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.
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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.
                                            VI
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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

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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
                                             E1DMF6-08-0016-7100223

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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
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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

                   2            E1DMF6-08-0016-7100223

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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.
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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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                             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

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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
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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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                                     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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                             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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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.
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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)
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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
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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.
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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
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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
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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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