Interim Guidance on Authorizing Critical Mineral Development Associated with Federal Coal Leases

Federal coal leases executed by BLM do not authorize the coal lessee to dispose of critical minerals that are not part of the recoverable coal resource. The mechanism to authorize disposal of critical minerals depends on the land status (public domain lands with locatable minerals subject to the 1872 Mining Law or acquired lands with leasable minerals subject to the Mineral Leasing Act). This IM addresses only critical minerals that are found in association with the coal resource and those that are separate locatable minerals subject to the Mining Law. This IM does not address leasable critical minerals or associated activities on acquired lands. A future IM will provide more detailed guidance and address coal lessee development of critical minerals on acquired lands.

In addition to the Federal coal lease that BLM issues, mining Federal coal requires two additional approvals (1) a permit issued by either the Office of Surface Mining Reclamation and Enforcement (OSM) or an approved State program^[2] under the Surface Mining Control and Reclamation Act of 1977 (SMCRA) for surface coal mining and reclamation operations, which includes the surface effects of underground mines and (2) upon a recommendation from OSM, a mining plan approved by the Assistant Secretary for Land and Minerals Management (ASLM) as required by the Mineral Leasing Act, as amended (30 U.S.C. § 207(c)). OSM is responsible for complying with the National Environmental Policy Act (NEPA) when it administers a new permit or permit revision as the regulatory authority or it prepares a recommendation for a mining plan or mining plan modification decision on Federal lands for the ASLM. This NEPA compliance often requires the preparation of an Environmental Assessment (EA) or Environmental Impact Statement (EIS). Often, but not in all situations, OSM joins BLM in the NEPA analysis at the leasing stage such that the NEPA analysis is sufficient for the ASLM mining plan decision. Depending on the permit and resulting mining plan, OSM may conduct additional NEPA analysis, if necessary.

In situations where a coal lessee wants to develop critical minerals that are not part of the leased coal resource, such as when it is found in the overburden, BLM may authorize the coal lessee to develop those locatable minerals that are subject to the 1872 Mining Law under the Surface Management Regulations found in 43 CFR Subpart 3809. For this type of critical mineral development proposed by a coal lessee, BLM FOs should:

• Review and accept a mine plan of operations that incorporates the approved SMCRA permit and mining plan, including the reclamation plan, and only require applicants to submit the limited information to describe any additional surface disturbing activities that would be necessary to develop the critical minerals as required by 43 CFR Subpart 3809 that would not already be caused by the coal mining activities authorized by the SMCRA permit.
• Conduct additional NEPA analysis only if the critical mineral development would cause potential environment impacts that are in addition to and not already analyzed in a prior NEPA document, including any NEPA document prepared by OSM. For example, if the applicant proposes a separate processing circuit or multiple circuits to be sited on BLM surface that were not analyzed previously, conduct additional NEPA analysis only insofar as it is necessary to analyze potential impacts from that activity.
• Consistent with Department policy, always consider first whether the new activity is covered by a Categorical Exclusion. Similarly, consider whether a Determination of NEPA Adequacy related to prior NEPA document is appropriate based on the nature of the activities, surface disturbance, and the extent of the environmental analysis in prior NEPA document.
• Ensure that the proponent is aware of the Department’s emergency procedures and how to request that the BLM handle their application under them.

Please be aware that there are situations in which BLM has no need to engage in any additional NEPA analysis or to provide any additional authorization to a Federal coal lessee to remove critical minerals from Federal coal mined by the lessee:

• When the Federal coal lessee mines and sells federal coal from the lease that contains embedded critical minerals and pays royalty on the coal sold, the coal and the embedded critical minerals become the personal property of the lessee. Therefore, after the point of sale, the lessee may dispose of the coal and embedded critical minerals without any further authorization from BLM, since BLM has no jurisdiction over what the lessee does with the coal after that point. Therefore, no BLM authorization is required for the purchaser of the coal to recover critical minerals from the coal in these situations.

The BLM must coordinate with OSM and other Federal and state permitting agencies to ensure the financial assurance for both the locatable and coal operations are adequate to cover all associated reclamation requirements. Where OSM’s bonding authority is largely delegated to the state regulatory authorities, the BLM will need to consider a Memorandum of Understanding under 43 CFR 3809.200 to coordinate establishing, maintaining, and describing how any reduction in coverage will be reviewed and agreed upon by the various oversight agencies. It is important to consider what parts of the operations are locatable, which are coal, and which are both. Under OSM’s authorities, only the coal lease portion can be covered. During release, it will be important for the BLM to consider which dual use facilities (roads, shops, mills, etc.) are still needed for locatable operations and those portions of the financial assurance is maintained until a release is warranted. Also, the BLM will need to consider the need for any long-term funding mechanism for any post-mine closure needs, as described at 43 CFR 3809.522(c) for any locatable needs that arise.

If you have questions about a proposal to extract critical minerals on lands subject to a coal lease, coordinate with BLM’s National Coal Program Lead and the Office of the Solicitor.