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INSPECTION AND ENFORCEMENT
One commenter stated that, although many miners now obey the law and their own consciences when it comes to operating and cleaning up responsibly, unfortunately many others fail miserably. This statement was based on observations "for many years, both near home and also throughout the region." The commenter urged that land managers need enough teeth in the regulations to ensure the compliance of all. Other commenters asserted that the proposed inspection and enforcement rules do not go far enough and supported the stronger inspection and enforcement measures proposed for Alternative 4 of the draft EIS . Response: BLM generally agrees with the commenters, who urged strengthening of the BLM inspection and enforcement rules.
Response: BLM disagrees with the commenter and believes that the rules are not too broad and will be workable. BLM will use available resources to conduct inspections.
Response: BLM is clearly aware of budgetary issues for implementing these rules. These final rules reflect policy choices that BLM believes appropriate. BLM will determine whether budget and resources are sufficient for implementation and, if they are not, seek more resources if consistent with fiscal constraints and Administration priorities.
Some commenters suggested mandated inspection schedules for all operations, suggesting quarterly for example. For others, quarterly inspection is not sufficient, urging that every mine needs to be inspected at least monthly and a sophisticated BLM lab needs to be big enough to process samples of air, water, tailings, and dumps on a monthly basis, including chemical analysis of ground water, tailings, and air. Others suggested that the number and frequency of BLM inspections should be directly linked to documented risk evaluated in the NEPA compliance documents and incorporated in approved Plans of Operations. Response: BLM agrees that inspections are an important part of any regulatory program. The frequency of inspections is a tradeoff between having a strong BLM presence at mines to assure environmental compliance and the resources needed to conduct such inspections. BLM has decided to specify the inspection frequency for the more hazardous operations, at least four times a year, and not to mandate an inspection frequency for other operations. When necessary, the inspections will be unannounced.
Response: BLM agrees that it should coordinate both its inspection and enforcement with state and other federal agencies. Such coordination can become formalized through memorandums of understanding or agreements, as suggested by the National Resource Council (NRC) report, to prevent duplications of effort and promote efficiency. (NTC 1999, page 104).
Nevertheless, the operator had two concerns with the proposed rule. First, it is not clear that a mandatory inspection schedule is the most efficient use of BLM's limited resources. Second, BLM has considered its own inspection program in isolation from other state and federal regulatory authorities. The operator asserted that a mandatory inspection frequency is inappropriate if it has no relationship to the risk or compliance problems of the site to be inspected. For example, the operator pointed out that an Office of Surface Mining rule eliminates a mandatory inspection frequency for certain categories of coal mines "to free resources that can focus on existing or potential problems at high risk sites." 59 Fed. Reg. 60876 (Nov. 18, 1994) (OSM rule reducing frequency of inspections for abandoned, but not completely reclaimed coal mines). The operator concluded that the goal of quarterly inspections is useful but such inspections should not be written into the regulations as mandatory. The operator suggested that as an alternative, BLM should consider regulatory language that directs BLM field officers to target their inspection and compliance resources at high- risk sites or at sites during critical periods (such as placement of liners or during construction). The operator also proposed that the regulations include a provision to require a followup inspection when a major notice of noncompliance has been issued. These provisions would give BLM more flexibility and would be more effective in preventing unnecessary or undue degradation than a formulaic approach to compliance inspections. Response: BLM fully intends to cooperate with other agencies with regulatory jurisdiction over mining operations. Nevertheless BLM believes it important to codify its existing policy of four inspections a year for operations that use cyanide or other leachate or that have a significant acid-generating potential. This policy has worked so far, and BLM wants to assure itself and the public that it will continue, thus satisfying BLM land management responsibilities. The reference to the OSM rule is not on point because that rule dealt with abandoned coal mines where continued quarterly inspections serve no purpose. Similarly, BLM would use a rule of reason and not continue quarterly inspections of abandoned mines, where more frequent inspections serve little purpose.
Commenters stated that BLM's requirement for a minimum frequency of inspections appears to be based, at least in part, on an incomplete assessment of other state and federal regulatory programs and that BLM failed to properly account for the number of inspections required by states (e.g. pursuant to the air, water, waste, and cyanide processing programs) as well as inspections by EPA for ongoing oversight of the federal environmental permitting and enforcement programs. The commenter suggested that if it places its inspections in the context of all federal and state inspections, BLM can more reasonably allocate its resources. On a technical level, one commenter asked that BLM define the term "significant potential for acid drainage," asserting that there is a wide range of confusing and ambiguous applications of the concept of a mining operation that may or may not produce significant acid rock drainage. These applications can range from standard core drilling of a high-sulfide mineral deposit, to open trenching, to underground mining, to open pit mining, to road or airport construction that will expose sulfide-bearing country rock. Although there may be high acid rock drainage (ARD) potential, the scale of the mining operation may not be threatening. Conversely, a large-scale operation in an area with low ARD potential might be of significant concern. The commenter suggested that a table such as BLM has used in other parts of the proposed 3809 regulations would help sharpen BLM intentions and provide for uniform application among resource areas, districts, and states. Response: BLM appreciates the comment and will consider developing policy guidance to assure consistency among its offices.
Response: Trained, professional BLM inspectors will perform their jobs using their best judgment in determining whether operators comply with their approved Plans of Operations. Compliance with the approved Plan is the key. Although the rules contain standards such as "minimize" rather than numeric standards, the Plans will specify the activities that are allowable, and where suitable, the acceptable parameters at a particular location.
Response: To perform its inspections properly, BLM needs to be able to inspect whenever, wherever, or whatever is required to assure compliance with its regulations on the public lands. Many mining operations are conducted around the clock, and problems can arise anytime and anywhere on a mine site. When appropriate, BLM inspectors may allow operator representatives to accompany them, but not to the extent of interfering with their inspections. BLM expects that its inspectors will ordinarily inform operators of their presence. BLM inspectors will conform to health and safety mandates.
Response: We do not view it necessary for our rules to allow citizens to request inspections. BLM's offices already allow anyone to inform BLM of the existence of problems and to request inspections. BLM is not aware of a lack of responsiveness of its personnel that needs to be addressed in its rules.
Response: Although BLM understands the commenters' concern, the final rules do not address who can or cannot perform inspections. BLM agrees that inspectors need to be impartial in enforcing the rules, but persons who are involved in making decisions on Plans of Operations should not necessarily be precluded from determining whether operators have complied with the Plans. In fact, the persons involved with permitting may be more familiar with what is allowable under a Plan of Operations than a person who has had no earlier involvement.
Response: As referenced in the rule for the convenience of readers, inspection of residences on the public lands is covered by 43 CFR 3715.7. Section 3715.7(b) provides that BLM will not inspect the inside of structures used solely as residences unless an occupant or court of competent jurisdiction gives permission. For more information on BLM's occupancy rules, see the July 16, 1996 Federal Register preamble at 61 FR 37125.
Response: Although BLM will perform inspections, the rules also require monitoring plans under which operators perform monitoring. Despite the concerns expressed by commenters, operator monitoring can be an effective way to keep track of activities at an operation. Records have to be maintained, and falsification or misrepresentation is a violation. One of the most controversial issues in the proposed rule, generating many comments, was BLM's proposal to allow the public to accompany BLM inspectors on mine inspections. Under the proposal, BLM would have been able to allow persons to accompany a BLM inspector onto mining sites, as long as the presence of the visitor would not materially interfere with mining operations or BLM's activities, or create safety problems. Under the proposal, when BLM authorized a member of the public to accompany the inspector, the operator would have been required to provide access to operations. Opposition to Public Participation in Inspections
Commenters asserted that general citizens should not be allowed to participate in inspections. They stated that average people usually do not understand the technology being used in mining or extraction. Inspections should be carried out by authorized professionals who understand the science and technology being used in mining. It is the job of these professionals to evaluate the success or problems at each specific site. A commenter stated that, "BLM inspectors should only be accompanied by nonpartisan members of other agencies who would weigh in with experience, knowledge, education and advice. Allowing members of the public with preconceived conclusions and opinions on mining would only serve to muddy the process and open the operator as well as the BLM to undue harassment, expense and strategic litigation." One commenter stated that mines and exploration projects usually provide tours to any interested people. These tours are designed to show and explain the mining process. People who want to comment after tours could easily do so to the inspection and enforcement agencies. Specific commenter objections to the BLM proposal included the following: Undue influence-The only members of the public likely to accompany a BLM inspector onto a mine site are apt to be political opponents of the mine or other individuals with anti-mining agendas looking for a means to harass the mine operators. To allow "biased environmentalists" along will create unnecessary and undue influence. Safety considerations-Allowing the public on mine sites with BLM inspectors poses an unacceptably high risk. There is no guarantee or assurance of personal safety for visitors. The Mine Safety and Health Administration (MSHA) requires that BLM inspectors have MSHA training to enter certain hazardous areas of the mines such as pits and mills. Citizens do not have that level of training and would not be allowed in most areas of a mine. Untrained people could cause serious accidents, if not a fatalities. Liability-BLM and mine operators could incur liability for injury or death of the public or BLM people resulting from untrained people being allowed on mining sites. BLM could be liable for public claims of exposure to toxic chemicals while at mines or mill sites. BLM people could be at increased risk for being responsible for the untrained accompanying public. One commenter asserted that it is unreasonable to require the company to carry liability insurance for the public at large on-site and it is also unfair to BLM employees. There is no place for the public on mine sites unless the company provides the tour and can set access limits. It is unreasonable for the Federal Government to establish regulations that create unnecessary risk to the industry and the public, unless the government is willing to assume all liability created by this action. Authority-Commenters asserted the "BLM does not have the authority to allow citizen inspections, and therefore the citizen inspection provision should be deleted. FLPMA is silent on this issue and cannot be cited as providing such authority.... In fact, FLPMA prohibits such citizen inspections.... Citizens cannot be permitted to accompany BLM inspectors without the specific consent of the mine operator." A commenter asserted that allowing members of the public to accompany BLM officials when they make inspections would be a government authorization of trespass. Confidentiality-Allowing the public to accompany BLM officials during a site inspection raises serious issues of confidentiality. "There is nothing in the proposal to constrain citizens from disseminating and disclosing information about the confidential business materials and processes they may encounter during an inspection. Nothing could stop a potential competitor from accompanying BLM as a ruse to obtain such information, and due to the difficulty in proving disclosure of confidential information, it would be hard to rewrite this provision in a manner that would allow meaningful policing of a nondisclosure agreement." A company whose shares are traded on any stock exchange cannot allow members of the public to gain insider information that would affect the trading of the company's stock. This issue is of critical importance during exploration stages when a mineral discovery is being made. Vandalism and Theft-Small miners have a lot of supplies and small equipment at their remote mining camps. Visits by non-BLM people to claims might result in vandalism, loss of equipment, or both. Citizens entering mining operations could learn where each piece of equipment is located and what is vulnerable to acts of destruction. Workload-Public participation in field inspections could be a cumbersome task if enough people show up at some remote site and need to be transported. "BLM should also consider how the presence of the public may affect the conduct of an inspection. Certainly, a trained inspector who is familiar with a mine site will be considerably slowed by the presence of untrained members of the public. Longer inspections will require more inspectors or fewer inspections will be completed." Comments also questioned how citizen involvement in inspections would work. For instance, if BLM visits the site, is this the point when the proposed citizen inspector accompanies the BLM inspector? Will the operator be told that citizen inspectors are coming, and under what circumstances will the inspection be conducted? Support for Public Participation in Inspections
Allow the Public on a Case-by-Case Basis-A commenter agreed that the public should be kept away from any potentially dangerous situations such as underground mines but asserted that there are safe opportunities for the public to view what is going on. Allowing inspections may have to be considered on a case-by-case basis rather than opening everything up to inspections as was proposed. The commenter asserted that the public should be allowed to see what's happening, with some restrictions, and the mining industry should be willing to go along with that, especially since they are always complaining about the public not understanding the industry. Response: BLM has carefully considered all of the comments on the public accompanying BLM inspectors on inspections, as well as its own experience on those few occasions when the public did accompany BLM inspectors. BLM has decided not to finalize the provision as proposed. Many of the objections and risks pointed out by the commenters have merit. In addition, BLM's experience is that site visits typically become more like tours than inspections, and inspectors have to reinspect operations to perform their jobs properly. Thus, BLM has concluded that the provision as proposed would not be workable.
Response: BLM agrees that it is important to have strong enforcement remedies to help prevent unnecessary or undue degradation of the public lands. BLM recognizes that many operators conduct operations responsibly in compliance with regulatory standards. These final rules will not impede such operators in continuing their lawful conduct. On the other hand, violations do occur, and BLM must be able to deal with those in a firm but fair manner. The rules give BLM the flexibility to take enforcement action when warranted, or to defer such action if violations will otherwise be timely corrected.
Response: BLM's existing rules do not give adequate enforcement authority. Notices of noncompliance are not self-enforcing, and BLM cannot compel compliance without seeking judicial enforcement, a lengthy and uncertain process that does not necessarily lead to immediate compliance. See the NRC (1999) report, page 103. These proposed final regulations will increase incentives for operators to correct violations in a timely manner. Although BLM's "use and occupancy" rules adopted in 1996 (43 CFR subpart 3715) address certain abuses on the public lands, these rules are somewhat limited in the types of activities regulated, focusing largely on whether activities are "reasonably incident" to mining. The enforcement rules adopted today are broader than the 1996 rules and cover all activities the operator engages in, and in particular whether unnecessary or undue degradation occurs. BLM acknowledges that RCRA and CERCLA provide a basis for enforcing certain activities and will work with EPA as appropriate so as not to duplicate enforcement actions. But BLM needs its own enforcement provisions as the land manager of the public lands.
Response: BLM recognizes that other federal and state enforcement agencies share the responsibility for regulating mining operations on the public lands, and that with respect to certain matters, other agencies will have the lead responsibility. BLM will work with these agencies so as not to duplicate enforcement, and to refer violations to other agencies as appropriate. Despite this coordination, BLM believes it important to have its own enforcement actions to assure the prevention of unnecessary or undue degradation of the public lands.
Response: BLM agrees that it is important to cooperate with the industry, and vice versa.
BLM intends to work with the industry to assure compliance with its rules, but is adopting
the new rules to provide remedies where needed. Although the high-visibility problems
mentioned by the commenters perhaps could have been limited or avoided through better
enforcement of existing authorities, these problems
Response: BLM will continue to encourage cooperation between the regulated community and the regulators. Enforcement actions are discretionary and will be used when needed, but cooperation and voluntary compliance remain important.
Response: BLM perceived a need to strengthen its enforcement remedies and so informed the public in the draft EIS and the proposed rule. People's views may differ from BLM's, but that does not mean that BLM activities are legally insufficient.
Response: BLM agrees that improved implementation and training are useful, but they do not negate the need for better enforcement tools.
Response: Although the goal of BLM and the Forest Service's having the same definitions and standards is laudable, the two agencies operate under different organic statutes and have different management responsibilities. BLM will continue to confer with the Forest Service to see whether common standards are possible.
Response: BLM disagrees that it should wait for further information before updating its enforcement regulations. The enforcement provisions adopted today provide practical methods for BLM to assure compliance with its rules. Hopefully, commenters are correct and BLM will not have the widespread need to use enforcement actions to compel compliance, but it is helpful to have such authority to use when necessary. Moreover, the existence of such remedies, whether employed or not, should help prevent unnecessary or undue degradation of the public lands. NRC Recommendation 6
Commenters asserted that the NRC concluded that BLM does not have administrative penalty authority under current law. One state agreed that congressional action would be needed to give BLM authority to issue administrative penalties. Therefore, it considered NRC Recommendation 6 a proposal for legislative change, not a change in the regulations. In addition, the commenter noted that the NRC Committee endorsed only administrative penalty authority. The commenter concluded that proposed revisions to the 3809 regulations include broad new inspection and enforcement authority for BLM, which is neither authorized by statute nor required to administer an effective program.
Response: BLM disagrees with the commenters' assertion that the NRC report concluded that BLM did not have authority to establish administrative penalties. The NRC was neutral on the issue of BLM authority to establish administrative penalty authority and stated that BLM should seek more authority from Congress "if statutory authorization is necessary...." ( page 104). BLM also disagrees with the characterization of the Recommendation as solely a proposal for legislative change. The NRC report discussion (page104) made it clear that if authority exists, BLM should otherwise revise and expand the existing enforcement provisions in the 3809 regulations to include administrative penalty authority for violations of the regulations.
Response: BLM disagrees that the final enforcement rules are inconsistent with the NRC report recommendations. BLM construes the term "administrative penalty" as used by the NRC to encompass the full range of proposed administrative sanctions, including suspension and revocation orders, as well as monetary penalties. Recommendation 6 was intended to make notices of noncompliance a credible and expeditious means of securing compliance (NRC 1999, page 103), and the NRC report stated in connection with the recommendation that an operator be given the opportunity to rectify the circumstance of noncompliance (page 104). This applies equally to suspension and revocation orders, as to monetary penalties. To the extent that the NRC Report recommendations simply do not address certain provisions of the final rule, such as inspection, no inconsistency exists with the recommendations. Therefore, there is no need to defer changes to the inspection and enforcement rules for purposes of consistency.
The commenters concluded that the best way to assure that BLM field people take the required measures to ensure compliance with the regulations is to make such enforcement mandatory, i.e. require BLM to take enforcement action and to assess fines against all observed violations. For instance, a commenter stated that operations that are clearly hazardous to the environment and to human health and public safety should be closed down until brought into compliance. Others suggested that all violations should be documented and, when the health of the watershed is threatened, operations should be ordered to cease until operators can show compliance. Others urged enforcement to protect ground water from violations. Without mandatory enforcement, commenters asserted that BLM field people will experience the same ambiguity and confusion as to what degree of enforcement is suitable. Commenters objected to the discretionary enforcement system proposed by BLM being rendered meaningless by poorly trained agency staff who are more likely to "try to work things out" with representatives of the mining industry for conflicts over land regulations rather than take action to compel compliance with the regulations. In the commenters' view, even for gross abuse of public resources at a mine site, BLM will not mandate that enforcement actions be taken. The commenters state that this approach to enforcing the proposed regulations fails to create a climate for effective regulation. Thus, some commenters conclude, allowing wholly discretionary enforcement of violations in the field would be inconsistent with the NRC report recommendations. Commenters representing state regulatory authorities urged BLM to make enforcement discretionary, to prevent BLM and the states from getting caught up in disputes as to what constitutes a violation, and to avoid suits to compel compliance with duties established by the rules. Commenters supporting discretionary enforcement asserted that there are many ways to gain compliance, and issuing violations with civil penalties should be looked at as only one possible tool. Some stated that coordination on enforcement with state regulatory agencies is a necessity and states should be allowed to take the lead on enforcement. These commenters asserted that state enforcement can usually occur in a more timely manner, resulting in improved on-the-ground compliance. Response: BLM agrees that a firmly administered enforcement program will improve compliance but concludes that such a program is possible without mandatory enforcement. Under the final rules, trained professional BLM inspectors will exercise their judgment and take enforcement actions when needed. Mandating enforcement action for every violation, no mater how small, would clog the system with unnecessary administrative proceedings and delays and tend to create the confrontational atmosphere that BLM, the states, and the regulated community wish to avoid. BLM intends to coordinate with state regulators and, where appropriate to assure timely compliance, allow other federal agencies and states to take the enforcement lead. What BLM has tried to do in these regulations is to provide enforcement tools for BLM inspectors so they will not be hamstrung by the lack of administrative remedies. Providing these tools will strengthen BLM enforcement, without requiring that operators be cited for every violation. BLM also disagrees that the NRC report recommends that BLM enforcement be mandatory rather than discretionary. To the contrary, the NRC report suggests that BLM acknowledge and rely on enforcement authorities of other federal, state, and local agencies as much as possible (NRC 1999, page 104).
Response: BLM disagrees with the comments. Multiple provisions of FLPMA and one under the Mining Law of 1872 authorize establishing administrative sanctions, including suspension and revocation orders and monetary civil penalties. These provisions include the first and last sentences of 43 U.S.C. 1732(b), 43 U.S.C. 1732(c), the first sentence of 43 U.S.C. 1733, 43 U.S.C. 1740, and the authority to prescribe regulations under 30 U.S.C. 22 (R.S. § 2319). BLM also disagrees with the commenters' assertion that the provision allowing the Attorney General to seek the judicial imposition of injunctive or other judicial relief, 43 U.S.C. 1733(b), limits the Secretary of the Interior's administrative authority. That section, together with a portion of 43 U.S.C. 1733(a) establishing criminal violations, provides affirmative authority for judicial enforcement but do not address or limit the scope of the Secretary's authority to regulate activities on the public lands under other provisions of FLPMA and to establish administrative enforcement remedies.
Response: BLM acknowledges that the previous rules reflected a permissible implementing of FLPMA, but not the only permissible one. BLM 's earlier approach was to ask the Attorney General to initiate a civil action under 43 U.S.C. 1733(b) for failure to comply with a notice of noncompliance, without the intermediate step of BLM issuing an administrative order, for instance, directing an operator to suspend its operations. Section 1733(b), however, does not circumscribe the Secretary's actions before the Secretary asks that a civil action be initiated. The current rule takes a different approach than the previous rules, one that is also consistent with Section 1733(b). Under these proposed final regulations, before seeking judicial enforcement BLM may issue enforcement orders in addition to issuing a notice of noncompliance, including issuance of suspension orders, plan revocations, or monetary penalties. If an operator does not comply with any of these administrative orders, the Secretary may then seek judicial enforcement under section 1733(b).
Response: BLM disagrees with the commenter's interpretation of section 1733(c) of FLPMA. FLPMA Section 1733(c)(1) authorizes the Secretary of the Interior to enter into contracts for the assistance of and use local officials in enforcing federal laws and regulations for the public lands or their resources. That section does not constrain the Secretary from establishing needed enforcement regulations.
Response: BLM disagrees with the assertion that Plans of Operations are not instruments providing for the use, occupancy, or development of the public lands, and that suspension or revocation of a Plan of Operations under FLPMA section 302(c) interferes with an operator's rights under the Mining Law of 1872. Rights under the Mining Law are subject to the FLPMA section 302(b) requirement to prevent unnecessary or undue degradation of the public lands. Approval of the Plan of Operations is the key to allowing use, occupancy, and development so as to prevent unnecessary or undue degradation. Until BLM approves a Plan of Operations, an operator cannot use, occupy, or develop its mineral interests in the public lands even if it has rights under the Mining Law. Thus, a Plan of Operations is the instrument allowing an operator to proceed with its use, occupancy, or development. And suspension or revocation of the Plan of Operations for violating a Plan does not interfere with operator's rights under the Mining Law because such rights depend upon operator compliance with the approved Plan. Accordingly, section 302(c) is a statutory basis for the sections providing for suspension and revocation of Plans of Operations.
Response: Subpart 3809 does not cover the standards for referral to the Department of Justice for judicial enforcement. These standards will either be handled on a case-by-case basis or be the subject of BLM guidance.
Response: BLM agrees with these comments and has kept these provisions in the proposed final regulations.
Response: Although BLM understands the effect of a permit block provision, we chose not to include such a provision in the Proposed Action. A permit block provision is analyzed in the EIS Alternative 4.
Response: Such a provision is beyond BLM's authority and would require a legislative change.
Response: BLM agrees that in many instances notices of noncompliance will lead to successful resolution and abatement of violations. In some instances, however, notices of noncompliance will not completely resolve the issue, and the danger of harm will continue. That is when the other remedies can prove useful. The rare use of judicial enforcement in the past may also be attributed to the difficulty of successfully initiating civil actions rather than the lack of need for such actions.
Response: BLM believes that a suspension is warranted under section 3809.601(b)(2) in either situation when an operator fails to correct the significant violation within the allotted time. The danger of environmental or other harm from an unabated violation justifies a suspension. And BLM also believes that it should be authorized to direct an operator to suspend activities that substantially deviate from what was approved.
Response: In implementing the procedure contemplated by FLPMA section 302(c), trained BLM inspectors will carefully exercise their judgments. In the absence of imminent danger, an operator can raise objections to the state director. And operators will be able to immediately appeal temporary immediate suspensions to the Interior Board of Land Appeals. Although judicial rulings may ultimately occur, BLM has the initial responsibility to administer the provisions of FLPMA, including section 302(c).
Response: Due process is satisfied through the administrative appellate process. Any BLM enforcement order may be appealed to the Interior Board of Land Appeals, and a stay may be requested under the provisions of 43 CFR 4.21. Thus a temporary suspension is not final agency action, for which review is available in federal court. BLM enforcement actions do not impair rights of claimants under the mining laws because such rights do not include the right to operate in a manner that causes unnecessary or undue degradation.
Response: Although BLM recognizes that failure to comply with the regulations and an approved Plan of Operations constitutes unnecessary or undue degradation, the suspension rules implement FLPMA section 302(c), as well as FLPMA section 302(b). BLM believes that the terminology of the final rule provides a better sense of when suspension orders can be issued than the use of the phrase "unnecessary or undue degradation."
Response: Although we recognize the advantages of having both agencies using comparable standards for noncompliance and temporary suspension, the two agencies' regulations are based on different authorities.
Response: In addition to subpart 3809 specifying appeal procedures in section 3809.800, each enforcement order ordinarily will inform recipients of their appeal rights.
Response: The process set forth in section 3809.601(b) is needed to implement the notice and hearing requirement of FLPMA section 302(c). BLM agrees with the commenter that the BLM notification of its intent to issue a suspension order (section 3809.601(b)(1)(ii)) can be combined with notification of the opportunity for an informal hearing (section 3809.601(b)(1)(iii)).
Response: BLM agrees that the operations of an entity that files for bankruptcy should be subject to continual scrutiny to assure that regulatory obligations are satisfied. This can occur without a specific provision in the regulations. BLM also agrees with the commenter that it is important to assure the adequacy of the financial guarantee of an operator in bankruptcy. BLM believes, however, that enforcement should await the occurrence of violations and that a bankruptcy filing does not necessarily represent the existence of violations. Once a violation occurs, BLM will take whatever action is best to assure that the violation will be corrected.
Response: BLM has chosen not to make these suggested changes because the suggested reordering does not appear to be needed because it would not differ much from the final and proposed rules. Even with the changes there would not be a complete correlation with subpart 3715.
Response: BLM is not authorized to and declines to establish BLM liability for its own actions. Every agency's orders are overturned occasionally for various reasons. This is not the basis, however, for holding the regulators liable. BLM does not intend to take enforcement actions in an arbitrary and capricious manner.
Response: The rules do not provide for informal BLM hearings after enforcement actions unless the recipient requests state director review under section 3809.801. After an enforcement action, the recipient may appeal to the Interior Board of Land Appeals.
Response: We agree that it is important to achieve operator compliance with our regulations and have provided a range of actions we can take, including administrative enforcement orders such as suspension and revocation, administrative penalties, and judicial intervention. The proper remedy may differ in individual cases, but the rules provide flexibility for us to use, whichever one will cause the violations to be corrected. A remedy is required to prevent unnecessary or undue degradation, but we have discretion in how to achieve that goal.
Response: We will do what is needed to achieve compliance, but we have a variety of means to do so. Plan revocation is only one such means.
Response: BLM generally agrees that a Plan of Operations should not be revoked for one violation. But if the violation is significant enough, with the potential to cause serious harm, and the operator refuses to correct the violation, BLM needs to be able to consider whatever remedy will best achieve compliance.
Response: Revoking a Plan of Operations does not terminate an operator's obligation to satisfy outstanding obligations. The authorization to perform the activities to fulfill such obligations can derive from the original Plan or be part of the order revoking the Plan. Because revocation would be a continuation of existing obligations, BLM does not contemplate formal public participation. On the other hand, BLM intends to coordinate with state and other interested federal agencies before revoking a Plan of Operations.
Response: The final rule will continue to allow service to be complete on the basis of actions at the project area because persons conducting activities at the site of an operation will ordinarily be responsible. But BLM agrees that an information copy should be promptly mailed to the operator or the operator's agent to notify responsible management persons not at the mining site of the BLM actions.
Response: We intend to consult with other regulators, both state and federal, when it takes enforcement action. Private entities, however, will not ordinarily be party to enforcement actions and will not necessarily receive copies of enforcement orders.
Response: Section 3809.604(a) identifies the availability of civil actions in U.S. district courts, as provided in FLPMA section 303(b) but does not preclude states from enforcing their programs in state courts. BLM will work with state regulators to determine which entity-state or federal-should have the enforcement lead, and the proper judicial forum to initiate any required civil action.
Response: Implementation will occur on a case-by-case basis. Where necessary, BLM will issue guidance to assure consistent application of the enforcement provisions.
Response: These rules do not establish new criminal sanctions, and BLM does not file criminal charges. These rules are intended to bring existing criminal provisions to the attention of the regulated community, and for that reason they are included in subpart 3809. The conduct that is criminal is provided for in 43 U.S.C. 1733(a).
-Submitting an incomplete Plan of Operations. -Holding financial guarantees that BLM has determined (in its revision of an estimate of reclamation costs under section 3809.552(b) is no longer adequate. -Failing to modify a Notice under section 3809.331(a)(2) that BLM thinks (and the operator does not think) constitutes a "material change" to the operations. The list of "violations" of the rules is endless, and most "violations" are minutiae. If a Plan is incomplete, this is not a crime; the Plan must be completed before processing can occur. Response: Section 3809.605 has been added to the proposed final regulations to include prohibited acts under this subpart. FLPMA establishes that knowing and willful violations of the regulations can be prosecuted under section 1733(a). BLM expects that U.S. Attorneys will continue to exercise their prosecutorial discretion in determining when to bring criminal prosecutions.
Response: Although we disagree with the assertion that prosecutions cannot occur under 43 U.S.C. 1733(a) until we change 43 CFR part 9260, we agree that to avoid confusion, subpart 9263 should contain a cross-reference to subpart 3809. Thus, this final rule incorporates such a cross-reference in subpart 9263. Again, the statute controls, regardless of what is in either subpart 3809 or subpart 9263 of BLM's regulations. The absence of such a cross-reference would not invalidate any properly obtained conviction under 43 U.S.C. 1733(a).
Response: Criminal enforcement under 43 U.S.C. 1733(a) neither amends the Mining Law nor impairs rights established under that law. The Mining Law creates no right in any person to violate BLM's lawfully promulgated regulations, particularly those implementing the unnecessary or undue degradation standard of FLPMA section 302(b), which does amend the Mining Law.
Response: BLM by regulation will not define an element of a criminal statute. That is for the courts to decide.
Response: 43 U.S.C. 1733(a) applies by its own terms to any person who knowingly and willfully violates a regulation issued under FLPMA. There is no exception for existing approved operations. To the degree, however, that subpart 3809 excepts existing approved operations from new regulatory requirements, such requirements cannot form the basis for criminal conduct.
Response: BLM is informing the regulated community of existing statutes that contain the penalties the commenters object to. These cannot be changed by BLM regulation.
-What does BLM consider to be a false statement? -Will BLM include false statements or accusation made by private parties against operators during comment period for bonding or other NEPA processes? -What standards will BLM use to determine if statements are false? Response: U.S. Attorneys initiate prosecutions under 18 U.S.C. 1001. The courts interpret that law, and a body of case law exists interpreting 18 U.S.C. 1001. BLM defers interpretation of the statute to officials with responsibility to enforce that statute.
Response: We agree with the comments supporting the use of administrative penalties.
Response: The suggestion in this comment is beyond the rulemaking authority of the Secretary of the Interior.
Response: BLM disagrees with the assertion that the provision allowing the Attorney General to seek the judicial imposition of injunctive or other judicial relief limits the Secretary's administrative authority. That section, together with a portion of 43 U.S.C. 1733(a) establishing criminal violations, provides affirmative authority for judicial activity and does not address the scope of the Secretary's authority to establish civil penalties under other provisions of law.
Response: Although BLM cannot assure that the imposing of civil penalties will always cause entities to come into compliance, the added administrative sanctions will give more incentive for operators to do so. A person may decide to delay correcting a violation to see if a court will issue injunctive relief. But that person may decide to abate a violation in the face of a federal administrative order directing him or her to suspend operations or a continually accruing monetary penalty. BLM also is not persuaded that the existence of new bonding authorities will lead to greater success in bringing civil actions for injunctive relief.
Response: BLM agrees with the policies embodied in the NRC report to the extent to which reliance on other agencies will achieve compliance with BLM regulations and public lands and resources will be adequately protected. Including the suggested limits in the regulations, however, could be construed to establish jurisdictional bars to BLM's enforcement. Such limits would complicate individual enforcement actions with issues related to matters such as the extent of BLM reliance on other agencies. These types of issues can lead to disputes between BLM and the states, as is evidenced by the experience of the Office of Surface Mining in implementing 30 U.S.C. 1271. BLM believes it preferable, instead, to develop understandings and agreements with states and other agencies to properly exercise its discretion to defer to other agencies, without including jurisdictional bars in the BLM regulations.
Response: Although the use of civil penalties could increase BLM's workload and add more appellate cases, we disagree that the added resource needs will be as dramatic as the commenters assert. BLM does not expect that many civil penalties will be issued, particularly if states and other federal agencies take the enforcement lead in many instances.
Response: BLM believes that the administrative civil penalty system is fair. The issuance of monetary penalties in any amount is discretionary. In many instances, BLM will not issue any monetary penalty. The $5,000 per day maximum penalty is just that, a maximum. BLM does not expect that penalty amounts will always approach the maximum, particularly if a violation is an isolated incident and an operator is diligent, prudent, and acting in good faith. The proposed final regulations contain criteria for assessing penalties, with suitable reductions for small entities. Setting a maximum amount of less than $5,000 per day may be inadequate to reflect the harm caused by serious violations. Before any penalty becomes final, the recipient may petition the Department of the Interior, Office of Hearings and Appeals for a hearing. Thus, a person assessed a penalty can explain extenuating circumstances and seek a reduction in the penalty amount or a determination that the violation did not occur. The rules allow the BLM state director to be involved in settlements of civil penalties, but for due process purposes, prefers that hearings be held by the Office of Hearings and Appeals, whose Hearings Division has extensive experience with monetary penalty hearings. BLM generally agrees that it will not assess penalties until it has issued a noncompliance and there has been a failure to comply. But occasionally a serious violation may warrant the issuance of monetary penalty, or another agency may have issued the enforcement order and BLM does not wish to duplicate that order.
Response: BLM would prefer that an operator correct violations. Administrative enforcement orders and civil penalties give an operator action incentive that does not exist through the financial guarantee. In addition, forfeiting and collecting on a financial guarantee can be a lengthy process and may not be warranted for individual violations.
Response: The same difficulties and uncertainties exist for obtaining judicial imposition of civil penalties under 43 U.S.C. as with getting injunctive relief under that section. Persons who believe they are treated unfairly by the Department may appeal an IBLA ruling to a district court.
Response: The appeal of a civil penalty involves an individual factual dispute over a specific application of the regulations. This is not the type of proceeding where a committee of multiple interests would add value, such as in making recommendations on policy issues.
Response: BLM will interpret the term "small entity" consistent with the definition established by the Small Business Administration.
Response: The proposed final regulations include the phrase "calendar days" to clarify this issue.
Response: Although it encourages environmental stewardship and positive incentives (such as reclamation awards to operators who provide environmentally superior reclamation), BLM also needs administrative sanctions. These rules provide such sanctions.
Response: The final rule limits appeals to "parties."
Response: BLM attempted to clarify its intent in the October 1999 supplemental proposed rule. The confusing sentence has been removed. The proposed final regulations give operators and adversely affected third parties the choice of seeking state director review or appealing to IBLA and clarify when appeals may be made.
Commenters also asserted that vague regulatory standards governing BLM's discretionary judgments will make the appeals that are filed more complex. Exercise of agency judgment and discretion will ultimately be judged by the standards written into the regulations. Such standards include determinations of MATP, the application of the performance standards, the completeness of Plans of Operations, adequacy of reclamation plans, the amount of bonds, and innumerable enforcement decisions (including the decision whether to allow a member of the public to accompany a BLM inspector). BLM's intent about the way particular provisions should be implemented will be meaningless if that intent is not clearly stated in the regulatory language. Because many of the provisions in the proposed rule, particularly the performance standards, are written in absolute terms, the potential for legal challenges is a source of great concern to the industry and should be of great concern to BLM. Response: Although BLM agrees that appeals to the IBLA of BLM decisions under subpart 3809 use BLM resources, BLM concludes that such appeals are needed to provide basic procedural fairness to parties that may be aggrieved by the decision. Under the previous rules parties could appeal to IBLA (although operators were required to go through the state director review process before appealing to IBLA). As noted, many commenters objected not to the appeal process as much as to the revised rules leading to the underlying decisions that are appealed from. The potential consequences of an increased number and greater complexity of appeals, however, does not dissuade BLM from issuing needed standards and procedures.
Response: We recognize that each enforcement action may have separate appeals, but it may not be necessary to relitigate issues that the same parties have already litigated. Persons who previously requested state director review can do so under the proposed final regulations, and the state director review process has been opened to any aggrieved person. To the extent issues are resolved before the state director, appeals may not have to be taken to the IBLA.
Response: The process BLM adopts in these final rules allows a party to seek review by the state director (to save time or for some other reason) or to appeal directly to the IBLA. Ordinarily, appeal rights are specified in BLM decisions. The Interior Department's Office of Hearings and Appeals (OHA) is the Secretary's representative for handling appeals from BLM decisions. OHA decisions are ordinarily final decisions of the Department, which can be appealed to an appropriate court.
Response: One level of review within the state should be sufficient, and BLM doubts that 7 days for each review would allow enough time for meaningful review. From its experience BLM disagrees that appeals to the IBLA are futile. IBLA assures that there will be national consistency in interpreting and implementing BLM rules and does not always support local BLM decisions as the commenter asserts. BLM also disagrees that the commenter's suggestions would be an effective step in implementing the NRC report recommendations.
Response: The legislative standard is that the BLM final rule not be inconsistent with the NRC report recommendations. Report Recommendation 6 states that BLM administrative penalties should be subject to appropriate due process. The BLM appeals procedures and state director review procedures are intended to assure that BLM enforcement decisions, as well as its other decisions, are subject to due process of law. Thus the appeals rules are clearly not inconsistent with the NRC report's recommendations.
Response: Section 3809.411(c) has been modified to establish a public participation provision for all Plans of Operations.
Response: We agree that it is useful to have a process whereby the appeals can be resolved in a timely manner in the state where the decision was made.
Response: The commenter is correct that under the proposed final regulations the BLM state director may stay a BLM field office or other decision that approves a Plan of Operations. The commenter is not correct, however, in asserting that this is a new feature. Existing section 3809.4(b) provides that a request for a stay can accompany an appeal to the state director.
Response: We will state the rationale for including this section in the preamble of the final rule. We are required to include this section in the regulations by the Paperwork Reduction Act (PRA). "Burden" is defined in 5 CFR 1320.3, which are OMB's regulations that carry out the PRA. In part, "burden" is defined as the total time, effort, or financial resources expended to generate, maintain, retain, or disclose or provide information to or for a federal agency.
To complete each of those five medium-sized Plans of Operations, Newmont had to dedicate an average of 2,748 man hours-a figure that utterly dwarfs BLM's 32-hour estimate. Newmont's information burden would, of course, increase for larger scale projects. BLM could not justify a 32-hour burden estimate for preparing Plans of Operation by simply averaging the amount of time it would take all "mom and pop" mining operations to complete such plans-even assuming the "average" would be that low, which we doubt. According to BLM's own Draft Environmental Impact Statement prepared for its proposal to revise the 3809 program, in 1996, the largest 23 gold mines produced 83% , and the largest 75 mines produced 98%, of all domestically produced gold in 1996 (BLM draft EIS, page 199). For copper, 17 mines accounted for 98% of all domestic copper production (page 203). As such, a burden estimate based on ALL Plans of Operations, rather than on the burdens to operators that produce all but a small amount of the minerals on public lands, would drastically underestimate the true burden of BLM's information collection requirements. The 32-hour figure is thus unsupportable under the current regulations. It is all the more unreasonable because BLM's proposal would require regulated entities to submit much more information than is now required. The proposed regulations would entail considerably larger information burdens than those imposed by the existing regulations. Yet in its proposal and supporting documents, BLM estimates that the time needed to assemble and submit a Plan of Operations is 32 hours per submission. BLM has not complied with those standards. To the contrary, BLM's burden estimate of 32 hours to prepare and submit a Plan of Operations is wholly unsupported. First, in violation of the PRA and OMB's regulations, BLM did not develop objectively supported burden estimates. BLM's "Supporting Statement for Surface Management Activities Under the General Mining Law" attached to its PRA certification simply assumes (page 7) that"(t)he time needed to assemble and submit a Plan of Operations is 32 hours per submission." But BLM neither discusses nor defends the methodology it used to arrive at that 32-hour figure, thereby denying regulated entities a meaningful opportunity to comment on its estimates. BLM is seeking comment on its methodologies and assumptions in compliance with P.1320.8(d)(1)(ii). See 64 Fed. Reg. at 6450. But as we explain below, BLM has never described the methodologies it used to arrive at its key assumptions. BLM itself appears uncertain as to the burden. Compare 64 Fed. Reg. at 6450 (estimating 32 hours per plan of operations) with id. at 6455 (80 hours per plan of operations). Response: In accord with the Paperwork Reduction Act and the Office of Management and Budget's instructions for estimating paperwork burden, we are estimating only the increment of paperwork burden imposed by the proposed final regulations over and above the paperwork burden imposed by the existing regulations. We also correctly didn't include in our estimate any paperwork requirements in the proposed final rule that would merely duplicate paperwork requirements imposed by other agencies, either federal or state. If an operator has to give certain information to a state agency, the burden of also supplying that same information to BLM is relatively small. (Indeed, many of the same commenters who assert that BLM underestimated the paperwork burden also note that much of the proposed rule duplicates existing state requirements.) A revised paperwork burden estimate will be provided with the Preamble and final rules.
BLM estimates that each respondent filing a new Notice would spend about 16 hours per submission and that the time needed to assemble and submit a Plan of Operations is 32 hours per submission. BLM PRA Submission at p. 7; 64 Fed. Reg. at 6450. BLM actually presents conflicting estimates in its Federal Register notice. The preamble sets forth 16 and 32 hour estimates, but the text of the regulation estimates the paperwork burden at 8 hours per Notice and 80 hours per Plan of Operations. Proposed 43 CFR 3809.115(b). These conflicting estimates are confusing and will hamper the public's ability to comment on the information collection requirements. But all of BLM's burden estimates are incorrect and significantly underestimate the actual burden that will be imposed. Response: We inadvertently included different paperwork burden estimates in two places in the proposed rule. This could have caused confusion or misunderstanding among the public. Because of this possible misunderstanding, we are reexamining the information collection burden that would be imposed by this subpart.
The essence of the problem is that BLM's proposed regulations require that an operator deliver a complete Plan of Operations as a finished product before BLM will begin its review of the proposal. Proposed 43 CFR 3809.411(a). The proposed regulation ignores the fact (and BLM's current practice) that the review of a Plan of Operations is an iterative process. Key elements of the Plan may change as the environmental review by BLM and other agencies proceeds. In fact, where analysis under the National Environmental Policy Act (NEPA) is required, BLM must identify and review reasonable alternatives to the Plan of Operations initially proposed by the operator. Thus, detailed information on certain elements of the Plan of Operations is not useful or necessary until significant design and permitting decisions have been finalized. Response: The commenter has misunderstood proposed section 3809.401. The proposed rule would not have required "a complete Plan of Operations as a finished product." We recognize that our review of a proposed Plan of Operations is an iterative process and that certain aspects of a proposed Plan are preliminary until the NEPA process is completed or even until work has begun on the site. The complete plan referenced in regulations is one that provides and adequate level of detail upon which to evaluate impacts and determine whether unnecessary or undue degradation would occur.
The additional information requirements BLM's proposed rule would impose would increase Newmont's burden for medium-sized projects by 3,878 more hours. The total personnel burden for medium-sized projects under BLM's proposed rule would thus be a whopping 6,626 hours to complete BLM's information collection and submission requirements. We respectfully request that OMB disapprove BLM's proposed information collection for Plans of Operations on the grounds that it has no practical utility under the circumstances. At the very least, we urge OMB to comment on BLM's proposal suggesting that the agency not require operators to submit Plans that necessarily will be revised during and after the NEPA process. Response: In accord with the Paperwork Reduction Act and the Office of Management and Budget's instructions for estimating paperwork burden, we are estimating only the increment of paperwork burden imposed by the proposed regulations exceeding the paperwork burden imposed by the existing regulations. We also correctly didn't include in our estimate any paperwork requirements in the proposed rule that would merely duplicate paperwork requirements imposed by other agencies, either federal or state. If an operator has to give certain information to a state agency, the burden of also supplying that same information to BLM is relatively small. (Indeed, many of the same commenters who assert that BLM underestimated the paperwork burden also note that much of the proposed rule duplicates existing state requirements.) Because of this possible misunderstanding, we are reexamining the information collection burden that would be imposed by this subpart.
The Interior Department's estimate purports to cover the entire information collection burden of processing a BLM Plan of Operations under the proposed rule, not merely the increased incremental burden of the proposed rule as compared to the existing rules. We find BLM's estimate of the information collection burden to be incredibly low and so far off the mark that it questions the very integrity of the Paperwork Reduction Act submission made by the Interior Department to the Office of Management and Budget (OMB) as well as the economic analyses and assumptions for with the Interior Department's entire proposed rulemaking. The time to process a BLM Plan of Operations today is closer to 2,600-3,000 hours and ranging up to 16,000 hours or more. And, we believe that the proposed rule likely will increase that burden by at least 25-50% in the case of mineral exploration projects, and substantially in excess of that range for actual mining projects, probably by as much as 50-100%. These estimates are supported by descriptions of recent case studies (previously submitted by us to OMB and to the BLM docket) involving modest-sized mineral exploration and mining Plans of Operations processed by BLM. Response: In accord with the Paperwork Reduction Act and the Office of Management and Budget's instructions for estimating paperwork burden, we are estimating only the increment of paperwork burden imposed by the proposed regulations exceeding the paperwork burden imposed by the existing regulations. We also correctly didn't include in our estimate any paperwork requirements in the proposed rule that would merely duplicate paperwork requirements imposed by other agencies, either federal or state. If an operator has to give certain information to a state agency, the burden of also supplying that same information to BLM is relatively small. (Indeed, many of the same commenters who assert that BLM underestimated the paperwork burden also note that much of the proposed rule duplicates existing state requirements.) Because of this possible misunderstanding, we are reexamining the information collection burden that would be imposed by this subpart.
BLM's estimate of the information collection burden has no basis in reality. OMB's regulations require the agency to provide "an objectively supported estimate" of the burden, 5 CFR 1320.8(a)(4), and to solicit comment on the "validity of the methodology and assumptions used" to estimate the burden, 1320.8(d)(1)(ii). Yet neither the Federal Register notice nor BLM's submission to OMB contain any objective support for the estimate or identify any methodologies or assumptions used. BLM simply "estimates" the time required, and the agency's estimate is wrong. Response: In accord with the Paperwork Reduction Act and the OMB's instructions for estimating paperwork burden, we are estimating only the increment of paperwork burden imposed by the proposed regulations exceeding the paperwork burden imposed by the existing regulations. We also correctly didn't include in our estimate any paperwork requirements in the proposed rule that would merely duplicate paperwork requirements imposed by other agencies, either federal or state. If an operator has to give certain information to a state agency, the burden of also supplying that same information to BLM is relatively small. (Indeed, many of the same commenters who assert that BLM underestimated the paperwork burden also note that much of the proposed rule duplicates existing state requirements.) Because of this possible misunderstanding, we are re-examining the information collection burden that would be imposed by this subpart.
Response: We developed this proposed rule in consultation with state offices and field staff. We have taken into account all workload considerations.
Response: In accord with the Paperwork Reduction Act and the Office of Management and Budget's instructions for estimating paperwork burden, we are estimating only the increment of paperwork burden imposed by the proposed regulations exceeding the paperwork burden imposed by the existing regulations. We also correctly didn't include in our estimate any paperwork requirements contained in the proposed rule that would merely duplicate paperwork requirements imposed by other agencies, either federal or state. If an operator has to give certain information to a state agency, the burden of also supplying that same information to BLM is relatively small. (Indeed, many of the same commenters who assert that BLM underestimated the paperwork burden also note that much of the proposed rule duplicates existing State requirements.) Because of this possible misunderstanding, we |