CHAPTER 7 ENVIRONMENTAL CONSIDERATIONS
| Jurisdiction | United States |
(Nov 1971)
ENVIRONMENTAL CONSIDERATIONS
Petersen, Moss, Olsen & Beard
Idaho Falls, Idaho
Regulations, Stipulations, National Environmental Policy Act of 1969, Proposed U. S. G. S. Regulations and Pending Legislation
OVERVIEW
An operator desiring to know what to expect from the standpoint of environmental considerations in connection with operations under federal mineral leases and prospecting permits must look primarily to the regulations adopted on January 18, 1969, as 43 C.F.R. pt. 23, (hereinafter referred to as the "part 23" regulations) and the stipulations and conditions set forth in the leases and permits issued by the government. On March 24, 1971, the Department of the Interior published additional proposed rule making to update the regulations at 30 C.F.R. pt 231,1 (hereinafter referred to as the "part 231" regulations). A major objective of both the adopted and proposed regulations is to insure that action is taken to avoid, minimize, or correct the effects of mining operations on the environment.2
The National Environmental Policy Act of 19693 is another significant factor having an impact on mining operations from the environmental standpoint.
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Numerous bills are currently pending in Congress which deal with the subject of mining and the environment which if passed could have a significant impact on the industry.
The major emphasis of this paper will be to review the reclamation requirements and procedures of the existing regulations and stipulations. The significance of the National Environmental Policy Act of 1969 will be briefly treated and some of the salient problems posed by the pending part 231 regulations and proposed legislation will be discussed.
Pursuant to the limitations of the topics to be considered as outlined for the Institute, this paper will not discuss operations involving oil and gas, oil shale, helium or Indian lands.
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STIPULATIONS ATTACHED TO AND FORMING A PART OF THE LEASES, PERMITS AND CONTRACTS
For a number of years prior to the adoption of the aforementioned part 23 regulations, the Department of the Interior followed a policy of attaching certain terms to its leases, commonly referred to as "stipulations". Some of these originated with and are referred to as United States Forest Service Stipulations and others originated with the Department of the Interior. The policy of including stipulations as part of the lease has continued since the adoption of the regulations.
Officials of the Department of the Interior are provided with a list of possible stipulations from which they are to select those which would be appropriate for inclusion in a particular lease or permit. This list is attached hereto as Exhibit 1. Other stipulations may also be drafted to meet specific problems. Samples of the Forest Service stipulations are attached hereto as Exhibit 2. Several of these stipulations pertain to the environmental effects of surface mining. Depending upon the stipulations selected, the operator may, for example, be required to:
1. Not block drainage systems or make cuts or fills which will result in siltation.
2. Conduct operations so as not to change the character ... of streams, lakes, ponds, etc.
3. Fill all holes, pits and excavations to the extent agreed in the approved mining plan and grade to the natural contour.
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4. Return overburden or other waste to the excavation as set forth in the mining plan.
5. Perform grading so as to present a surface susceptible to vegetation or desired land form.
6. Stockpile topsoil for use in backfilling and grading.
Ordinarily the stipulations which are to be incorporated into a particular lease are stated in the notice of lease offering. For an example of stipulations proposed in a recent lease offering on coal in Colorado see Exhibit 3, and for those of an Idaho phosphate prospecting permit see Exhibit 4.
In a letter responding to the author of this paper relative to the stipulations for the phosphate prospecting permit a BLM official stated that they were to "apply to both federal land under BLM administration and private lands with phosphate reserved to the United States". He further stated that the "special stipulations are tailored to the conditions of the ground" and that "where high surface resource values exist or where there are live water courses, stipulations to leases and permits will be more detailed than in dry, barren acres".4
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SCOPE, PROCEDURES AND REQUIREMENTS OF THE PART 23 REGULATIONS
The part 23 regulations apply to permits, leases, or contracts issued pursuant to:
The Mineral Leasing Act of February 25th, 1920, as amended ... the Mineral Leasing Act for Acquired Lands ... the Materials Act of July 31st, 1947 ... and title 23, United States Code, section 317, relating to appropriation for highway purposes of lands owned by the United States.5
The part 23 regulations:
...do not cover the exploration for oil and gas or the issuance of leases, or operations thereunder, for oil and gas under the mineral leasing acts, which are covered by regulations in Subpart 3107 and Part 3120 of this title and 30 CFR Part 221; neither do they cover minerals underlying Indian tribal or allotted lands, which are subject to regulations in Title 25 CFR, nor minerals subject to the general mining laws ... nor minerals under the Materials Act which are under the jurisdiction of the Secretary of Agriculture....6
These regulations specifically stipulate that they do not apply to lands where the surface is not owned by the United States Government.7 However as will be noted infra the government nevertheless assumes authority to compel reclamation of surface not owned or controlled by it.
Only permits, leases or contracts issued subsequent to the effective date of the regulations are subject to the part 23 regulations.8 However the department has sought to apply the regulations to leases that are renewed at the end of a particular lease term. This would appear to be a retroactive application of the regulations, and would appear to be contrary to the statement issued in connection with the promulgation of the part 23 regulations, that the previously
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published regulations had been revised to provide "further clarification of the intent of the regulations not to have any retroactive effect".*
Prior to the issuance of a permit, lease, or contract, the part 23 regulations stipulate that a technical examination is to be made to determine the prospective effect of the proposed operations on the environment. The check list which will be used by the Department in making this technical examination is attached hereto as exhibit 5 and is helpful in giving some indication of the items which are considered to be of significance with respect to this examination. However if an environmental impact statement is required pursuant to the National Environmental Policy Act of 1969, the operator can expect a substantially more detailed and much broader investigation to be made.
Thereafter general requirements are to be formulated which the operator must meet for the protection of the non-mineral resources and for the reclamation of lands and waters affected by the operations. These requirements are made known prior to the issuance of the lease or permit, and "upon acceptance thereof by the applicant" are to be incorporated in the permit, lease or contract. The requirements "should provide sufficient flexibility to permit adjustment to local conditions".9
Operations may be prohibited or restricted in certain areas
...whenever it is determined that any part of the area described in an application or offer for a permit, lease or contract is such that previous experience under similar conditions has shown that operations cannot feasibly be conducted by any known methods or measures to avoid:
(1) Rock or landslides which would be a hazard to human lives or endanger or destroy private or public properties; or
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(2) Substantial deposition of sediment and silt into streams, lakes, reservoirs; or
(3) A lowering of water quality below standards established by the appropriate State water pollution control agency, or by the Secretary of the Interior; or
(4) A lowering of the quality of waters whose quality exceeds that required by the established standards—unless and until it has been affirmatively demonstrated to the State water pollution control agency and to the Department of the Interior that such lowering of quality is necessary to economic and social development and will not preclude any assigned uses made of such waters; or
(5) The destruction of key wildlife habitat, or important scenic, historical, or other natural or cultural features....10
The Federal Water Pollution Control Administration must be consulted and that administration must submit a finding that the proposed operation would not be in violation of the Federal Water Pollution Control Act, if there is a likelihood that there will be a lowering of water quality below the standards established by the appropriate Pollution Control Agency.
After the lease or permit is issued or a contract is entered into, exploration or mining plans must be submitted and approved before exploration, testing or mining operations commence, as the case may be.11 Soil preparation, fertilization, revegetation and backfilling are among the activities contemplated to be done as outlined in an approved plan.12 Partial plans may be submitted and supplemented when the operation is "dependent upon unknown factors which cannot or will not be determined except during the progress of the operations."13
A performance bond in an amount sufficient to satisfy the reclamation requirements but in no event less than $2,000.00 must be filed. Cash or government bonds may be filed in lieu of a surety bond and may under certain circumstanc
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be statewide or nationwide...
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