CHAPTER 7 ENVIRONMENTAL PROTECTION PROGRAMS AND THE NATURAL RESOURCES INDUSTRY IN NEVADA
| Jurisdiction | United States |
(May 1990)
ENVIRONMENTAL PROTECTION PROGRAMS AND THE NATURAL RESOURCES INDUSTRY IN NEVADA
Hill Cassas deLipkau and Erwin
Reno, Nevada
TABLE OF CONTENTS
Page
1. Introduction
2. Mining Reclamation
2.1 Nevada Mined Land Reclamation Act of 1989
2.2 Mining Reclamation Regulations
3. Dangerous Mine Condition Abatement Program
4. Water Quality Regulation
4.1 Environmental Considerations in the Appropriation of Water
4.2 Water Well and Exploration Drilling Regulations
4.3 Regulations Governing Design, Construction, Operation and Closure of Mining Operations
5. Air Quality Regulation
6. Mine Safety Regulations
7. Wildlife Protection
7.1 Wildlife Mortality Legislation and Regulations
7.2 Regulation of Artificial Ponds
7.3 Desert Tortoise Protection
8. Miscellaneous State Programs
8.1 Protection of Indian Burial Sites
8.2 Collection and Disposal of Solid Waste
8.3 Disposal of Sewage
8.4 Regulation of Radiation
8.5 Regulation of Uranium Mills
8.6 Disposal of Hazardous Waste
8.7 Storage Tanks
8.8 Oil and Gas
8.9 Protection of Timber and Flora
8.10 Geothermal Resources
9. Local Regulation of Mining
9.1 Model Ordinance for the Registration of Mining and/or Extraction Operations
9.2 County Ordinances and Regulations
10. Conclusion
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Footnotes 7-21
APPENDIX
Memorandum of Department of Conservation and Natural Resources Division of Environmental Protection dated August 8, 1989 A-1
Memorandum of Department of Minerals dated July 19, 1989 A-2
Division of Environmental Protection, Air Quality Section, Application Form NAQP1-A A-3
Division of Environmental Protection, Air Quality Section, Surface Area Disturbance Form NAQP5 A-4
Board of Wildlife Commissioners Commission Policy Number P-63 A-5
Board of Wildlife Commissioners General Regulation Number 180 A-6
Federal Fish and Wildlife Permit PRT-747182 Regarding Desert Tortoise Protection A-7
Model Ordinance for the Registration of Mining and/or Extraction Operations A-8
Summary of Local Government Ordinances Pertaining to Mining Activities A-9
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1. Introduction
Recent years have seen a high level of activity in exploration for and development of minerals in Nevada, particularly precious metals, and the opening of many new mines and the expansion of existing mines. This growth in mining has had a significant impact on Nevada's environment. Public awareness of the environmental consequences of exploration activities and modern mining methods has increased dramatically. This public awareness has provided an impetus for closer governmental examination and regulation of mineral exploration and mining activities.
Whereas Nevada's former laissez-faire attitude toward mining had led to its reputation as a "free" state, in recent years public and political pressures have led to greater legislative interest in the regulation of mining and more vigilant enforcement attitudes among permitting and enforcement agencies. These agencies have recently enjoyed greater funding and legislatively supported staff increases.
The purpose of this paper is to discuss a few specific areas of critical concern to the mining industry in Nevada and recent state legislative and administrative actions regarding regulation of mining. It is beyond the scope of this paper to discuss all legislative, administrative, and judicial developments in this area. Recent federal statutory and regulatory developments are the subjects of other papers presented at this Special Institute.
2. Mine Reclamation
Despite Nevada's position as a leading mining state, until 1989 Nevada was one of the very few western states which did not have a mining reclamation statute. Construction of exploration drill roads and pads, mine roads, mine and processing plant facilities, heap leach solution ponds and heap leach pads, and widespread application of open pit mining methods have encouraged public and conservation group concern regarding the impact of these activities and the lack of state programs to address them. The result was the passage of the Nevada Mined Land Reclamation Act of 1989 (the "Reclamation Act") discussed below.
2.1 Nevada Mined Land Reclamation Act of 1989
During the final days of the 1989 Session, the Nevada Legislature passed, and on June 28, 1989, and July 5, 1989, respectively, the Governor signed into law Assembly Bill 9581 and Senate Bill 5492 which together are known as the Nevada Mined Land Reclamation Act of 1989 and are codified as Chapter 519A of the Nevada Revised Statutes ("NRS"). These are among Nevada's first statutes to regulate reclamation3 of mined land, to require application to state agencies for permits before commencement of exploration projects and mining operations, and to require submission of annual exploration and operation reports.
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Effective October 1, 1990, no person may engage in an exploration project4 or a mining operation5 in Nevada without a valid permit for that purpose issued by the Nevada Division of Environmental Protection ("DEP"). The Reclamation Act provides that "reasonable fees" based on the actual cost of administration and enforcement, with rates "set to differentiate between mining operations located on federal land and those operations on state or private land," will be established by regulations to be promulgated by the Nevada State Environmental Commission ("NSEC").6
Key provisions of the Reclamation Act define activities which are determinative of the operator's obligations and the nature of and extent of the required response. The permitting, reporting and response requirements depend upon the level of the operator's activity. The Reclamation Act distinguishes between exploration projects and mining operations, and includes certain exceptions from each, for example, small exploration projects and small mining operations.
NRS 519A.070 defines "exploration project" as follows:
"Exploration project" means all activities conducted in this state by a person on or beneath the surface of land for the purpose of, or in connection with, determining the presence, location, extent, depth or grade of any mineral, which affects the surface. The term does not include a small exploration project.
NRS 519A.110 defines "small exploration project" as follows:
"Small exploration project" means an exploration project which is limited to a surface disturbance of not more than 5 acres in any calendar year. To determine the area of the surface disturbed, all land disturbed and left unreclaimed by an operator within a 1-mile radius of the center of the project must be considered.
NRS 519A.080 defines "mining operation" as follows:
"Mining operation" means all activities conducted in this state by a person on or beneath the surface of land for the purpose of, or in connection with, the development or extraction of any mineral. The term does not include an aggregate or sand pit or a small mining operation.
NRS 519A.120 defines "small mining operation" as follows:
"Small mining operation" means a person who does not remove from the earth in any calendar year material in excess of 36,500 tons and who disturbs less than 5 acres of
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land in any calendar year. To determine the area of the surface disturbed, all land disturbed and left unreclaimed by an operator within a 1-mile radius of the center of the project must be considered.
The 1-mile radius provisions in NRS 519A.110 and NRS 519A.120 are intended to bar attempts by operators to limit their reclamation requirements by dividing a single exploration project or mining operation into separate "subprojects" or "suboperations" each with reduced compliance requirements.
The Reclamation Act does not define "aggregate or sand pit" which is an exception to the definition of "mining operation," however, the legislative history of the Reclamation Act indicates that the exception was intended to apply to sand and aggregate pit operations near urban areas which the Legislature recognized as presently being heavily regulated by county governments.7
The Reclamation Act imposes for the first time requirements for the filing of applications for approval of reclamation plans for exploration projects and mining operations. Any person desiring to engage in an exploration project must file an application with the DEP, on its approved form, together with an exploration map or sketch and the prescribed fee.8 The applicant must agree in writing to assume responsibility for reclamation of the affected land areas9 and may not be in default in any other reclamation obligation under the Reclamation Act.10 Accordingly, it is critical that the multi-mine operator maintain all of its current projects, including projects in the closure stage, in compliance with the Reclamation Act and regulations, otherwise the operator jeopardizes approval and start-up of other mines in Nevada. The application must be accompanied by a bond or other surety, in a form to be prescribed by NSEC regulation and in an amount to be prescribed by regulation, to secure performance of reclamation obligations under the Reclamation Act.11
Any person desiring to engage in mining operations must also file an application and pay fees similar to those prescribed for exploration projects.12 The application must be accompanied by a "plan for reclamation" and a "completed checklist" on a form provided by the DEP in which detailed information on various reclamation aspects is described. The application for a mining operation incorporates the requirements of an application for an exploration project, but includes substantial additional requirements, including: (a) the proposed use of the land after the mining operation is completed; (b) the proposed schedule of reclamation that will be...
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