Idle Mines - Is there a better way?
Where an idle condition occurs, the mine operator is required to gain approval of an "Interim Management Plan (IMP) (SMARA §2770(H)(1)). The purpose of the IMP is to provide management measures that will insure protection of the environment and protect the public against unintended health and safety risks and must be consistent with the approved reclamation plan. This seems to be reasonable considering the history of mining which has left an unmanaged graveyard of abandoned mines that litter the countryside in some areas of the country.
Until recently, the IMP requirements have not been given a lot of attention. However, with the economy sliding into the abyss, many mining companies have found it necessary to substantially curtail activities at their operating sites. In most cases, there is an intention to resume production once economic activity resumes to a level that would allow profitable operations. Reduction of activity below 90% of the previous maximum level of production triggers the need to gain approval of an IMP.
How do you know when your site becomes idle? The statutes are unclear in this regard. Presumably, some would argue that idle relates to reported production levels. This is the interpretation applied by the Office of Mine Reclamation (OMR). Production is reported in the Annual Report filed with the Department of Conservation which must be filed by July 1 of each year. In this instance, the operator would review previously reported production levels and determine if a site's most recent annual production level has fallen below the 90% platform. However, because there is no clear statutory language that addresses this, some might argue that there are numerous ways to calculate activity at a mine. Perhaps it could be argued that unreported production (e.g., overburden removal, reclamation, C&D recycling, or construction of facilities) is an activity that relates to production at a site. In these instances, the operator would be left to interpret whether the site were idle. This has led to confusion and bickering between OMR, which monitors reported production levels); the lead agency, which does not have production data; and the operator, who actually conducts surface mining activities.
Adding to the confusion, the IMP is required where the intentions of the operator are to resume full operations once economic conditions improve. I have heard, and taken part in, many arguments that employ various mutations of the definition. Is a site truly idle, or is it just inactive for a time awaiting the impetus to increase activity? Concern grows when the operator does not file the IMP and the lead agency (or OMR) begins to insist that the site has become abandoned reclamation must be commenced.
Further, the IMP allows the site to remain idle for 5 years. If production at the site does not increase above the 10% level, the operator can file to extend the IMP for an additional 5-year period. If the 5-year period elapses without operations being commenced above the 10% level, and application is not made to extend the IMP, the operator is required to commence reclamation. Or, if the operator intends to continue operations at the site, file for a new permit and reclamation plan approval; a mind numbing process that should be avoided at all cost. We know of at least one site where the operator was late in filing to extend the IMP for an additional 5-year period and the lead agency demanded that reclamation of the site be implemented.
The IMP is considered an amendment to the reclamation plan. This results in the requirement to forward the IMP to OMR for a required 30-day review and comment. This often results in comments from OMR and a consequent lead agency response. All of this requires time and time costs somebody money. For a process that is supposed to be administrative, the time commitment has grown out of proportion to the expected benefit.
There is a lot of confusion about these concerns and miners are at considerable risk if regulators take an aggressive stance about compliance with these statutes. I know of several sites that are truly idle, under any definition, with no intention to continue operations, but the operator files the IMP to forestall reclamation to an approved end use. This activity is followed for a variety of reasons. These reasons may include:
- An ability to maintain activities at a site that would not be allowed otherwise within the current zoning allowances for the property (e.g., equipment storage, C&D recycling, etc.).
- The operator lacks the resources to commence reclamation.
- Plans for the site have not been solidified and reclamation to an unintended use would not benefit long term utilization.
What is the true benefit of these regulations? In large measure, California can no longer be considered a minerals production state; in practice, California is not the "Golden State". Regulations that require backfilling of open pit metals mines has rendered these operations to be unviable due to the high cost of these operations relative to other locations that do not require backfilling. As such, California's mineral production is largely limited to aggregates and a host of non-metalic production sites (limestone for cement, gypsum, diatomaceous earth, etc.) In today' reality, land economics are primary. Most of our aggregate production sites are located in close proximity to market centers; usually within 25 miles due to high transportation costs. Where this occurs, the underlying value of the land insures that the site will be reclaimed to a beneficial use. This applies to the vast majority of aggregate production sites.
Where the exception occurs, it would seem sensible to hasten the reclamation of sites that are truly idle and will not resume production. This is where our compliance efforts should be centered. In rural areas, where the reclamation plan calls for a use consistent with open space or wildlife habitat, it would be difficult to argue that the site should not be reclaimed. The anticipated post mining use is identified in the reclamation plan.
If the statutes are not perfect, how should they be modified to insure that sites are not abandoned, while also allowing flexibility to continue mining when economic conditions are ripe? In my opinion, the answer lies in "local flexibility". The lead agency should be given the flexibility to allow a site to retain active status, maintaining its land use entitlement in good standing if, based on knowledge of local conditions, the site has the potential to recommence full operations. This would seem to make sense because California is a large and diverse state. The need for mineral production varies from area to area and with changes in circumstances. Without flexibility, some sites could be closed before reclamation is truly necessary or desired. Whatever the course of action, the determination should be made administratively without the need to file an application or public hearing. Only if the lead agency determines that a site is abandoned should there be a process the mine operator can follow to seek redress. The onus should be on the government to prove that the mine has been abandoned.
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