Principal applicable environmental laws

What are the principal environmental laws applicable to the mining industry? What are the principal regulatory bodies that administer those laws?

Numerous federal environmental statutory requirements and programmes apply to mining in the United States along with state counterpart requirements and programmes that in many instances are required to be no less stringent than the federal requirements and programmes. Local requirements in certain jurisdictions may also apply. Among the primary federal programmes that regulate environmental matters pertaining to the mining industry are the following:

  • NEPA (comprehensive interdisciplinary approach for major federal actions);
  • Federal Land Policy and Management Act (degradation of federal lands);
  • Surface Mining Control and Reclamation Act (coal operations);
  • Clean Air Act as amended (air quality standards);
  • Federal Water Pollution Control Act and Clean Water Act (protection of surface water);
  • Safe Drinking Water Act (drinking water quality and underground injection);
  • Resource Conservation and Recovery Act as amended (solid and hazardous waste control);
  • Endangered Species Act (protection of threatened or endangered animals and plants);
  • Migratory Bird Treaty Act (protection of species of birds);
  • Comprehensive Environmental Response, Compensation and Liability Act as amended (hazardous substance release and site clean-up by removal or remediation);
  • Toxic Substances Control Act (regulation of risky chemicals);
  • Rivers and Harbors Act (impact to rivers);
  • Indian Mineral Development Act of 1982 (mining on Native American land);
  • National Historic Preservation Act (historic sites and landmarks); and
  • Federal Mine Safety Health Act of 1977 (promote mine health and safety).

Some of the federal agencies with authority over mining include, without limitation, the following:

  • the EPA;
  • the BLM;
  • the US Forest Service;
  • the US Army Corps of Engineers;
  • the Bureau of Indian Affairs (BIA);
  • the Bureau of Reclamation;
  • the Mine Safety and Health Administration (MSHA); and
  • the Occupational Safety and Health Administration (OSHA).

As always, environmental requirements in states and local jurisdictions in which mining activity is undertaken should be specifically researched and evaluated. Often, states have counterpart programmes to those that exist at the federal level that are mandated to be no less stringent than federal requirements.

Environmental review and permitting process

What is the environmental review and permitting process for a mining project? How long does it normally take to obtain the necessary permits?

The environmental review and permitting process for a mining project in the United States is somewhat dependent on the state in which it occurs and also whether the project is located on private, state or federal land. Typically, however, the process is highly complex, time consuming and expensive. The process for a mining project may also be made more difficult and time consuming if the project is on or even adjacent to federal land. If so, NEPA is triggered by significant federal action requiring a detailed and time-consuming environmental analysis regarding whether the project will individually or cumulatively have a significant effect on the human environment. That analysis can be required in the form of an environmental assessment and/or a full-blown environmental impact analysis. If so, any mining project will be substantially delayed while environmental impacts and reasonable alternatives are considered in the context of either an environmental assessment or an environmental impact statement. A lead agency with primary authority over the NEPA process will coordinate with numerous other federal and state agencies to oversee the process, coordinate government and public comments and ensure public review and input. The process is measured in years and not months and can lead to various legal challenges during the course of the effort that can substantially alter, delay or even kill mining projects.

Closure and remediation process

What is the closure and remediation process for a mining project? What performance bonds, guarantees and other financial assurances are required?

For the most part, the closure and remediation process for a mining project is guided and determined as a matter of state law during the permitting process, with potentially stringent reclamation and financial assurance requirements that must be met in some form during and at the end of the mining project. The exception, of course, relates to mining projects on federal lands that must meet requirements imposed by federal agencies, such as the BLM and the US Forest Service, which in most respects are similar to state-mandated requirements. All states in which mining occurs require reclamation of mined areas to facilitate closure, re-vegetation and restoration of areas that have been adversely impacted and to ensure control of water runoff and rehabilitation of impacted land areas and natural habitats. Federal and state laws also typically allow several different alternatives to be met in providing financial assurance designed to ensure the availability of funds for ongoing work or future work to be undertaken either by the mining party itself or by the government, including performance bonds, insurance or surety arrangements, letters of credit, trust funds and cash collateral. Some flexibility is provided through such alternatives to ensure adequate funds are available for reclamation of impacted areas and natural resources. Mining projects may also be required to undertake more than reclamation and may have to meet more rigid and expensive requirements to fully remediate sites in appropriate circumstances pursuant to the federal Comprehensive Environmental Response Compensation and Liability Act as amended or state counterpart statutes that exist in some states where mining is conducted. Such remediation cannot only be quite costly but can also take years to accomplish with the desire and expectation for ultimate sign off by regulatory agencies at the state and federal levels.

Restrictions on building tailings or waste dams

What are the restrictions for building tailings or waste dams?

The construction and care of tailings or waste dams are a relatively new phenomenon in the overall history of US mining activity. Unlike dams utilised for impounding water, which may ultimately be drained depending on structural integrity, a tailings dam must be designed to impound material safely in perpetuity, which requires careful consideration of seismic and hydrologic events. MSHA conducts periodic inspections of tailings dams, authorising its enforcement personnel to conduct inspections to evaluate and address relative hazards and to penalise poor operational controls.

In the United States, despite MSHA’s authority and presence, state regulators have the primary responsibility and authority to oversee construction and management of tailings or waste dams. Any applicable requirements or standards for such dams would be at the state level, for the most part, including professional qualifications for anyone in charge of operation and management of dam waste, inspection requirements, installation of alarms and emergency drills and evacuation procedures. Many states have promulgated regulations that classify dams by their hazard potential in terms of serious hazard to public health or serious damage to property. Typically, dams may not be constructed, operated, enlarged, repaired, altered, removed from service or abandoned without express approval of the pertinent state agency. Those dams with the highest hazard are most strictly regulated, with professional design criteria, specific construction standards and strict maintenance procedures, including monitoring. States have authority to inspect, adopt regulations and issue orders, invoke injunctive or judicial action to enforce against unsafe dams or dams that present an imminent hazard or threat to life or property and to take supervisory control of the dam’s operation. For high-hazard dams, emergency action plans within certain states may be invoked in the event of dam failure. Additional, detailed state standards may be imposed on facilities that treat, store and dispose of hazardous waste pursuant to the federal Resource Conservation and Recovery Act (RCRA), as amended, and its state counterpart statutes and regulations.