Surface Management Regulations For Locatable Mineral Operations (43 CFR 3809) Final EIS, Volume 2: Comments and Responses Prepared by U.S. Department of the Interior Bureau of Land Management Washington, D.C. October 2000 Final EIS, Volume 2:  Comments and Responses BACK BOTTOM CONTENTS Introduction 1 1. Planning Process 2 2. Purpose and Need for Action 47 3. Mining Law and Existing 3809 Policies 77 4. National Environmental Policy Act (NEPA) Process 80 5. Federal Land Policy and Management Act (FLPMA) 92 6. Regulatory Flexibility Analysis 103 7. Economic Analysis and the Unfunded Mandates Reform Act 116 8. Alternatives 126 9. Definitions 141 10. Disturbance Categories and Thresholds 156 11. Plans of Operations 171 12. Mining Claim Validity 247 13. State Law Conflicts 253 14. Financial Guarantees (Bonding) Requirements 256 15. Inspection and Enforcement 299 16. Appeals and State Director Review 331 17. Information Collection 335 18. Implementation Costs of Alternatives 342 19. Performance Standards for Operations 350 20. Affected Environment and Environmental Consequences (General) 408 21. Mineral Resource Development 421 22. Hazardous Materials and Waste Management 432 23. Climate and Air Quality 434 24. Water Resources 437 25. Soils 449 26. Vegetation 450 27. Riparian-Wetland Resources 454 28. Aquatic Resources 458 29. Wildlife Resources 467 30. Wild Horses and Burros 476 31. Livestock Grazing 477 32. Special Status Areas 478 33. Recreation 481 34. Visual Resources 487 35. Cave Resources 488 36. Paleontological Resources 489 37. Cultural Resources 491 38. American Indian Resource Concerns 495 39. Social Conditions 498 40. Economic Conditions 502 41. Agency Organization 523 42. Appendix D: Summary of State Program Regulations 528 43. Appendix E: Changes in Mineral Activities 530 COMMENTS AND RESPONSES Introduction Volume 2 of the final EIS contains the substantive public comments received on the draft EIS and BLM's responses to those comments. We considered and responded to all substantive comments in preparing the final EIS. A substantive comment requests clarification or more discussion, gives new information, questions analytical techniques, or suggests new alternatives. We did not respond to comments that simply expressed a preference, such as, I support Alternative 1, but we did consider these comments when preparing the final EIS and regulations. Because of the large volume of comments, we have grouped similar comments together, where possible, to create comment statements that capture the essence of two or more commenters. Therefore, comment statements may not be exact quotes of any one person or organization. We have also edited the comments for brevity, clarity, and grammar. We have organized comments on similar regulation provisions or topics under the headings listed in the table of contents. Please review the preamble to the final regulations for more comments and agency responses specific to the development of the regulations. PLANNING PROCESS Comment: The comment period with the May 10 deadline does not give us a full 90-day period for comments as it was published in the Federal Register on Feb. 17, 1999. With the length of the draft EIS at over 400 pages and the pending NAS study, it is important that we have enough time to digest the contents to be better informed in our comments. Review of the proposed regulations, regulatory preamble, draft EIS, cost-benefit analysis and Regulatory Flexibility Act analysis is an extremely time-consuming and complicated task The comment period should be extended. Response: The proposed rules were published in the Federal Register on February 9, 1999, with a 90-day comment period through May 10, 1999. The notice of availability for the draft EIS was published by EPA in the Federal Register on February 19,1999. The comment period on the draft EIS also went until May 10, 1999. But comment periods on EIS drafts are only required to be 45 days under the NEPA regulations and 60-days by Department of the Interior policy. The period from February 19, 1999 to May 10, 1999 meets the 60-day minimum requirement for comment periods on a draft EIS. After the first comment period closed, the comment period on the proposed regulations and draft EIS was again open from October 26, 1999 until February 23, 2000. This was to give an 120 more days for comment on the proposed rule in the context of the results of the National Research Council study (NRC 1999). Congress required this additional comment period under Public Law 106-31, section 3002. Comment: The BLM fact sheet describes turn-of-the-century mining and the problems of vast expansion of new mining without informing the public that the regulations have gone from none in the turn of the century to vast myriad of state, local, and federal interwoven regulations we have now. Clean Water Act, Clean Air Act, and discharge permits, and the list goes on. References to impacts that occurred in the late 1800s in the Clark Fork Basin have no relevance to the current proposed regulations. It is wrong to describe mining impacts from the "late 1800s" at "several sites" in the Clark Fork Basin (B/C study, p. 54) without describing the extent, if any, that those impacts are directly related to mining on public lands under the existing regulations since 1981, the effective date of the existing 3809 mining regulations. The erroneous and biased implication is that those events show the current regulations cause unnecessary or undue degradation. Response: The examples presented were to illustrate the types of environmental impacts that mining can cause and not to imply that mining is currently unregulated. Comment: The fact sheet calls cyanide technology new. It has been used in the gold process since the turn of the century. I guess we must define Edsels and Ford 500 Galaxies as new cars now. Response: BLM acknowledges that cyanide has been used in gold recovery for more than 100 years. The technology referred to was heap leaching technology. This technology, in combination with high gold prices, has allowed for the economic recovery of gold from large tonnage, low-grade ores. Comment: I saw the thick booklet that was handed out, and a lot of people got it. I didn't get it. How come all of us that came to the scoping meetings didn't get these? I was just wondering. I could get this 3809 regulations out of the computer, but I don't have a computer and I don't believe in computers. So I couldn't get it that way. Response: BLM is uncertain as to which thick booklet you are referring to. Attendees at the scoping meetings got copies of the scoping brochure. The proposed regulations were not released until after the scoping meetings but are available at any BLM office if you did not receive one in the mail. Comment: Scoping: BLM began the formal scoping process in April 1997. The notice of intent (NOI) did not describe a proposed action other than to state that the 3809 regulations would be revised. The NOI requested comments on the issues in the Secretary's directive. The NOI told the public to confine its comments to issues articulated in the NOI. See 62 Fed. Reg. 16177 (1997). The NOI did not contain any statement of purpose and need. Perhaps in the spirit of the adage "Better later than never," BLM later distributed more information at the scoping meetings. Response: BLM did not direct the public to limit its comments to those issues. In fact, the public was invited to submit comments on other concerns or issues in the scoping handout. BLM also produced two working drafts of the 3809 regulations during the scoping process (February 1998 and August 1998) to get feedback from the public on issues. Comment: Consultation with western states: The draft EIS discusses BLM's "consultation" with western States. (See draft-EIS, pages 1-4.) Governors and state regulators demonstrated a lot of interest in the process. For example, the Western Governors' Association (WGA) adopted a policy resolution and requested that it be consulted, which was backed up by a congressional enactment requiring the Secretary of the Interior to consult with the states. BLM sent a notice to Congress declaring that it had consulted with the States. But that declaration was sent just 3 days after the enactment without even one phone call to any of the governors. See February 5, 1998 letter from WGA to BLM Director Pat Shea. This episode was particularly grating here in Idaho. In Idaho's opinion, a meaningful coordination process did not take place. At best, we believe the BLM solicited comments from the state agencies and Western Governors' Association. With regard to Idaho, there was never any dialogue on the purpose and need for the regulations or why the BLM did or did not incorporate comments in the regulations. BLM's certification letter said that its consultation with Idaho was based solely on one and a half pages of comments submitted by the Idaho Department of Lands. It's simply amazing that the agency actually believes that such an attitude will foster improved relations with the states. Response: Consultation with the states had been an ongoing process since before the 3809 regulation initiative was even formally announced in April 1997. The congressional consultation requirement did not exclude consultation before its passage. While the letter may have been sent just a few days after passage of the requirement, it documented more than 4 months of consultation work. Consultation efforts on a state-by-state basis are detailed on BLM's website at http://www.blm.gov. Comment: BLM's successive releases of "working drafts" of the proposed regulations (February 1998 and August 1998) resulted in many voices expressing concern about duplication of state laws and questioning whether there was a need for such a proposal. But BLM made only minor revisions to each "working draft." The states continue to have the same concerns. Response: Although BLM did not incorporate all the changes the states requested, as the comment illustrates, BLM did consult with the states on successive working drafts of the regulations before publishing them as proposed. Consultation does not always mean concurrence. BLM has incorporated into the final regulations state suggestions for addressing concerns about duplication. Comment: The relevant regulations and guidance documents make clear that the public is in no position to help an agency identify concerns, potential impacts, and reasonable alternatives in the scoping process unless and until the agency has tipped its hand about what it proposes to do. As CEQ has emphasized, "scoping cannot be useful until the agency...present[s] a coherent proposal and a suggested initial list of environmental issues and alternatives." Until that time, "there is no way to explain to the public or other agencies what you want them to get involved in." BLM precluded a meaningful scoping process by not issuing a coherent proposal before or during the scoping hearings. The draft EIS and preamble suggest that comments on the working drafts were considered in the rulemaking context, but there is no evidence that they were used for the NEPA process. As a result, BLM must now prepare a supplemental draft EIS before finalizing the EIS or any regulatory revisions to 3809. Response: NEPA scoping for the rulemaking was extensive and complete. The CEQ regulations at 40 CFR 1501.7 mandate early and open scoping. BLM did not want to develop a detailed proposed rule without input from the public on what the scope of such a rulemaking should include. The Proposed Action initially presented to the public was to change the 3809 regulations to address the eight issues that had been identified internally. The public took these under consideration and raised more issues and suggested regulatory alternatives (see Scoping Report, BLM 1997a). During scoping BLM consulted with industry, the states, and environmental groups on specific content that they wanted to see included in the revised regulations. BLM even told these groups to submit suggested regulation language as part of their scoping comments. Later on in the scoping process BLM put out for review working drafts of the proposed regulations and met with the interest groups to get their feedback during scoping. This occurred not once, but twice. As a result of this feedback, the alternatives presented in the draft EIS were developed. Note that scoping does not end until the final decision is made. In developing the final rules and EIS, BLM continues to receive and consider new scoping input, such as the National Research Council report (NRC 1999). Comment: Participants at the scoping meetings were advised that, while they were free to comment on any issue, they were directed to address the eight questions identified by BLM first before commenting on any other issues (e.g. issues and alternatives for the draft EIS). Because of the format of the scoping meetings (workshop tables) and the time constraints of the meetings, few of the working groups were able to completely address the eight issues identified by BLM, let alone move on to discuss traditional NEPA scoping topics. Response: Many of the groups at the initial scoping meetings did address other issues beyond the eight suggested by BLM. In addition, during scoping BLM received expansive written comments that raised other issues. These suggested issues are described in the scoping report (BLM 1997a). Comment: BLM also failed to properly use the results of its "scoping process." Again, CEQ explained that "Every issue that is raised as a priority matter during scoping should be addressed in some manner in the EIS, either by in-depth analysis, or at least a short explanation showing that the issue was examined, but not considered significant for one or more reasons." CEQ 1981 Scoping Guidance (emphasis added). The draft EIS briefly describes the scoping process, (page 4) and lists "issues," (page 5), but because of the way BLM prepared the scoping report, it is impossible to determine what are "priority issues." BLM's scoping report summarizes in a few words or phrases the comments collected from the workshop tables. Response: Draft EIS, pages 4 and 5 are part of the EIS summary section and are by definition just a brief list. The detailed discussion of the issues and concerns identified during scoping is on pages 18 through 22 of the draft EIS. The draft EIS then discusses in detail, on pages 22-24, the issues raised during scoping but not addressed and why. On pages 26 to 28 the draft EIS discusses the priority significant issues from scoping that formed the basis for the alternatives. Comment: One meeting per affected state cannot possibly allow all the interested or affected persons to attend. Why were no hearings scheduled in Utah? Why are the public hearings on the proposed rule only in the western states? The people of the Midwest and eastern states also need to know what is going on. Other meetings in Globe, Morenci, or Safford, and various parts of Arizona are needed to allow full public participation. There is no provision for public hearings in Redding, the Mother Lode Regions, San Diego, or Los Angeles. The location for the hearings was very unfair. You had three in California, one in Washington D.C., one in Oregon, and none in Denver, Las Vegas, or Casper, where those who are most affected could have attended and expressed their views. Here you go having all the meetings in California in locations where there aren't any miners. There should be hearings in Redding, Chico, Yreka, and Eureka. The hearings that are scheduled to begin on 23 March should be held in three locations in Montana (east, central, and west). We the members of the 40 Mile Mining District request a public meeting in Chicken, Alaska. We the undersigned, [ 35 Individuals] request that BLM hold a public hearing on the proposed 43 CFR 3809 Mining regulations in Safford Arizona. Response: The hearing schedule for the proposed regulations was established to cover a broad geographic area as well as allow input from a variety of rural and urban settings. Unfortunately BLM cannot hold a hearing in every location where one is requested. But attendance at a hearing is not necessary to comment on the proposed regulations or draft EIS. Written comments, submitted by mail or electronically, receive the same consideration as testimony given at a public hearings. Comment: The National Research Council report could provide valuable wisdom and a starting point to an open debate among all shareholders with a cooperative spirit rather than meeting a deadline to promote the vanity of some within the Department of the Interior. The proposed regulations should be withdrawn and cooperation sought from all interested parties, including the western governors, state legislators, U.S. Congress and the shareholders of the land they are to manage for the people of the United States. NWMA urges the Department of the Interior not to ignore the intent of Congress in mandating the NRC study. Revise your rulemaking process to allow full consideration of the results of the ongoing NRC study as mandated by Congress. BLM must therefore reopen the comment period and allow the public to consider the proposed rule in light of the NRC study. Response: The comment period on the proposed regulations and draft EIS was reopened for 120 days after the NRC (1999) report was released. Copies of the NRC report were mailed to all people on the EIS mailing list to solicit more comments on the proposed regulations and draft EIS in light of the NRC findings. BLM then considered these comments, along with previously collected comments, in preparing the final regulations and EIS. Comment: The Nevada Division of Environmental Protection submits that commenting on the proposed rules, the preferred action, while simultaneously reviewing the NEPA documents is not acceptable and runs counter to CEQ regulations. Response: The proposed regulations are also the proposed action and preferred alternative under consideration in the draft EIS. It is not only logical that you would comment on the proposed regulations at the same time you comment on an analysis of its impacts, but the CEQ regulations at 1501.2 recommend that the NEPA process be integrated with other planning processes. Comment: Since the 3809 rulemaking effort began in 1997, state regulators and the Western Governors' Association (WGA) have expressed their concerns about the Secretary of the Interior's proposed rulemaking and have stated that many of the Secretary's 3809 proposals will detract from the current high level of coordination and cooperation between state regulatory programs and BLM. State regulators and the western governors have consistently voiced their concerns and objections to BLM's 3809 proposal as being duplicative, unnecessary, and preemptive of state regulatory authorities. The WMC is appalled that the Secretary has chosen to ignore these comments and concerns. Although we feel comments on this aspect of the proposed regulations are best left to state regulators and the WGA, we would ask the Secretary to extend proper weight to the state and WGA comments. Response: BLM has undertaken consultation with the states and through the Western Governors' Association to solicit and consider state comments on the proposed regulations. BLM has given considerable weight to the states' comments on ways to provide for joint federal-state program administration while still preventing unnecessary or undue degradation. Comment: If any undisclosed changes in agency policy behind the proposed rules could influence the future interpretation of the proposed rules, those proposed changes in policy should be discussed in the draft EIS and the preamble to the proposed rules so there can be reasoned public comment and debate of those policy changes. The disclosure and open discussion of such policy changes, if indeed they are intended by the Department of the Interior and BLM, and are a basis for proposed rule changes, are not only needed to comply with the Administrative Procedures Act but conform to the Administration's policies on increasing the transparency of the public process and meaningful public participation in public policy decisions. No rule changes should be adopted without full disclosure and discussion of all policy changes intended by and resulting from the proposed rules. Response: All policy changes that underlie changes in the 3809 regulations are apparent from the rules themselves. Mining will continue to be a legitimate use of public lands, but it must be conducted so as not to cause unnecessary or undue degradation. TOP Comment: The draft EIS and other documents are fatally flawed in that they did not consider the reasonable range of alternatives. No consideration was given to reducing or relaxing the items that are now in the regulations but are excessively costly and time consuming and do not benefit the environment, the company, the agency, or the public. BLM made no attempt to identify such items and disregarded the scoping comments made along those lines. On page 5 of our scoping letter to Mr. Paul McNutt, 3809 Team Leader, dated June 23, 1997, we made recommendations as to how such alternatives could be designed. Response: BLM developed Alternative 2 to relax BLM regulatory requirements, which some suggested where excessively costly or time consuming. Comment: There is no indication that other federal or state agencies were consulted or reviewed the draft EIS before it was released. A document of this magnitude and potential impact should have at least a peer-type review, if anything just to defend other regulations and to provide input on any new provisions. Response: Consultation and coordination efforts are described in Chapter 4 of the draft EIS, page 221. BLM consulted the states, the Bureau of Indian Affairs, the Environmental Protection Agency, and the Fish and Wildlife Service on the regulation provisions. Comment: Page 222, Public Participation The draft EIS text describes the extensive scoping process but does not provide full disclosure. Much of the public comment received was not incorporated or addressed in the regulations or draft EIS. Despite extensive comment, BLM made few changes to the regulations. We were told that our input was of value and would be used, but it doesn't seem to matter. Response: Because of the wide variety of scoping comments received suggesting differing regulatory approaches, ranging from no change to extensive changes, not all could be incorporated into the proposed final regulations. Alternatives were developed in response to scoping comments. These alternatives consider a spectrum of regulatory approaches as a response to the comments received during scoping. This process is discussed in the draft EIS on pages 25-28 and in the final EIS. Comment: Members of the CMA, as well as small miners in California who are not represented by trade associations, have had difficultly obtaining copies of the draft regulations, the draft EIS, and the administrative record. Members of the CMA have called their local BLM office and were told the regulations were available only over the Internet. Those without Internet access were at a complete loss as to how to get a copy for review. Other members called BLM's California State Office and were told they had to travel to Sacramento to the BLM public room to review the draft EIS. Those who called the BLM Nevada State Office to get copies did not receive them for 2-3 weeks after ordering them. These actions to restrict the availability of public documents precluded all but the most tenacious and well-informed mining operators from getting copies of the draft regulations. In addition, the delay in shipping the documents significantly restricted the ability of companies to comment on the regulations and draft EIS. Response: The proposed regulations were included in the draft EIS, which was mailed to everyone who provided scoping comments or requested to be placed on the mailing list. BLM apologizes for any inconvenience to those that did not promptly receive a copy of the draft EIS upon request. Hopefully, the additional 120-day comment period from October 26, 1999 through February 23, 2000, allowed people to get their comments to BLM. Comment: For this rulemaking BLM has created a "system" that makes it difficult, if not impossible, for the public, and particularly small entities, to secure access to the information in the administrative record. NMA has requested that BLM provide an index to the administrative record and was told that no index exists. The problems caused by the lack of such an index are compounded by the fact that BLM has chosen to maintain the only copies of the complete administrative record in Reno, Nevada. Consequently, it is nearly impossible to examine the administrative record to aid in the preparing comments. In addition, the administrative record office in Reno is the only place that we are aware of where certain records may be found. One of our members, the Alaska Miners' Association, requested and was denied access to a copy of the economic and small business regulatory flexibility analysis prepared by BLM for this rule. Fortunately, NMA was able to obtain a copy of the analysis from BLM. Apparently, some others, including some representatives of small entities, have not been so lucky. BLM's actions in restricting the availability of these documents to a single location have very likely precluded many members of the interested public, including small entities, from reviewing these important materials. Such actions by the agency run counter to the requirements of the Administrative Procedures Act (APA), the Regulatory Flexibility Act, and Small Business Regulatory Enforcement Fairness Act (SBREFA). Response: The administrative record contains public information that is available for review. The administrative record on the EIS preparation is maintained in the BLM Nevada State Office in Reno. A duplicate record is maintained in BLM Headquarters Office in Washington, D.C. Other portions of the administrative record that support the APA and SBREFA are also kept at BLM Headquarters Office. BLM apologizes for any inconvenience you may have experienced in obtaining this information. Hopefully, the additional 120-day public comment period has allowed ample time for review of and comment on this material. Comment: The plans appear to have been developed with bias and little objectivity as it has solicited the participation of the GAGS [green advocacy groups] but little input from the miners, let alone a full spectrum of miners, the people that are most affected by the regulations. See page 193. If there are any changes in the regulations, they should be made with the assistance and input of the small-scale miner. Involve a spectrum of mining people from casual users and recreational groups to full-scale commercial operators in the redevelopment of a new draft plan, not just the GAGS. Response: BLM has received considerable input from all spectrums of the mining community ranging from large mining companies and associations to small-scale individual miners or mineral collectors. On a strictly numeric basis, BLM has received more comments, or input, from people we would classify as miners than anyone else. In addition, BLM has conducted an extensive outreach program, meeting with the mining associations and trade groups to discuss the regulatory issues before preparing the proposed regulations. Comment: I went carefully through the lists of persons and agencies who received a copy of the book for commentary and noted that, while there are a number of mining associations listed, nowhere could I find any mention of individual rock and mineral clubs or their national parent groups. I find this strange and sad, for we will be strongly affected by the new regulations, should they be adopted. Response: The mailing list was assembled during scoping. Persons or organizations wishing to be on the mailing list had only to contact BLM and request they be listed. Rock and mineral clubs that generally collect hand specimens without mechanized surface disturbance would not likely be affected by the proposed regulations. Comment: I wonder why I am not on your mailing list because I had to prepare a letter of intent to look for minerals in the Los Padres National Forest and they have a record of my name and address. How come North and South Dakota were not mentioned in this group as they have minerals and I lived back there? Response: The mailing list was not compiled from listings of Notices of Intent filed on National Forest lands. While North and South Dakota are within the study area, the amount of public land operations that would potentially be affected by the 3809 regulations is quite small and is not listed individually. Comment: I can't help but wonder how many small or casual use miners know what action BLM is proposing. Notice has been too short. I think public comments would be more effective if the public knew about the regulations being considered. I found out 2 days ago about Mining Reform 3809 and received the EIS yesterday, almost too late for comment. How come you're doing this so secretly? Response: The process has certainly not been conducted in secret. This rulemaking has been accompanied by an expansive public involvement and outreach effort. Beginning in early 1997, before the official notice of intent to prepare the EIS, BLM consulted with state political leaders, industry groups, and the environmental organizations about the rulemaking effort. BLM then conducted 19 scoping meetings in 12 cities, issuing nationwide press releases to inform people of the rulemaking and explain how to become involved. Once the proposed rule and draft EIS were prepared, BLM held more meetings and briefings with all interest groups. BLM then conducted 29 hearings in 16 cities to get public comments on the proposed rules and draft EIS. Comment: I attended a meeting this last (99) 2nd of April of the Eastern Oregon Mining Association (EOMA) and when I brought to the attention of its members the new Revised BLM 43CFR3809 (EIS) rules, not one member knew about the proposal. Response: BLM conducted a scoping meeting on June 16, 1997, in Eugene, Oregon, in direct response to a request by the Oregon Mining Association to make their members aware of the 3809 rulemaking. Many members of the association were on the mailing list. A hearing on the proposed rules was also held in Eugene in 1999. See Chapter 4 of the final EIS for details on the public involvement efforts. Comment: The draft EIS fails to consider and discuss how the proposed rule complies with Vice President Gore's Reinvention of Government Initiative. On page 1 of the Executive Summary, the Department of the Interior report states "several DOI issues involve stripping away barriers that prevent the effective, efficient governance; eliminating federal micromanagement of state and local government; or managing across agency lines through boundary spanning mechanisms." (Emphasis added.) Throughout the public hearings conducted by BLM during the comment period and in these comments, countless examples have been presented of how the proposed rule flies in the face of this objective. Existing memorandums of understanding (MOUs) and memorandums of agreement (MOAs) between the individual states have proved effective and have reduced duplication of state and federal resources. On page 49 of the Department of Interior portion of the Gore report, Action Item 10 states: "DOI should identify all parties that may be interested in a rulemaking and involve them early in the process. Examples of BLM's failure to accomplish this objective can be found in the oral testimony given in Salt Lake City, Utah, and Ontario, California. In Salt Lake City several commenters stated that BLM failed to give notice of the rulemaking to mining claimants. In Ontario, California, Barrett Wetherby, a California native and prospector, said he was not given the necessary reference materials he needed to comment on the proposal. During the evening session in Ontario, Jack Liget said he asked for notification of meetings from BLM and never received notice. He also asked to be put on a BLM 3809 mailing list, but his name was never put on such a list. This is hardly an effective way for BLM to encourage participation in the rulemaking process. Response: Chapter 4 of the final EIS describes the public participation effort made to inform people of the rulemaking. The massive amount of outreach done for this rulemaking is consistent with the reinventing government initiative. Individual mining claimants were not notified because the list of claimants is orders of magnitude greater than the number of operators actually working under the 3809 regulations. Comment: As a former member of the Lower Snake River Resource Advisory Council (RAC), it is unconscionable that detailed discussion of the proposed 3809 regulatory changes and associated environmental and economic impacts has not occurred in the majority of the RACs. If BLM is indeed proposing "environmental standards and guidelines" for the mining industry, then the RACs represent an integral review panel that BLM has not used. The RACs were put together to provide standards and guidelines for mining; it needs to be discussed. The proposed 3809 regulations must be discussed thoroughly at the RACs, and BLM should request opinions from the RACs before this regulatory process proceeds any further. Response: The resource advisory councils were made aware of the 3809 regulation rewrite. It was then up to the individual RACs if they wanted a more detailed briefing on the 3809 effort from BLM. Many RACs did request more information, which we provided. But few of the RACs submitted detailed comments or input on the proposed regulations. Comment: I suggest that a 10-member panel be assembled to rewrite these regulations. Five members should be from industry and five from BLM. Two of industry's representatives should be small operators, two should be large operators, and one should represent a mining organization. On the BLM side, three should be field mineral administrators, one should be a field manager, and one should be a lawyer. Of the three, one should be a geologist, one should be a mining engineer, and one should have extensive placer experience. Maybe then the result would be functional. Response: BLM cannot delegate the task or writing regulations to a panel. BLM has drafted the proposed final regulations in response to input received from a variety of public land users. Comment: The only comment needed on this first part of the draft EIS [summary] regards notice. In the Public Participation (p.3) section and elsewhere, it is repeatedly stated that efforts were made to encourage comment from groups and 'stakeholders.' And "Beginning in April 1997, information packages were....mailed to interested or affected stakeholders." (emphasis added). Apparently claim holders, although directly affected, are not considered to be stakeholders for this regulatory Pearl Harbor process. According to BLM records, in 1994 they received over 31,000 small miner exemptions for claims held on the public lands. Current figures reveal the current number to be about 75% lower, something over 8,000. Although the Federal Land Policy and Management Act (FLPMA) requires that claim holders record their claims with BLM and BLM graciously notifies them of their need for annual filings, etc., not one claimholder I've asked has ever received notice of these proposed changes. A few have been aware that something was in the works and have heard about hearings on occasion. As it turns out, they have mistakenly believed that since they faithfully filed the appropriate paperwork each year that when changes were definitely being considered, they would be notified. As a result, literally thousands of claimholders trusted BLM and are unaware that they are being targeted by the regulatory process for major changes, which, if Mr. Babbitt et al. have their way, will take effect in only a few months' time. When I asked BLM how this situation occurred, the response was "Washington doesn't want to do it." Although it could be pleaded that Federal Register notice is sufficient, given the aforementioned situations, something is radically awry here. Aside from common courtesy, it would appear that the Administrative Procedures Act (APA) has been violated. The draft EIS cites the APA (page 4) requires an EIS for the Proposed Action, noting that "the proposed changes constitute a major federal action significantly affecting the human environment" (emphasis added). More specifically, this malfeasance of notice may become a direct violation of Executive Order 12291 on Federal Regulation, which states that before approving any final major rule, an agency shall: "[M}ake a determination that the factual conclusions upon which the rule is based have substantial support in the agency record, viewed as a whole, with full attention to public comments in general and the comments of persons directly affected by the rule in particular." (emphasis added.) To date, no notice has been sent to the claim holders, the persons directly affected by the rule for their comments, even though they are known to BLM. Lack of direct notice effectively assures that only a small portion of those affected could comment. You are required to give me personal notice. Not Federal Register notice. Response: Individual mailings on the 3809 regulation rewrite were not sent to all mining claimants because the number of claimants exceeds the number of operators actually working under the 3809 regulations by several orders of magnitude. Instead, an expansive public involvement and outreach effort was conducted to make individuals aware of the 3809 effort. Beginning in early 1997, before the official notice of intent to prepare the EIS, BLM consulted with state political leaders, industry groups, and the environmental organizations about the rulemaking effort. BLM then conducted 19 scoping meetings in 12 cities, issuing nationwide press releases to inform people of the rulemaking and explain how to become involved. Once the proposed rule and draft EIS were prepared, more meetings and briefings were held with all interest groups. BLM then conducted 29 hearings in 16 cities to get public comments on the proposed rules and draft EIS. Additional details of the public involvement process can be found in Chapter 4 of the final EIS. Comment: The draft EIS fails to consider issues and alternatives raised by the WMC during scoping The WMC submitted detailed written comments to BLM in a June 18, 1997, in a letter addressed to Mr. Paul McNutt, 3809 EIS Team Leader. The WMC finds that BLM's draft EIS and the accompanying proposed rule have failed to acknowledge or consider issues, concerns, and questions raised in this letter. This is just one of the many reasons why the WMC deems the draft EIS to be substantively flawed and procedurally inadequate. The National Environmental Policy Act (NEPA) and the Council on Environmental Quality (CEQ) regulations for implementing NEPA (40 CFR 1500) and for preparing documents such as this draft EIS require BLM to acknowledge, track, and respond to issues raised during project scoping. In preparing this draft EIS, it appears that BLM has ignored its own internal guidance on comments received during public scoping. Response: There is no requirement that an agency respond directly to the commenter about scoping comments. The purpose of scoping is determine issues for analysis and to help develop alternatives. Page 65 of the draft EIS describes alternatives considered but eliminated from detailed analysis. BLM developed four alternatives for detailed analysis in the draft EIS and five alternatives for analysis in the final EIS in response to public comments received during initial scoping or on the draft EIS. A list of issues, along with suggested alternatives, identified by the public during scoping is presented in the draft EIS starting on page 18. Starting on page 22, the draft EIS lists issues and concerns not addressed along with a rationale for limiting the scope of the analysis. Comment: BLM states that what we see, what we review, what we comment on may not even be in the final EIS and rule. Why? What is that all about then? That statement seems to say that BLM will change the final rules to cater to the enviros and screw the miners. It allows BLM to adapt Alternative 4, Babbitt's preferred alternative, without the miners being able to do anything about it, and it is an acknowledgment by BLM that it doesn't need to follow the rules. BLM must allow us, the stakeholders, to comment one more time on the final before it is final. Sure it won't make a difference, but at least we will know what is being crammed down our throats. Response: The purpose of producing a proposed regulation and a draft EIS is to solicit public comment. The final regulations and EIS have changed in response to public comment. Comment: It is important to note that the working draft represents much more than a "revision" to the exiting 3809 program. Instead, it is a fundamental change in the way that mines and mining are regulated and an incredible (and unauthorized) expansion of BLM's role in mine permitting. These dramatic changes were not foreseeable from the description of BLM's proposal that was circulated at the NEPA scoping meetings last year. Accordingly, if BLM intends to go forward with proposed regulations similar to those in the working draft, Barrick once again states its request that BLM conduct more NEPA scoping. We have been informed that BLM considers that the scoping period had never been "formally" closed and that the agency will continue to accept scoping comments. This information is inconsistent with the material that BLM distributed at the scoping meetings and with the general understanding in the industry and among the public about the scoping process. It is deceptive for BLM to inform a limited audience that the scoping comment period has not "formally" closed without publishing notice of that conclusion and inviting more public comments. It is also difficult for those who have been invited to give comments in this informal process to gauge the time and effort that should be invested and the level of detail that is appropriate or would be helpful when the agency gives no clear guidance and no formal deadline for submitting comments. Response: The working drafts were produced to aid the public in preparing their scoping comments and in response to industry's concern that BLM did not have a well enough defined proposed action for scoping purposes. This is similar to the continued evolution of a proposed Plan of Operations during project-level EIS scoping. Comment: The DOI/BLM has failed to provide copies of referenced documents, which violates the intention of the National Environmental Policy Act (NEPA) and the Administrative Procedures Act (APA) and other regulations and policies. To name only a few that have not been provided: (1) failure to provide a copy of "recent district court case on BLM's 1997 bonding regulations," (2) failure to provide a copy of 43CFR3715 Surface Occupancy Laws, (3) failure to provide a copy of "Nevada BLM reclamation revegetation standards," (4) failure to provide a copy of Nevada BLM water resource policy, and (5) failure to provide a copy of or information on the predictive modeling BLM uses "to estimate pit lake geochemistry and potential toxicity." Failure to provide all referenced materials as part of the EIS violates the intent of NEPA that an INFORMED public provide comment. Response: NEPA does not require that the referenced material be provided. In fact, NEPA encourages material to be incorporated by reference to reduce the bulk of the analysis (40 CFR 1502.21). Reference material need only be reasonably available for inspection by interested persons. This does not mean copies have to be provided. The documents listed in the comment are all available upon request. Comment: The public must be given time and notice to review each revision of a proposed rule. The "Opinion of the Secretary," after formal consultation with the Fish and Wildlife Service would constitute such a revision because that opinion would constitute a significant change or significant new information. Since, the Secretary proposes formal consultation after public review closes and does not intend to seek formal consultation with the Fish and Wildlife Services, he proposes to fail to provide the required public review of the "Opinion of the Secretary." Response: Formal consultation with the U.S. Fish and Wildlife Service is not being conducted for this rulemaking. Comment: The Secretary referenced the "September 1997 Scoping Report." That report does not mention the scoping Congress provided in S.2237 and, again in the final Public Law, P.L. 105-277. Nor did the Secretary of the Interior observe any of the scoping Congress provided by law in the preparation of this draft EIS. Hence, the draft EIS fails to respond to significant scoping comments. Response: The draft EIS incorporates the results of consultation with the states. The draft EIS was released before the completion of the National Research Council report (NRC 1999) required by PL 105-277, so it does not incorporate the results of that report. The final EIS has been reopened for public comment in light of the NRC report, revised to incorporate the NRC report results in the analysis, and used it in determining the scope of alternatives analyzed. Comment: When I requested a copy of the Department of the Interior documentation certifying that the draft EIS and proposed regulations did legally satisfy the requirements of the successful litigation by the Northwest Miners Association v. Babbitt, I was informed that all supporting documents were available only in Reno. Response: The proposed rules and draft EIS are not associated with the Northwest Mining Association lawsuit over the bonding regulations that were issued in early 1997. The administrative record for the EIS is located at the Nevada State Office in Reno with a copy maintained at BLM Headquarters in Washington, D.C. Comment: It is hard to believe that a draft EIS of national scope and impact can be completed in such a short time frame and without enough time for public comment and study. A comparison of this time schedule with the schedule for the implementation of any single mining Plan of Operations and EIS would clearly show that a Plan and EIS for only one operation in one state covering a very limited area, typically takes BLM 3 to 5 years to complete. That lengthy time frame includes expediting the process caused by the proponent of the action paying for third-party consultants to complete studies that BLM does not have the resources to complete. Because of the unreasonably rushed public comment period, the WMC has not had enough time to complete our review of the significant volume of materials furnished with this rulemaking. Therefore, the absence of specific comments in this letter should not be construed as agreement with any of the issues or concepts presented in the draft EIS, the Initial Regulatory Flexibility Act, the proposed rule, or any other BLM materials associated with this rulemaking. Response: Work on the EIS and regulations has taken nearly 4 years to complete. The comment period on the proposed regulations was for 90 days, and the draft EIS was available for comment nearly that long. This is hardly an "unreasonably rushed public comment period." Furthermore, the comment period was later reopened for a 120 days on both documents in October 1999. TOP Comment: The draft EIS completely ignores the additional length of time the new regulations will impose on exploration and mining operations. A detailed analysis should be made on how long the studies for each new regulation will take to analyze. How long will it take for surface and ground water studies; wetlands and riparian protection; soil handling; revegetation requirements; fish and wildlife protection and habitat restoration studies; cultural and paleontological resource studies; American Indian analysis; handling of acid-forming, toxic, or other deleterious materials; leaching and processing operations and impoundments; stability grading and erosion control; pit backfilling and reclamation. As the draft EIS purports that these issues are not adequately addressed under existing regulations, it can only follow that more study needs to be done on each of these issues, and there has to be an additional time factor and cost to complete these studies, and this must be presented in detail in the draft EIS. Response: The amount of time it will take operators to comply with the performance standards is highly site specific and project specific. Presently, these issues are being addressed by a lot of operations, and the detailing of the requirements in the regulations would not add any more time. In other locations they may require more study. The amount of time and cost has been included in the evaluation of impacts to mineral activity in Chapter 3 and Appendix E of the draft and final EISs. Comment: To prevent unnecessary or undue degradation, the regulations should clarify what is meant by "not unduly hinder such activities but will assure" that they not degrade public lands. These statements are contradictory in that it may be that to "assure" there will not be "unnecessary or undue degradation," some operations will be unduly hindered. BLM need not consider economics (Great Basin Mine Watch, et al., 148 IBLA 248,256). Therefore there is no reason to prevent the hindrance of some activities. In other words, the objective that provides "for the reclamation of disturbed areas" should be amended to clarify that "disturbed areas" include areas that are affected both directly by surface-disturbing activities and indirectly by dewatering, contamination, spills, etc. Response: The term "unduly" means beyond that needed to prevent unnecessary or undue degradation. BLM does include economic factors when deciding upon the practicality of most mitigating measures in meeting the performance standards and in preventing unnecessary or undue degradation. Regarding "disturbed areas," the regulations are for purposes of regulating mining-related surface-disturbing activities, but the mandate to prevent unnecessary or undue degradation extends to all public land resources, whether on, under, or above the public land surface. Comment: I find that in the draft EIS it is very difficult to understand the complex nature of interlocking concepts. The draft EIS is so lengthy that one will have to read it several times to digest it. I think the entire document should be reviewed and rewritten to make the language clearer and better organize the text. Response: The draft EIS has been revised to produce a final EIS. To aid in reading, we suggest that you first review the EIS summary in the front of the document and then review the alternative summary tables and impact summary tables in Chapter 2. After this review, you can find more detail on points of interest in the remainder of the EIS. Comment: BLM's fact sheet incorrectly states that 3809s will cover all hardrock mining operations. We've already commented on the differentiation between locatable and leasable minerals. Response: The term "hardrock" minerals or mining, although technically incorrect, is commonly used when referring to mineral resources that are locatable under the mining laws. Comment: On page 92 the EIS states that option 2 could lead to either more or fewer notices being submitted. Here we go again, depending on what impact BLM would perceive. Operators would not necessarily know if a Plan or a Notice would be required until they had submitted a Notice or talked to BLM. Response: Since option 2 would be the same way that the Forest Service now regulates small operations, that would be correct. Operators would not necessarily know if a Plan or a Notice would be required until they had submitted a Notice or talked to BLM. That option has been removed from the final regulations. Comment: Page 12, Introduction. The last "gap" (bulleted list) is an incomplete sentence or thought. Comment cannot be provided until a complete sentence is provided. Response: The missing word is, "until." The sentence should read, "No requirements exist for preventing disturbances in areas closed to mineral entry until a discovery is determined to be valid or not." Comment: Another aspect of the proposal that readers will quickly notice is that the section headings are phrased as questions that readers might ask themselves, complete with first-person personal pronouns. For example, the heading of proposed Sec. 3809.430 is "May I modify my plan of operations?" The text of each section contains the answer to the question posed in the heading. Frequently, the answer is stated in terms of what "you" (the reader) must do. For example, the answer to "May I modify my plan of operations?" is "Yes. You may request a modification of the plan at any time during operations under an approved plan of operations." The organization from lowest to highest levels seems to be a logical step. The question-answer format leaves too many ambiguities and should be abandoned. Although currently popular with some, the use of questions for titles is more suitable for an informational pamphlet rather than a regulatory document. Such questions belie the changes being proposed and limit the interpretation of the regulation itself. Response: The question-answer format is designed to make it easier for the layperson to locate regulations that apply to a question they may have about the requirements. Comment: We wish to state today that we find the presentation of the No Action Alternative profoundly insufficient because it fails to incorporate BLM policies, memorandums, etc.. It also fails to incorporate an adequate discussion of state programs. Since the current definition of unnecessary or undue degradation provides for, among other things, compliance with state requirements, it's therefore important to describe these requirements. These omissions lead a reader to believe that much of what is being proposed does not exist in some form today, which is completely erroneous. BLM needs to more accurately portray the current mining regulatory environment. This could be accomplished at least in part by genuinely and realistically describing the No Action Alternative. Response: The No Action (existing regulations) Alternative is described in the draft EIS on pages 29 to 36. It includes references to the state regulations and programs in Appendix D and discusses BLM cyanide, acid rock drainage, and other policies. We acknowledge that many of the proposed final regulations are within the existing policy and procedures. The description of the No Action Alternative has been revised in the final EIS. Comment: The statement in paragraph 3, Chapter 1 of draft EIS on page 13 that "everyone was technically in trespass on the public domain" is ludicrous. Upon close examination you will find that the public domain is in fact unowned. Trespass on the public domain is technically not possible. Response: The public domain is owned by the people of the United States. Comment: Several speakers this afternoon pointed out some glaring flaws and inadequacies in the draft EIS. Notable was the odd timing of conducting the environmental impact statement concurrent with the drafting of the regulations. BLM has confused the public in such a fashion that it taints this regulatory process. With the release of the draft EIS in conjunction with the proposed regulations, I found that most of the public (that I have been in contact with) believes that the draft EIS is the proposed regulations. This deception, whether innocent or by design, has led to confusion. I believe this is reason enough for BLM to clarify this confusion and reopen this process. Response: The timing of the release of the draft EIS and the proposed regulations was very much intentional because the proposed regulations also constitute the Proposed Action being considered in the EIS. The draft EIS makes very clear that the proposed regulations constitute only Alternative 3 and includes a copy of the proposed regulations as Appendix B. To use the EIS as a decision making tool, as intended by NEPA, it was produced and presented to the public and decision makers simultaneously with the proposed regulations. This process allows all parties in formulating their comments to consider not only the proposed regulations but alternatives to the proposed regulations and impacts of the regulatory alternatives. If the proposed regulations had been released before preparation of the draft EIS, there may not have been fair consideration of other regulatory options. If the proposed regulations were not prepared until after release of the draft EIS, then the draft EIS would have been deficient in not containing a proposed action for analysis. It is not only logical that to release the proposed regulations for comment at the same time as the draft EIS, but it is recommended in the CEQ regulations at 1501.2 that the NEPA process be integrated with other planning processes. Comment: How much did the draft EIS cost us for 516 pages? Response: Specific information on the cost to prepare the EIS is not available. But the EIS was prepared by existing agency staff operating in their existing offices with the some help from Forest Service and Bureau of Reclamation specialists. Costs were fairly minimal and related mostly to travel expenses and reimbursement of expenses to those other government agencies. Comment: I would suggest that the question-and-answer format be applied to the regulations as they now stand. I think they have served quite well, and a more readily understandable presentation would facilitate the goals of all concerned. Response: Under whatever alternative is selected, BLM would eventually want to rewrite the regulations in the Plain English, question-and-answer format. The impacts would still be the same as described in the EIS under Alternative 1. Comment: At a minimum, BLM needs to reinsert that word "reasonable." The flexibility is needed to consider site-specific factors, cost, and feasibility. Another problem with the definition is the list of components included in term "reclamation." Even though BLM has now clarified that these components are included where applicable, this list is unnecessary in light of the proposed performance standards at proposed 3809.420, which are sometimes duplicative and sometimes conflict with the reclamation components laid out in this definition. Response: The definition is not in itself a standard. It is intended to define what BLM means when the term "reclamation" is used elsewhere in the regulations. "Where applicable," replaced "reasonable" in the definition. Site-specific reclamation measures arrived at during Notice review or Plan of Operations approval would control the final on-the-ground reclamation requirements. Comment: 3809.11(g) The term "reasonably incident" is used in this section. What do you mean by "reasonably incident"? Response: "Reasonably incident" is defined in the regulations at 43 CFR 3715 and means activity reasonably incident to prospecting mining and mineral processing operations. Comment: I'm disappointed that it is described as no action. I think it should be described as no additional action, because as the EIS is drawn up, it wants to lead the readers, who are really trying to educate themselves as to what this all means, that no action means that the miner is out there to do as he wishes, to do as he pleases, no action. Response: Under the National Environmental Policy Act, an agency's not taking any action on a proposal under consideration is termed as "no action." Throughout the draft and final EISs we have tried where practical to associate "no action" with continued implementation of the existing regulations. Comment: The Alternative 4 requirement to "prevent irreparable harm" is too vague. Any disturbance could be deemed "irreparable." Response: The definition would be tied to productivity of the land, which does give some objective measurement such as vegetation condition, slope, soil thickness, or watershed protection. But some judgment would have to be made on a site-specific basis as to what constitutes irreparable harm. Comment: Relying on BLM's asserted use of plain language, we can only conclude that the "minimization" performance standards proposed at 3809.420 are designed to give BLM regulatory tools that will justify rejecting mining proposals and making mining and mineral exploration on BLM-administered lands impossible. This outcome would be completely inconsistent with the direction Congress has given BLM on mineral development on public lands. Response: The definition of minimize has been revised in the final regulations to provide for reducing impacts to the lowest practical level. Practical means that the operation could still proceed with due consideration for other resources. Comment: Parts of the proposed provisions are too vague to ensure consistent application. For example, the terms "deleterious," "undesirable effluent," "alkaline" and "metal bearing" are not clearly defined, could be interpreted in any number of ways, and should be deleted. Response: BLM believes the terms have standard accepted definitions that are consistent with the intent of the regulations. Comment: BLM proposes to change long-held and adjudicated definitions of terms such as "drifts," "casual use" and "prudent operator" (the politically correct term now used for the prudent man). I am troubled by the failure of BLM to define "potentially toxic" and "negligible disturbance." Understanding these two terms is critical to being able to give informed comment. BLM defines the term "drift," which is described as "voluntary or accidental dislodgement of aquatic invertebrates from the stream bottom into the water column where they move or float with the current." The scope of the 3809 Draft Environmental Impact Statement, is designed for mining-related issues and therefore should not complicate terminology by improperly using mining- related terms such as "drift" without identifying both applicable terms. Response: Terms such as "drift," used in the EIS glossary, are there to aid the reader in understanding what the EIS text writer intended. They do not have any legal effect, especially when the two usages of "drift" have such different meanings depending on context. Moreover, "drift" as a mining term did not appear in the draft EIS. Other terms, such as "casual use" are intentionally being changed to meet objectives of the regulations. Where this occurs, the term is defined in the regulations, not just the glossary. Comment: The proposed regulation is lengthy and extremely complex. How does an individual, without a staff of lawyers understand it? I am an engineer, and I find it very hard to understand. Response: The Alternatives Summary Table in Chapter 2 of the draft and final EISs gives an overview of the major components of the proposed regulations and proposed final regulations. Comment: I think the term activity plan is poorly defined. Its definition doesn't give me any definition. I would cite one case study. What is an activity plan? I worked on a Plan of Operations in Nevada. There was a situation where certain activity was not going to be allowed because it was in a Class 1 visual area. When I investigated that Class 1 visual area, it turns out it was on some district or some area management plan maps, but it had never been subjected to public review, and, in fact, it was not part of the publicly reviewed resource management plan for the BLM district. This is one example of current definitions that perhaps leads me as an operator wondering what is an activity plan. It would absolutely be required that any activity plan would have to have been subjected to public review and scrutiny. Otherwise, it does not exist. Response: An "activity plan" is a plan prepared to implement a portion of a resource management plan (RMP). It is a formal part of BLM's planning process. An example would be an activity plan for the management of a designated area of critical environmental concern or other special area or resource. Comment: The language used in these proposed regulations is misleading and contradictory. To complicate matters more, when reviewing the draft EIS, the alternatives (1 and 2) are inconsistent with the language of the proposed regulations. In other words, two of the four alternatives in the draft EIS could not be implemented, if these proposed regulations are enforced. I propose that these proposed regulations be rewritten in such a fashion so they would allow the option of implementing Alternatives 1 and 2 in the draft EIS. Response: Alternatives 1 and 2 are inconsistent with the proposed regulations because they constitute entirely separate regulatory approaches from the proposed regulations under Alternative 3. The proposed regulations could be used only to implement Alternative 3. Alternative 1 would continue to use the existing 3809 regulations in Appendix A. Alternative 2 would not use any BLM regulations, relying instead on the state regulations. Alternative 4 would create a separate set of regulations that implemented the elements described for Alternative 4. Comment: Proposed Section 3809.415(a) provides that unnecessary or undue degradation (UUD) is prevented by complying with "the terms and conditions of your approved plan of operations." This opens the door for BLM to prescribe any terms and conditions not limited to the UUD standards. It is difficult to imagine a definition and application of UUD that could be more vague and subjective. In paragraph (a) the phrase "necessary to prevent unnecessary or undue degradation" should be added after the phrase "plan of operations." The rules should be crafted so that compliance with an approved Plan of Operations is sufficient to demonstrate compliance with any performance standards. Response: As stated in revised 3809.411(d), any terms or conditions BLM places on a Plan of Operations approval would be those needed to meet the performance standards in 3809.420. Comment: The proposed regulations and associated documents are incomplete and fatally flawed in that BLM has not evaluated or considered the adverse impact of "minor" editing to existing regulations. As BLM notes, the existing regulations have been in effect for almost 2 decades. During this time a significant number of applications have been submitted to BLM and approved as submitted or with modification. Some of these BLM decisions have been challenged, and there is now a body of decisions and litigation that reflects the language of the existing regulations. When modifying existing regulatory language to make it read better, BLM also creates vagueness, ambiguity, and uncertainty. This vagueness, ambiguity, and uncertainty create a new learning curve for BLM staff, the public, the mining industry, and owner/operators on whether the editing actually changed the existing body of decisions, and if so, to what extent. This uncertainty will cause delay in getting otherwise prudent and environmentally responsible mining operations approved and will open the door for frivolous appeal/litigation by anyone who does not want mining on federal land. Response: The draft EIS evaluates the impacts from complete implementation of the regulations as written. All changes from the existing regulations are considered in the impact assessment. However, the impact assessment is a prediction only, and does not guarantee against different future interpretations resulting from litigation. Minor editing between the proposed and final regulations is accounted for in the final EIS as changes to the proposed action. Comment: The term "recreational mining" has never been defined and therefore has no place in any federal EIS. Response: "Recreational mining" has been removed from the final regulations, and instead the focus is on casual use activities. The EIS still discusses mining for largely recreational purposes. Comment: The Glossary is missing key definitions used in the proposed regulations. "Mitigation" and "minimize" are examples. Consider vastly expanding the index to cover all major boldface sections in the text, many more words in the text appearing in the glossary, and critical terms. "Patents" and "claims" are not listed, for example, in the index. "Patent," but not "claim," is defined in an excellent glossary section. "Attenuation" appears in neither, understandably in light of its limited use, but it (p. 113) and all such terms should be properly defined in the text when they first appear. "Mitigation" is referenced in your state-by-state regulation summary and referred to on p. 176, but appears neither in the glossary nor the index, and calls for discussion. Response: The purpose of the Glossary is to aid the EIS reader and not to define terms for regulatory or legal purposes. Changes have been made to the glossary where needed to further clarify terms used in the EIS. Comment: Table 3-5 should show these data by year and indicate the seriousness of the noncompliance. Response: Table 3-6 shows the noncompliance and reason for issuance, which can be used to judge the seriousness of the noncompliance. A breakdown by year is not available. Comment: We disagree with the definition of "exotic species" on page G-7 of the Glossary as "an animal or plant that has been introduced from another continent." Since "native species" is defined on page G-15 as "a species that is part of an area's original fauna or flora," "exotic species" should accordingly be defined as "a species that is NOT part of an area's original fauna or flora." This is an important conservation issue in Nevada, where species native to one part of the state are increasingly being planted in other parts of the state where they do not occur naturally, sometimes with the potential for adverse consequences. Species native to the North American continent have the potential to do just as much damage as those from other continents, if introduced where they do not naturally occur. We recommend that the definition of "exotic species" be revised, and that use of species native to each project area be emphasized in the final selected alternative. Response: The final regulations do emphasize the use of native species in section 3809.420(b)(5). The definition of exotic species has been revised in the final EIS to reflect your comment. Comment: Figure 3-1 uses data that is 20 years old and does not reflect current land status in Alaska. Response: Figure 3-1 identifies class I areas for prevention of significant deterioration related to air quality. It does not reflect land status. This figure shows the mandatory PSD class I areas in the West established by the U.S. Congress on August 7, 1977, which also provided a mechanism by which each applicable air quality regulatory agency could establish more federal PSD class I areas. But only five tribal governments have conducted such PSD class I area redesignations since 1977. Of the nearly 625 current wilderness areas, only 120 are mandatory PSD class I areas. Figure 3-1 has been revised to include all five tribal class I areas and more detailed class I area boundaries. Comment: Pages R-1 to R-21, References: Some of the studies and sources cited by BLM in the draft EIS have been written by advocacy groups or individuals openly promoting an agenda. Although BLM can certainly reference these publications, it is inappropriate for BLM to cite to those reports as authority for a proposition. To do so raises questions about reliability, independence, and the nonbiased nature of the information BLM relies upon in its analysis. NEPA obligates the preparer of an EIS to use legitimate scientific information pertaining to the Proposed Action. Response: References are provided so that the reader knows what material was used by the authors to reach their conclusions. Readers can then judge the objectivity or reliability of the reference material for themselves. Comment: Table 2-3, Regulations Summary of Impacts by Alternative, you have not listed the impact of BLM costs for this added and sometimes judgmental regulation in Alternatives 3 and 4 to the taxpayers of this country. I would prefer to believe this was an oversight and not an intentional omission. Response: The costs of the alternatives to BLM, and eventually the taxpayers, is not the focus of the analysis. The analysis evaluates the regulatory program merits, assuming full implementation. Relative costs of the alternatives are estimated at the end of each alternative description in Chapter 2. Comment: As to the Table 2-3 "Mineral Exploration and Development Chart," your changes, which will cause a lot of headaches for the casual prospector in particular, will only cause a 5% reduction in all categories over a 20-year period. This surely is a case where costs of increased regulation and surveillance by BLM and the Forest Service outweigh benefits. Response: The environmental benefit is not based on the reduction in mineral activity, but on the improved environmental protection measures in the substance of the regulations. Comment: Number all pages, including those with Tables 2-2, and 2-3. Response: Page numbers have been added as requested. Comment: The EIS should discuss that in some states like California the counties are the regulating authority and that any discussion of state authority should be understood to mean state or county as appropriate. Response: Appendix D discusses the delegation of state regulation authority to the counties in California. Comment: Add something to the regulations that BLM can initiate a new reclamation plan like the state of Montana in the Metal Mine Reclamation Act section 82.4-337. Response: Proposed and final regulations at 3809.431 provide that BLM may require a modification to a Plan of Operations when needed to prevent unnecessary or undue degradation. This includes modifying the reclamation plan when needed to meet the performance standards. Comment: Draft EIS, [page 83, Mining Methods] "Ore from massive bodies is generally extracted by open pit mining," reference, Hartman 1992. Actually, the trend has moved more to underground mining and less surface disturbance for large ore bodies. Response: Open pit mining is still the dominant extraction method for large-tonnage, low-grade, disseminated deposits. Comment: While the EIS effectively discusses the alternatives and their impacts, it is important to note weaknesses and correct them. In our copy, the final sentence on page 9, Summary, Alternatives Considered but Eliminated, is clearly incomplete and page 10 is blank. What material are we missing? Response: The material at the end of the summary on Alternatives Considered but Eliminated was mistakenly left incomplete. The complete text is contained in the same section of the main draft EIS body on page 65. This has been corrected in the final EIS. Comment: [3809.433 and 3809.435] the last sentence of subsection (b) (in the 'Then' table) contains two defects. As minor detail, "areas" do not "operate." Rather, "operators use areas." It should be phrased, "You may continue to operate...." The important point is that, as written, it only expressly provides for the operator to continue to operate facilities, or in areas, not subject to the modification. The negative implication is that all use of facilities or areas in the modification area must cease (leaching must cease in the pad to be enlarged; excavation must cease in the pit to be laid back). This cannot have been intended. Operations may continue, under the existing terms of approval, in the area or facility subject to the modification. The sentence should read, "You may continue to operate under your existing Plan of Operations, including at those facilities and in those areas that are the subject to the modification." Response: In response, BLM intended that operations that are not a part of the modification, including portions of the facility to be modified, would not be subject to the new regulations and could continue to operate as approved under the existing Plan of Operations. The sentence has been deleted to avoid confusion. TOP Comment: Page 210, Use and Nonuse Values. Table 3-30 [is] mis-identified in the draft EIS as table 30. Response: Thank you. The text has been corrected in the final EIS. Comment: In general, the discussions relative to Alternative 2: State Management are brief and incomplete compared to the other alternatives. We recommend that descriptions of Alternative 2 summarize programs in all states where surface mining occurs. This could be provided in table format and would give the reader a better understanding of the relative effects of this alternative on resources. Response: State programs are described in detail in Appendix D. Comment: Forest Service Alternative. The term "significant" MUST be changed since it has a very specific meaning in NEPA. Even though the Forest Service regulations in 36 CFR 228.4(a) use the term "significant," BLM would eliminate much confusion with operators by using a different term. Generally, the Forest Service uses the term "significant" to mean any disturbance greater than casual use. If BLM were to adopt the same criterion, then items (a, b and c) should read "Are determined by BLM to cause more than a negligible disturbance of surface resources." Then the disturbance level is tied directly to the definition of casual use. Response: The term significant as used here was not intended to be applied in the NEPA context. BLM has dropped the Forest Service subalternative from the proposed final regulations. Comment: Please give a complete definition of what you mean by a "business day." This should be included in the list of definitions. Response: The term "business day" refers to any day on which BLM offices were open. BLM has dropped "business day" from the final regulations and is using calendar days unless specified otherwise. Comment: The Implementation heading on page 36, "Overall activity levels in the form of new or amended Notices and Plans are decreasing." I don't know if-I would be very interested to know where BLM got that information, because earlier, or later, in these 500-plus pages, the EIS says that they're very afraid that the requests for Plans and Notices and mechanical use are going to increase in tremendous numbers and be very degrading to the surface. Response: Projections for future activity levels are that they will remain steady to slightly decreasing. A complete set of assumptions for future mineral activity levels is presented at the beginning of Appendix E of the final EIS. Comment: Section 3809.2-1(b) discusses how the environmental assessment would be used to determine the adequacy of mitigation measures. We suggest using the term NEPA document rather than environmental assessment. Response: The regulation citation is to the existing 3809 regulations. In the proposed final regulations the term environmental assessment has been replaced with NEPA analysis. Comment: Subsection (d) [3809.2] should be revised as follows: This subpart applies to operations that involve locatable [delete metallic] minerals; [delete some industrial minerals, such as gypsum; and a number of other non metallic minerals that have a unique property, which gives the deposit a distinct and special value.] This subpart does not apply to leasable and salable minerals. Leasable minerals, such as coal, phosphate, sodium, and potassium; and salable minerals, such as common varieties of sand, gravel, stone, and pumice, are not subject to location under the mining laws. Parts 3400, 3500 and 3600 of this title govern mining operations for leasable and salable minerals. Response: This paragraph has been moved to 3809.2(e) and revised to make clearer the scope of the regulations for mineral commodities. Comment: Suggested change that in addition to compliance with the foregoing performance factors, your operation must not be found by BLM to involve undue degradation of the land. This could arise if the operation damages scenic, environmental, wildlife, recreational, cultural, or other valuable land resources and the damage singly or in combination, outweighs the benefits of exploitation of the particular mineral resource. This requirement arises from the provision in the Federal Land Policy and Management Act, which mandates action by the Secretary of the Interior to manage the public land to prevent undue degradation thereof. BLM will be glad to discuss with you the details and significance of this requirement in light of the facts surrounding your operation. Response: In the final regulations BLM has added a requirement to the definition of unnecessary or undue degradation that operations not result in substantial irreparable harm to significant resources which cannot be mitigated. Comment: I propose that 3809.11(h) be eliminated from the proposed regulation and that all language pertaining to the use of a suction dredge be eliminated from the proposed regulations. Response: Suction dredging falls within the scope of the 3809 regulations. Comment: I propose that the term "riparian" be eliminated as it would constitute a taking of state property. Response: Not all riparian areas are part of navigable waterways that belong to the state. The purpose of the regulations is to protect riparian resources that are under BLM management. Comment: The Secretary of the Interior claims that the existing 3809 regulations in 1981 define "Notice-level" operations as operations that "use mechanized earth-moving equipment and disturb 5 acres or less during any calendar year." (draft EIS, page 16) The actual definition for "Notice-level" operations did not mention the use of mechanized earth-moving equipment. (43 CFR Section 3809.1-3) In practice, "Notice-level" operations have almost always been run without earth-moving equipment. This error is consistent throughout the draft EIS; i.e., it infects the analyses of the alternatives. This error is so misleading as to render the draft EIS completely inoperative as an informative document. Decision makers with this misleading information cannot make an informed decision. Response: The existing regulations require a Notice-for disturbance exceeding casual use but disturbing less than 5 acres not in a special category land. Casual use is defined as only negligible disturbance not involving the use of mechanized earth-moving equipment. BLM has thousands of Notices on file for the use of mechanized earth-moving equipment disturbing less than 5 acres. The definition is functionally correct. Comment: The Secretary of the Interior claims that "The factual basis for the regulations and the legal status of the Notice were the main issues in the 1986 suit filed by the Sierra Club" (draft EIS, page 16). The Secretary also claimed that the Ninth Circuit Court of Appeals ruled that "a Notice, as constructed in the 3809 regulations, was essentially an enforcement tool (to remind operators of their reclamation responsibilities), and enforcement actions were exempt from the requirements of NEPA" (draft EIS, p. 17). Two court cases were cited. The first of the two cases cited, Sierra Club v. Penfold, (Dist. Of Alaska, 1987), did not rule on the Notice issue. Sierra Club V. Penfold (CA9, 1988) did rule on the Notice issue but not in the manner claimed. The Ninth Circuit stated, "We believe BLM does not sufficiently involve itself in the approval process to render Notice mine review a major Federal action requiring NEPA compliance. Without NEPA"s applicability, an EA on each Notice mine is not required" (Sierra Club v. Penfold, (CA9, 1988), 857 F.2d 1307 at 1314). The Court also rationalized that BLM would not be required to expend sufficient funds to trigger an EIS for each Notice-level of operations. Additionally, the Court rejected the challenge to the validity of the 1980 regulations permitting Notice-level operations on grounds that it was untimely filed. That Court also noted that the Notice-level regulation was issued with an EIS and that all Notices submitted under that regulation were planned for under NEPA and with an EIS, thereby not requiring a separate EIS for each Notice. Here the Secretary appears, through his misleading statement, to be rationalizing that regulations for Notice-level operations should be changed because of the Court's decision. He forgets that the EIS for the new regulations on Notice-level operations can and should encompass the potential impact of all such operations. This draft EIS did not reflect the Court's decision. Nor does it attempt to set up a programmatic plan for Notice-level operations as did the last EIS. Programmatic planning should have been an alternative, but it was not even discussed. Response: The cases are cited to make clear that BLM's position that Notices are not federal actions has been judicially reviewed and found to be correct. Any programmatic planning for multiple Notices on a national level is part of this EIS analysis. More programmatic analysis could be conducted by BLM field offices or states if later determined necessary. Comment: Regulations should be written in clear, unequivocal terms. Eliminate vague wording. Vague words, that are open to interpretation, should not be used. Such words can mean anything, either have too many loopholes that will not protect the environment, or will be used against the operator, and open the door to expensive legal maneuvering for which the public has to pay. Terms require precise definitions. Response: BLM has revised definitions in the final regulations in response to comments. These revisions should reduce or eliminate uncertainty about specific meanings. In addition, the preamble to the final regulations explains what BLM intended, or did not intend, regarding definitions or concepts. As future policy or definition questions arise, BLM will issue policy memorandums or manuals and handbooks to guide the field offices. Comment: The proposed regulation equates "minimize" with "avoid or eliminate," which is a corruption of the English language. For example, BLM includes the word "minimize" in a number of performance standards that are critical to preventing unnecessary or undue degradation. BLM's definition of minimize could mean reducing the adverse impact to the lowest practical level. Or depending on the BLM reviewer of the operation, it may also avoid or eliminate impacts, which is entirely contrary to the meaning of minimizing impacts. To prevent something like erosion, which is in the new proposed regulations, BLM not only has to implement these proposed regs, but also has to repeal the law of gravity. To prevent pollution or prevent acid rock drainage, not only does BLM have to impose these new regulations, but it also has to repeal several laws of thermodynamics that govern how aqueous geochemical reactions occur. This double standard entirely changes the meaning and scope of the particular standard and needs correction. BLM should not allow itself to be drawn into inconsistent implementation of this definition. Response: The definition of minimize has been revised in the final regulations to provide for reducing impacts to the lowest practical level. Practical means that the operation could still proceed with due consideration for other resources. BLM understands that some impacts or conditions cannot be eliminated. Comment: The draft uses "minimize" in a number of places and should instead use the term "prevent." Just because a mining company cannot afford to adhere to an environmental standard, it should not be permitted to ignore environmental protection standards. Both BLM managers and mining companies need and will benefit from language that describes in clear and straightforward language the environmental standards to which the companies will be held. Response: BLM recognizes that all impacts cannot be eliminated or prevented. The intent of the regulations is that impacts be minimized to the lowest practical level. Practical is not based upon what a company can afford but upon technologies and practices reasonably considered to be cost effective. Comment: In conjunction with a new proposal consistent with the National Research Council report, BLM should issue a new or supplemental EIS analyzing in detail the alternatives to BLM's proposed 3809 effort that were the subject of the NRC report conclusions and recommendations; and new regulatory flexibility analyses (RFA) to reflect the more limited issues addressed in the new proposal. The draft EIS and initial RFA (IRFA) prepared by BLM in conjunction with the proposed rule were completely inadequate, and the failures of those documents are magnified in light of the recommendations and conclusions of the NRC report. Response: The final EIS incorporates the conclusions and recommendations of the NRC report. Comment: Before instituting reform of the existing regulations, BLM should perform a careful analysis of the existing regulatory system, including a careful analysis of the adequacy of BLM staff and resources to implement 3809. There are doubtless many opportunities to enhance the effectiveness of 3809 implementation through measures such as reallocation of current resources, improved training, and development of policy manuals and guidance documents. Response: BLM has been reviewing program resources; developing training, policy, and guidance documents; and looking for opportunities to improve the program since its inception in 1981. BLM is proposing many of the regulation provisions because administrative changes have not proven effective in addressing program deficiencies. Comment: The CEQ rules require that an agency must revise a scoping determination "if substantial changes are made later to the proposed action, or if significant new circumstances or information arise which bear on the proposal or its impacts" (40 CFR Section 1501.7(c)). Under this standard, the NRC report must be considered in the scoping context because it presents "significant new circumstances or information which bear on the proposal or its impacts." Failure to consider the NRC report at this point and to allow public comment as part of the EIS process appears to be a violation of the CEQ rules and Administrative Procedures Act. Response: BLM did reopen the comment period upon release of the NRC report so that the public could comment on the draft EIS and proposed regulations in light of this new information. The NRC report and additional comments were used in further scoping and resulted in the formulation of more alternatives for the final EIS. Comment: Only now that the proposed rules have been given to the public and the existing regulatory system has been discussed by the National Research Council (NRC), can adequate scoping meetings be held to determine what would constitute the proper scope of any proposed changes to the existing 3809 regulatory program. The proposed rules are not only inconsistent with the recommendations of the NRC report, but in light of the NRC report, the proposed rules cannot be issued before completion of an adequate EIS. BLM needs to acknowledge the fact that its draft EIS is inadequate and reopen its scoping process to address the problem that exists with the 3809 program. Response: The scoping process does not close until the final decision is made. BLM did reopen the comment period on the draft EIS and proposed regulations in light of the NRC report. The final EIS adequately considers both aspects of the NRC report relevant to the 3809 regulations and public comments on the proposed regulations and draft EIS. Comment: It is readily apparent from the December 8, 1999, memorandum that the leadership of the Department of the Interior has already directed, for all intents and purposes, BLM to completely disregard the instructions from Congress in Sec 357 of H.R. 3423. Content aside for the moment, that the internal memorandum was not made available to BLM staff until almost 6 weeks after the comment period was reopened begs the question of how BLM was able to proceed in reopening the comment period if there was still a question of how Sec. 357 might apply to the NRC study and the proposed rule. Once BLM received the memorandum, the Administrative Procedures Act (APA) required BLM to republish the notice reopening the comment period and give the public the Solicitor's interpretation of 357. The APA and the tenets of fair and rational rulemaking require that the congressionally mandated 120 days for accepting public comment not begin until after BLM gives the public notice of the December 8, 1999 memorandum. Since both congressional action in the form of Sec. 357 and the "interpretive" memorandum issued by the Solicitor changed the scope of the rulemaking, NEPA procedures require BLM to withdraw the entire proposed rule and formally rescope the entire proposal. The mandate by Congress to include consideration of the NRC study recommendations has definitely caused issues to be raised that are not reasonable extensions of those already considered by the public. Response: The memorandum issued by the Solicitor on interpretation of section 357 of HR 3423 is merely the internal legal opinion of the departmental counsel. The memorandum did not change the scope of the rulemaking. BLM has considered all comments received on the proposed regulations and draft EIS in light of the NRC report. Only upon publication of the final regulations can the Department and BLM take a position on how the final regulations satisfy the requirements of section 357 not to be inconsistent with the NRC recommendations. Comment: In the October 26, 1999 notice reopening the comment period, BLM failed to address any of the issues raised above in our letters submitted in May 1999. BLM's failure to address these issues renders the proposal, even one that complies with 357 of HR 3423, vulnerable to legal challenge. BLM must correct these flaws, prepare a proper and legally sufficient supplemental EIS (SEIS), and publish that SEIS along with whatever rules BLM proposes for public comment before proceeding to a final rule. Response: The purpose of the reopening notice was to reopen the public comment period, not to respond to comments already received during the previous comment period. BLM has considered comments collected during both periods in preparing the final regulations and final EIS. Comment: An overarching comment is the absence of any summary and analysis of responses to the 21 "invited" issues listed in the February 9, 1999 Federal Register notice about the proposed rules that were later partially amended on October 26, 1999. There is overlap between the total 31 "invited" issues that BLM has not clarified. Response: BLM has considered comments collected in response to the Federal Register notice and reopening notice in preparing the preamble for the final regulations and the final EIS. Comment: The proposed regulations, draft EIS, and Benefit-Cost study do not reflect the significant findings and 16 recommendations in the Research Council study. The draft EIS is so inadequate that it precluded meaningful analysis. CEQ's NEPA regulations direct that an agency shall prepare a supplement to a draft environmental impact statement if "[t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts." 40 CFR Section 1502.9(c). The NRC report presents a textbook example for application of the CEQ rule. The NRC Committee was convened at the direction of the Congress to look at the adequacy of existing regulations for hardrock mining on public lands and to make recommendations for needed changes. The committee gathered data and information, including information that BLM did not consider the draft EIS, evaluated that data, applied its expertise to that data and analysis, and made recommendations relating to the proposed action that was the subject of the draft EIS. The congressional limitation that BLM may promulgate only rules that are not inconsistent with the NRC report is also a significant "new circumstance" that should be disclosed and discussed in a supplemental draft EIS. Therefore, BLM should withdraw the present rule and publish a new supplemental EIS evaluating the alternatives proposed in the NRC study. The NRC study is clear. Very few changes are required in the federal regulatory programs that govern hardrock mining. In fact, many of the BLM proposals conflict directly with the NRC conclusions and recommendations. BLM must, therefore, withdraw the current proposal and publish a new proposal, together with a revised EIS, that addresses only the limited regulatory gaps recognized by the NAS study. See, NRC report, pages 7-9. A supplemental EIS would be a suitable vehicle for a consistency evaluation. This consistency evaluation should consist of two elements: (1) an analysis of how and whether the proposed rule addressed recommendations and conclusions presented in the NRC study and (2) a detailed discussion of the consistency of each element of the proposed 3809 rule with the NRC study. Response: Because the NRC (1999) report was released after publication of the draft EIS, it is not considered in the draft EIS analysis. The final EIS has been updated to include the conclusions and recommendations of the NRC report. A table has been added to the final EIS that to compare provisions of the existing regulations and proposed final regulations with the conclusions and recommendations of the NRC report. The Proposed Action has been changed in response to public comments, the NRC report, and later congressional requirements. An additional alternative has been included in the analysis. But a supplemental EIS does not need to be prepared. CEQ regulations do not require a supplemental EIS if the agency does not substantially change the Proposed Action or the new information is not significant. That is the situation with the NRC report. Changes made to the final EIS do not constitute a substantial change in the Proposed Action because the preferred alternative in the final EIS is still within the range of alternatives analyzed in the draft EIS. Nor does the NRC report constitute significant new information or circumstances relevant to environmental concerns. The environmental issues discussed by the NRC report are also long-standing program issues that were previously identified through scoping. Alternative 5 of the final EIS does address specifically the regulatory gaps found by NRC (1999). The features of that alternative were for the most part already considered by the other alternatives and have been separately set forth in a separate alternative for ease of consideration. Comment: BLM should initiate a much more limited rulemaking that would implement only the regulatory changes recommended by the NRC Committee. BLM should consult with western states to determine how the NRC recommendations may already be implemented by state laws and regulations, and then consult with the states to craft appropriate regulatory language that would implement the NRC recommendations without preempting or duplicating existing state programs. If BLM decides to proceed with the current rulemaking, it should revise the proposed rules to conform to the NRC recommendations, revise the draft EIS to reflect the new information in the NRC report, and respond to comments, incorporate an "NAS Alternative" and republish both the proposed rule and draft EIS for public comment. Response: After the NRC released its report (NRC 1999), BLM consulted with the states on how to best address the report's recommendations. BLM has added to the EIS analysis an alternative that is limited to the NRC's regulatory change recommendations. In addition, BLM has revised Alternative 3, the Proposed Action , so that it is not inconsistent with NRC's recommendations. We have added Alternative 5 to cover the alternative to which you have referred. Comment: The public comment process on the proposed regulations, draft EIS, and Benefit-Cost study are segmented and fatally flawed in that the pertinent documents were not prepared concurrently and were unavailable for timely, meaningful review and comment. Response: BLM disagrees that the documents were unavailable. Although not all documents were included within the draft EIS, they were available upon request at various locations. Between the first comment period of 60 days and the second comment period of 120 days, individuals had ample opportunity to obtain, review, and comment on relevant documents. Comment: Because BLM's draft EIS fails to even consider a large number of reasonable alternatives, BLM must supplement its draft EIS. See 40 CFR 1502.9(a) (the 'draft statement must fulfill and satisfy to the fullest extent possible the requirements established for final statements...'). If BLM fails to consider these alternatives in its final EIS, any final 3809 rules will be invalid. See, e.g., Natural Resources Defense Council v. Hughes, 437 F. Supp. 981, 990 (D.D.C. 1977) (holding federal coal leasing program invalid for failure to adequately consider alternatives and enjoining the federal defendants from taking any steps to implement the program). Even if BLM addresses these alternatives in its final EIS, that alone will not be sufficient to cure the defects in the current draft EIS because the purpose of having two stages to environmental impact analysis is to allow a meaningful