p. 358. BLM explained that "[r]eview of sequencing will be applied on a large scale and not to regulate small portions of an operation." Id.

3. Land-Use Plans

The new regulations insert a requirement for consistency with BLM land use plans:

Consistent with the mining laws, your operations and post-mining land use must comply with the applicable BLM land-use plans and activity plans, and with coastal zone management plans...as appropriate.

§ 3809.420(a)(3). The regulatory language begs the question of what is "consistent with the mining laws." Prior to the new 3809 regulations, BLM had interpreted FLPMA and the Mining Laws to mean that mineral operations could not be precluded by land use plans, i.e., that mining could not be planned out of existence. The new language might be used by BLM, or third parties, to support or force further restrictions or mitigations measures on mining operations. In an explanation of the provision contained in the FEIS, BLM stated that this "requirement also recognizes that the land use plans must not impair the rights of claimants under the Mining Law. BLM cannot use land use plans by themselves to preclude mineral activity, but should use them for guidance on regulating the activity." FEIS at p. 50. Consistency with land use plans is also incorporated into several specific performance standards. See, e.g. § 3809.420(b)(5) (revegetation of reclaimed areas must be "compatible with BLM land use plan or activity plan").

4. Mitigation Measures

The performance standards reinforce other provisions of the new 3809 regulations by requiring that an operator "must take mitigation measures specified by BLM to protect public lands." § 3809.420(a)(4). Under the earlier regulations, mitigation measures were initially proposed by the operator, and then reviewed by BLM— usually in connection with NEPA review—to assure that they were adequate to prevent "unnecessary or undue degradation" and to comply with applicable federal and state environmental standards. See §§ 3809.1-5(c)(5) & 3809.2-1(b). Under the

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new regulations, mitigation measures may be developed primarily by the agency. Responding to comments on the Draft EIS regarding development of mitigation measures through NEPA, BLM stated that the agency "does not believe it appropriate for a mining regulation program to rely upon 'negotiation' with operators under the NEPA process." FEIS Vol. II at p. 81. Instead, "[e]stablishing performance standards is a function of the 3809 regulations," and one purpose of the final regulations is "to establish outcome-based performance standards under which a Plan of Operations can be evaluated." Id.

The new regulations also adopt an expansive definition of "mitigation," borrowed from the Council on Environmental Quality's NEPA regulations. BLM now defines "mitigation" to include one or more of the following:

(1) Avoiding the impact altogether by not taking a certain action or parts of an action;

(2) Minimizing impacts by limiting the degree or magnitude of the action and its implementation;

(3) Rectifying the impact by repairing, rehabilitating, or restoring the affected environment;

(4) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action; and

(5) Compensating for the impact by replacing, or providing substitute, resources or environments.

§ 3809.5.

The new regulations impose more rigorous mitigation requirements, based on a new interpretation of BLM's statutory authority which concludes that "[m]itigation measures fall squarely within the actions the Secretary [of Interior, acting through BLM] can direct to prevent undue or unnecessary degradation of the public lands. An impact that can be mitigated, but is not, is unnecessary." 65 Fed. Reg. at 70012 (emphasis added).

BLM also interprets its legal authority to allow it to require that an operator perform "compensatory mitigation,"...