An Overview of the Bureau of Land Management’s Rulemaking Efforts for the 43 CFR 3809 Surface Management Regulations for Hardrock Mining

Debra W. Struhsacker
Environmental & Government
Relations Consultant
Reno, Neveda

Overview of the 43 CFR 3809 Rulemaking
The Department of the Interior, Bureau of Land Management (BLM) has been engaged in an ongoing six-year long rulemaking process to amend the 43 CFR 3809 surface management rules for hardrock mines on BLM-administered lands. This highly politicized rulemaking started in 1997 when then secretary of the Interior, Bruce Babbitt, announced he intended to use the 3809 rules as a surrogate for Congressional action to amend the Mining Law. Since then, Congress has exerted a strong influence over the 3809 rulemaking process by appropriating funds for a National Research Council (NRC) study of hardrock mining on federal lands and enacting legislation stating the revised 3809 rules cannot be inconsistent with the findings of the NRC Report. The findings from the NRC’s study were published in October 1999 in a report entitled: “Hardrock Mining on Federal Lands,” National Research Council/National Academy of Sciences.

On Nov. 21, 2000, the Clinton administration published final 3809 rules at 65 Fed. Reg. 69998 that became effective on Jan. 20, 2001, the last day of the Clinton administration. Hereinafter referred to as “the Babbitt 3809 regulations,” these rules were immediately challenged by two industry plaintiffs, the state of Nevada, and several environmental public interest organizations.

In March 2001, Secretary of the Interior Gale Norton proposed to suspend the Babbitt 3809 regulations, in whole or in part, and reopened the rulemaking. The Bush administration published final 3809 rules on Oct. 30, 2001 at 66 Fed. Reg. 54834 (hereinafter called “the Norton 3809 regulations”). The Norton 3809 regulations retain many of the elements of the Babbitt 3809 regulations and reinstate a few elements of the original 3809 rules enacted in 1980. In an Oct. 25, 2001 letter to Congress, Secretary Norton described the changes to the 3809 rules as modifications needed to minimize legal uncertainties, to eliminate unnecessary and burdensome restrictions on mining operations that comply with environmental regulations, and to address the regulatory gaps identified in the NRC Report.

This article summarizes how the key 3809 issues evolved during the rulemaking process, and describes the main differences between the Babbitt and Norton 3809 regulations. The close relationship between the 3809 rulemaking and the Congressional debate about amending the Mining Law is briefly discussed.

Evolution of Key 3809 Issues During the Rulemaking
Unnecessary or Undue Degradation. The debate over the definition of unnecessary or undue degradation is emblematic of the controversy that surrounded the 3809 rulemaking. Preventing unnecessary or undue degradation, which is a statutory mandate under the Federal Land Policy and Management Act of 1976 (FLPMA), is the principal focus of the 3809 regulations. The mining industry argued the original 1980 definition of unnecessary or undue degradation at § 3809.0-5 was effective in protecting the environment because it created a site specific, dynamic and comprehensive standard that required compliance “with all applicable environmental protection statutes and regulations.” In contrast, the Clinton administration and other mining critics contended a new, prescriptive standard was needed to provide BLM with additional discretionary authority to deny an applicant’s Plan of Operations or Notice of Intent for mining and mineral exploration activities on BLM-managed public lands.

In 1999, Secretary Babbitt announced proposed 3809 rules that defined unnecessary or undue degradation in terms of compliance with a long list of prescriptive, one-size-fits-all environmental performance standards defined at § 3809.420. In 2000, Secretary Babbitt added a new criterion, the “Significant Irreparable Harm” (SIH) standard at § 3809.0-5(4) to the final 3809 rules. SIH authorized BLM to deny a Plan of Operations or Notice of Intent that would “result in substantial irreparable harm to significant scientific, cultural, or environmental resource values of the public lands that cannot be effectively mitigated.” The last-minute addition of SIH, which industry supporters dubbed “the Mine Veto Provision,” was one of the most hotly debated aspects of the Babbitt 3809 rules.

As discussed below, the Norton 3809 rules eliminated Babbitt’s SIH provision from the definition of unnecessary or undue degradation. Secretary Norton’s final rules also clarify the definition of unnecessary or undue degradation by mandating compliance with general and specific performance standards in § 3809.420.

Substantial Irreparable Harm. The unexpected addition of the SIH provision to the definition of unnecessary or undue degradation at § 3809.5 and § 3809.415(d) in Secretary Babbitt’s final rules created an enormous controversy and precipitated legal challenges. SIH was briefly described in Alternative 4, “The Maximum Protection Alternative” in BLM’s February 1999 Draft Environmental Impact Statement (EIS). However, SIH was not included in BLM’s Proposed Action or Preferred Alternative, nor was it part of the 1999 proposed rules.

From industry’s perspective, SIH provided anti-mining groups with a powerful tool with which to supplant the National Environmental Policy Act (NEPA) process and to obstruct proposed mining projects. Industry challenged the legality of SIH. The lawsuits charged FLPMA does not authorize SIH and that adding SIH to the final rules, without giving the public an opportunity to comment, violated NEPA and the Administrative Procedures Act. The mining industry also argued the SIH provision was inconsistent with the findings in the NRC Report, and thus violated Congressional mandates that the final rules had to be consistent with this report. In a related decision, Department of the Interior Solicitor, William Myers, issued an Opinion on Oct. 23, 2001 (M-37007) that served as part of the legal foundation for deleting SIH from the Norton rules. The Solicitor’s Opinion concluded that “relevant legal authorities required removal of the SIH criterion from the definition of unnecessary or undue degradation in § 3809.5 of the 2000 regulations.” (Solicitor’s Opinion M-37007, page 15).

Environmental Performance Standards. The 3809 performance standards establish sideboards for determining the adequacy of environmental protection and compliance with the unnecessary or undue degradation standard.

The Babbitt 3809 regulations included detailed, prescriptive performance standards. Mining interests challenged those performance standards, and justified their opposition by referencing the NRC Report’s finding that regulations should be based on a site-specific evaluation process rather than on inflexible, technically prescriptive, one-size-fits-all standards, (NRC Report, page 5).

The Norton 3809 regulations respond to the NRC’s recommendation by combining the 1980 and the Babbitt environmental performance standards: “Based on the NRC Report conclusion that the existing regulations were generally effective, BLM determined...we should not have adopted an entire new set of environmental performance standards, and that we should reinstate the performance standards from the 1980 rule.” (66 Fed. Reg. 66, 54840). In addition to reinstating the 1980 performance standards, however, the Norton final rules retain the general performance standards in the Babbitt regulations at
§ 3809.420(a) (1)-(5) “because they provide an overview of how an operator should conduct operations under an approved plan of operations....” (66 Fed. Reg. 54840). The Norton rule also retains the acid rock drainage and cyanide leaching performance standards in § 3809.420 (c)(11) and § 3809.420 (c)(12) of the Babbitt rules.

Financial Assurance Requirements. From the beginning of the rulemaking dialogue, nearly everyone agreed BLM should require a reclamation bond for all surface disturbing activities. The need to expand reclamation bonding requirements was a key finding in the NRC Report. Both the Babbitt and Norton final regulations require a reclamation bond that covers 100 percent of the anticipated costs of reclamation for all surface-disturbing activities that go beyond casual use. The new 3809 rules also eliminate the prospective use of corporate guarantees as an acceptable form of financial assurance. On April 12, 2002, BLM reopened the 3809 comment period for 30 days. This latest rulemaking included a specific request for comments on the availability of financial guarantees and other appropriate financial instruments to ensure proper reclamation.

Definition of Operator. The Babbitt 3809 regulations significantly expanded the definition of operator at § 3809.5 from “..a person conducting or proposing to conduct operations” to “..any person who manages, directs, or conducts operations under this subpart, including a parent entity or an affiliate who materially participates in such management, direction or conduct.” The Norton 3809 regulations reinstate the original operator definition, “operator means any person who is conducting or proposing to conduct operations,” and remove the references to parent entities and affiliates. In explaining this change, BLM determined the expanded definition in the Babbitt rules would authorize BLM to breach the corporate veil that is generally established under state corporate laws to protect parent entities and affiliates. Instead, BLM decided to rely on established state common law principles to hold the appropriate entity liable.

Joint and Several Liability. The Babbitt rules named mining claimants and operators jointly and severally liable for reclamation and other obligations that accrued while they held their interests. The Norton rules delete any references to joint and several liability, noting this was unfair because it failed to recognize that claimants or operators may hold varying portions of ownership and cleanup responsibility. BLM also expressed the concern that imposing joint and several liability may exceed BLM’s authority. The Norton rules clarify mining operators, including claimants, are responsible for the full cost of reclaiming obligations that accrue while they hold their interests. This change effectively reinstates this aspect of the 1980 rule in order to remain consistent with common law practices and to avoid creating a new regulatory standard of joint and several liability.

Civil Penalties. The Babbitt 3809 regulations authorized enforcement orders to suspend or revoke noncompliant Plans of Operation and problematic Notices of Intent, and allowed BLM to issue a $5,000 per day discretionary civil penalty for violations. The Norton rules withdrew the civil penalties provision because BLM determined its legal authority to impose civil penalties was uncertain at best. Secretary Norton’s October 2001 letter to Congress specifically asks legislators to amend the mining law to authorize administrative penalties.

The Relationship Between the 3809 Rulemaking and the Debate About Amending the Mining Law
The final 3809 rules strengthen the environmental regulations for hardrock mining, thereby addressing many of the environmental issues raised in past legislative debates about amending the Mining Law. Thus, significant progress has been made towards achieving Secretary Babbitt’s goal to amend the Mining Law through the 3809 rulemaking process. However, three key Mining Law policy issues remain unresolved: 1) whether patenting should be preserved, modified, or abolished; 2) payment of a federal royalty; and 3) establishing a fund to clean up abandoned mines. In her Oct. 25, 2001 letter, Secretary Norton asks Congress to amend the Mining Law by enacting changes to address these issues, to authorize administrative penalties, and to expand the States’ role in managing the mining program.

There remain significant policy disputes and political challenges in developing Mining Law legislation that both the House and the Senate will pass and the president will sign. The political dynamics may be so difficult and complex, that the only way to amend the Mining Law in the near future is through piecemeal administrative changes like the 3809 rulemaking.