Office of Inspector General
I
Audit Report
EPA CAN DO MORE TO HELP
MINIMIZE HARDROCK
MINING LIABILITIES
E1DMF6-08-0016-7100223
June 11,1997
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Inspector General Division
Conducting the Audit: Central Audit Division
Denver, Colorado
Regions Covered: Regions 5, 8, 9, 10
Headquarters Program Offices
Involved: Office of Water
Office of Solid Waste and Emergency Response
Office of Enforcement and Compliance Assurance
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MEMORANDUM
SUBJECT: EPA Can Do More To Help
Minimize Hardrock Mining Liabilities
Report No. E1DMF6-08-0016-7100223
FROM: Michael D. Simmons
Deputy Assistant Inspector General
For Internal Audits
TO: Robert Perciasepe
Assistant Administrator
For Water
Attached is our report entitled EPA Can Do More To Help Minimize Hardrock Mining Liabilities.
We found that critical gaps exist in federal and state statutory and regulatory authority to require adequate
financial assurances at hardrock mines. We also found that EPA could improve implementation of its
existing statutory authority and use non-regulatory tools, such as partnerships, more effectively to
minimize the financial and environmental impacts of hardrock mining. The report contains
recommendations for EPA to improve its relationship with state and federal land management agencies
and to assist them in revising their authority to require adequate financial assurance for hardrock mines.
We also recommend you complete and publish a hardrock mining strategy to provide Agencywide
direction on mining issues.
ACTION REQUIRED
In accordance with EPA Order 2750, you, as the action official, are required to provide us a written
response to this report within 90 days of the final audit report date. While several EPA offices share
responsibility for hardrock mining activities, we understand that the Deputy Administrator has designated
you to coordinate EPA's hardrock mining activities. Therefore, we ask that you as the action official for
this report consolidate the responses for all recommendations. For corrective actions planned but not
completed by the response date, reference to specific milestone dates will assist us in deciding whether
to close the report.
This report contains findings that describe issues the Office of Inspector General (OIG) has
identified and corrective actions OIG recommends. This report represents the opinion of the OIG, and
the findings contained in this report do not necessarily represent the final EPA position. Final
determinations on matters in this report will be made by EPA managers in accordance with established
EPA audit resolution procedures.
We have no objection to the release of this report to any member of the public. This report
contains no confidential business or proprietary information that cannot be released to the public.
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Should you or your staff have any questions regarding this report, please contact me at (202) 260-
4945 or Bennie Salem, Divisional Inspector General for Audit in our Kansas City office, at (913) 551-
7878. Please refer to the report number on all related correspondence.
Attachment
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EXECUTIVE SUMMARY
PURPOSE
The Environmental Protection Agency (EPA), Region 8, requested an
audit of the environmental and financial liabilities that could result from
active hardrock mines. The Region was concerned that the low level of
financial assurance requirements at active and future hardrock mine sites
would leave EPA in the position of assuming responsibility for cleanup
of future abandoned hardrock mines under the Superfund program.
BACKGROUND
Significant changes in mining practices over the last 20 years have led
to a resurgence of mining activities in many areas of the country. Closed
and abandoned mines could result in environmental problems and
sizable cleanup costs for the federal taxpayers.
Mining activities are regulated under federal and state authorities.
Federal statutory authority is spread among several agencies with no one
agency having overall statutory responsibility. Most states with
significant hardrock mining have established their own statutory
programs and regulate mine activities through mine permits.
EPA does not have specific statutory authority to address the potential
environmental problems at active hardrock mines.
RESULTS IN BRIEF
We found critical gaps in some federal and state statutory and regulatory
authorities to require adequate financial assurances at hardrock mines.
This lack of adequate financial assurances could result in EPA having
to assume responsibility for cleaning up some hardrock mine sites in the
future. EPA had not effectively implemented its existing statutory
authorities or used non-regulatory tools, such as partnerships, to
minimize the environmental impacts of hardrock mining and help
federal and state agencies eliminate financial assurance gaps.
PRINCIPAL FINDINGS
Federal and state land management agencies' authorities to require
environmental performance standards and financial assurances at
hardrock mines varied, leaving critical gaps in bonding requirements.
Unreasonably low bond ceilings did not allow adequate financial
assurance coverage for hardrock mining on some state and private lands.
v
E1DMF6-08-0016-7100223
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As a result, EPA may become liable for the considerable costs of
cleaning up mines abandoned by the companies that operated them.
EPA could have been more effective in implementing its own statutory
and regulatory authorities to prevent hardrock mining pollution
problems. While some EPA regions have developed a cross-media
approach for addressing hardrock mining issues, EPA as a whole has
been slow to develop and implement a comprehensive hardrock mining
strategy and effectively coordinate and address specific hardrock mining
issues.
Even though partnering is an important part of EPA's 5-year strategic
plan, EPA had not consistently engaged in effective partnerships. EPA
cited a lack of resources, expertise, and management commitment for
not participating more actively with federal and state agencies. EPA
needed to invest in partnerships to help prevent problems rather than
wait until problems occurred and respond under its Superfund
authorities.
RECOMMENDATIONS
We recommend the Assistant Administrator for Water encourage
regions to improve their relationships with federal and state land
management agencies to help eliminate existing gaps in the Mining Law
of 1872 and federal and state bonding requirements. The Assistant
Administrator should establish and implement a national hardrock
mining strategy to provide direction for EPA's more effective use of its
statutes to address hardrock mining issues and develop stronger
partnerships with other hardrock mining stakeholders. The Assistant
Administraor should develop a critical core of cross-media mining
expertise and encourage proactive, timely involvement in hardrock
mining environmental issues.
EPA COMMENTS
OIG EVALUATION
AND
EPA generally agreed with our findings and recommendations. EPA
offered comments to clarify some issues and recommendations, and we
have modified our report as appropriate. We summarized EPA
comments at the end of each finding chapter and included the full text
of the comments as Appendix I.
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TABLE OF CONTENTS
Page
EXECUTIVE SUMMARY i
CHAPTERS
1 INTRODUCTION 1
PURPOSE 1
BACKGROUND 2
SCOPE AND METHODOLOGY 4
PRIOR AUDIT COVERAGE 5
2 CRITICAL FINANCIAL ASSURANCE GAPS REMAINED IN HARDROCK
MINING REGULATIONS AND POLICIES 7
MINING LAW OF 1872 RESULTED IN CRITICAL GAPS 7
FINANCIAL ASSURANCES ARE ESSENTIAL 8
FEDERAL LAND MANAGEMENT AGENCIES HAVE ADEQUATE
AUTHORITY 9
REGULATORY COVERAGE ON STATE AND PRIVATE LAND IS
LESS CERTAIN 10
CONCLUSION 12
RECOMMENDATIONS 12
EPA COMMENTS AND OIG EVALUATION 13
3 EPA COULD BE MORE EFFECTIVE IN USING ITS AUTHORITIES TO ADDRESS
HARDROCK MINING 15
EPA HAS LIMITED AUTHORITY OVER MINING 15
EPA NEEDS A STRATEGY AND STRONG NATIONAL LEADERSHIP
E1DMF6-08-0016-7100223
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TO ADDRESS ITS HARDROCK MINING ISSUES 18
CONCLUSION 19
RECOMMENDATIONS 19
EPA COMMENTS AND OIG EVALUATION 20
4 MORE EFFECTIVE PARTNERSHIPS CAN HELP PREVENT MINING
POLLUTION AND MINIMIZE GOVERNMENT FINANCIAL LIABILITIES . .
23
EPA'S STRATEGIC PLAN EMPHASIZED PARTNERING 23
EARLY EPA INVOLVEMENT MAY AVOID UNFUNDED LIABILITIES 24
EPA NEEDS TO ACCEPT AND SEEK MORE PARTNERSHIP OPPORTUNITIES24
CONCLUSION 26
RECOMMENDATIONS 26
EPA COMMENTS AND OIG EVALUATION 27
APPENDICES
APPENDIX I:
APPENDIX II:
AGENCY RESPONSE 23
SCOPE AND METHODOLOGY 24
APPENDIX III: PRIOR AUDIT COVERAGE 26
APPENDIX IV: ABBREVIATIONS 28
APPENDIX V:
DISBRIBUTION 39
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Chapter 1
INTRODUCTION
PURPOSE
The Environmental Protection Agency (EPA), Region 8, requested an
audit of the environmental and financial liabilities that could result from
active hardrock mines. The Region was concerned that the low level of
financial assurance requirements at active and future hardrock mine sites
would leave EPA in the position of assuming responsibility for cleanup
of abandoned mines under the Superfund program. Without adequate
environmental performance standards and financial assurances
established prior to permitting mines, new sites could become the federal
government's responsibility.
Our overall objective was to determine if adequate federal and state
statutory and regulatory authorities were in place to minimize the
environmental damage and unfunded financial liabilities resulting from
active hardrock mining. Our specific audit objectives were to answer the
following questions:
Do current federal and state statutory and regulatory
requirements include environmental performance standards and
adequately provide for financial assurance to restore active mine
sites to an acceptable condition?
Has EPA effectively used existing environmental statutes and
regulations to prevent mining pollution and minimize potential
government financial liabilities?
Has EPA established effective partnerships to develop
environmental performance standards and appropriate financial
assurance requirements for active and future mine sites?
BACKGROUND
Significant changes in mining practices over the last 20 years have
led to a resurgence of mining activities in many areas of the
country. Although much of the hardrock mining has been
historically concentrated in the western states, hardrock
mines are operating or planned throughout the country including
the states of Maine, Michigan, South Carolina, and Florida.
No national inventory of the number or character of active
hardrock mines exists. Estimates of active hardrock mines on
federal lands ranged from 2,000 to over 10,000. We could find no
E1DMF6-08-0016-7100223
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reliable overall estimate of active mine sites on state and private
lands.
Mining activities are regulated under federal and state authorities.
Federal statutory authority is spread among several agencies with
no one agency having overall regulatory responsibility. Most
states with significant hardrock mining have established their own
statutory programs and regulate mine activity through mine
permits.
Although EPA does not have comprehensive regulatory authority
over mining, EPA does have statutory authority that can and has
been used to address the potential environmental problems at
active hardrock mines. EPA also has the responsibility to respond
to and fund the cleanup of many abandoned mines. Currently, 67
of these mines are on EPA's Superfund National Priority List
(NPL). Federal cleanup costs for these hardrock mine sites are
significant. Of all NPL sites, mines are the largest and most costly
to clean up, according to one Office of Solid Waste and
Emergency Response (OSWER) official. For example, EPA
estimated it will spend about $150 million from the Superfund
Trust Fund to clean up the Summitville mine in Colorado. It
estimated it will cost about $20 billion to clean up the mine sites
currently on the NPL.
Statutory authorities that provide EPA authority to prevent
pollution at active hardrock mines include the Clean Water Act
(CWA), the Resource Conservation and Recovery Act (RCRA),
the Clean Air Act , the Safe Drinking Water Act, the Toxic
Substances Control Act, and the National Environmental Policy
Act (NEPA). However, many active mines may not be subject to
these statutes.
The most significant statutes for this report are CWA, RCRA, and
NEPA. The CWA National Pollutant Discharge Elimination
System (NPDES) Program provides for permits to limit the
discharge of pollutants into United States waterbodies. RCRA
provides for regulation of hazardous and solid wastes. NEPA
provides for environmental review and public disclosure of the
potential impacts to the environment that could be caused by a
planned activity on federal lands, such as hardrock mining.
RCRA amendments have limited EPA's ability to regulate wastes
generated at hardrock mines under RCRA. The Solid Waste
Disposal Act Amendments of 1980 included the Bevill
Amendment, which required EPA to study mining wastes and
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determine if regulation under RCRA Subtitle C was warranted.
EPA issued a regulatory determination in 1986 that certain
hardrock mining wastes (i.e., those wastes generated by the
removal and treatment of the ore to concentrate its valuable
constituents) should not be regulated as hazardous wastes under
Subtitle C at that time. However, EPA subsequently planned to
develop an enhanced Subtitle D program to manage mining
wastes.
While several EPA offices share the authority to regulate hardrock
mining activities, the Assistant Administrator for the Office of
Water (OW) has responsibility to develop an agency-wide
hardrock mining strategy. According to EPA, hardrock mining
workgroups at the national and regional levels addressed hardrock
mining issues as early as 1991. In 1994, the Deputy Administrator
formally designated OW take the lead in the development of
EPA's hardrock mining strategy. As a result of the Deputy
Administrator's decision, OW established a hardrock mining
workgroup in 1994 composed of experienced EPA regional and
headquarters staff to develop an EPA hardrock mining framework.
Between 1994 and 1996, EPA distributed two drafts of its
hardrock mining framework to federal land management agencies,
states, industry, and environmental organizations for comment.
The draft hardrock mining framework described how EPA could
best use its limited statutory authority and partner with other
regulatory agencies to protect the environment from degradation
resulting from hardrock mining.
Many states have recently increased their regulation of the
hardrock mining industry. Much of the recent regulatory activity
resulted in part from the widespread use of the heap leaching
method of extracting precious metals from the ore. Most
knowledgeable mining experts agree that cyanide and
most other leaching agents, if properly controlled, are manageable,
although the long term effects on public health and the
environment are not well understood.
Mine wastes represent a significant
long term threat to the environment
from mine tailings and fugitive dust.
However, the most serious
environmental threat of current
hardrock mining methods is the risk of
acid mine drainage. Acid mine
THE MOST
SERIOUS
ENVIRONMENTAL
THREAT IS THE
RISK OF ACID
MINE DRAINAGE.
3 E1DMF6-08-0016-7100223
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drainage is often generated from waste rock piles or other mining
wastes. Water and oxygen flowing over and through the metal-
rich, sulfide rock exposed by mining activities can contaminate
surface and ground waters and damage aquatic life. Predicting the
probability and extent of acid mine drainage at a specific mine is
difficult because drainage may not occur until long after active
mining ends. Once acid mine drainage starts, it may never stop
without intervention. In some cases, reclamation may require
water treatment in perpetuity.
SCOPE AND We conducted our fi el dwork from January 1996 to
METHODOLOGY November 1996. We conducted our audit in accordance with
Government Auditing Standards (1994 Revision) and included tests and
other auditing procedures as we considered necessary. Other than the
issues discussed in this report, no other significant issues came to our
attention that warranted expanding the scope of our audit.
We limited our review to hardrock mines using the heap leaching
method of ore extraction. To answer our three objectives, we met with
various federal, state, and industry stakeholders responsible for the
permitting and monitoring of hardrock mines. We consulted with the
U.S. Department of Agriculture (USDA), Forest Service and the U.S.
Department of the Interior (DOI), Bureau of Land Management in
Washington, D.C. These two federal land management agencies control
about 83 percent of federal land subject to mining. We also met with
officials at the Forest Service field office at the Payette National Forest
in Idaho and the Bureau of Land Management field office in Nevada to
obtain an understanding of how the field offices operate. We met with
various agencies in the States of Alaska, California, and Idaho. We met
with the Alaska Miners Association, Nevada Mining Association, the
National Mining Association, and individual mine operators to obtain an
overall understanding of how the mining industry perceived the
effectiveness of current mining regulations and EPA's role in hardrock
mining. We toured mine sites in Alaska, California, and Idaho.
To obtain an understanding of EPA's authority and role in hardrock
mining, we conducted fieldwork at EPA headquarters in OW and the
OSWER, Enforcement and Compliance Assurance (OECA), and
General Counsel. We also conducted fieldwork at EPA Regions 5, 8, 9,
and 10. We selected Region 5 because EPA had identified a problem
mine in Michigan. We selected Regions 8, 9, and 10 because these
Regions included the 12 western states containing about 99 percent of
all U.S. hardrock mining claims.
We have included detailed scope and methodology information in
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Appendix II.
PRIOR AUDIT Several government audit organizations, including the General
COVERAGE Accounting Office (GAO), DOI/Office of Inspector General (OIG), and
USDA/OIG, have recently conducted audits of the environmental
impacts of hardrock mining and of EPA's working relationships with its
stakeholders. We have included a summary of the most pertinent of
these reports in Appendix III.
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Chapter 2
CRITICAL FINANCIAL ASSURANCE GAPS
REMAINED IN HARDROCK MINING
REGULATIONS AND POLICIES
Environmental performance standards and adequate financial assurances
must be incorporated in hardrock mine permits to ensure protection of
human health and the environment and minimize future cleanup costs.
Although federal and state land management agencies have varying
authorities to require environmental performance standards and financial
assurances at hardrock mines, some critical gaps remained in federal and
state coverage. Unreasonably low statutory bond ceilings and other
limitations significantly reduced federal and state land managers'
abilities to include adequate financial assurances in mine permits. These
gaps in coverage could result in environmental damage and unfunded
government liabilities.
MINING LAW OF 1872
RESULTED IN CRITICAL
GAPS
A critical gap in financial assurances for hardrock mining on federal
lands results from a provision of the Mining Law of 1872. Disparities
between federal and state bonding requirements for mined lands have
caused concerns that a land patenting provision of the 1872 law provides
mine operators relief from the stricter federal bonding requirements.
The Mining Law of 1872 provided for miners to purchase, or "patent,"
federal land for a nominal sum of $2.50 to $5.00 per acre, if a hardrock
mineral deposit was discovered on the land. Upon patenting, the mining
claim became a fully recognized private interest that could be traded or
sold. GAO estimated in 1992 that over 3.2 million acres of federal land
had been patented under the 1872 law.
Environmental concerns were not a consideration when the law was
written. Consequently, federal land management agencies and states
have developed their own performance standards and bonding
requirements to provide for protection and restoration of mined land. In
the 1970's, the Forest Service and the Bureau of Land Management
developed regulations to prevent any unnecessary or undue degradation
of federal lands under their control. While these regulations reduced
some of the most critical gaps for protection of federal lands from the
impacts of hardrock mining, the right of miners to patent the land can
still bring about undesirable environmental consequences. The primary
concern is that some states' regulations have not kept pace with federal
regulations in requiring sufficient financial assurances to restore the land
if owners cannot do so.
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According to a 1989 GAO report, the patent provision of the Mining
Law of 1872 is counter to the provisions of more recent laws governing
hardrock mining on specific lands, such as the Alaska National Interest
Lands Conservation Act of 1980 and the Military Lands Withdrawal Act
of 1986. These laws provide for the accommodation of mining while
providing for the federal government to retain title to the land.
According to GAO, "[u]se, but not ownership, may be granted for as
much land as may be necessary to mine a claim." Also, various laws
subsequent to the
mining law provided for lands used to extract fuel minerals and other
common variety minerals to remain in public ownership.
Federal retention of land would provide for better protection of the
environment under the stricter federal regulations.
The mining law has been very successful in accomplishing its original
intent to encourage and reward discovery of economically valuable
minerals. Consequentially, the potential for considerable environmental
damage has led some federal and state land managers as well as EPA to
agree that the Mining Law of 1872 is outdated and should be revised.
We agree with EPA officials who believe that EPA should work with
DOT in their efforts to address the land ownership provisions of the
Mining Law of 1872.
FINANCIAL
ASSURANCES ARE
ESSENTIAL
Federal and state agencies should ensure that mine operating permits
include financial assurances to restore a mine site if the environmental
performance standards do not adequately protect the site from
contamination and the operator is unable or unwilling to do so. EPA
officials strongly agreed that financial assurance limits now in place at
mines are, in large part, inadequate. However, EPA has no direct
statutory authority to address this pressing problem.
The number of hardrock mines using environmentally sensitive
technologies (e.g., heap leaching with cyanide) has grown rapidly during
the last 20 years. If the waste streams from new mining technologies are
not properly controlled, they could have a
significant detrimental impact on the environment. Without adequate
financial assurances available to respond to these sites in the future, EPA
may have to assume responsibility to restore sites under its statutory
requirements.
FEDERAL LAND The hardrock mining statutory authorities of the two largest federal land
MANAGEMENT management agencies, the Forest Service and the Bureau of Land
AGENCIES HAVE Management, generally provide for establishment of environmental
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ADEQUATE AUTHORITY
performance standards and adequate financial assurances to protect the
environment. The Forest Service considers financial assurance for all
mine sites. The Bureau of Land Management recently finalized
regulations that require financial assurances for all sites except those for
sites having negligible land disturbance.
Also, NEPA extends federal agencies' administrative responsibilities
over mining. NEPA requires federal agencies to assess the impacts their
activities may have on the quality of the human environment. Before
approving a mining activity, federal land management agencies must
prepare an environmental analysis of the environmental impacts of the
activity. The environmental analysis on major activities is made
available for review and comment to other federal and state agencies,
including EPA, which have environmental oversight or regulatory
responsibility.
REGULATORY
COVERAGE ON STATE
AND PRIVATE LAND IS
LESS CERTAIN
In contrast to federal agencies, the adequacy of statutory and regulatory
requirements for mines on state and private lands appears less certain.
Seven of the eight states we reviewed required environmental
performance standards that would provide for protection of the
environment during active mining operations, and all states required
mine closure plans. However, of the states we reviewed, most statutes
and regulations still seriously limited financial assurances. For example,
only 2 of the 8 states provided for 100 percent bonding for the estimated
costs of addressing toxic contamination.
TABLE
SUMMARY OF STATE REQUIREMENTS
ALASKA
ARIZONA
CALIFORNIA
COLORADO
IDAHO
MONTANA
NEVADA
ENVIRONMENTAL
PERFORMANCE
STANDARDS
YES
NO
YES
YES
YES
YES
YES
REQUIRED
CLOSURE
PLAN
YES
YES
YES
YES
YES
YES
YES
FULL BONDING
YES
NO
YES
NO
NO
NO
NO
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SOUTH
DAKOTA
TOTALS
YES
7 YES
1NO
YES
8 YES
NO
2 YES
6 NO
Seven of the states reviewed require environmental performance
standards in the permit to avoid future problems. Alaska, for example,
had instituted some particularly effective performance standard
requirements that protected the State from adverse environmental
impacts created by new mining operations. The State required the parent
corporation to guarantee in writing the environmental performance of a
mine operated as a subsidiary corporation. This requirement should help
discourage the owners from abandoning the mine when serious
environmental problems occur. Also, Alaska required major mine
developers to contract with independent consultants to conduct periodic
environmental audits and to report the results to the State.
IDAHO AND
SOUTH DAKOTA
REQUIRE
UNREASONABLY
LOW BONDING
FOR CYANIDE.
Limitations in some states' bonding
requirements could result in unfunded
government liabilities. For example,
Nevada required limited bonding for site
reclamation (recontouring, etc.) which
included no bonding for addressing toxic
contamination at the site prior to site
closure. Alaska had a $750 per acre limit
for reclamation. California, Idaho, and
South Dakota bond for reclamation and for contingencies and closure,
but Idaho and South Dakota had unreasonably low bond ceilings of
$100,000 and $500,000, respectively, at mine sites that used cyanide.
EPA officials stated that reclamation of a site must include assurances
that toxic and hazardous wastes at mine sites are cleaned up as part of
site reclamation. Often reclamation is limited to surface recontouring
and reseeding. Although many states had mine reclamation statutes and
regulations, not all state statutes included requirements to address toxic
contamination at a site prior to closure. As noted earlier, Nevada
statutes did not require removal of toxic contamination prior to site
closure. In comparison, the Forest Service and the Bureau of Land
Management regulatory definitions of reclamation appeared to be
comprehensive and included measures to isolate, remove, or control
toxic material from a site prior to closure.
Restrictions on states' abilities to require reasonable levels of financial
assurance could result in states' inabilities to adequately respond to a
catastrophic release of hazardous contaminants to the environment, such
as occurred at the Summitville mine site in Colorado. If a state is unable
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to respond, EPA may have to assume responsibility under Superfund.
In some instances where state bonding requirements were less stringent
than federal requirements, mine owners could avoid the more stringent
federal bonding requirements by converting the federal land to private
land. The potential adverse effect of converting the land was illustrated
by two mine operations in Idaho which applied to convert their land
from federal to private land. The Kinross mine in Idaho was on federal
land under the jurisdiction of the Bureau of Land Management. The
mine used a cyanide heap leaching process. The site already generated
acid mine drainage and will eventually discharge contaminated water.
The Bureau of Land Management required financial assurances in the
amount of $9.9 million for the mill site. However, the mine operator
applied to convert, or "patent," the land. As a result, Idaho's $100,000
bonding limit for cyanide operations could replace the $9.9 million
federal bonding requirement. Likewise, the Thompson Creek mine in
Idaho requested to patent the land on which it mines. This transfer
would reduce its bonding requirements from $12 million to the $100,000
cyanide bond limit, although the risk of acid mine drainage and the
potential threat to the environment remains the same. If the mine
operators are unable or unwilling to restore the site in the future, the
State
could be left with large contaminated sites generating acid mine drainage
that will require large infusions of money to remediate the land from
outside sources including EPA.
CONCLUSION
Hardrock mining activities could adversely impact the environment and
result in cleanup costs that may have been avoided. Land patent
provisions in the Mining Law of 1872 contribute to federal authorities'
limited abilities to require adequate financial assurances. Although
some state authorities provided for adequate financial assurance for
hardrock mines, other state statutes and regulations did not. As a result
of bonding ceilings, mine operators may not be held to the financial
assurance requirements that would be commensurate with risk
associated with their mining operations. One key to consistent cleanup
is to reach agreement on a common definition of reclamation that
includes cleaning up toxic contamination prior to site closure.
RECOMMENDATIONS
We recommend the OW Assistant Administrator coordinate with the
appropriate Assistant Administrators to:
2-1. Assist DOI in its effort to address the issue of the land ownership
provisions of the Mining Law of 1872.
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2-2. Work with states that have unreasonably low bond ceilings or
other inappropriate limitations on their authorities to seek
modification of their authorities.
2-3. Work collaboratively with the responsible federal and state
agencies to ensure that the mines that pose the highest
environmental and financial risks have adequate federal and state
bonding to cover future cleanup costs.
2-4. Work collaboratively with federal and state agencies to reach
agreement on a common definition for reclamation that includes
addressing toxic contamination prior to site closure.
EPA COMMENTS AND EPA agreed that it should work directly with DOT to improve financial
OIG EVALUATION assurance at mines operating on federal lands. However, EPA asked that
we specifically identify how EPA should assist DOT in addressing issues
raised by land ownership provisions of the Mining Law of 1872. We
believe EPA could assist by evaluating past and potential future
environmental effects of mines converted from federal to private
ownership. However, we believe EPA and DOT staff are in the best
position to identify specific contributions appropriate for EPA.
EPA stated that our recommendations were consistent with its hardrock
mining framework. EPA agreed it must work with and provide
assistance to other stakeholders to improve the effectiveness of mining
programs. However, we cannot evaluate whether the draft EPA
hardrock mining framework will fully satisfy our recommendations
because the framework has not been completed. EPA should provide a
timeframe for completing and implementing the framework. Also, EPA
should ensure that adequate resources and expertise are available to meet
the demand before EPA offers to provide assistance to others.
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Chapter 3
EPA COULD BE MORE EFFECTIVE IN
USING ITS AUTHORITIES TO
ADDRESS HARDROCK MINING
EPA could be more effective in implementing its authorities to help
prevent specific hardrock mining pollution problems. While EPA has
no comprehensive statutory authority to regulate mining, it does have
statutory authorities to help reduce potential environmental problems at
individual mines. Some EPA regions have developed a cross-media
approach to hardrock
mining, but EPA as a whole has been slow to develop and implement a
comprehensive hardrock mining strategy and effectively coordinate
cross-media hardrock mining issues.
EPA HAS LIMITED
AUTHORITY OVER
MINING
EPA's Implementation
CWA Varied
of
EPA has attempted to address pollution prevention at individual mines
either through state authorized environmental programs or direct
management. EPA has media-based authorities that can be and have
been applied to pollution prevention at individual mines. Also, EPA has
administrative statutes, such as NEPA, that can be used to help prevent
mining pollution problems. However, EPA has no comprehensive
statutory authority to regulate mining and oversee development of
environmental performance standards and financial assurances at
individual mines.
The EPA media-based program most often applied to hardrock mining
is the CWA NPDES program, which calls for permits to limit the
discharge of pollutants into U. S. waters. EPA operates the NPDES
program through authorized state programs, or less frequently, through
direct management in states which do not have an authorized program.
EPA directly managed the NPDES program in three of the eight states
we reviewed (Alaska, Arizona, and Idaho).
CWA NPDES has limited application because many hardrock mines
have been designed as non-discharge facilities and require
no NPDES permits. Many of these mines are located in arid climates
(e.g., Nevada and Arizona) where water is scarce and the mines recycle
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EPA Had Not Pursued
Mining Regulatory
Opportunities Under RCRA
water for use in operations. Another serious limitation of the CWA is
that it provides protection for surface waters only. Unless a connection
with surface water can be demonstrated, groundwater is not subject to
regulation under the CWA.
Where NPDES is applicable, EPA has not always provided for adequate
oversight or technical assistance to important mining states. For
example, Region 9 did not provide adequate attention to the NPDES
program in Arizona, an important mining state where EPA directly
managed the NPDES program. Region 9 staff told us that the Region
had not fully evaluated all the necessary site-specific factors before
issuing NPDES permits to mine operators. Permit writers and inspectors
needed to visit a mine site to adequately determine appropriate NPDES
permit conditions, but were generally unable to do so due to limited
resources.
While EPA had developed some non-regulatory tools, it had not pursued
development of a mining waste regulatory program under RCRA, even
though it had announced its intentions to do so in the mid-1980s. EPA
reported to Congress in 1985 that mining had created serious
environmental damage and announced its intention in 1986 to develop a
RCRA regulatory mining program. EPA could have developed such a
program either under RCRA Subtitle D or Section 3004(x).
Eleven years after EPA announced this intention to develop Subtitle D
regulations establishing a mining program, EPA had not affirmatively
acted. Such a program could have required specific environmental
performance standards to prevent pollution from heap leach piles, tailing
piles, and similar mining pollution sources. The serious mining
environmental damages identified in the 1985 report to Congress
continue to this day, according to an EPA official.
EPA also could have, but had not, proposed regulations under RCRA's
Hazardous and Solid Waste Amendments of 1984 Section
3004(x). This section provided EPA the flexibility to modify Subtitle C
requirements for certain mining wastes.
However, EPA officials stated that either approach may still not provide
EPA with adequate oversight and enforcement authority. On the other
hand, states may now have adequate authority. Seven of the eight states
we reviewed require environmental performance standards and many
mining states strengthened their mining regulations since 1985.
However, we did not assess the adequacy of states' implementation of
their authorities.
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EPA's NEPA Input Is Too
Late
EPA's non-regulatory tools included guidance, RCRA technical support
on mining environmental analyses, and support on mining enforcement
actions. EPA recently issued a Federal Register notice to seek public
comment on whether EPA should reevaluate the extent to which mining
wastes should be regulated under RCRA Subtitle C.
EPA has also been actively involved in hardrock mining through its
NEPA authority. However, EPA's role has been as a reviewer of
completed environmental analyses rather than as an early assessor of the
potential environmental impacts of a planned mining operation.
Although EPA officials stated that environmental analyses and public
disclosure served as an important forum to limit negative mining
environmental impacts, a National Interagency Coordinating Committee
workgroup found serious problems with the NEPA process and
recommended earlier EPA involvement. Federal regulations emphasize
agency cooperation as early as possible in the NEPA process, and
specifically require cooperating agencies to participate in the scoping
phase to avoid adversarial comments later.
Bureau of Land Management officials, state land management agency
representatives in all the states we visited, and industry representatives
criticized EPA for not participating as early or as often as they think is
necessary. Late EPA involvement resulted in delays, increased costs,
and deteriorated working relationships. For example, Region 9 frequently
returned the environmental analyses without commenting because the one
staff person assigned for this review process claimed she does not have
time to review more than the most significant analyses. Although NEPA
requires significant staff time, according to EPA headquarters
officials, it may be EPA's best opportunity to be proactive in preventing
pollution at active mines.
EPA NEEDS A STRATEGY
AND STRONG NATIONAL
LEADERSHIP TO
ADDRESS
HARDROCK
ISSUES
ITS
MINING
EPA has recognized for some years that it needed a more coordinated
approach to effectively deal with hardrock mining issues. However,
EPA has yet to develop it. Organizational and funding barriers
prevented EPA from being as successful as it might have been in cross-
media issues that affect hardrock mining.
OW has not timely developed and implemented a comprehensive
hardrock mining strategy. The Deputy Administrator formally
designated OW to take the lead in the development of EPA's hardrock
mining strategy. Although OW drafted a hardrock mining framework,
it still did not have a completed, approved mining strategy. According
to EPA officials, senior EPA management had not yet formally reviewed
and approved the latest draft of the hardrock mining framework. The
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E1DMF6-08-0016-7100223
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framework would provide the basis for developing a hardrock mining
strategy.
Regional EPA staff stated they were skeptical regarding OW's
commitment to a mining strategy. Their skepticism was reinforced in
late 1996 when OW lost its staff charged with finalizing the hardrock
mining framework and assigned new staff unfamiliar with mining issues.
This unfamiliarity may have contributed to the loss of momentum in the
development of a hardrock mining strategy.
Some regions have attempted to overcome the problems of addressing
a cross-media activity like mining in an organization that is
predominantly organized by media. Regions 8 and 10 have made
significant progress in overcoming these organizational barriers and
funding constraints. They have appointed full-time mining coordinators,
established hardrock mining workgroups to address mining issues, and
developed regional hardrock mining strategies. Regions 8 and 10 have
also participated on special projects with other stakeholders to address
specific sites such as the Clear Creek community-based watershed
project in Colorado and the Coeur d' Alene Basin Restoration Project in
northern Idaho. In October 1995, Region 8 reorganized to be more
responsive to the multimedia and partnership goals in EPA's strategic
plan. Region 8's new structure placed programs and functions in new
organizations that will enhance multimedia opportunities. In 1996,
Region 8 identified hardrock mining as the most serious ecological
problem in the Region and has been a leader in using innovative
approaches to solve difficult mining related problems.
CONCLUSION While EPA has no comprehensive authority to regulate mining, it does
have CWA and RCRA authorities that it has or could develop to apply
to help prevent pollution problems at individual mines. However, EPA
did not always provide for adequate CWANPDES oversight or technical
assistance to some important mining states. Also, evaluation of
environmental damages from mining indicates that the primary cause is
RCRA mining wastes, but EPA had not developed a regulatory mining
program under RCRA to address this problem. Until such time as these
wastes are adequately regulated, long term environmental liabilities at
mines will continue to increase. However, many mining states
strengthened their mining regulations since 1985. Therefore, EPA
should evaluate the adequacy of states' regulations before developing a
RCRA regulatory mining program. EPA should also improve the
timing of its involvement in the NEPA process. EPA missed important
opportunities to influence mining environmental performance standards
and financial assurances. Organizational barriers, lack of a strong
headquarters component, and the absence of a hardrock mining strategy
17 E1DMF6-08-0016-7100223
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prevented EPA from being as successful as it might have been in
effectively addressing hardrock mining issues.
RECOMMENDATIONS
We recommend the OW Assistant Administrator coordinate with the
appropriate Assistant Administrators to:
3-1. Provide for adequate mine site assessments before issuing
NPDES permits to discharging mines in states where a region
manages the NPDES program.
3-2. Provide adequate oversight in states with authorized NPDES
programs to help states effectively implement NPDES
authorities at hardrock mines.
3 -3. Assess what further actions EPA can take to ensure it has fully
utilized its existing authorities under RCRA to regulate active
mines.
3-4. Participate early in the NEPA process and adequately review
NEPA environmental analyses for mines.
3-5. Emphasize more timely EPA involvement with federal and
state land management agencies' field offices during the mine
permitting process.
3-6. Finalize a hardrock mining strategy and develop an
implementation plan that includes resources, timeframes, and
assignment of responsibility.
EPA COMMENTS
OIG EVALUATION
AND
EPA commented that it was not clear how pollution could be prevented
at hardrock mine sites without specific statutory authority. We believe
EPA has statutory authority that it has not fully used. For example, our
report discusses how EPA had not pursued mining regulatory
opportunities under its existing RCRA authority. In addition, EPA's
draft hardrock mining framework included a variety of non-regulatory
tools that could be used to prevent pollution at hardrock mines.
EPA also stated that we had not considered the role of resource
availability in environmental management. EPA asked us to estimate
the additional resources required to implement our recommendations
and to identify potential locations of these resources. We believe our
recommendations can generally be implemented without significant
additional resources. For example, some of our most important
E1DMF6-08-0016-7100223
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recommendations concern the timing, rather than the amount, of EPA
staff involvement in the NEPA process. We acknowledge that resources
are limited and that EPA must direct its staff and budget to a wide range
of competing environmental program needs. Nonetheless, resource
determination and allocation to address serious environmental concerns
is a responsibility of EPA management.
EPA stated that the report recommendations are consistent with EPA's
draft hardrock mining framework which emphasizes the importance of
identifying potential environmental concerns early in mine site planning
and permitting. Since EPA has not completed the EPA hardrock
mining framework, we are unable to evaluate whether the framework
will fully satisfy our recommendations.
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20 E1DMF6-08-0016-7100223
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Chapter 4
MORE EFFECTIVE PARTNERSHIPS CAN HELP
PREVENT MINING POLLUTION AND MINIMIZE
GOVERNMENT FINANCIAL LIABILITIES
Partnering is an important part of EPA's 5-year strategic plan and has
long been part of EPA's overall regulatory strategy. Although federal
and state agencies had invited EPA to participate early in the mine
permitting process and some successes have been achieved, EPA has not
consistently availed itself of the opportunity. Partnerships with federal
and state agencies may be EPA's best opportunity to minimize future
financial liability for mine cleanups using its Superfund responsibilities.
EPA'S STRATEGIC PLAN
E M P H A S
PARTNERING
I Z E D
EPA's mission advocates working with its
partners to improve and preserve the
environment. EPA's current initiatives also
promote use of the best available science and
innovative and effective solutions to address
environmental problems, such as the
environmental damage caused by hardrock
mining. To accomplish this mission, EPA's
strategic plan and other policy statements
advocate partnering with all stakeholders.
EPA NEEDS TO
WORK IN
PARTNERSHIP
WITH ITS
STAKEHOLDERS
The New Generation of Environmental Protection: EPA 's Five-Year
Strategic Plan, dated July 1994, clearly recognized that environmental
protection has become increasingly complex and that all stakeholders
must work together to preserve and improve the nation's environmental
quality. The plan stated that EPA will:
help its partners carry out their responsibilities, working
together to define respective roles....[and] to develop
and implement more innovative,
effective, and efficient approaches to environmental protection
and sustainable development.
Another specific strategy was to "Create opportunities to establish
working partnerships among local, state, and federal levels of
government."
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EARLY EPA
INVOLVEMENT MAY
AVOID UNFUNDED
LIABILITIES
EPA does not have a significant role in the issuance of operating permits
for mines. Effective partnerships with federal and state land
management field personnel, where specific mine-related decisions are
made, may be EPA's best opportunity to prevent environmental
pollution and avoid substantial unfunded financial liabilities.
Although EPA has no statutory authority to require adequate financial
assurances at active hardrock mines, EPA has the responsibility to act to
protect public health and the environment. The Comprehensive
Environmental Response, Compensation, and Liability Act requires the
federal government to respond in cases where a hazardous substance
release or a substantial threat of release to the environment occurs.
Using its Superfund authorities, EPA has expended funds for mining
cleanups where mines were permitted without adequate performance
standards and financial assurances. At the Summitville mine site in
Colorado, EPA had to respond to an immediate threat of a catastrophic
hazardous waste release. EPA estimated the costs to remediate the site
at about $150 million, which does not include ongoing operation and
maintenance costs.
EPA NEEDS TO ACCEPT
AND SEEK MORE
PARTNERSHIP
OPPORTUNITIES
EPA Missed
Opportunities
EPA is currently engaged in several hardrock mining projects that
include a wide range of stakeholders. These projects demonstrate the
value of establishing effective partnerships. For example, Region 8 is
working in partnership with other stakeholders on the Clear Creek
community-based watershed restoration project to protect the water
supply of over 250,000 people from mining impacts. Region 10 is
participating with other stakeholders in the Coeur d'Alene Basin
Restoration Project in northern Idaho to develop workable solutions to
repair an environment degraded by mining. Region 10 also entered into
a tri-state agreement to promote mining issues coordination with Idaho,
Washington, and Oregon. Headquarters participated in a workgroup that
developed an interagency agreement on mining, oil, and gas to improve
coordination with federal land management agencies. Although these
examples demonstrate that EPA can add value through establishing and
maintaining successful partnerships, it has missed other mining
partnership opportunities.
Important Working in partnership with states is an appropriate role for EPA, but its
involvement has not always been timely or welcomed. For example,
according to the State, Region 5 did not respond early to Michigan's
request for assistance in a copper mine permitting process, thereby
delaying the permit, causing increased costs, and adversely impacting
EPA's relationship with the State. Also, Region 9 has not established
an effective working relationship with Nevada's NPDES program staff.
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EPA Could Add Value But
Lacks Expertise
Nevada is a delegated state and does not welcome EPA participation
during its NPDES permitting process. California state officials told us
that Region 9 showed little interest in state hardrock mining issues.
Region 10 and Idaho officials disagreed on the frequency and value of
Region 10's involvement in developing an Idaho Joint Review Process
for mine permitting (an all-inclusive permitting team process). Alaska
state representatives told us that EPA was invited to participate on its
major mine permitting teams but seldom participated. EPA's role is
undermined when it is not viewed as an effective partner.
EPA could help land management agencies
by providing its technical expertise and
research capabilities. Land management
agencies do not always have adequate staff
or adequately trained staff needed to
address all the environmental issues present
when permitting and closing a large,
complex mine site. EPA's participation
could provide balance where the lack of
staff or sufficient mining expertise
negatively impacts the development of
comprehensive performance standards and
financial assurances. For example, EPA agreed that it could have a
beneficial role assisting land management agencies in analyzing the
extent of contamination and estimating cleanup costs at a mine prior to
bond release. However, EPA must ensure that it has the resources and
technical expertise to respond.
EPA
NEEDED TO
BE VIEWED
AS A
PARTNER
THAT
COULD ADD
VALUE.
Nationwide, EPA does not currently have adequate mining expertise to
effectively serve in a consultive role. EPA regional staffs acknowledged
that overall they lacked the resources necessary to properly develop and
nurture hardrock mining expertise and build working relationships.
Region 9, which has significant hardrock mining activities, has
dedicated few resources to address hardrock mining issues. On the other
hand, OSWER, OECA, and some regions, specifically Regions 8 and 10,
had dedicated some staff to work on hardrock mining issues. However,
most staff dedicated to hardrock mining worked on mining issues as an
adjunct to their primary responsibilities.
CONCLUSION
Forging more effective partnerships is a good way for EPA to add its
resources and expertise to the process and avoid future adverse impacts
at mine sites. EPA should invest in preventing problems rather than
waiting until problems occur. If EPA chooses to be more proactive and
flexible, it could take advantage of many opportunities available to work
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E1DMF6-08-0016-7100223
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in partnership with federal and state land management agencies to
address mine permitting issues including adequate financial assurances.
RECOMMENDATIONS
We recommend the OW Assistant Administrator coordinate with
appropriate Assistant Administrators to:
4-1. Solicit advice from federal and state land managers as to how
EPA could add greater value to the process and become involved
earlier in the mine permitting process.
4-2. Identify and inform EPA regional offices of ways they can
become more proactively involved in hardrock mining
environmental issues.
4-3. Provide training and guidance to national and regional hardrock
mining employees to improve their abilities to provide technical
assistance to federal and state land management agencies and
state environmental agencies in developing adequate
environmental performance standards and financial assurances.
4-4. Develop a critical core of dedicated cross-media mining
expertise to work with and support federal and state land
managers in a collaborative, consultive manner.
EPA COMMENTS
OIG EVALUATION
AND EPA agreed that partnering opportunities should be fully utilized to
better manage mining activities. EPA noted that it had already taken
some steps, and agreed that further steps should be taken to broaden its
partnerships with state and federal land managers on both the national
and regional level.
EPA questioned whether it had missed important opportunities to work
with states and asked for specific suggestions as to what those
opportunities might be. We included some additional details in the
report on missed opportunities. Also, we believe that federal and state
land managers are best suited to help EPA identify how it could add
increased value to the process. We believe that almost any opportunity
that can be created to work with states on mining issues in the future is
an opportunity that should not be missed.
EPA commented that the draft hardrock mining framework
acknowledged the importance of forging effective partnerships with
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E1DMF6-08-0016-7100223
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other stakeholders. EPA also agreed that developing those partnerships
are essential to the successful implementation of the framework. We
agree that the framework may address many of our concerns. However,
we cannot evaluate whether the framework fully satisfies our
recommendations until the framework is completed.
25 E1DMF6-08-0016-7100223
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26 E1DMF6-08-0016-7100223
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APPENDIX I
opportunities in working with states. Again, it would be helpful if suggestions were offered as to
what these opportunities may he. The Report recognizes that EPA does not liave specific
statutory authority to address potential environmental problems at active hardrock mines and then
cites EPA's responsibility to respond to and fund the clean up of many abandoned mines. It isn't
clear how EPA can truly pruvent the contamination without adequate statutory authority
I am also concerned that the report fails to consider the role of resource availability in
environmental management For example, the report concludes that "EPA did not adequately
manage NPDES in some important mining states." However, the evidence cited that EPA is not
managing the permitting program is the lack of travel funds to enable staff travel to proposed
mine sites in one Region. This lack of travel resources is not necessarily a sign of poor NPDES
management; in a time of resource restrictions the Region may have chosen to spend its travel
funds on other areas it decided to be of higher priority. Similarly, the Report cited one Region
which had assigned only one person to NEPA reviews and called for more adequate review of
NEPA environmental analyses for mines. Again, in light of resource realities, limiting reviews to
the most significant statements probably was a good management decision. The Report's
recommendations call for actions with associated resource demands. 1 would find helpful an
estimate of what these demands might be, and recommendations as to where they should come
from.
I would be happy to discuss this with you further. Or, if your staffhas any questions,
please contact Daniel Weese, in the Office of Wastewater Management at (202) 260-6809,
Attachment
cc: Tim Fields, Jr., Acting Assistant Administrator, Office of Solid Waste and Emergency
Response (with attachment)
Steve Herman, Assistant Administrator, Office of Enforcement and Compliance Assurance
(with attachment)
•Mike Cook, Director, Office of Waslewater Management, OW (with attachment)
27 E1DMF6-08-0016-7100223
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E1DMF6-08-0016-7100223
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EPA Can Do More lo Help Minimize Hardrock Mining Liabilities
EPA Comments on OIG's Draft Audit Report No. E1DMF6-08-OQ16-XXXXX
April 29, 1997
General Comments:
The responding offices agree that the Agency's overall management of mining activities
could be made more effective and efficient We also welcome the attention this report has
directed to these areas. We emphasize and ask the draft report's authors to recognize that the
Agency must manage mining within the legal constraints placed upon us by Congress and that
EPA must direct its star?and budget to a wide range of competing environmental impacts
It is important to note that EPA has very specific statutory authorities to regulate mining.
We suggest the report be amended to accurately portray the range of regulatory controls the
Agency utilizes at mines
EPA first becomes involved at mines during the Environmental Impact Statement (EIS)
process At this stage, the Agency acts either as a cooperating agency or, at a minimum,
comments on the draft EIS Under the Clean Water Act (GWA), the Agency has clear authority
to regulate point source and storm water runoff from active and inactive mines. In 1995 the
Office of Water (OW) issued a National Pollutant Discharge Elimination System (NPDES) Storm
Water Multi-Sector General Permit which covers operating mines. This significant addition of
permitting authority is not recognized in the report
Under the Resource Conservation and Recovery Act (RCRA) the agency regulates the
handling and disposal of hazardous wastes While RCRA regulatory coverage is limited due to
the Bevill exclusion, such coverage is not restricted at mineral processing sites RCRA has clear
authority to regulate mineral processing wastes, and has done so since 1989 All mining sites are
also fully subject to the Comprehensive Environmental Response, Compensation, and Liability
Act (CERCLA) and mines must also comply with the Toxic Substances Control Act (TSCA).
The report also should more fully discuss the role that. CERCLA plays in addressing
mining impacts. There are approximately 60 mine and mineral processing sites on the National
Priorities List (NPL), and these sites are among the largest and most costly to remediate. The
Agency devotes considerable staff and budget resources to assure that these NPL sites are
managed properly. Further, the CERCLA program has taken a number of CERCLA Section 106
actions at mine sites where direct threats to human health and the environment have been
identified.
The report does not adequately identify the regulatory and statutory constraints on
controlling mining activities that have been placed on the Agency As noted earlier, RCRA at
29 E1DMF6-08-0016-7100223
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present has limited authority to regulate mining wastes The CWA is restricted in its ability to
regulate groundwatcr contamination and can only do so if there is a hydrologic linkage between
groundwater and surface water The Clean Air Act (CAA) does address fugitive dusts, but its
application at mines has been very limited. The EIS process can point out potential concerns, but
there is no clear authority to assure that concerns are ever addressed CERCLA can not act until
at present indicates that RCRA and CERCLA are essentially reactive in nature, while the CWA
can be preventive. The EIS process is preventive but has very limited ability to assure that
findings are ever addressed.
The AssistanL Administrator (AA) for the Office of Water does not have "full
responsibility for all hardrock mining issues" as indicated in the draft report. The statutory
authority to regulate mining is shared with several different offices in the Agency, These offices
include OSWER, the Office of Enforcement and Compliance Assurance (OECA), and the Office
of Prevention, Pesticides, and Toxic Substances (OPPTS). The Deputy Administrator has
designated the AA for OW to take the lead in the development of the Hardrock Mining Strategy.
This designation does not change any of the existing responsibilities of the other offices in the
Agency.
We agree that one of the most serious environmental threats of current hardrock mining is
acid rock drainage (ARD). The report, however, fails to note that the source of ARD are piles of
mining waste, either waste rock piles, tailings ponds, or abandoned heap and dump leaches.
RCRA authority over these wastes is severely limited and thus prevents the Agency from being
proactive at many sites.
Chapter 2
We support the conclusion that EPA should work directly with the Department of the
Interior (DO!) to improve financial assurance at mines operating on Federal lands
The report should note that the definition of reclamation is a key element in reducing
Federal liabilities. The Federal government needs to assure that all remaining toxic and hazardous
wastes at mine sites are cleaned up as part of reclamation Often reclamation is limited to surface
recontouring and reseeding, but this type of reclamation, while useful, does not adequately clean
up mine sites.
The report should also indicate that EPA could have a beneficial role in assisting the
Bureau of Land Management (BLM) and the Forest Service in analyzing the extent of
contamination at a mine prior to bond release. EPA participation in the bond release process
could further reduce Federal liabilities on Federal lands by clearly pointing out the types of
contamination present and determining the potential costs of cleaning up sites.
30 E1DMF6-08-0016-7100223
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This chapter of the report does not adequately discuss the activities taken by the program
offices and the Regions to coordinate mining activities. The report should acknowledge that the
Regions have already begun to coordinate mining issues
For example, Region 8 established its Mining Team in 1993 and now utilizes a cross-
program approach in managing mining impacts. Region 8 was one of the first Regions to have a
full-time national mining expert Region 10 established Regional Mining Coordinator and Water
Mining Specialist positions in 1995. Region 9 is in the process of creating a Regional Mining
Coordinator position. Byl.li Regions 8 and 1C have also developed their own Regional mining
strategies
The report should also note that the CERCLA program created a Mine Sites Coordinating
Committee five years ago. The Committee was originally administered by the Region 8 Montana
field office, has been recently reorganized, and is now managed by Region 10. The purpose of the
CERCLA mine site group is to disseminate the lessons learned at large-scale CERCLA mining
clean-ups The Office of Emergency and Remedial Response (OERR) and the Office of Solid
Waste (OSW) are currently working on a mine site guidance manual which will be used to assure
that sound science and cost effectiveness are used when determining clean-up methods at mine
sites. This manual is expected to be completed by July 31,1997.
We agree that partnering opportunities should be fully utilized to better manage mining
activities. The report should indicate that the Agency established an informal headquarters staff
working group on mining in 1991 As a result of the work of that group, which includes
representatives from OSWER, OW, and the Office of Federal Activities, the Agency signed the
Interagency Agreement of Mining and Oil and Gas to specifically address the need to better
coordinate our activities with the Federal land management agencies
The report should note that we have already taken such steps, and we agree that further
steps should be taken to broaden our partnerships with states and Federal land managers on both
the national and Regional level. The Regions have established good working relationships with
the states For example, Region 10 works directly with the Tri-State Agreement (composed of
Idaho, Washington, and Oregon)
Comments to Proposed Recommendations
As previously mentioned, we agree that the Agency's overall management of mining
activities could be made more effective and efficient. In an effort to improve the Agency's
abilities to address hardrock mining, the Agency established a multi-program workgroup to draft
an Agency-wide hardrock mining framework Currently in final draft form, the Framework
31 E1DMF6-08-0016-7100223
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identifies measures that will help EPA implement a multi-media, multi-statute approach to dealing
with the environmental concerns posed by hardrock mining Recommendations identified in the
Framework are very consistent with those proposed in the Draft Audit Report. Finalization of the
Framework is expected in May 1997. A brief summary of how the Framework achieves the
recommendations proposed in the Draft Audit Report is provided below
Draft Audit Report recommendations 2-1 through 2-4
Although the Framework focuses on understanding and improving the use of existing EPA
authorities it also recognizes that programs influencing the environmental impacts of mining ate
administered by many parties States, Tribes, other federal agencies, and local government each
have a role in mine regulation Improving EPA's programs as well as providing assistance to
other stakeholders to improve the effectiveness of other programs that address hardrock mining is
a key element of the Framework and is consistent with recommendations 2-1 through 2-4
proposed in the draft audit report
Draft Audit Report recommendations 3-1 through 3-5
Consistent with recommendations 3-1 through 3-5 of the draft audit report, EPA's
Hardrock Mining Framework, emphasizes the importance of identifying potential environmental
concerns early in mine site planning and permitting. In addition to more timely involvement in the
NEPA process, EPA should promote adequate considerations of environmentally protective
standards and preferred alternatives at proposed mine sites during the E1S development In cases
where EPA retains NPDES permitting authority, the Framework recommends that NEPA site
evaluations and the NPDES permitting process be integrated; providing an opportunity to
streamline the regulatory process for mine site evaluation and planning, while assuring that
permits include appropriate provisions requiring that the preferred alternative be implemented as
presented in the EIS
Draft Audit Report recommendations 4rl through 4-4
Consistent with the recommendation 4-1 proposed in Draft Audit Report, EPA's
Hardrock Mining Framework acknowledges the importance of forging effective partnerships with
other mining stakeholders and thus, is fundamental to the successful implementation of the
Framework. With regard to recommendation 4-2, some EPA Regions with significant mining
activity have established dedicated mining teams; this was done, in part, to facilitate proactive
involvement in hardrock mining issues Consistent with recommendation 4-3, the Framework
promotes the improvement of scientifically based predictive tools used to evaluate the
environmental impacts of mine sites. In addition, the Framework specifically supports
collaborative research efforts, technology development, participation in information exchanges
and training opportunities
32 E1DMF6-08-0016-7100223
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APPENDIX II
SCOPE AND METHODOLOGY
Our review was limited to hardrock mines using the heap leaching method of ore extraction. To determine
if current federal and state statutory and regulatory requirements included environmental performance
standards and adequate financial assurances, we reviewed the statutory and regulatory authority of the
Forest Service, the Bureau of Land Management, and the States of Alaska, Arizona, California, Colorado,
Idaho, Montana, Nevada, and South Dakota. We relied on information included in a 1996 book authored
by the Environmental Law Institute entitled Hard Rock Mining: State Approaches to Environmental
Protection for an assessment of the statutory and regulatory authorities in the States of Arizona, Colorado,
Montana, Nevada, and South Dakota. This book contained a state-by-state review of statutes and
regulations applicable to hardrock mining. Other than the eight states listed above, we did not review the
statutory and regulatory authority of any other states engaged in hardrock mining. Nor did we review any
aspect of hardrock mining on tribal lands.
Although we reviewed federal and state statutory requirements, we did not attempt to assess the adequacy
of the performance standards or federal and state oversight for enforcing the standards. Therefore, if the
agency with primary responsibility for approving the hardrock mining permit application had authority
to require environmental performance standards, we considered the authority adequate for our purpose.
Because determining the adequacy of financial assurance is highly subjective, we only assessed whether
an agency had the regulatory authority to require a reasonable level of financial assurance. Depending on
the methods and level of expertise of agency staff, the level of financial assurance required can vary
dramatically. Both federal and state land management agencies we contacted stated that they did not
require financial assurance for every possible eventuality.
To determine whether EPA effectively used existing environmental statutes and regulations to prevent
mining pollution and minimize potential government financial liabilities, we reviewed EPA media-
specific authorities and discussed EPA's implementation efforts with federal, state, and industry
representatives. Because EPA delegated implementation of its media-based authorities to states, we
assessed whether EPA performed oversight activities relative to mine permitting activities. We reviewed
EPA's draft hardrock mining strategy. Also, we reviewed RCRA legislative activities to better understand
EPA's RCRA authority limitations relative to hardrock mining. We assessed how EPA fulfilled its
administrative responsibility under NEPA to influence permitting decisions.
To determine whether EPA established effective partnerships to provide guidance in the development of
environmental performance standards and financial assurances, we discussed EPA's working relationships
with the federal and state land management agencies. We assessed EPA's involvement with other federal
and state regulatory agencies responsible for the permitting and monitoring of active hardrock mines and
reviewed memorandums of understanding between agencies to understand how EPA could interact and
affect decisions. We reviewed various state joint mine permitting procedures and obtained other federal
agencies' and states' assessments of EPA staff availability and technical expertise to gauge EPA's
effectiveness in influencing permitting decisions. We also evaluated EPA staff organizations and
capabilities to effectively participate in partnerships with other agencies.
APPENDIX III
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PRIOR AUDIT COVERAGE
Several government audit organizations, including GAO, DOI/OIG and USDA/OIG, have recently
conducted audits of the environmental impacts of hardrock mining and of EPA's working relationships.
A June 1991 GAO report, MINERAL RESOURCES, Increased Attention Being Given to Cyanide
Operations (GAO/RCED-91-145), examined: (1) the hazards of cyanide operations to wildlife and the
environment on federal land, and (2) the existing laws and regulations governing these operations. The
report recommended that USDA direct the Forest Service to develop and implement an agencywide policy
specifically aimed at managing cyanide operations on Forest Service land.
In September 1991, DOI/OIG issued a report entitled Noncoal Reclamation, Abandoned Mine Land
Reclamation Program, Office of Surface Mining Reclamation and Enforcement (91-1-1248), evaluating
the reclamation program's effectiveness in correcting health and safety hazards and environmental
problems associated with abandoned noncoal mines. Among other findings, the audit concluded that
reclamation was inadequate and funding was insufficient and recommended DOI seek legislation to
establish a fee on noncoal mining to reclaim abandoned mine sites.
A March 1992 DOI/OIG report, Hardrock Mining Site Reclamation., Bureau of Land Management (92-1-
636), found that the Bureau of Land Management had not adequately implemented procedures for
ensuring abandoned mine sites were reclaimed. The report made five recommendations, one of which was
that the Bureau of Land Management amend its bonding regulations to require that all operators post
financial guarantees commensurate with the size and type of mining operation.
In April 1995, a GAO report, EPA AND THE STATES, Environmental Challenges Require a Better
Working Relationship (GAO/RCED-95-64), disclosed that EPA was inconsistent in its oversight, micro-
managed state programs, did not provide sufficient technical support, and did not adequately consult with
states before making decisions. GAO recommended EPA work with states on consistency, oversight,
flexibility, and communications.
A February 1996 GAO report, FEDERAL LAND MANAGEMENT, Information on Efforts to Inventory
Abandoned Hard Rock Mines (GAO/RCED-96-30), concluded that no definitive inventory was available
of the number of abandoned hardrock mines located on federal lands. The report discussed the range of
estimates made by federal agencies and others on the number of mines and the costs to clean up the
problem sites.
Most recently, a March 1996 USDA/OIG report, Forest Service Management of Hazardous Material at
Active and Abandoned Mines (08601-1-At), found that the Forest Service did not have the authority to
suspend mining operations if a mine operator was not in compliance with the plan of operation, the Forest
Service had not inspected many of the mines as required, many sites were not reclaimed by the operators,
and bonds were inadequate to cover the costs. The report recommended that USDA seek authority to shut
down mine operations when violations are not corrected, inspect mines under approved plans of
operations, and review bonds annually and increase them as needed.
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APPENDIX IV
ABBREVIATIONS
CWA Clean Water Act
DOI U. S. Department of the Interior
EPA Environmental Protection Agency
GAO General Accounting Office
NEPA National Environmental Policy Act of 1969
NPDES National Pollutant Discharge Elimination System
NPL National Priority List
OECA Office of Enforcement and Compliance Assurance
OIG Office of Inspector General
OSWER Office of Solid Waste and Emergency Response
OW Office of Water
RCRA Resource Conservation and Recovery Act
USD A U. S. Department of Agriculture
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APPENDIX V
DISTRIBUTION
Office of Inspector General
Inspector General (2410)
Deputy Assistant Inspector General for
Internal Audits (2422)
EPA Headquarters
Assistant Administrator for Solid Waste and
Emergency Response (5101)
Assistant Administrator for Enforcement and
Enforcement and Compliance Assurance (2201 A)
Assistant Administrator for Administrative and Resource
Management and Chief Financial Officer (3101)
Associate Administrator for Congressional and Legislative Offices (1301)
Associate Administrator for Regional Operations and
State/Local Relations (1501)
Associate Administrator for Communications, Education, and
Public Affairs (1701)
Agency Audit Followup Coordinator (3304)
Agency Audit Followup Official (3101)
Director, Program and Policy Coordination Office (3102)
Office of Congressional Liaison (1302)
Office of Public Affairs (1707)
Headquarters Library (3304)
EPA Regions
Regional Administrators, Regions 1-10
Regional Audit Liaison Coordinators, Regions 1-10
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