Written by Warren Coalson.
I am frequently faced with requests from lead agencies to prepare a new reclamation plan for a mining project because the plan has expired. This causes me some pause because there is no requirement in SMARA or the implementing regulations that specifically regulate time limits for a reclamation plan. It seems pretty clear to me that a reclamation plan would expire when mining has been completed and the site determined to be reclaimed by the lead agency and Department of Conservation and the financial assurance is returned. Beyond this, is there a statutory or regulatory mandate establishing time limits for reclamation plans?
At the heart of this issue are the information requirements for a reclamation plan. These requirements are listed in SMARA Section 2772 (c). Under this section, item (3) identifies the need to list:
(3) The proposed dates for the initiation and termination of surface mining operation.
By its very nature, mining operations, an economically driven activity, cannot be defined by precise schedules. When there is demand for the resources produced at a given site, a lot of activity is evident. When there is no demand, there is no activity (a common sense deduction). Over the past 20 plus years, we have been through economic cycles at both extremes (high and low). Because of these cycles, production schedules cannot be determined with any certainty. That is why SMARA deliberately states “proposed dates”.
The State Mining and Geology Board regulations for the implementation of SMARA address this issue indirectly. Section 3502(d) requires an amendment to a reclamation plan where a substantial deviation from the approved plan occurs. A substantial deviation is defined as:
“…a change or expansion to a surface mining operation that substantially affects the completion of the previously approved reclamation plan, or that changes the end use of the approved plan to the extent that the scope of the reclamation required for the surface mining operation is substantially changed.
One of the criteria for determining whether the proposed change would result in a substantial deviation includes (§3502(d)(2)):
“A substantial extension of the termination date of the mining operation as set out in the approved reclamation plan.
This criterion must be referenced back to the primary section (3502(d)) which requires a change or expansion to a surface mining operation that substantially affects the completion of a previously approved reclamation plan or that changes the end use to the extent that the scope of reclamation is substantially changed. In usual terms, a change in termination date will have little to do with the scope of reclamation or its affect on the proposed end use.
Is a substantial extension of the termination date one year, 5 years or 20 years? And, because the termination date is somewhat ambiguous (proposed), a substantial amount of leeway seems to be appropriate. However, in practice, the lead agency normally makes this call.
SMARA does establish the need for time schedules to ensure that operations are conducted in a sequential manner and reclamation can be “initiated at the earliest possible time on those portions of the mine lands that will not be subject to further disturbance by the surface mining operations.” (SMARA §2772(c)(6)) However, the required time schedule is intended to be a relative measure of operational progression. Operational progression must be described in the plan, but there is no requirement that operations be curtailed; or in the most common case, preparation of a new reclamation plan.
The “Use Permit” is the most common time limitation tool available to land use agencies. The use permit addresses the relationship between the mining operations and surrounding community. Issues relating to hours of operations, noise, air quality, aesthetics, operational intensity, and permit term are normally addressed in the use permit. The expiration of the permit term is logically consistent with the requirement to cease all operations conducted under that entitlement.
The companion approval for mining is the reclamation plan. In contrast to the “permit” which regulates the mining use on the property, the reclamation plan identifies the reclamation measures and performance standards that must be put into action at the completion of mining. Because the use permit and reclamation plan have fundamentally different purposes, one regulating the actual use, while the other regulates reclamation practice, there does not seem to be a purpose or benefit for requiring a new reclamation plan unless structural changes in the mining operations are requested. The mere continuation of time should not be reason to change reclamation practice.
Does a reclamation plan expire? If the reclamation plan expires, then it must follow that the operator’s reclamation liability must also expire. This just isn’t the case. The reclamation plan truly expires when reclamation has been completed in accordance with the approved plan. I can see no other possible justification for expiration of a reclamation plan. As such, you might want to question the need for an expensive process to update a reclamation plan that is only in question because of a “proposed” termination date.